O przyczynach nieporozumień związanych z użyciem terminu „źródło prawa”
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This paper attempts to analyse the problem of the out-of-system references to the norms conflicting with legal order. The author tries to research the problem taking as a starting-point a question if the lawmaker is authorized to enact provisions (norms) referring back to such – other than legal – norms (or evaluations) that conflict with legal order. Especially it can happen when the lawmaker uses so-called general clauses or when the legal norm refers to some codes of professional ethics, which were not created by the lawmaker but by another body. It is possible then that a social norm (or the norm of the code), which is a norm of reference, turns out to be in conflict with some legal norms. The answer for above-mentioned question is – according to the author – negative and this fact has several important consequences for the method of controlling the conformity of the normative act with the superior act. The most important of these consequences is that the subject of a control should be a legal provision that refers to the out-of-system norm and not such a norm itself. The controller must check if the provision refers to social norms that conform with legal order – within this range the provision itself conforms with legal order, outside – it doesn’t. Such a method lets the controller adjudicate in what range the provision (and the norm that is constructed on its basis) conforms with legal order (and so is binding) and in what range it doesn’t conform with a legal system (and so is not binding). Simultaneously, such a method doesn’t let the controller (for example Constitutional Tribunal) interfere in the rule of reference which after all is not of a legal kind.
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