Sources of Law and Legal Interpretation Principles

The Habit (Custom): Concept and Characteristics

Concept of Custom

In the list of sources of law, custom follows law. The fundamental difference between the two lies in their source of origin. Law originates from the political organization society establishes to develop guidelines or standards of living. Custom, conversely, originates from society itself, unorganized, and through the observation of repeated behavior, it becomes compulsory.

Elements of Custom:

• Material Element: Repetition of a behavior.
• Spiritual Element: The conviction that the behavior is obligatory (opinio juris sive necessitatis).

Characteristics of Custom

Custom is an alternative source of law, leading to two main consequences:

1. Customary law is applied only when there is no specific statutory law governing the case. The existence of a statutory law generally precludes the application of custom, though custom may still exist as a lesser source.
2. Custom is a source of law only when the law itself so determines, outlining the limits and conditions under which custom can generate legal norms.

Jurisprudence as a Source of Law

Jurisprudence in a Wider Sense

In a wider sense, jurisprudence is identified with the criteria laid down by the courts in their daily task of interpreting and applying objective law to submitted disputes.

Jurisprudence in a Strict Sense

In a strict sense, jurisprudence coincides with the doctrine established by the Supreme Court.

• Judicial decisions necessarily have to find a basis in legally established sources within the system.
• Jurisprudence in our legal system plays a secondary role among the sources of law and, as such, cannot be regarded as a primary source. It complements the legal framework.
• Although not considered proper legal standards, the interpretive criteria repeatedly developed by the Supreme Court, as jurisprudence in the strict sense, do possess normative significance. Thus, jurisprudence, particularly Supreme Court doctrine, holds significant normative value.

Interpretative Criteria: Article 3 of the Civil Code

When discussing the elements or criteria suitable for normative interpretation, it refers to the materials upon which the interpreter must focus their attention to clarify the meaning of a rule to be applied to a given case.

Article 3.1 of the Civil Code

Article 3.1 states that rules are interpreted according to:

• The proper sense of their words (literal interpretation).
• Their relation to the context (systematic interpretation).
• Their historical and legislative background (historical interpretation).
• The social reality of the time in which they are applied (sociological interpretation).

These interpretations primarily serve the spirit and purpose (teleological interpretation) of those rules.