Chapter 19 Chapter XV Formal Sources of Law

We have attempted in the second part of this book to determine the nature of law, to define and describe its function in the life of human society, and now we shall turn to some more technical issues.We must explore the mechanisms of tools, methods, and techniques that a legal system employs in order to achieve its social goals most fully and effectively.Such an inquiry falls squarely within the task of the field of jurisprudence, which is devoted to the general theory and philosophy of law, since it is concerned with issues common to all fields of law, such as methodology, formulas of reasoning ( modes of reasoning and processes of interpretation rather than problems, principles and rules in specialized fields.

In this chapter we explore the formal sources of the law, and in the next chapter what we call the informal sources of the law.Since we are not following the generally accepted way of using the above terms, it is necessary to give some kind of explanation and justification for this.And because the term "source of law" has not yet acquired a consistent meaning in Anglo-American jurisprudence, we must first explain this concept. John Chipman Gray was an influential American jurist; he distinguished between what he called "the law" and "the sources of the law" ) made a strict demarcation.He held that law consisted of rules authoritatively determined by courts in their judgments, and that sources of law should be derived from certain sources of law to which judges usually have recourse in formulating the rules which constitute law. Find it in legal and non-legal sources.Gray lists five such sources: (1) statutes enacted by the legislature; (2) judicial precedents; (3) expert opinion; (4) custom; and (5) moral principles (including principles of public policy).Others, however, take a different view, equating sources of law with those official and authoritative texts from which enacted legal rules usually derive their coercive force: constitutions, statutes, treaties, executive orders and regulations, Judicial Opinions and Rules of Court.In civil law countries, statutes, customary law and (under certain conditions) treaties are often declared to be the sole sources of law.It is worth noting that the term source of law has another meaning, that is, it is used to refer to certain branches of law as the traditional succession of legal rules and principles, such as common law, equity law, commercial law and canon law. Wait.In addition, some people also refer to legal written materials and document collections as legal sources, such as code collections, judicial trial reports, case law collections, monographs, encyclopedias, and legal journals.

Here we shall give the term source of law a meaning which bears some resemblance to Gray's definition, but differs from it in many important respects.First, we do not accept Gray's line between law and legal sources, but the reasons for this we intend to discuss later in the text.For the convenience of the following discussion, the term "law" here refers to the aggregate and whole of legal sources used in the legal process, including the interrelationships and relationships between these sources.Second, while we agree with Gray that sources of law are factors such as those that can form the basis for the legitimacy of legal decisions, we believe that sources are relevant to making legal decisions of any kind, not just to courts. concerning the judgment.Third, the number of legal sources that we think should be recognized in the legal system far exceeds those listed by Gray.

It seems appropriate and desirable to divide legal sources into two broad categories, what we may call formal and informal sources.By formal sources we mean those that can be derived from explicit textual forms embodied in authoritative legal documents.Prime examples of these formal sources are constitutions and statutes (we discuss these below under the general heading of "legislation"), executive orders, administrative regulations, ordinances, charters and regulations of autonomous or semi-autonomous agencies and organizations (which are discussed below under the general heading of "delegating versus autonomous legislation"), treaties and certain other agreements, and judicial precedent.By informal sources we mean those legally significant and deserving material which have not yet been authoritatively or at least expressly stated and reflected in formal legal documents.Although an exhaustive list of informal sources is not necessary, we classify informal sources into the following categories: standards of justice, principles of reasoning and thinking about the nature of things (natura rerum), equity, public policy, moral convictions, Social tendencies and customary law.

Staunch positivists tend either to dismiss informal sources as irrelevant to the legal process or to place them in an extremely secondary position in the judicial framework.We agree with the second view above in a sense that when a formal authoritative source of law provides a clear answer to a legal question, then in most cases neither need nor Recourse should then be made to informal sources of law.In some rare and extreme cases, where the application of a formal source of law would conflict with the basic, mandatory and dominant requirements of justice and fairness, it is of course necessary to allow exceptions.When a formal legal document exhibits ambiguities and uncertainties that could give rise to two interpretations, as it often does, informal sources should be appealed to in order to obtain a view that is most conducive to the attainment of reason and justice. solution.In addition, when formal sources cannot provide trial rules for the settlement of a case at all, relying on informal sources will naturally become a mandatory approach.

In its most important sense today, the term "legislation" signifies the deliberate creation of laws and regulations by a government agency, which is, of course, designed for this purpose. established, and can clearly express such legal provisions in formal legal documents.These characteristics of laws created by legislatures distinguish them from customary laws, which express their existence through actual observance of them by members of a group or society, and which do not require authoritative sanction by governmental bodies ( At least until they are officially recognized by judicial decision or statute created by the legislature).

Legislation as described above must also be distinguished from normative announcements made by courts.A judge's oral formulation of a legal rule or principle is, as we shall see, not to the same degree final in character as the legislature's authoritative formulation of a legal proposition.Furthermore, although it is often claimed that adjudication is as much a deliberate law-making activity by government agencies as is legislation strictly speaking, we must remember that the judiciary is not fundamentally An institution established for the purpose of making laws.The principal function of the judiciary is to settle disputes under some pre-existing law; and with the necessary imperfections and frequent ambiguities of such a pre-existing law, it is simply impossible for the judiciary to confine itself to the among its essential functions, and has always found it necessary to extend and supplement existing law, certainly through what is rightly called judge-made law, but even so, the judge's The law-making function must still be considered as a function incidental to its basic function.The real purpose of the legislature is to make new laws, but the situation is quite different with the courts.For the judge, the creation of new law is only an ultima ratio, when existing sources of positive or nonpositive law (positive or nonpositive sources of the law) can not give him any guidance or when it is necessary to abolish An outdated precedent was a last resort he had to resort to.Because of this fundamental difference between legislative and judicial law-making, the term "judicial legislation" - although properly understood to express a rather meaningful idea - should be used sparingly, and perhaps avoided altogether.

Another typical feature that distinguishes legislative acts from judicial statements is the judgment of Mr. Justice Holmes in the case of Prentis v. Atlantic Coast-Line Co. has been explained.As he noted in that opinion, a "judicial inquiry examines, declares, and enforces responsibility on the basis of present or past facts and in accordance with laws presumed to have existed," yet An important feature of legislation is that it "points to the future and changes the present situation by establishing a new rule, which will later be applied to all or some of the objects under its power." We must understand these words as an interpretation of certain normal and typical aspects of legislation, rather than of the conditio sine qua non (i.e. the necessary preconditions) of all legislative activity.Most statutes passed by the legislature are future-proof, that is to say, they are applicable to situations and controversies that arise after the enactment of the statute.A basic requirement of fairness and justice is that the relevant facts constituting a legal dispute should be determined by the law in force at the time when those facts arose, and not by law enacted after the fact—because the transaction or event that gave rise to the dispute occurred. At the time, the law was necessarily unknown to the parties—to be determined.The Greeks disapproved of retroactive laws, that is, laws with retroactive effect applicable to past factual situations.Justinian's Civil Code provided a strong argument against the application of retroactive laws.Bracton introduced the principle into English law; while Coke and Blackstone propagated it; even in England today the principle is considered legally interpreted A ground rule.In the United States, the provisions of the Federal Constitution expressly prohibit the application of retroactive law in criminal cases, and also prohibit the application of state laws with retroactive effect to the liability of contract; in other cases, under the due process clause of the United States Constitution (due-process clause), a law may raise a question of its constitutional validity if it retroactively infringes upon an existing right.

The principle of non-retroactive law is not always final, and certain types of retroactive law are supported or at least tacitly supported by some legal systems.In the United States, for example, remedial statutes designed to give legal force to technically flawed legal proceedings, actions of government officials, or private transactions and contracts are often affirmed by courts, even though they operate on past facts or trade.Likewise, the principle that laws are not retroactive does not usually apply to those laws that are procedural in nature.This means that in civil cases and even criminal cases, the accused should generally not be tried under torture, even if it is stipulated at the time of filing the lawsuit or committing the crime.We must therefore conclude that the arbitrarily asserted non-retroactiveness is a necessity of all statutes, although, speculatively, statutes created by legislatures are in the overwhelming majority of cases valid only for future situations. The prerequisites are inappropriate.

A more controversial question about the basic nature of a statute created by a legislature arose alongside the question of whether such a statute must be normative, that is, whether it must, in its general form, require people to act in a certain way. a specific behavior.It is generally believed that law in its true sense must contain a general rule, and that measures which deal only with individual and specific situations cannot be considered laws or decrees created by the legislature.We have already mentioned the views of various jurists and political philosophers who can be cited in support of this view.In the practice of the legislature, this important distinction between general statutes and individual orders or measures,

In Roman law the distinction between law and particular law, in German law the distinction between substantive and formal law created by the legislature, and in American law the general law enacted by Congress The distinction between sexual law and special (private law) statutes.An example of a specific statute of Congress would be a statute created by the legislature that confers on A (but does not afford others in the same situation) relief for damages to property, permits B to immigrate to and become a resident of the United States, declares C to be the son of D Children in this country may be given the right to personal tax exemption. Applying the terms "law" or "act created by the legislature" in the strict sense to those statutes of a general or normative nature, and confining those meanings to dealing with a particular case or a single fact It seems highly desirable that the decree of circumstances be excluded from the scope of this concept.The fact that both types of statutes emanate from a properly constituted Legislative Assembly does not justify the use of the same term for both types of statutes.As the Curia Regis, predecessor of the British Parliament, and the predecessors of other national legislatures, often indiscriminately mixed the legislative functions with various non-legislative functions, so the remnants of these non-legislative functions were also carried out by these non-legislative functions. The legislature has remained until our time.Thus, Britain's House of Lords still has the power to make final decisions on judicial cases, while the U.S. Senate has power to hear cases against the U.S. president, vice president and all civilian officials.Although the power to decide appeals and to hear charges rests with the legislature, these activities are always—and rightly—conceived of as judicial rather than legislative acts. In a system that divides power into legislative, executive, and judicial branches and regards it as one of the pillars of the political structure, a proper classification of government action can be of great practical importance.But we must recognize that the line between general law, which contains normative rules, and specific statutes dealing with a specific and specific situation cannot always be drawn precisely and easily.The line is crystal clear when we compare an act of Congress awarding a famous combat hero the Congressional Medal of Honor with a law defining the liability of a person guilty of negligent driving; A specific statute—for example, the chartering of a public utility—meaning not only the consent to the charter itself, but also imposing rights and duties on the grantee—rights and duties perpetuating into the future —— when the line is blurred.A general discussion of jurisprudence cannot provide an exhaustive examination of this fringe field; to the extent that this question may become a practical one, it may provide an interesting topic for more detailed consideration. Finally, it should also be noted that those countries that operate under written constitutions that are considered to be legally binding recognize some special form of high-level legislation that is superior to other ordinary forms of legislation.Constitutions are usually created by a constitutional assembly established for constitutional purposes; and the rules in these constitutions are usually only amended by procedures which make it more difficult to amend or change the constitution than to amend or change legislation. General decrees created by agencies are more difficult.A constitution is often regarded as the fundamental law of a country, and in many cases it contains not only norms intended to determine the organization, procedure, and competence of the legislature and other governmental organs, but also norms intended to limit the content of ordinary legislation The command.For example, the U.S. Constitution states that Congress shall make no law abolishing freedom of speech or the freedom of the press.The U.S. Supreme Court held that safeguards of this nature must not be construed as mere moral admonitions to Congress, but must, on the contrary, be considered binding and enforceable legal norms.Thus, the Constitution is elevated as a source of law superior to ordinary legislation. In a highly developed modern state, the tasks before the legislature are so numerous and so complex that their details and technical details cannot be accomplished without imposing an extremely onerous burden on such an organ.Furthermore, some legislative activities in specialized areas of government administration require the legislators to be thoroughly familiar with the organizational and technical issues that exist in that particular area, so that dealing with these issues with a few experts is less effective than legislation without the necessary expertise. It is far more appropriate for Parliament to deal with these issues.For reasons such as these, modern legislatures frequently delegate some of the legislative functions to the executive branch of the government, to a bureau or committee, or to the highest executive of the nation.In addition, the legislature may delegate certain legislative tasks to the judiciary.In the United States, for example, Congress has tasked the U.S. Supreme Court with enacting procedural rules for use in federal district courts, and many state legislatures have passed similar enabling acts. In recent decades, Congress has delegated broad legislative powers to the President of the United States and various executive agencies.Of course, such a situation has also occurred in the history of American law, that is, the Supreme Court of the United States once held that Congress could not transfer any legislative power.If this view has any significance at all, it probably has no more significance than the assertion that Congress cannot completely and without reservation relinquish its legislative function in the broad field of government management.But on the other hand, when Congress only entrusts the power of making rules to administrative agencies in a relatively narrow field of administrative activities, the U.S. Supreme Court will not force the national legislature to specifically guide these administrative agencies in terms of policy. How the agency performs the tasks entrusted to it.Although the Supreme Court held that Congress should provide clear and definite "standards" to the agency, some of the directives that existed in enabling statutes that the Court found to meet this requirement were, in fact, so broad and vague that they provided agency What is provided is a minimum normative guidance.On the other hand, there seems to be a growing tendency in recent decisions of the Supreme Court to hold that these administrative agencies themselves should lay down clear principles for the exercise of their functions; this tendency also holds that, under the Federal Constitution A due process clause that preserves nonstructural areas of discretion raises constitutionality issues. As noted above, the United States Congress often delegates to the head of government the power to enact measures of some legislative nature.As a result, the President of the United States was empowered to declare wartime embargoes and issue fine print regarding wartime trade with the enemy.Generally speaking, the president exercises his entrusted legislative functions either in the form of proclamations or in the form of executive orders.Whether the President has, in addition to the specific powers conferred upon him by Congress, inherent or tacit legislative powers to deal with emergencies remains a matter to this day—in the absence of dominant judicial decisions—a question. Quite doubtful question. We must distinguish between delegated legislation and autonomous legislation, even though the line between the two types of legislation is sometimes rather blurred.By autonomy, we mean the power of individuals or organizations (rather than governments) to make laws or to adopt rules substantially similar in nature to laws.For example, the head of a family in ancient Rome had broad powers to make laws for his family members and slaves, including the power to impose severe punishments on his family members for acts he considered reprehensible.Since his autonomous power is prior to that of the state, it is not accurate to say that the state "entrusts" certain areas of legislative activity to the head of the family.A more correct explanation of this phenomenon points out that in the early days, that is, when the state power was still relatively weak, the autonomy of the family unit was a basic and unquestionable fact.It was only after a period of time that the public power of the state gradually replaced or limited the private power of the head of the family to manage the individual family.Later, state power often intervened in the family, the purpose of which was to protect the wife, children, and slaves of the head of the family, so as to prevent the head of the family from arbitrarily arbitrarily exercising his privileges. In the Middle Ages, the Roman Catholic Church had a high degree of legislative power, and in history, the independence and sovereignty of the Roman Catholic Church was once able to compete with the independence and sovereignty of the secular state, or even exceed the power of the latter.Even today, the Church in many parts of the world has the autonomous right to regulate its own affairs, and since the state often claims to have no right or intention to intervene in the sphere of Church activity, we cannot, from a general point of view, consider the autonomy enjoyed by the Church to be The existence of scope is seen as a consequence of the State's delegation of power. In addition, private companies and other associations today also have the power to promulgate corporate association rules and regulations that regulate the company's internal relations, and courts often recognize that these rules and regulations can determine the rights and obligations of members of such associations.Trade unions often regulate the rights and duties of their members in a rigorous and detailed manner; industrial producers in some countries organize themselves into national or international associations, often without legislative authorization or government recognition. downward adjustment of its production, supply and price issues.Professional associations of lawyers and doctors also gradually developed a body of autonomous law in the form of professional disciplines or rules and rules of professional ethics.We even have reason to think that if the father in a modern family promulgates a family code, assigns household chores to the various members of the family, or fixes the amount of allowances given to the children, then this is tantamount to exercising within a certain range. The right to independent legislation.The purpose of such a family code is essentially the same as that of a general code, namely, to establish a certain order and to try to ensure justice by applying the rules uniformly and equally to those to whom they are directed. From a practical point of view, such enclaves of independent legislation still exist or may exist in today's society, because even a modern country with a large amount of legislative power cannot formulate laws and regulations concerning every event and every person. law.Government law still leaves a large vacuum which must or can be filled by the exercise of private or quasi-private legislative powers.It is true that these unoccupied territories still exist today by the sanction of the state and can be filled by public law within the framework of the constitutional system; Limit a great deal of private power in these domains. A treaty is an agreement reached by a state, nation or other legal person recognized by international law.If only two peoples or other international legal persons are parties, such a treaty is called a bilateral treaty; if more than two parties are involved, such a treaty is usually called a multilateral treaty.Multilateral treaties adopted by a majority of states to regulate important aspects of their mutual relations are sometimes referred to in today's legal writings as international legislative acts.As long as we bear in mind the fundamental difference between the treaty-making process and the ordinary legislative process, we need not object to the use of the term.The legislature of a modern nation-state may enact laws that a minority of legislators disagree with and that are binding on everyone under the legislature's jurisdiction.But on the other hand, the norms set by multilateral treaties are usually only binding on those countries that sign the relevant treaties or express their consent in other ways to abide by the treaties. The question thus arises - which under certain conditions may become a very practical one - whether a treaty concluded by two or more States in accordance with due process of law constitutes a genuine source of law.In England, a treaty affecting private rights or requiring the modification of common law or statute law by its operation must be converted by Parliament into an act of domestic legislation before it can bind domestic courts.As far as such treaties are concerned, the only question that arises is whether such treaties are sources of law in the field of international law.The question of whether a treaty is a source of law manifests itself on a larger scale in countries that assert that treaties that have been validly enforced are normally valid without a domestic enabling act, such as the United States (Article VI of the US Constitution). Two answers have been given to this question.The first answer argues that lawmaking treaties must be distinguished from other treaties.This distinction is based on the fact that some treaties establish new general rules or modify and abolish existing customary or conventional rules for the future international conduct of the parties, while others do not have this purpose.Those who hold this view believe that only law-making treaties can be considered a source of law.Hans Kelsen opposed this distinction because he believed that the basic function of any treaty is to create law, "that is to say, its basic function is to create a legal norm, whether it is a general norm , or individual norms”.According to this view, there is no difference in effect between a treaty that establishes a network system of mutual rights and obligations between states over a considerable period of time and a treaty that transfers ownership of a ship as a result of a previous debt. In view of the general view taken in this book on the nature of law, Kelsen's above views are clearly untenable.Since it is subject to deep-rooted traditions and common general usage methods, and the functional characteristics of law must also be considered, the term "law" should basically be limited to actions or codes of conduct that contain general elements.As noted earlier, the term "individual norm" is an oxymoron.We should therefore conclude that the agreement by the United States to sell some warships to the Commonwealth of Australia to acquire an air base on Australian soil has no normative element.It is a fully performed transaction because it leaves no continuing rights or obligations for the contracting parties; the obligation not to be in breach of the transaction arises automatically from the general principles of property law and does not have to be This obligation is shoehorned into the agreement as a separate obligation created by the agreement.However, treaties binding on all signatories permitting freedom of religion, movement, and commerce and trade with nationals of other contracting states establish certain general rules of conduct that are apparently of a legal nature.Treaties of this nature can therefore be properly classified as law-making treaties. Article 38 of the Statute of the International Court of Justice provides the basis for this interpretation, which provides as a source of law only those international agreements (whether general or special) which establish rules expressly recognized by the parties to the dispute. However, we must recognize that the line between general rules and individual acts is often blurred when confronted with specific situations.If the governments of the two countries made themselves obliged under a 10-year period to exchange all inventions related to the peaceful uses of atomic energy under an agreement, there would obviously be no sticky issues with the agreement.That is to say, such a treaty is clearly a law-making treaty.However, if the government of country A agrees to sell to country B an invention related to a certain missile within a period of 6 months for an agreed price, should such an agreement also be called a law-making agreement? What about sexual treaties?What is the nature of a treaty by which State A agrees to pay, in two installments of $100,000, over two years, as compensation for the injustice suffered by the nationals of State B?In the latter two cases, although rights and obligations of a contingent nature are created, these rights and obligations are only individual and special in comparison with the more permanent general obligations established by the aforementioned treaties providing for the exchange of atomic energy inventions. nature.Did the last two agreements above also create laws?We must admit that it is impossible to try to give a satisfactory answer theoretically to such a question. The question whether the term "law-making treaties" should be extended to treaties that are ambiguous between general norms and individual acts will depend entirely on the specific nature of the legal question concerned, since in this context the aforementioned norms and The distinction of individual Acts would highlight their relevance and substance. The above considerations should help us understand the significance of certain distinctions made by the laws of some countries between treaty and non-treaty agreements.For example, the U.S. Constitution stipulates that the president “has the power to conclude treaties after the consultation and consent of the Senate and the consent of two-thirds of the senators present.” However, U.S. constitutional theory and practice generally recognize that despite the above provisions, However, the President of the United States can conclude various other agreements with foreign countries either according to his own duties or with the prior consent or subsequent consent of a simple majority of the House and Senate.Such agreements are called executive agreements; if they involve Congress, they are called executive-congressional agreements. Where should we draw the line of distinction between treaties and other international agreements?On this issue, the academic circles are still divided.Some argue that the Senate should have very broad powers in the area of ​​treaty making, and limit the power of the President in this area to relatively unimportant matters.Others go a little further, allowing the president to deal with international affairs of considerable importance "if it can be shown that there is such an indisputable long-term practice of the president entering into certain kinds of executive agreements." Commentators advanced the more radical view that, in terms of diplomatic practice and diplomatic law, presidential-concluded agreements and executive-congressional agreements are no longer very different from treaties; Whether to ratify or conclude a contract according to his own broad powers in the field of foreign relations or with the consent of a majority of both houses of Congress, is in most cases within the discretion of the president. The equating of treaties and administrative agreements in the above-mentioned unrestricted manner is unacceptable.First, when the Constitution gave the President the power to make treaties with the advice and consent of a two-thirds majority of the Senate, the framers of the Constitution presumably did not want to leave the President to obey the order as he wished.Second, another provision of the U.S. Constitution clearly recognizes the legal differences between treaties and other kinds of international agreements.Third, the framers of the Constitution were convinced at the time of the desirability of a general (though not iron-solid) separation of powers, and they wished to place the exercise of the legislative power as broadly as possible in a representative system the hands of the General Assembly; by which they repealed the rules of the British Constitution which vested the British Crown with legislative power in the field of international relations.We should, however, recognize some of the views of those advocates who equate treaties with executive agreements, such as the fact that the President should have the power to For the purpose of meeting this urgent situation, the means of administrative agreement are used as sufficient representation for the conclusion of treaties. If it is believed that the prerogative of the President to conclude international agreements in the form of treaties without the consent of the Senate should be limited to situations of serious crisis, then it is necessary to identify those foreign policy objectives that make treaty implementation necessary in normal times .我们可以有把握地认为，参议院以特定多数参与国际要事的情形应局限于那些涉及造法权力行使问题的重大的和重要的行动，而这也是与指导宪法制定者们按照立宪规划分配权力的一般观点相一致的。然而，人们也许会问，如果这就是宪法创立者的目的，那么他们为什么不在宪法文本中对造法性条约与处理行政管理事务的条约进行区分并将参议院同意的必要性只限于前者，以清楚地表达他们的那种意图呢？关于这个问题的答案很可能是这样的，即在他们的心目中条约与造法性条约实际上是同义语。制宪大会的杰出人士都非常熟悉瑞士外交家和国际法学家埃默里奇·德·瓦特尔（Emmerich de Vattel）的著作，他所著的有关国际法的专著曾普遍影响着美国的国际法理论与国际法实践，而且美国的开国元勋们也在他们的著述中经常征引他的观点。瓦特尔将条约与其他国际协议区别如下： 第152节，条约，拉丁文为“foedus”，乃是主权者为国家福利而缔结的一种永久性的或期限相当长的协定。 第153节，那些只视暂时利益的事务为其客体的协定被称之为协议、协约和安排。它们是靠一个单一行为而不是靠诸多行为的连续履行完成的。当某个相关行为履行以后，这些协定就完全履行了；然而，条约则具有待履行的性质，而且只要条约继续有效，条约所要求的行为也就必须继续履行。 上述两段文字把条约同有待履行的承诺等而视之，这些承诺具有相当的重要性而且要求对一些行为予以连续履行，至少是重复履行；而那种靠一个单一行为就可完成的短暂且临时的协议，则被排除在此概念范围之外。美国宪法的制定者们在宪法第二节第二条中规定缔约权力时，很可能仔细考虑了瓦德尔对这种权力的解释，并且力图将参议院的参与权限制在那些确立较为长期的相互权利义务的国际协定范围之内。处理这个问题的上述方法，一般来讲，会把业已生效的协议（如货物交易协议）以及不太重要的、只具即时利益或短期期限的而又不涉及为美国设定实质性法律义务的有待履行的协议，交由美国总统用行政协议的手段加以处理。 对上述缔约权力的观点持批评态度的论者可能会争辩说，根据上述观点，美国总统很可能毋须得到宪法规定的代议机构的同意就能够完成任何业已生效的交易，甚至包括把联邦领土割让给另一个国家的交易。不论对缔约权力这个问题在具体情势下做出何种回答，上述反对意见都是不具意义的。总统在行使其行政权力时，除了缔约权力条款中所确立的种种限制以外，还会受到其他无数宪法限制的约束。其中最为重要的是第5修正案，它禁止总统不经正当法律程序便剥夺任何人的自由或财产。另外，制定美国宪法的目的之一乃是为了组成“一个较为完美的联邦”；这一原则性宣告为美国总统设定了一项义务，即他必须保护和巩固美国联邦，而不得削弱它或缩小其范围。除此之外，我们还应当考虑到，对滥用职权予以弹劾的威胁，通常也会成为阻止总统采取违背国家根本利益的有害行为的有效威慑因素。 关于协议（如集体商定协议、交换专利与技术信息的工业协议、以及私人之间和私人与政府之间的其他各种合同），而不是条约，是否可以在某些情况下被视为是法律渊源的问题，我们就不作讨论了。根据本书对法律性质所采取的一般立场，我们可以从逻辑上推出这样一个结论，即如果这类协议含有规范性规定，那么我们就可以把它们看成是法律渊源。例如，就一项集体商定的调整雇佣、解雇、工资率、工作时间以及雇工群体纪律等问题的协议而言，我们似乎没有理由不把该项集体商定协议象立法机关所颁布的一部处理与其内容完全相同的劳工法典一样视为法律渊源。我们必须牢记的是，一项有效的集体商定协议既可在法院诉讼中也可在仲裁程序中作为承认和裁决雇主与雇员双方的实质性权利和义务的惟一法律依据。调整当事人相互行为并构成对等权利义务之持续基础的其他种类的协议，也同样可归类于法律的正式渊源之中。 当今，英美法系中占支配地位的观点认为，明确或隐含地提出某个法律主张的法院判决——特别是终审法院的判决，构成了法律的一般渊源和正式渊源。然而，我们必须牢记的是，这种观点在我们这个时代固然争议甚少，但在英美法学理论中，它并不总是为人们所接受的。那种认为先例（precedent）具有权威性效力的学说在某种程度上是以这样一种假定为基础的，该假定认为法院判决之所以是一种法律渊源，乃是因为法官如同立法者享有创制法律的权力一样也有权造法；但是这一观点却遭到了一些最伟大的普通法法官和法学家的否定。例如，17世纪的英国著名法官马修·黑尔（Matthew Hale）爵士就指出，“法院判决……，并不能成为确当意义上的法律（因为只有国王和议会才能创制这种法律）；然而，它们在解释、宣布和公布何谓该王国的法律时，特别当这种判决与早些时候的决议及判决相一致和相和谐的时候，却具有着重大的影响和权威性；尽管这种判决的效力比法律的效力要小，但是它们却比许多个人的观点及诸如此类的东西更具证据性。”曼斯菲尔德（Mansfield）勋爵在18世纪时也曾经指出，“如果英国法律真的只依先例而决定，那么它就是一种奇怪的科学。先例可用以阐明原则并赋予它们以一种不变的确定性。然而，除法规规定的实在法以外，英国的法律是建立在原则基础之上的，而且每个案件的特殊情形都可被归入上述原则中的这一原则或那一原则之中，因而这些原则贯穿于所有的案件之中”。他还指出，“判例的理由和精神可成为法律，而特定先例的文字却不能。” 威廉·布莱克斯通（William Blackstone）爵士是18世纪英国著名法学家和法官，他就先例问题发表了下述意见： 证明某个准则是普通法规则的惟一方法，乃是表明遵守该准则已成了一种习惯。但是，这里会产生一个非常自然和非常重要的问题：如何使人们知悉这些习惯或准则，而又由谁来决定它们的效力呢？关于这个问题的答案便是，由一些法院的法官来决定。他们是法律的保管人、是活着的明断者，他们必须在各种疑难案件中作出裁决，而且还受其按国内法进行裁决的誓言的约束……。在证明构成普通法组成部分的这种习惯是否存在的方面，这些司法判决的确是人们所能列举出的最主要的和最权威性的证据。 在美国，约瑟夫·斯托雷（Joseph Story）法官也宣称，“从语言的普通用法来看，我们很难说法院判决可以构成法律。它们充其量只不过是证明什么是法律或什么不是法律以及它们自身是否是法律的证据。只要法院发现它们有缺陷或理由不充分亦或不正确，法院本身便常常会重新审查、推翻和限定它们。因此，一国法律较为通常地被理解为是由立法当局所颁布的规则和法规，或者业经长期确立的并具有法律效力的地方性习惯。”詹姆斯·库利奇·卡特（James Coolidge Carter）也强调认为，一个“先例只不过是一种被证明了的或有效的习惯”。 所有上述文字都表明，这些观点的主张者认为，并不是先例本身，而是隐藏于其后或超越于其上的某种东西赋予了它以权威性和效力。据此观点，使司法判决其有法律效力的力量，并不是法官的意志或命令，而是原则的内在价值或是体现于判决中的习惯实在性（the reality of the custom）。正如威廉·霍尔兹沃思（William Holdsworth）爵士所指出的，显而易见，“如果采纳上述观点，那么就会赋予法院随意创造条件的权力，而在这些条件下，它们会认为一个已决案例或一系列已决案例是具有权威性的。如果这些案例只是证明何谓法律的证据的话，那么法院就必须决定在不同情形下应赋予这种证据以什么样的重要性”。与此观点相一致，大法官肯特（Kent）也论辩说，一个前案判决不必在日后加以遵循，“只要法院能够表明，在那个特定案例中，法律被误解了或被误用了。”这种观点在根本上是与那种主张先例构成法律渊源的观点相悖的，除非法律渊源这一术语是在宽泛而非专门的意义上使用的。 这种对待先例问题的观点，成了众矢之的。约翰·奥斯丁（John Austin）效法杰里米·边沁（Jeremy Bentham），对这种观点提出了严厉的批评，他把这种观点称之为“我国的法官所做出的幼稚的虚构，即审判法或普通法不是他们制定的，而是一种非人制定的超自然的东西；我猜想，他们认为它的存在是永恒的，而法官只不过是在不时地宣告它而已”。约翰·萨尔蒙德（John Salmond）爵士也坚持主张说，法官造法乃是毋庸置疑的，而且人们应当承认“法官们被赋予了一种独特的立法权，并且他们是在公开地合法地行使着这一权力。”约翰·奇普曼·格雷（John Chipman Gray）也坚持认为，法官通常都是以溯及既往的方式造法，而且他们在判决中所规定的规则不仅是法律渊源，甚至就是法律本身。 上述两种理论可以被称之为司法过程的宣告说和创立说（declaratory and creative theories），我们拟在后文对它们的各自优点予以分别讨论。我们之所以在本节中论及它们，只是因为它们有可能帮助我们更清楚地认识法律渊源这个问题。我们应当注意霍尔兹沃思所作的陈述，即“当我们谈及司法判决的约束力时，我们并不是说法官所说的每一句话都是法律，更不用说他的那些理由了。”某个特定先例的文字，亦即是说对一个案例的规则或原则所作的文字阐述，在英美法律制度下，并不享有与法规中使用的语词所具有的同等权威性。我们将在下文中表明，法院常常会在后来呈现相同或相似问题的案件中修改或重述早先对规则的司法阐述。一个法官有可能认为，一个早期的案例对法律规则的陈述，含义或太广或太窄，或不正确或在表述上缺乏艺术性等。如果法官按照遵循先例原则而受先例约束，那么他就会试图重新确定构成早期判例之基础的政策原则，并将其适用于他正受理的案件，而不论最初案例中所使用的具体语词为何。考虑到这一事实，于是有论者指出先例并不是一种教条公式，而只是一种“对原则的说明”。换言之，正是作为判决依据的公共政策的理由或原则，而不是一般性法律的阐释，在运用遵循先例原则时才具有价值。 然而，当我们将未明确阐述的并可以说是在社会上尚未确定的公共政策原则、或声称用以支配解决法律问题的尚未最后确定的理性原则同那些以一种规范性声明的形式经司法承认、确认和确立的法律政策原则或正义准则相比较时，其区别就会表现得极为明显，而这是我们在讨论法律渊源理论时所必须重视的问题。在早期有疑问的并处于不确定状况的原则，现在可以经由司法判决而得到巩固。另外，还应当强调指出的是，许多法官，尤其是低级法院的法官，往往不愿意推敲并追究早期判例对某一原则所做的文字表述之深层含义。他们往往会不作任何批判分析或不进行重新考察就采用先例中所使用的原有语词并将它适用于此后的案件之中。不论早期案例中对法律的陈述之含义是多么宽、多么模糊或多么无鉴别力，它也常常会被当作真正的“判例规则”而适用于日后的判决。这样，一些先前以较不明确或较含糊的方式加以阐述的法律规则，最终却成了我们法律传统的组成部分；值得注意的是，它们是通过屡次重复和毫无质疑地采用而被纳入我们的法律体系中的。 基于上述考虑，我们也可以对宣告说提出质疑，因为它指出，先例并不是一种法律渊源，而只有在先例中得到确当陈述的法律原则才可被视为法律渊源。似乎更为可取的是，把对司法意见中表述模糊的原则的承认，同有关业经具体阐述的规则或原则往往会在日后的案件中被认为具有权威性这一事实结合在一起，看成是将先例纳入法律正式渊源之中的充分根据。但是另一方面，在普通法历史的大部分时间中，法官们在适当处理早期判决方面拥有着巨大的自由，因此，在把法律渊源这一术语适用于先例之时就应当比把这一术语适用于法规或宪法规定之时更审慎、更低调且更严格。 . 在罗马法系国家中占支配地位的理论认为，司法先例不应当被视为是法律的正式渊源。在这些国家中，法律编纂手段的适用范围要比在英美法律传统国家中大得多，而且制定法也被视为是法官必须遵守的主要法律渊源。因此，查士丁尼的命令——“案件应当根据法律而不应当根据先例来审判”，从一般意义上来讲，在当今仍被视为是占据支配地位的观点。如果一位低级法院的法官认为高级法院在一个早期案例中曲解了制定法规定，那么甚至这位低级法院的法官也可以不遵循该高级法院的判决，除非某一特定国家的法律就赋予高级法院某些种类的判决以权威性效力作了特别的规定。然而，我们应当指出的是，法官对待早期判例的这种自由，在理论上主张得较多，而在实践中就相对要少得多了。法院的判决，尤其是终审法院的判决，所具有的事实上的权威性，有着很高的效力，而且这些先例的重要性也会随着重复和重新肯定这些先例中所阐述的原则的判例数量的增多而增加。一系列对法律主张做出相同陈述的判例，其效力几乎等同于英美法院的判例或一系列英美法院判例的权威性。注意到判例汇编是颇具意义的，例如，德国最高法院认为，一位律师如果无视法院在其正式的判例汇编中所发表的一个判例，那么他本人便应当对此产生的后果对其当事人负责。 鉴于这些发展，一些罗马法系国家的论者便指出，司法先例应当被正式承认为权威性的法律渊源，但是这一观点迄今尚未得到人们的普遍接受。在欧洲大陆，还甚为流行着一种居间性观点，这种观点认为，某种司法行为方式可以集中表现为一种习惯法规范，并因此而获得充分的法律强制力和效力，当然，这种司法行为方式必须是持续了一定时间并在法律界内外得到了相当充分的承认。