Understanding Legal Sources: Laws, Treaties, and Regulations
The Law: A Primary Source
The law is a crucial source, emanating from elected bodies, reflecting the people’s sovereign will. It stands above other sources, yet under the Constitution, a higher power. In democracies, Parliament or Congress exercises legislative functions. Legally, the law is a declaration of sovereign will, as stated in the Civil Code: “The law is a declaration of sovereign will expressed in the form prescribed by the Constitution (Politics), commands, forbids or permits” (Article 1, Civil Code). It’s a mandatory rule, issued by authority under the Constitution, enforceable by coercion. Philosophically, it’s “any rational management for the common good promulgated by having care of the community” (Aquinas).
Features of the Law
Key features include mandatory nature, empire, timing, and permanence. Some add generality, though it’s not always essential:
- Mandatory: All inhabitants must follow the law.
- Empire: The law is binding, even through coercion.
- Timing: Laws should address current social needs.
- Permanence: Laws tend to be lasting, addressing ongoing needs.
International Treaties
Treaties are agreements between governments, major sources of public international law, creating reciprocal rights and obligations. They are voluntary agreements between states on sovereign rights. In Chile, the National Congress approves or rejects treaties submitted by the President. The President conducts political relations, signing and ratifying treaties, subject to Congressional approval.
Regulations
Regulations are general acts from the executive branch, governing relations with the people, creating rights, and regulating obligations. The executive implements laws through regulations, detailing aspects of the law. For example, a law provides for retirement, while a regulation specifies the required documents. These are called implementing regulations. Autonomous regulations are dictated by the President on non-law matters.
Types of Laws
a) Interpretation of the Constitution Act: Clarifies constitutional provisions, requiring 3/5 approval from Senators and deputies. It’s subject to constitutional control by the Constitutional Court.
b) Constitutional Law (LOC): Develops constitutional provisions on key public institutions and fundamental rights. It requires 4/7 approval from Senators and deputies, ensuring stability. It’s also subject to prior constitutional control.
c) Laws of Quorum (LQC): Require an absolute majority vote for approval, modification, or repeal, similar to LOCs.
d) Ordinary Law: Governs matters not covered by other law types, requiring a simple majority of deputies and senators present.
Decrees with Force of Law
These are acts from the executive branch on legal matters, with prior permission from Congress. This delegation is for timely solutions to specific problems. However, delegation is prohibited in areas like nationality, constitutional guarantees, and the judiciary. Decrees with the force of law (DFL) require a delegatory law from Congress, specifying issues, limitations, and a one-year period.
Decree Laws
Decree laws (DL) are legislative acts by de facto governments. They have full legal force during the regime, but their value is questioned after the return to constitutional order. The 1980 Constitution’s transitional provision 6th states that DLs remain in force unless expressly repealed by law.