REAL SOURCES OF LAW: CHARACTERISTICS, CLASSIFICATION, EXAMPLES - ARTE - 2025

The real sources of Law are all the factors, circumstances, phenomena or events of different nature and significance that determine the content of the legal norm. They are also known as material sources.

To determine the content of the rules of conduct, the legislator must study the social phenomenon to be regulated. It must also consider the needs of the group, economic, physical, religious, moral, historical factors and many others that influence the social conglomerate.

The sources of law are classified as real, formal and historical. Source: Pixabay

Precisely those factors of varied nature are what are called real or material sources of Law. Depending on them, it will be specified how to solve the conflict of interest for which the rule is appearing.

Sources of Law

The word 'sources' is used in the legal field in a metaphorical way, to refer to the acts or events to which the birth, modification or extinction of a legal norm is linked, regardless of race or nature.

Peniche Bolio points out that the “source of Law is everything that produces Law”, while Miguel Reale defines them as the “processes or means by virtue of which legal norms are made positive with mandatory legitimate force, that is, with validity and effectiveness in the context of a normative structure ”.

Classification

One of the most common ways to classify the sources of Law is dividing them into: real or material, formal and historical.

Real sources

The so-called real sources would be characteristics, needs and distinctive elements of a social group or community that are reflected in their own norms, since their needs define their content and scope.

Formal sources

The formal sources are procedures that make the rules acquire the character of legal, that is, it is the way in which the rules of conduct are made enforceable. They are instrumental in nature, since through them it is intended to know when and under what conditions a specific legal rule is valid or mandatory.

In the case of non-compliance they create the possibility of imposing a sanction. Examples of formal sources can be the legislation enacted by the congress of a country or international treaties on environmental sanitation.

Historical sources

With regard to historical sources, it refers to all those documents that, although not in force, contain normative provisions of a certain period, in addition to compiling arguments exposed in those practices.

These are important, because they allow us to know how the way in which different legal situations are regulated in different contexts has evolved. Examples of historical sources could be the Laws of the Indies, the Code of Hammurabi or the Declaration of the Rights of Man and the Citizen of 1789.

Other sources

There are other criteria by which sources of law are classified. One of them is to differentiate the political sources from the cultural ones. The former aspire to collective organization or constitutional processes. The latter are those obtained by observing the past and comparing it with the legal present.

Another differentiation is the original sources and derived sources. The original ones create the right from nothing, that is to say, there were previously no regulations on the situation. Derivatives are those that are inspired by a previous legal framework.

Characteristics of real sources

The actual sources are factors and elements that determine the content of the standards. Their first characteristic would be that they constitute the logical and natural antecedent of the Law, this means that they prefigure the content or contain the solutions that the legal norms have to adopt.

They are of great extension and as varied as the living conditions of a community, the social, economic, geographical and political reality of a given State. It also includes a multiplicity of intangible elements such as the principles, aspirations, values, ideals and beliefs that predominate in a society, which give shape to its regulations.

It is not feasible to obtain an inventory of real sources, for this reason what is usually identified in legal norms are the reasons that have induced the legislator to create, reform or suppress it. These factors are those that will determine the effectiveness of the legislation, insofar as that it solve the problem or regulate the situation for which it was created or modified.

They are elements that give dynamism to the Law, since as these factors of society evolve, there is a need to rapidly adapt the regulations to new conditions.

Given its infinite variety, it is considered that the importance of the factors that influence the formation of Law varies from one moment to another. Therefore, the hierarchy is variable and depends on the type of norm and the historical moment.

Material sources can acquire such importance that there may be a time when they become formal sources in the processes of law production.

Finally, the study of these factors of a social, economic, political, historical nature, etc. It is not a field of law itself, but is part of the object of study of meta-scientific disciplines, such as legal sociology, the history of law and philosophy.

Real font types

Students of the subject usually classify real sources in two ways:

- The first classification would be primary and secondary, which refer respectively to society and the series of circumstances that surround it, impacting or influencing it.

- The second classification that arises divides them into real and ideal, which respectively assume their tangible, factual or conceptual, mental meaning.

Examples of real sources of law

The actual sources of law are also known as materials. Source: Pixabay

To exemplify in the simplest way the real or material sources of Law, it is convenient to recapitulate one of its classifications into two large groups.

Those of factual or real significance, that is, factors of a very heterogeneous nature that can more or less immediately influence the production of Law. We refer to political, social, economic, historical, geographical, cultural circumstances.

Examples of them can be revolutions, elections, migratory movements, political parties, crime, the energy crisis, work stoppages, weather changes, among others.

Those of ideal significance, that is, those factors that contain an ideological motive that function as utopias and that are constituted as guidelines to determine the content of the Law. The most common ideals are religious, political, cultural and scientific.

Examples of this type of ideal material sources are Islamic foundations, socialist doctrine or scientific trends such as genetic manipulation, among others.

References

1. Fabra Zamora, J. and Rodríguez Blanco, V. (2015) Encyclopedia of Philosophy and Theory of Law. Mexico: National Autonomous University of Mexico, Institute of Legal Research. Recovered from biblio.juridicas.unam.mx/
2. Sources of Law. (2019, December 02). Wikipedia, The Encyclopedia. Recovered from wikipedia.org
3. Concept of Sources of Law. (sf). Recovered from concept.de
4. Egaña, M. (1984). Introductory notes on Law. Caracas: Editorial Criterio.
5. Rojas González, G. (2018). Sources of law. Catholic University of Colombia. Jus Philosophy Collection N ° 4