Sources and hierarchy of law
Sources and hierarchy of law
This domain tests whether you can rank competing norms, identify the applicable source, and resolve conflicts without jumping to constitutional review. The key skill is to ask first: what kind of norm is this, and who made it?
Core rules
- The constitution is supreme. Ordinary legislation, executive regulations, and administrative acts must conform; a constitutional court or ordinary courts may review depending on the system.
- Statutes and codes rank below the constitution but above executive regulations. A regulation is valid only within its enabling statute; breach is ultra vires.
- Treaties and regional law enter domestic law by monist incorporation or dualist transformation; rank varies, so check the constitution's treaty clause.
- Custom is binding only when the law refers to it and the practice is long-standing, consistent, and accepted as law.
- Case law: the ratio decidendi binds lower courts in common-law systems; in civil-law systems precedent is persuasive or consistently followed, while obiter dicta do not bind.
- Conflict rules: hierarchy first (lex superior), then specialty (lex specialis), then later law (lex posterior) within the same rank.
Worked example
A ministry regulation imposes a permit fee that the statute never authorizes. The regulation is invalid for ultra vires; there is no need to reach constitutional review. If a statute itself conflicts with a constitutional right, the analysis shifts to constitutional review and remedy.
Traps
Treating every norm as equal; confusing invalidity with temporary non-application; citing obiter as binding; ignoring transitional provisions and treaty incorporation rules.