0% found this document useful (0 votes)
11 views11 pages

Law 2017 Ppt5

Positive law
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
11 views11 pages

Law 2017 Ppt5

Positive law
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 11

THE FORMAL

SOURCES OF
POSITIVE LAW
SUPRA LEGISLATIVE
SOURCES
1/ The Constitution
Fundamental text of the State. In Tunisia written Constitution.
Adopted with solemnity. Heavy revision process. Some elements
cannot be revised at all. Constitution organizes the different
branches of government and the principles of the relations between
the citizens and the state.
2/ International conventions
Article 20 International agreements approved and ratified by the
Assembly of the Representatives of the People have a status
superior to that of laws and inferior to that of the Constitution.
No primacy of international law over domestic law.
LEGISLATIVE SOURCES
All texts adopted by the legislative power.
1/ Organic laws: define the actions and organisation of public institutions
(absolute majority of members, art 64)
2/ ordinary laws
3/ Constitutional laws: revision of the Constitution (art. 144 « The Assembly
of the Representatives of the People shall study the proposed amendment
with a view to obtaining the approval of the absolute majority of the
members on the principle of amendment. The Constitution shall be amended
upon the approval of two-thirds of the members of the Assembly of the
Representatives of the People. After an amendment by two-thirds of the
members of the Assembly has been approved, the President may submit the
amendment to referendum in which case it will be adopted if it receives an
absolute majority of votes cast.”
All laws need to be signed by the President (art. 81)
INFRA-LEGISLATIVE
SOURCES
There are 4 of them:
1/ Law decrees (décrets-lois)
2/ Decrees (décrets)
3/ By-laws (arrêtés)
4/ Circulars (circulaires)
LAW DECREES
Legal texts that come from the President of the Republic and allow him
to intervene in the legislative domain for a limited time, on a specific topic
and for a specific reason.
These are exceptional measures.
Article 70

In the event of the dissolution of the Assembly, the President of the


Republic may, with the agreement of the Head of Government, issue
decree-laws which shall be submitted for ratification to the Assembly of the
Representatives of the People during its next ordinary session.
The Assembly of the Representatives of the People may, with the
agreement of three-fifths of its members, authorize by law for a limited
period not exceeding two months, and for a specific purpose, the Head of
Government to issue decree-laws of a legislative character, to be submitted
for ratification to the Assembly immediately after the end of the period of
authorization.
DECREES
From the President (Presidential Decree) or the Head of
Government (Governmental Decree)
2 types: individual decrees (not a legal rule) or reglementary
decrees (a legal rule)
Article 94
The Head of Government exercises general regulatory powers.
He/she is individually responsible for issuing decrees that he/she
signs after discussion with the Council of Ministers. Orders issued
by the Head of Government are referred to as governmental
decrees. Regulatory decrees are counter signed by every
competent Minister. The Head of Government shall countersign
regulatory decrees issued by Ministers.
DECREES - II
Some examples:

Presidential regulatory decree


Presidential Individual Decree
Governmental regulatory decree
Governmental Individual decree
BY-LAWS
Acts that can emanate from the President, the head of
Government, Ministers or local authorities. They must conform to
superior rules (decrees and laws). The administrative court is
competent.
Either individual or regulatory.

Individual by-law
CIRCULARS
These are internal documents within an administration. These are
instructions sent to the public officials from their hierarchy.

Can be important: how to enforce the law.


Representation abroad
USAGE OR CUSTOM
A practice used so regularly in a place, vocation, or trade as to
justify an expectation that it will be observed with respect to the
transaction.
Usage of trade in business law. Example?

Difference: usage is based in practice, legal norms based in


institutions

Sanctions are different: for usage it is social reprobation for legal


norms sanctioned by the state.
In the case of the silence of the law: usage can be a source of law.
RESPECTING THE
HIERARCHY
Kelsen’s pyramid.
- Hans Kelsen, Austrian legal scholar.

Legal norms are organised in a hierarchy (a pyramid). Each norm


finds it’s legitimacy in the norms that are above it.
How do you unsure that this hierarchy is respected:
- Constitutionality check (contrôle de constitutionalité ) for laws - or
indirectly on an exception basis (voie d’exception)
- Legality check (contrôle de légalité) for administrative acts.

You might also like