On Source Of Law

The traditional source of law theory not only is existential fallacy in theory, but also exists dilemma in the application. Therefore, it is necessary to change the angle of view and rethink source of law in theory from the perspective of the judiciary.Source of law in Chinese is derived from source of law in English, which source in Latin is fons juris. From the point of historical development, ancient Greece did not have the concept about source of law, because it is no necessity in the condition of democratic legislative and judicial democracy. Only in the ancient Rome times, the jurisprudence had developed a fine degree, then source of law was applied in the judicial. Fons Juris in the ancient Rome law includes two contents. First, fons juris summarizes judges can use which norms as the adjudication norm in the judicial process. Secondly, fons juris not only accept statutory law as measure of dispute resolution, but also accept other norms as measure of dispute resolution. During the Medieval period in Western Europe, not enough academic literature indicates that are more developed source of law theory, but also there is abundant practice about source of law theory. In the Medieval period, the practice about source of law; theory is accompanied by the western legal system to grow, with the needs of the people, the wisdom of judge and the legislative power. In modern times, the concept on source of law made variation which the concept on source of law in legislative practice became legislator's material source or information source, because rationalism occupied the mainstream of the times, the legislation became trend of rule of law, codification is supposed to whole of law life, and separation of the three powers system became a national basic political structure with political country arisen.We must reconstruct the concept about source of law from the judicial development. The logical starting point to reconstruct the concept about source of law is "legal pluralism" or "normative pluralism". We must adhere to the judicial standpoint to understand the concept about source of law from the origin, practicality and context. Furthermore, we must combine the concept about source of law with judicial referee activities. The "law" of "source of law" means the judicial applicable law rather than legislation "the having made law" or "the coming law". The "source" of "source of law" means "source" is the source of judicial applicable norm and the "source" contains plurality norms. Therefore, the real meaning of source of law is set which judge find norm of adjudication in judicial application. Source of law is set on norm of adjudication which provides an authoritative source for judge's applicable rules to solve disputes, and Source of law is as a legal method to apply the legal process. A correct understanding of the concept about source of law must be difference of a number of similar concepts. First, it is to distinguish between source of law and legal form. From judicial practical point of view, the "law" of "source of law" means the law in judicial applicable, but the "law" of "legal form" means the law in legislation. From the content, the "law" of "source of law" is an open system, but the "law" of "legal form" is a closed system. From the path, the "law" of "source of law" is discovered and found in the judicial application process, but the "law" of "legal form" is in the form of legislation. Second, it is to distinguish between law and source of law. From the scope, the scope of source of law should be greater than the law. From the subject, source of law is as the norm of adjudication which is applied by judge, but the law is applicable to all people in society. From the method, law as source of law entering the judicial is legitimacy, but outside the law norms as source of law entering judicial is rationality. Third, it is to distinguish between origin of the law and source of law. From the cultural perspective, the origin of the law and sources of law have bigger difference. From the system, the origin of the law is related to the ideological meaning system content, but source of law is relating to the contents of the system about legal practice of life. From the results, the origins of the law emphasize the effectiveness source of law, but source of law can be used as norm of adjudication source. Fourth, it is to distinguish between source of law and legal system. From the functional, the legal system and source of law have respective independent value. From the content, the legal system is logic cover about statuary law, but the content of source of law is much richer. From the form, the legal system emphasizes the logic during each component, but the system of source of law is relatively loose.In the contemporary world, the form of source of law is differences in different countries. Overall, the form of source of law has the form of statuary law, the form of case law and other forms. The form of statuary law is source of law which is created by country. The form of case law is source of law which is created by judge. The other forms include protocol norms, customary rules, principles of justice, religious norms, moral principles, logic law, law, public policy, and so on.The source of law theory in judicial position must be combined with the legal discovery that is the judge to find out the legal method in the judicial process. In the civil law system, legal discovery is supposed to be preferentially in the statute law, because of the potency of statute law. the predictability of statute law and limitation of judge's power. In the civil law system, legal discovery's basic regulation is that legal rule is found superior to the legal principles, substantive law is found superior to procedural law, the inferior law is found superior to the upper law and special law is found superior to the general law, then it need a comprehensive found. It can enter outside of the statuary law source to find norms of decision if the judge finds that applicable statuary law will appear serious violations of social fairness and justice of the result, or no norms of decision can be applied in statuary law.In the common law system, legal discovery is found superior to the case law and then into the statuary law because judges are affected by "stare decisis" thinking model and empiricism philosophy also allows the British to become the specific legal problems on thinking mode. Even in the statuary law times, the judge's legal thinking is still superior to find in common law. In the common law system, legal discovery is preferentially found.The source of law has applicable order in judicial process. The sources of law can be divided into three steps:the must-source of law, the is-source of law and the mighty-source of law. There is a distinction in different countries on the applicable order. In the civil law system, the judge must be priority to apply statuary, and then consider the unwritten law. In the civil law system, there are some certain reasons in preference to apply the statuary law. First, the reason on people is that people require public law against rules secrets and closed. Second, the reason on interest is that statuary law can protect people's interest. Third, the reason on objective is that statuary law can protect people equally. Fourth, the basic reason is that statuary law embodies the will of the people. In the civil law system; there are some rules about the judge applying source of law. Judge should apply statuary law, and then apply un-statuary;law. Judge should apply low order of legal norms, but must bring into correspondence with high-level norms. Under some conditions, the judge can apply unwritten law. The main reasons that judge applies the unwritten law is that the unwritten law exists in the judicial practice; unwritten law still plays an important role in modern society, statuary law may not be a strict law and unwritten as sources of law has the unique value. In common law system, the judge to apply statuary law does not exist which law in preference to other. There may be common law prevails, there may also be statuary law prevails, and there may also be the common law is applied with statuary law.Finally, this article discusses some special source of law in contemporary China. First, it is the judicial application problem on constitution as the source of law. The constitution is must-source of law, but constitution doesn't apply directly, only under certain conditions can be applied directly. Second, it is the folk custom law as source of law. Folk custom law is the sources of law, which can replace statuary access to justice under certain conditions. Third, it is the case law as source oflaw. Precedent in our country can be used as source of law. Guiding case system has much distinction with the case law. We need to construct perfect system to guarantee precedent into judicature. Fourth, it is the policy of the party as source of law. The policy of the party is source of law. However, the policy of the party is generally not directly as a norm of adjudication, which entering the field of justice should be strictly restricted.