Legal Method and Sources of Law
What the exam tests
This domain tests whether you can locate the applicable norm in Kosovo's legal order, rank it against competing norms, and justify a method of interpretation. Questions usually pair a statutory text with a constitutional or treaty provision and ask which prevails.
Hierarchy of sources
- The Constitution of 2008 is supreme; no law or bylaw may contradict it.
- Ratified international agreements and human-rights instruments listed in the Constitution (ECHR and its protocols, ICCPR, ICESCR, CEDAW, CRC, and others) are directly applicable and prevail over domestic law; courts must apply them of their own motion.
- Below the Constitution: laws, then bylaws (government regulations, administrative instructions, municipal acts). A bylaw that exceeds or contradicts a law is inapplicable, not merely weak.
- Constitutional Court decisions are binding on all public bodies; Supreme Court legal opinions harmonise lower-court practice.
Interpretation and conflict rules
Use literal, systematic, teleological and historical interpretation together, not in isolation. Presumptions: lex superior, lex specialis, lex posterior. Analogy is barred where it would create a criminal offence, a tax charge, or restrict a right.
Worked example
An administrative instruction requires a permit for small repair workshops, but the statute lists only three permit categories and workshops are not among them. The instruction is a bylaw; by adding an obligation the legislature did not authorise, it breaches the hierarchy and the principle of legality. The court does not balance interests here: it sets the instruction aside and applies the statute.
Traps that cost marks
- Describing the ECHR as merely persuasive or as a last resort after domestic remedies.
- Invoking precedent as a formal source without explaining the harmonising role of Supreme Court opinions.
- Using analogy to create liability in criminal or tax matters.
- Ignoring that a directly applicable treaty provision must be applied by the ordinary court itself.