SOURCES OF LAW. - The expression is to be understood in a twofold sense: indeed, a distinction is drawn between sources of production (fontes existendi) and sources of cognition (fontes cognoscendi). The former are those that contribute to forming the legal order, the latter are the means and the documents from which the content of legal norms results.
Sources of production are then also customarily distinguished into material (organs that bring the norms into being) and formal (means through which a norm assumes the character of a legal norm).
I. ITALIAN LAW
For Italian law the sole source of production of law is the State, whether in that it directly lays down the legal norm, or in that it confers upon other entities subordinate to it the faculty of issuing, within the limits of their respective competence, legal norms, or in that it recognizes the value of a custom.
From a formal point of view there are four sources of production of Italian law: laws, regulations, norms in matters of labor, and usages (art. 1 of the preliminary provisions to the Civil Code).
A law is a norm issued by the organs deputed thereto by the Constitution; it is formal when it is approved by the Chambers and promulgated by the president of the Republic (arts. 70 and 73 of the Constitution), or material if it is issued by the government or by other authorities having the faculty of issuing legal norms (arts. 76 and 77 of the Constitution).
A regulation is a norm issued by the organs of the executive power (art. 87 of the Constitution) or by another authority, within the limits in which they have autonomous normative power. It is, by its nature, subordinate to the law. A typical form of regulation is that issued to facilitate the correct application of the law, or executive regulation. Alongside this there is the so-called independent regulation, which governs the matters subject to the discretionary faculties of the executive power. Even lower authorities may issue regulatory norms within the limits, it is understood, of their own competence.
The complex matter of labor relations, which according to art. 1 of the preliminary provisions was governed by corporative norms, is now regulated, by virtue of art. 43 of the royal legislative decree of 23 Nov. 1944, no. 369, by the norms of collective contracts, by the judgments of the labor judiciary and by corporative ordinances. This until such time as the norms implementing art. 39 of the Constitution are issued, which recognizes the binding effect of collective labor contracts stipulated by recognized trade unions.
Usages or customs are rules of conduct observed uniformly and constantly by the members of a community, in the conviction of obeying a legal imperative (v. consuetudine). Custom is usually distinguished into proeter legem, secundum legem and contra legem; the last is not admitted by Italian law; the first can exert its effect only when there is completely lacking a law governing the matter; in matters for which there are laws or regulations, usages have effect only when they are expressly referred to (art. 8 of the preliminary provisions).
In order to ensure knowledge of the legal norms already formed and declared operative, a system of publicity is established, which for laws is carried out by means of insertion in the official Collection of laws and decrees and 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 cognition of the law. Alongside these individual sources, in almost all modern States there exist codes, organic laws having normative value of their own by virtue of a specific delegation conferred on the executive power, which gather the norms regulating a vast branch of legal activity. At present the codes in force in Italy are, in order of promulgation, the penal and criminal procedure codes (1930), the civil and civil procedure codes and the special code for navigation (1942). Alongside the codes mention must then be made of the so-called consolidated texts, which are bodies of laws regulating a single matter or related matters, brought together, usually on official initiative, to make their knowledge and application easier.
II. CANON LAW
As regards canon law, a distinction must be drawn between the sources of divine law and those of human law. Natural divine law (v.) and positive divine law (v.) have God as their source of production, the former as creator, the latter as legislator. Sources of knowledge of positive divine law are Revelation, that is, the Bible (Old and New Testament) and Tradition (the transmission of divine truths and precepts that took place outside of Sacred Scripture). Properly speaking, divine law, whether natural or positive, constitutes a source of canon law insofar as it relates to the matter that is the object of the latter (v. DIRITTO DIVINO; DIRITTO CANONICO). It must also be noted that the 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 the power of jurisdiction of the external forum. These are the Supreme Pontiff (can. 218) and the Ecumenical Council (can. 218 § 1), which alone can issue universal laws, that is, valid for the whole Church, subject, naturally, to the limit of the precepts of divine law. This power can also be delegated, and in fact is, even with a certain stability, especially to those organs of the Roman Curia that assist the Supreme Pontiff in the government of the universal Church (there are also cases in which, for example, for the Pontifical Commission for the authentic interpretation of the CIC [v.], an organ of the Curia is attributed an ordinary legislative power - but vicarious - that of itself belongs to the Supreme Pontiff).
Alongside the sources of production of universal laws there are those of particular laws, which are still the Supreme Pontiff and the Ecumenical Council and, within the limits of their respective power, the other organs having jurisdiction over the whole Church (v. CORRIGIOZIONE). Furthermore, particular councils are sources of production of laws that, 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 the councils themselves; finally, sources of production of particular laws are the Ordinaries, with both territorial and 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 of knowledge of canon law must be distinguished in 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.
Sources of knowledge of canon law in force are, besides the CIC, which, moreover, does not apply in the ordinary way to the Eastern Church (can. 1), the universal laws preceding it that are expressly or implicitly reserved by it; special laws of a transitional and exceptional character; territorial laws issued to fulfill obligations assumed by the Holy See in concordats (can. 3); particular laws contrary to the CIC expressly kept in force and those not contrary to it (perhaps excluding penal norms); customs contrary to the CIC expressly kept in force and those, equally contrary, immemorial or centenary, whose abrogation, in the judgment of the Ordinaries, is impossible; customs praeter legem that, again in the judgment of the Ordinaries, are to be left in force; finally, subsequent laws, which, issued by the Holy See or with its consent, can also derogate from the provisions of the CIC.
Bibliography6 works
Rodolfo Danieli