0.2Sources of law & the hierarchy of norms
The essentials in 30 seconds
- Where rules come from: Constitution, treaties, statutes, regulations, case law and contracts — organised into a hierarchy of norms.
- Lower complies with higher: a contract cannot override a public-policy rule — a contrary clause can be set aside.
- Two decisive distinctions: public policy (mandatory) vs default (adjustable by contract); public law vs private law.
Threaded mini-case — Yacine learns a signed contract can fall
Yacine, digital SME owner in Algiers, adds to his contract a clause that suits everyone but clashes with a mandatory rule. His lawyer explains the pyramid: at the bottom, the contract; at the top, the higher norms. The clause is rewritten in compliance with the rule that prevails, and Yacine understands why signing is never enough to make a clause valid.
Standalone episode: Yacine learns the hierarchy here before choosing his legal form in 0.3.
1. Where rules come from
The main sources of law: the Constitution (the supreme norm), treaties (including sometimes supranational law, e.g. the European Union), statutes (passed by parliament), regulations (decrees and orders issued by the executive), and more concretely case law (court decisions) and contracts/customs.
These sources do not carry the same rank: they are organised into a hierarchy of norms.
2. The pyramid and two distinctions
The principle: a lower norm must comply with higher ones. A regulation cannot contradict a statute; a contract cannot override a mandatory public-policy rule — which is why a signed clause can be set aside.
Two distinctions: mandatory public policy (imperative, non-derogable) vs default (applicable failing agreement to the contrary); public law (involving the State) vs private law (between individuals/companies). The exact structure varies by country.
🔎 Concrete example — 🔎 Practical example — A signed contract can be set aside
The pyramid explains it.
“A contract is the law of the parties” — but only in compliance with higher norms.
A clause contrary to a PUBLIC-POLICY rule is annulled, even if signed.
→ for a DEFAULT rule, by contrast, the contract prevails.Result: knowing which rule prevails in case of conflict.
Reflex: check whether a rule is mandatory before adjusting it.
Section vocabulary
- Hierarchy of norms
- The organisation of legal rules into levels: a lower norm must comply with the norms above it.
Simple example: Yacine's contract must comply with the mandatory statute above it.
What it is not: believing all rules are equal and contracts prevail.
Reflex: when rules conflict, ask which one sits higher.
- Statute vs regulation
- A statute is passed by parliament; a regulation (decree, order) is issued by the executive to implement statutes, at a lower rank.
Simple example: Yacine distinguishes what the statute says from what an implementing decree specifies.
What it is not: placing an order above a statute.
Reflex: identify who issued the rule to assess its force.
- Case law
- All the decisions handed down by courts; it interprets texts and its weight varies by legal system.
Simple example: Yacine asks how courts actually apply a given clause.
What it is not: reading the text alone without looking at how it is applied.
Reflex: text + application by judges = the full picture.
- Public policy vs default
- A public-policy rule prevails even against the parties' agreement; a default rule only applies failing a clause to the contrary.
Simple example: Yacine cannot set aside the mandatory rule by contract, but can adjust the default one.
What it is not: adjusting by contract a non-derogable rule.
Reflex: before setting aside a rule: mandatory or default?
- Public vs private law
- Public law governs relations with the State; private law governs relations between individuals and businesses (civil, commercial, employment…).
Simple example: Yacine's contract with his client falls under private law.
What it is not: treating dealings with the administration like a contract between companies.
Reflex: identify whom you are dealing with: the State or a private partner?
In practice — In practice — Finding your way among sources of law
- When facing a rule, identify its source (statute, regulation, contract, court decision) to assess its force.
- Check whether the rule is MANDATORY (non-derogable) or DEFAULT (adjustable by contract) before seeking to set it aside.
- In case of apparent contradiction, remember that the higher norm prevails (a contract cannot breach a mandatory statute).
- For reliable, up-to-date information, go back to the official sources of YOUR country (published texts, government websites) — not to undated summaries.
Ready-to-use script — checking a clause before imposing it (30 s)
“This clause suits me, but let's check first: is the rule it touches public policy or default? If it is mandatory, we rewrite it in compliance with the higher norm.”
Say to the other party or the lawyer: the mandatory / default test before any custom clause.
Copy-paste template — testing a rule in the pyramid
RULE / CLAUSE: _______________
SOURCE (statute, regulation, contract, decision): _______________
PUBLIC POLICY (non-derogable) OR DEFAULT? _______________
HIGHER NORM TO COMPLY WITH: _______________
DECISION (keep / rewrite / drop): _______________SME / small budget
Without a legal subscription: go back to your country's free official texts and note the date of each source consulted.
SME Algiers
Yacine goes back to Algerian official sources with his lawyer: the pyramid follows the same logic, only the structure and texts change.
Contract with a foreign partner
Identify which legislation governs the contract and check on both sides whether the clause clashes with a local mandatory rule.
Everyday awareness
Beware of undated summaries: check the source, its rank and its freshness before making a decision from it.
✓ Best practices
- Identify the source of a rule to assess its force.
- Check mandatory vs default before adjusting a rule.
- Go back to your country's official, up-to-date sources.
✗ Common pitfalls
- Believing that a signed contract prevails over a mandatory statute.
- Relying on undated summaries rather than official texts.
- Ignoring case law (how texts are actually applied).
Key takeaways
- The sources: Constitution > treaties/international commitments > statutes > regulations > (case law, contracts) — a hierarchy of norms.
- Key principle: a lower norm must comply with higher ones; a contract cannot override a public-policy rule.
- Mandatory public policy (imperative, non-derogable) vs default (applies failing agreement to the contrary): a decisive distinction before adjusting a rule.
- The exact structure VARIES by country (place of treaties, role of judges); the idea of hierarchy is largely universal.
48h Challenge — apply tomorrow
Take 1 clause from your contracts and identify its source and rank: can it be adjusted (default) or does it prevail (public policy)? Note the verified official source.
- I can cite the sources of law in pyramid order.
- I distinguish public policy from default before adjusting a rule.
- I have tested 1 real clause against the pyramid.
Frequently asked questions
How can a contract I signed be cancelled if it is “the law of the parties”?
The expression is true, but a contract is only binding in compliance with higher rules: it sits at the very bottom of the pyramid. A clause is set aside or annulled when it clashes with a public-policy (mandatory) rule, which protects a general interest or a weaker party (consumers, employees…). Examples of the logic (varying by country): a clause depriving an employee of a minimum right, an unfair term imposed on a consumer, an unlawful purpose — annulled even if signed knowingly. Consent does not validate what the law prohibits: otherwise the stronger party could make the weaker party “accept” anything. Conversely, for default rules, the contract does prevail. Hence the importance of the mandatory/default distinction. To remember: signing creates a strong commitment, but it does not make lawful what is not.
Is case law really a “source” of law?
Yes, but its weight varies greatly by system. Case law means court decisions: because texts are general, judges must interpret them to apply them to specific cases, clarifying their meaning and filling their gaps. Knowing the statute without case law gives an incomplete picture, because case law tells you how the law is actually applied. The big difference: in “common law” (the Anglo-Saxon world), precedent can bind future judges; in the civil-law tradition (written, codified law — many countries in Europe and North Africa), the primary source is the statute and case law plays a more framed role (it strongly guides, but a reversal remains possible). To remember: the text alone is not enough to know how a rule applies, its weight depends on your country, and that is one more reason to consult a local professional.
What does the principle of the hierarchy of norms say?