The Normative Status of the Sources of Law
As an ideal model, the DS doctrine is normative, which means that the doctrine gives the criteria first, what is law, and second, what is a good (correct) law. In this regard, the degree to which the single sources are binding is the key issue.
Here, the threepartite classification made by Aleksander Peczenik is of great importance (Peczenik 1989, 319, 1991, 311). Notwithstanding the details, the following categorisation serves as my starting point:1. Strongly binding sources of law
a. Norms external to national law
• The binding parts of European law
• Norms of the European Convention on Human Rights
• Certain precedents of the European Court of Justice
• Certain precedents of the European Court of Human Rights.
b. Norms of national law
• Fundamental rights of the Finnish constitution
• Statutes and lower-level norms given by virtue of laws (etc.)
• International treaties incorporated into national law
• System arguments.
c. National custom
2. Weakly binding sources of law
d. The intention of the legislator
e. Precedents.
3. Permitted sources of law
a. Practical arguments (economical, historical, social, etc.)
b. Ethical and moral arguments
c. General legal principles
d. Standpoints presented by the doctrinal study of law (prevailing opinion)
e. Comparative arguments
f. Others.
4. Forbidden sources of law
Reasons that can be held as forbidden are only arguments that are against the law or good practice and those that are openly political.