SOURCES OF LAW. — The expression is to be understood in two senses: a distinction is made, in fact, between sources of production (fontes existendi) and sources of knowledge (fontes cognoscendi). The former are those that contribute to forming the legal order; the latter are the means and documents from which the content of legal norms is established.
Sources of production are also commonly distinguished into material sources (the organs that enact the norms) and formal sources (the means by which a norm assumes the character of a legal norm).
I. ITALIAN LAW
In Italian law, the sole source of production of law is the State, whether because it directly lays down the legal norm, because it grants other bodies subordinate to it the power to issue legal norms within the limits of their respective competence, or because it recognizes the value of a custom.From a formal point of view, there are four sources of the production of Italian law: laws, regulations, norms concerning labor, and usages (Art. 1 of the preliminary provisions to the Civil Code).
A law is a norm issued by the organs designated for this purpose by the Constitution; it is formal when approved by the Chambers and promulgated by the President of the Republic (Arts. 70 and 73 of the Constitution), or material when issued by the government or by other authorities empowered to issue legal norms (Arts. 76 and 77 of the Constitution).
A regulation is a norm issued by the organs of executive power (Art. 87 of the Constitution) or by another authority, within the limits of their autonomous regulatory power. By its nature, it is subordinate to the law. The typical form of regulation is that issued to facilitate the proper application of the law, or an implementing regulation. Alongside this is the so-called independent regulation, which governs matters subject to the discretionary powers of the executive. Lower authorities too may issue regulatory norms, within the limits, naturally, of their own competence.
The complex field of labor relations, which according to Art. 1 of the preliminary provisions was governed by corporative norms, is now regulated, under Art. 43 of Lieutenant-Regent Decree-Law no. 369 of 23 November 1944, by the provisions of collective agreements, judgments of the labor courts, and corporative ordinances. This will remain so until the norms implementing Art. 39 of the Constitution are issued, which recognizes binding force for collective labor agreements concluded by recognized trade unions.
Usages or customs are rules of conduct observed uniformly and constantly by the members of a community, in the conviction that they are obeying a legal imperative (v. consuetudine). Custom is generally distinguished as proeter legem, secundum legem, and contra legem; the last is not admitted by Italian law; the first can have effect only when there is no law at all governing the matter; in matters governed by laws or regulations, usages have effect only when they are expressly referred to (Art. 8 of the preliminary provisions).
To ensure knowledge of legal norms already enacted and declared operative, a system of publication is established which, in the case of laws, is carried out through their inclusion in the Official Collection of Laws and Decrees and their publication in the Official Gazette of the Italian Republic.
It is evident that, once published, laws and regulations, insofar as they are documents that make it possible to know the will of the legislator, are sources of knowledge of the law. Alongside these individual sources, almost all modern states have codes: organic laws possessing normative force by virtue of a specific delegation granted to the executive, which collect the rules governing a broad branch of legal activity. The codes currently in force in Italy are, in order of promulgation, the Penal Code and the Code of Criminal Procedure (1930), the Civil Code and the Code of Civil Procedure, and the special Code of Navigation (1942). Alongside the codes, mention must also be made of the so-called consolidated texts, which are compilations of laws governing a single subject or related subjects, usually brought together on official initiative in order to make their knowledge and application easier.
II. CANON LAW
With regard to canon law, it is necessary to distinguish the sources of divine law from those of human law. law (v.) law (v.) have God as their source of production, the former as creator, the latter as legislator. The sources through which positive divine law is known are Revelation, that is, the Bible (Old and New Testament), and Tradition (the transmission of divine truths and precepts that took place outside Sacred Scripture). Strictly speaking, divine law, both natural and positive, constitutes a source of canon law insofar as it concerns the subject matter that forms the object of the latter (v. DIRITTO DIVINO; CANONICO). It should also be noted that precepts of divine law that are not enforced by the Church—that is, that are not reproduced in positive norms—do not form part of canon law.The material sources of production of canon law are the organs endowed with jurisdictional power in the external forum. These are the supreme pontiff (can. 218) and the Ecumenical Council (can. 218 § 1), which alone may enact universal laws, that is, laws valid for the whole Church, naturally subject to the limitation imposed by the precepts of divine law. This power may also be delegated, and in fact is, even with a certain degree of stability, especially to those organs of the Roman Curia that assist the supreme pontiff in governing the universal Church (there are also cases in which, for example, in the case of the Pontifical Commission for the authentic interpretation of the CIC [v.], an organ of the Curia is assigned an ordinary—but vicarious—legislative power that in itself belongs to the supreme pontiff).
Alongside the sources of production of universal laws are those of particular laws, which are again the supreme pontiff and the Ecumenical Council and, within the limits of their respective powers, the other organs having jurisdiction over the entire Church (v. CORRIGIOZIONE). Moreover, particular councils are sources of production of laws which, if approved by the S. Congr. of the Council (can. 291), have force in the territories of the Ordinaries who took part, or could and should have taken part, in those councils; finally, sources of production of particular laws are the Ordinaries, with either territorial or personal jurisdiction, and certain organs designated by the constitutions of exempt clerical religious institutes (can. 501).
For the sources of production of canon law from the formal point of view V. CONSUETUDINE; LEGGE ECCLESIASTICA.
The sources through which canon law is known must be distinguished according to the following historical periods: from the origins to Gratian (11th century), from Gratian to the Council of Trent (1563), from the Council of Trent to the CIC (1917); V. CODEX IURIS CANONICI; COLLEZIONI CANONICHE; CORPUS IURIS CANONICI.
The sources through which the current canon law is known are, in addition to the CIC—which, moreover, does not ordinarily apply to the Eastern Church (can. 1)—the universal laws preceding it that it has expressly or implicitly reserved; special laws of a transitional and exceptional character; territorial laws enacted pursuant to obligations assumed by the Holy See in concordats (can. 3); particular laws contrary to the CIC that have been expressly maintained in force, and those not contrary to it (perhaps excluding penal provisions); customs contrary to the CIC that have been expressly maintained in force, and those likewise contrary to it, whether immemorial or centuries-old, whose abrogation, in the judgment of the Ordinaries, is impossible; praeter legem customs which, again in the judgment of the Ordinaries, are to be left in force; and finally, subsequent laws which, enacted by the Holy See or with its consent, may also derogate from the provisions of the CIC.