Previously: What is law? - Part 5.
To wrap up our high level coverage of the sources of law we need to add a few items to the “big 3” (Statutes/Acts, Regulations/Statutory Instruments and Case law) covered so far.
To wrap up our high level coverage of the sources of law we need to add a few items to the “big 3” (Statutes/Acts, Regulations/Statutory Instruments and Case law) covered so far.
Many jurisdictions
have a foundational written document called a constitution which
essentially "bootstraps" a jurisdiction by setting out its
core principles, how its government is to be organized, how law will
be administered etc.
The core principles
expressed in constitutions are, in many respects, the exact opposite of
detailed rules/regulations. They tend to be
deontic[1] in nature,
that it, they express what ought to be true. They
tend
to be heavily open textured[2] meaning that they refer to
concepts that are necessarily
abstract/imprecise (e.g. concepts such
as "fairness", "freedom" etc.).
Although they only
make up a tiny tiny fraction of the corpus of law in terms of word
count, they are immensely
important, as essentially everything that
follows on from the constitution in terms of
Statutes/Acts,
Regulations/Statutory Instruments and case law has to be compatible
with the constitution.
Like everything else, the constitution can be
changed and thus all the usual "at time T" qualifiers apply
to constitutionality.
Next up is
international law such as international conventions/treaties which
cover everything
from aviation to cross-border criminal
investigation to intellectual property to doping in sport.
Next up, at local
community level residents of specific areas may have
rules/ordinances/bye-laws which are essentially Acts that apply to a
specific geographic area. There may be a compendium
of these, often
referred to as a "Municipal Code" in the case of cities.
I think that just
about wraps up the sources of law. It would be possible to fill many
blog posts with more variations on these (inter-state compacts,
federations/unions,
executive orders, private members bills etc.).
It would also be possible to fill many blog posts with how these all
overlap differently in different situations (e.g. what law applies
when there
are different jurisdictions involved in an
inter-jurisdictional contract.).
I don't think it would be
very
helpful to do that however. Even scratching the surface as we
have
done here will hopefully serve to adequately illustrate they
key point I would
like to make with is this: the corpus of law
applicable to any event E which
occurred at time T is a textually
complex, organizationally distributed, vast corpus of constantly
changing material. Moreover, there is
no central authority that manages it. It
is not necessarily
available as it was at time T - even if money is no object.
To wrap up, let us
summarize the potential access issues we have seen related to
accessing
the corpus of law at time T.
- Textual codification at time T might not be available (lack of codification, use of amendatory language in Acts. etc.)
- Practical access at time T may not be available (e.g. it is not practical to gather the paper versions of all court reports for all the caselaw, even if theoretically freely available.)
- Access rights at Time T may not be available (e.g. incorporated-by-reference rulebooks referenced in regulations)
All three access
issues can apply up and down the scale of location specificity from
municipal codes/bye-laws, regulations/statutory instruments,
Acts/Statutes, case law, union/federation law to international law
and, most recently, space law[3].
We are going to
glide serenely over the top of these access issues as the solutions
to them are not technical in nature. Next we turn to this key question:
Given a corpus of law at time T, how can we determine what it all means?
See you in Part 7.
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