2 The sources thesis holds that only those rules can be legal rules that stem

2 the sources thesis holds that only those rules can

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2. The “sources thesis” holds that only those rules can be legal rules that stem from a source of law: from a validity source. This sources thesis is strongly connected to legal positivism, a view according to which the law is something that is made (see Sect. 14.2.2 ). We have seen that, in the course of history, legal rules came into existence in different ways, representing different sources of origin of the law. All these sources are forms in which the law has, as a matter of fact, appeared in the course of history. The fact that the law has appeared in these forms does not mean that the rules were considered to be law because they appeared in this form. Judicial decisions in the civil law countries illustrate this point nicely. In the civil law tradition, judges are not bound by the decisions of their predecessors or higher courts. Nevertheless, these decisions lead to law in a way that is different, but not so very different, from the way in which they lead to law in the common law countries. Precedents are not 24 J. Hage
considered to be binding, but are nevertheless treated as law. Because precedents are in fact treated as law, they are a source of law in the sense that they are a form in which law originates. But there is no legal duty to treat them as law. Therefore precedents in the civil law tradition are merely a source of origin of the law, but not a validity source. Nowadays, most legal rules are valid legal rules for the reason that they were laid down with the intention that they would become part of the law. In other words, currently most laws are positive law . This seems so obvious that it requires some explanation as to why it is actually not obvious. 2.2.1 Social Rules There are two ways in which a rule can exist within a social group, namely as a social rule and as what may be called an “institutional rule.” A social rule exists within a group if the members of this group tend to follow this rule, if they see violations of this rule as a reason for (self-)criticism, and if they believe that the other members of the group do the same. An example would be a club of film lovers. They have the rule (but not a legal rule) that a member of the club has to go to the cinema at least once a week and should write a review of the film for the website of the club. The existence of the rule manifests itself mainly in that most members do in fact go to the cinema every week and write about it. Moreover, if a member of the club does not go to see a film in a particular week, she tends to reproach herself for that, and the other members of the group may criticize her for this reason. Moreover, she expects that other club members also feel somewhat guilty if they did not go to the movies and also expect criticism for that reason.

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