SOURCES OF LAW

There are two kinds of Sources of law: material and formal sources.

SECTION 1. MATERIAL SOURCE OF LAW

The material sources are the sources of inspiration of law. In other words, it is what is at the origin of the legal provision.

There are, for example, historical sources. The ‘right’ keeps the memory of its past, it is marked by a rather great continuity, a rather great stability. On certain essential questions (contract law, right of the responsibility, etc.), the applicable rules come to us from the old right (the canonical right, Roman law, habits). The historical sources are significant. Concurrently to this core, there is also a very great mobility of the right. The Parliament votes each year on tens of laws. Jurisprudence evolves/moves also rather quickly. It is not thus enough to know the history of the right, even if this one is significant.

It is necessary to distinguish two types of sources: material sources and formal sources.    

  • VARIOUS MATERIAL SOURCES
  • Social standards

The ‘right’ very often endeavours to re transcribe social rules to transform them into legal provisions. Example: the question of the homosexual couples and its legal recognition: gradually society admits the existence of the homosexual couples and more and more reserves a legal framework for them. , today, the PACS (Civil Pact of Solidarity). Of course, the right is not always in phase with society, there can sometimes be a rather long time between the evolution of manners and the evolution of the laws (e.g. 1975 only: lifting of the prohibition of abortion).

  • The economic theory

More and more economic science takes importance in our society and more and more the right takes as a starting point the economic theory, p. ex. [1] for tax or revenue duty, the environmental right, etc.

  • Religions

They play a rather weak and indirect role, today in France, primarily through the historical tradition. It is not the case in other countries of the world (p. ex.: Muslim countries).

  • VALUE OF THE MATERIAL SOURCES

The material sources are, themselves, never obligatory. They inspire the legal provisions, but they are not themselves  legal provisions.

They can be however taken into account to interpret a legal provision and they can clarify the direction.

SECTION 2. FORMAL SOURCES 

We have two main types of formal sources of law. Obligatory and Auxiliary sources

  1. OBLIGATORY SOURCES OF LAW

These are the principal sources of law. In a narrow sense, laws are statutes enacted by the parliament and promulgated by the president of the Republic.

In a broader sense, the Law mean all legal rules of written law formulated in a general way by means of exercising legislative power or even executive power.

The laws have a general impact, emanating from public power and are obligatory for all individuals found in a given society.

Here, we have national laws at the country level, and international laws on the international level.

We will first examine national laws.

 

  • SOURCES OF NATIONAL LAWS           

The laws are ranged, according to their hierarchy, as following:

  • The constitution;
  • The organic law; – The ordinary law; – The Decree law, etc. 
  • 1.1. The constitution 

At the national level, the constitution comes at the first position. The constitution is a set of rules which form the fundamental law of a state with which all other laws have to be in conformity. This means that when there is a conflict between constitutional provisions and any other law of the country, the former prevails.

For G. Burdeau, the constitution occupies a central place in a system of the rule of law. A certain philosopher M. Kamto wrote:

“A democracy should not be a government by peoples, but a government by the law”. This is what is called the rule of law. In this sense, it coincides with a “democratic state” on condition that “the law really expresses the general will of the public”.

Rwanda has only one constitution, which was adopted through the referendum of 26th May, 2003.

  • 1.2. The organic laws

Besides the constitution, there are organic laws, which rank immediately below the constitution. Within the hierarchy of laws, organic laws come after the constitution.

An organic law is adopted with a view to specifying or completing the constitution and other laws. There are organic laws in Rwanda. This is the case of the organic law No 08/96 of 30/08/1996 on the organization of prosecutions of crimes constituting the crime of genocide or crimes against humanity committed between 1st October 1990 and 31/12/1994, the organic law on the organization and functioning of Gacaca jurisdictions, and so many others. According to 93(6) of the Rwandan constitution, organic laws shall be passed by a majority vote of three fifths of the members present in each chamber of Parliament.

Organic laws have a legal force superior to ordinary laws. It is the constitution, which determines the areas reserved for organic laws. We can cite the:

  • Conditions of acquisition, retention, enjoyment and deprivation of Rwandan nationality (art. 7 const.)
  • The organization of education in Rwanda (art. 40 const.)
  • The modalities for the establishment of political organizations, their functioning, the conduct of leaders, the manner in which they shall receive state grants as well as the organization and functioning of the forum of political organizations (art. 57(2) const.)
  • The internal regulations concerning each chamber of parliament (art. 73 const.) i.e. each chamber of parliament shall adopt an organic law establishing its internal regulations.
  • The conditions and the procedures by which parliament controls the actions of the government.
  • The organization and jurisdiction of courts.

 

  • Ordinary law

Ordinary laws, which are most frequent, are voted by the absolute majority of seating parliamentarians of each chamber. It is the constitution that determines the relevant areas for ordinary laws. These areas are many compared to those of organic laws. The quorum required for each chamber of parliament is at least three fifths of its members (art.66(1) const.).

  • Decree Law

In case of the absolute impossibility of parliament holding session, the president of the republic during such period promulgates decree laws adopted by the cabinet and those decree laws have the same effect as ordinary laws (art. 63(1) Const.).

These decree-laws become null and void if they are not adopted by parliament at its next session. This is in conformity with article 63(2) constitution.  

  • Orders of Presidential, prime ministers and other public authorities.
    • Presidential orders

The president of the republic exercises his functions as the head of the executive Power by way of Presidential Decrees.

According to article 112 of the constitution, the President of the Republic shall sign presidential orders approved by the cabinet, and the prime minister, ministers, and ministers of state and other members of government responsible for their implementation countersign these orders.

  • Orders of the Prime minister and others public authorities

The prime minister signs orders of the prime minister relating to the appointment and termination of senior public servants mentioned by article 118(10) of the constitution. Ministers, ministers of state and other members of cabinet implement laws relating to matters for which they are responsible by way of orders (art.120 (i) const)

The prefects of provinces can enact administrative and police regulations (art 21 of the law no 43/2000 concerning the organization and functioning of the province) in the same way, the District council has the power to enact the regulations of the District in the areas of politics, security, taxes (art23 of the l aw no 04/2001 of 13/1/2001 concerning the organization and functioning of the province) in the same way, the District council has the power to enact the regulations of the District in the areas of politics , security , taxes ( art.23 of the law no.04/2001 of 13/1/2001 concerning the organization and functioning of the District).

  • SOURCES OF INTERNATIONAL LAW

The sources of international law are actually the same as the sources of public international law which were discussed earlier. Because these sources were elaborated in detail, not much detail will be provided under this section. Mention can just be made that the classical formulation of sources of international law is article 38 of the statute of the international court of justice. The article sets out four sources and these are:

  • International conventions, whether general or particular, establishing rules expressly recognized by contesting states;
  • The general principles of law recognized by civilized nations;
  • International customs, as evidence of a general practice accepted as law …. Judicial decisions and the teachings of most highly qualified practioners of law in various nations, as subsidiary means for the determination of rules of law.
  • AUXILIARY SOURCES OF LAW

The auxiliary sources of law are jurisprudence, doctrine, general principals of law and equity.

  • Custom (as a source of law)

A custom is generally defined as a set of a people’s way of doing things which has acquired an obligatory force in a given social group and which is practiced over a relatively long time period. Customs are practices or usages of a given society. Customary law is unwritten. It has to be considered as legally binding on (obligatory by)  the people in the society.

A custom is not created as a written law, a unique act, but by a repetition of similar practices especially with the conception that it has a binding (obligatory) force. The essential elements of a custom are therefore.

  • The usage
  • Binding force
  • The social consensus
  • The time in which it is applicable

 

But the first two are the ones that are most frequently cited as the ones that form a custom. It is also important to point out that custom can inspire the legislator when modifying or completing an existing law or when judges are regulating new cases where the existing laws are not clear or incomplete. Custom can also help for the comprehension of a legal text. However, it is important to indicate that custom is applicable in the absence of law; And when they are not contrary to the constitution, laws, regulations, public order and good morals.

These laws are the principal sources of law. Custom is just a subsidiary source of law, in the sense that they can inspire the judge and help him in the comprehension of legal texts.

  • General principles of law.

These are principles of law common to the legal systems of the world. In Rwanda, examples of general principles of law are:

  • the principle of double jeopardy
  • that law provides for the future and does not have a retroactive effect. –         The principle of permanence and continuity of the state  –   It  is presumed that no-one is  ignorant of the law.

In hierarchy, general principles of law are inferior to the Law. Some of them are already part of the Rwandan penal code. In general, general principles of law are not as direct a source of law as the laws they inspire the judge and they are resorted to in the absence of the law.

  • Jurisprudence (Decided case law)

Jurisprudence means the set of decisions rendered by courts and tribunals. In RomanoGermanic legal systems, jurisprudence doesn’t bind the judge. The decisions of courts and tribunals don’t have a general field of application. Judges’ decisions are only binding on those parties involved in the case. If a judge is seized with a new case, he is not obliged to comply with decisions made on similar cases in the past (precedent). This means that in a new case, he may rule differently from his previous decision.

This led some people to say that jurisprudence is not strictly speaking a source of law.

However, even though the jurisprudence doesn’t have a legal value or a legal binding force, it exercises an unquestionably factual influence that guides the judge to rule in a given way. We refer to this influence as defacto authority of jurisprudence .

In a common – law legal system, the situation is different. Jurisprudence does constitute a binding source of law .we refer to it as Precedent. A common – law precedent has a binding force on the judge. He cannot easily depart from it.

  • Doctrine

By doctrine, we mean legal scholars’ opinions on critical questions of law. In the wider sense, doctrine refers to publications of persons deeply involved in the study of law. These are law professors, senior judges, eminent lawyers, etc.

Doctrine serves to understand the positive law better, which means those rules applicable in a given society at a precise time. Doctrine serves also to inspire possible law reforms by proposing rules that should be enacted by the legislator. Although doctrine is not a principal source of law, it constitutes a subsidiary impact on the law. It exercises an important influence even though it is not a binding source of law. It guides the judge by promoting reasons for deciding in a certain way. On the other hand, doctrine guides the legislator when enacting laws. He can either consult legal works (publications) of scholars or ask them to participate in the legal process as experts. The authority attached to doctrine relates somehow to the reputation of the scholar himself. The more reputable he is in his field and  publications, the more his opinion will be of influence.

In conclusion, one can say that although doctrine is not a principle source of law, it plays a significant role, as the opinion submitted by eminent lawyers on a subject of law can be useful in case it is put forward and followed in courts, because it can help in the comprehension of a legal text.

  • Equity

The regulation of 14 May 1886 foresees that in case there is a matter that is not provided by a legal text, the disputes without solutions in local customs will be solved according to general principles of law and equity.

Equity, which is based on the general feelings of justice, allows the judge, in case of silence of law or a legal gap, to make judgements conforming to common sense and feelings of justice. The notion of equity has a vague character and the judge is not bound by any certain precise rule but he has the power to decide according to the circumstances but without arbitrariness (unfairness) . This means that he has to apply equity with fairness. Certain legal provisions give examples of how equity can be applied ( art 34,142, of the civil code iii , art.82 of the penal code )

Equity is not itself a source of law. It is a means available to the judge when he is supposed to give a judgement without applying a determined legal rule.

SECTION 3. SOURCES OF RWANDA BUSINESS LAW

INTERNATIONAL SOURCES

The role of international treaties is unknown in civil law. The implications of international conventions on commercial law have been compounded by recent developments and increasing interdependence in international commercial activities. Some might even argue that the result of these developments might have had led to  a uniform (unified) international law. The implications of international conventions on Rwandan commercial law are both direct and indirect.

Direct implication happens when a convention or an agreement becomes part of domestic law or provides the basis for domestic law of similar content (e.g. the decree of December 10th, 1951 which deals with cheques and the decree of July 28th, 1934 which deals with the bill of exchange the promissory note and protests). The content of both laws are based on the Geneva Conventions of June 7th, 1930 and of March 19th, 1931, which deal with cheques and bills of exchange.

Indirect implication of international conventions can be found in the adoption by Rwanda of the Vienna Convention on the International Sale of Goods ( the United Nations Convention on Contracts for the International Sale of Goods) of April 1980, which deals primarily with external trade relations, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, etc.

 

Below are some examples of international conventions related to international trade.

  • 1995- United Nations Convention on Independent Guarantees and Stand-by Letters of

Credit;

  • 1988- United Nations Convention on International Bills of Exchange and International Promissory Notes;
  • 2001- United Nations Convention on the Assignment of Receivables in International Trade;

1991- United Nations Convention on the Liability of Operators of Transport Terminals in

International Trade;

  • 2005- United Nations Convention on the Use of Electronic Communications in International Contracts.

            DOMESTIC SOUIRCES

Currently, there is no commercial law code in Rwanda. However, some disparate laws do exist:

  • Decree of 2 August 1913 on traders and proof of commercial engagements;
  • Decree of 12 January 1920, on pledge of business, discount and the pledge of commercial bills;
  • Decree of 27 July 1934 on bankruptcy and preventive legal settlement to  bankruptcy; – Decree of 10 December 1951 on uniform law on cheques;
  • Law n°07/2009 of 27th April 2009 relating to companies, amending the law no 06/1988 of 12th February 1988.
  • Law N° 50/2007 Providing for the establishment, organization and functioning of Cooperative Organizations in Rwanda;
  • Law n° 10/2009 of 14/05/2009 on mortgages;
  • Law n° 12/2009 of 26/05/2009 relating to commercial recovery and settling of issues arising from insolvency;
  • Law n°40/2008 establishing the organization of Micro Finance activities;
  • Law n° 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters;
  • Law n° 35/91 on the organization of internal trade as modified and supplied to date; – Law n° 11/2009 of 14/05/2009 on security interest in movable property.
  • Ministerial order n° 01/MINICOM of 08/05/2009 determining small private limited company;
  • Ministerial order n° 02/09/MINICOM of 08/05/2009 relating to businesses of low income;
  • Ministerial order n° 03/09MINICOM of 08/05/2009 determining fees for registration of companies’ business activities.
  • Law 45/2011 of 25/11/2011 Governing Contracts

It is advisable that the student acquaints himself with the above ministerial orders, laws and decrees.

[1] P ex. Per example or for example and is the same as e.g.

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