A Jigsaw Puzzle for Rainy Days – How to Put Together the Pieces: Sources of Law, Forms of Law, Principles, Standards, Rules and Norms – to Get a Consistent Picture of Law?

This is a proposal – “a tentative smile on the face of law” – how to create a consistent picture of law and diminish the confusion in the usage of the most frequent key-legal concepts. Its outcome is that law is one entity: its structure so far contains terms of the same degree with respect to all of their variables (sources, forms or rules, norms), from general rules (principles, laws) to individual rules (judicial and administrative decisions).


DANCING AROUND THE SOURCES
The right way towards identification is probably to try to find the origins, beginnings, roots of a problem (phenomena). This leads to the question about the sources of law.
For a long time, there is much confusion in the use of the term "source of law". Indeed, the term is still used in a number of senses, often without distinguishing the different things called by the same name 4 . The doctrine of the sources of law was always "one of the most disputable and difficult in the whole area of law". But at least one answer we should remember. I mean the one presented by F.C. von Savigny in his System of Contemporary Roman Law, which is remarkable decisive: "The content of the source of law was […] considered as everything, what contains a self-standing rule of law" 5 .
J. Austin in his well-known Lectures on Jurisprudence tried to be precise, when dealing with various sources of law: In many legal treatises, and especially in treatises which profess to expound the Roman law, that department or division which regards the origins of laws, is frequently entitled De juris fontibus. This expression fontes juris, or sources of law, is of course metaphorical 6 , and is used in two meanings. In one of its senses, the sources of a law is its direct or immediate author. […] In another acceptation of the term, the fountains or sources of laws are the original o r earlies t ex tan t mo n u men ts o r d o cu men ts by which the existence and purport of the body of law may be known and conjectured 7 .

U M C S
The fundamental problem of legal sources is expressed by its most relevant setting: Legal source or source of law means in a formal definition a reason of recognition for something as law.
R.A. Shiner in Volume 3 of A Treatise of Legal Philosophy and General Jurisprudence offered to Legal Institutions and the Sources of Law opened the discussion on the problem by his introductory sentence: The topic of the sources of law is a traditional one in jurisprudence, continuing by a paradox, that "remarkably, very little attention has been paid to the topic in recent analytical jurisprudence", when "much contemporary analytical legal theory does not consider the notion of a »source of law« at all" 8 . Sources of law in the civil law countries are elaborated by A. Rotolo, who is dealing with the contributions to the topic to the general theory of sources as written by H. Kelsen,H.L.A. Hart and A. Ross 9 .
The legal source (source of law) itself can be law only when the law spawns itself 10 . From this point of view, the source of law is not only a "form" of law, but also a "content" of law, and as such it is an object of "norming/ruling".

TO BE CONTINUED: SOURCES AND FORMS OF LAW
Repetitio mater studiorum est. In the section about the so-called "sources of law" H. Kelsen, in this respect similarly to Savigny, indicates that the legislative and the custom are often identified as the two "sources" of law. The same time by "law" are often understood only the general norms of the state law: "But individual legal norms are equally (likewise) belonging to the law, they are equally (likewise) part of the legal order as the general legal norms on the basis of which they are created" 11 . And then he adds: "And if there the general international law is taken into consideration, then not the legislative, but only custom and agreement can be recognized as a »source« of that law" 12 . Already in 1929 A. Ross published his book according to which Sources of Law are not the reason of origin, but the "reason of recognition for something as a positive law". R. Pound in his article Sources and Forms of Law from June 1946, published in the "Notre Dame Lawyer", also expressed concerns that "for a long time there was much confusion in the use of the term »source of law«" 13 and that the respective term "is still used in a number of senses, often without distinguishing the different things called by the same name" 14 .
In the following part Pound mentioned five senses of the respective term: − fountain of law, − authoritative texts which are the basis of juristic and traditional element of a legal system, − raw material, both statutory and traditional, from which the judges derive the grounds of deciding the cases brought before them, − formulating agencies by which rules or principles or conceptions are shaped so that legislation and judicial decision may give them authority, and − literary shapes in which legal precepts are found, the forms in which we find them expressed. A sceptical question is how much do we need the term "sources of law" (or which one of its different senses is making "most sense")? For me especially the third question of E.Ch. Clark (discussed also by R. Pound in his above-mentioned article) is of special interest: Where, if one wishes to know the law must he go to find it? In what forms is it expressed? 15 The answer to this question had been expressed by the phrase "source of law". Clark gave the answer to the second question the name "source" and called the answer to the third "forms of law" 16 .
According to J.C. Gray (within the topic of the sources of law) the law is composed of the rules which the courts, this is, the judicial organs of that body, lay down for the determination of legal rights and duties. From another view he admits that it may be supposed that the legislation enacts a statute which is so odious to the inhabitants of the state that the bulk of the community disobey it from the start: "In 13 R. Pound, op. cit., p. 247 ff. 14 These questions then correspond to the category of fontes iuris cognoscendi. Here I would like to refer to my contribution presented at the IVR Lisbon World Congress 2017 and published as: A. Bröstl, On Precedents in General and in a Statutory Legal System, "Studia Iuridica Lubliniensia" 2018, Vol. 27(1), DOI: http://dx.doi.org /10.17951/sil.2018.27.1.177, pp. 177-189. 15 Although on the first view it does not look like this contribution is in the line with my previous one from the IVR World Congress in Lisbon (see ibidem), focusing on more general problems and the attempts to solve them correctly. 16 countries where statutes can be abrogated by disuse, the courts may, after a space of time, declare such a statute is no longer to consider binding" 17 . The difference in this matter of the sources of law between contending schools of Jurisprudence in Gray's opinion arises largely from not distinguishing between the Law and the Sources of Law 18 .
J. Salmond in 1902 distinguished "formal source" from "material source"; the latter determining the content of a legal precept, the former giving it the guinea stamp of the state's authority 19 .
Sources of law can be also classified as either legal or historical. The former are those sources which are recognized as such by the law itself. The latter are those sources lacking formal recognition by the law. This is an important distinction which calls for careful consideration.
In respect of its origin, a rule of law is often of long descent. The immediate source of a rule o f Eng lis h law may be the decision of an English court of justice. But that court may have drawn the matter of its decision from the writings of some lawyer, let us say the celebrated Frenchman Pothier; and Pothier in his turn may have taken it from the compilations of the Emperor Justinian, who may have obtained it from the praetorian edict 20 .
Legal sources of law are authoritative, the historical are unauthoritative. The former are allowed by the law courts as of right; the latter have no such claim. The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only mediately and indirectly.
The second one of the classical or traditional sources of law is precedent, expressed in the maxim stare decisis et non quieta movere ("to stand by what has been decided, and not to disturb what is still" 21 ).
In my previous article, I touched also the topic of precedents as individual rules and the question, whether we should put precedents into the category of 17 J.C. Gray, The Nature and the Sources of Law, New York 1921, p. 108: "It is impossible to say that any general rule of conduct laid down by an administrative organ of a political (or other) organized body, and applied, if necessary, by the courts, is not a source of law".
18 Ibidem, p. 84. 19 The socialist (Marxist-Leninist) legal theory / legal science has taken over and "developed" this differentiation in official teaching books. In the Slovak Republic, e.g., see P. Dojčák [et al.], Teória štátu a práva, Bratislava 1977, Chapter XIX: Sources of Law. The Concept and the Kinds (Types) of Sources of Law: "In the juridical sense sources of law are the forms in which valid legal norms are expressed" (p. 235). Also later on this classification played a role. L. Morawski speaks among others about "sources of law in the formal sense" (fontes iuris oriundi: each act, document or decision, which in the given legal system is considered as a source of law) -and the "sources of law in the material sense" (which is less elaborated). See L. Morawski The formula holds the conscience upright, that statute and law are indeed factually covering each other, but not necessarily and not always. The Law is not identical with the aggregate of written statutes. The Judge is according to the Basic Law not entirely dependent to apply legislative directives in the limits of possible word meanings to the individual case 23 .
Such an opinion/notion would presuppose a principal of the positive state legal order, a situation, which is defendable as a principal postulate of legal certainty, but is almost unreachable. Judicial activity is not consisting only in the recognition (identification) and in the pronunciation (utterance) of the decisions of the legislator. The task of the adjudication may especially require to bring on light and realize value concepts which are immanent to the constitutionally legal order, but which are not expressed in the texts of written statutes (or expressed imperfectly) in an act of recognition, which is not missing willingly elements.

PRINCIPLES AND/OR STANDARDS VS RULES AND/OR NORMS?
In accordance with the subtitle of this particular section I would like to return to J. Austin and his relevant generalization by one sentence from his Lectures on Jurisprudence: "Speaking then generally, human conduct is inevitably guided by rules, in the form for the most part, of general principles or maxims" 24 .
Although rules such as the ones set out above are highly precise, and although the standards just described are vague in the extreme, the difference between rules and standards is actually a matter of degree 25 .
We may remember also the terminology used by I. Kant in his Rechtslehre, where he pointed out that "the state in the idea how it should be according to the 22 See A. Bröstl, On Precedents in General… In footnote No. 15 "What is required from our side is an intellectual activity, thus how easy it is often looking like, a scientific deal, the beginning and basis of the legal science", Savigny (op. cit.,p. 206)  pure principles of law, which serves for each real association to a (political) community (thus inside) as a Richtschnur (guideline, standard, norma)" 26 .
It was said that what apparently differs the legal rule (Rechtssatz) from any other state power expressions is its "generality". But not all what is in a certain point general is, therefore, a legal rule and not every legal rule is in all points general. (G. Jellinek in 1887 described the legal norm, the legal rule [Rechtssatz] as one of the most difficult problems of the judicial competence/jurisdiction.) H.L.A. Hart distinguished two kinds of legal rules, primary rules (rules imposing duties) and secondary rules (those conferring powers, public or private) 27 . The concept of a rule of recognition is general to Hart's theory. He considers it as a set of criteria by which the officials decide which rules are and which rules are not a part of a legal system.
On the traces of the nature of the judicial "further creation" of the law (richterliche Rechtsfortbildung) J. Esser is speaking about principles and norms 28 . According to him "legal maxims are those broad and usually terse statements of such general propositions as that »nobody will be heard to plead his own wrong«, or »error of law is no excuse«". General clauses, in German terminology, are those sections of a code or statute which do not contain a definitely formulated rule of law but refer the judge to some extralegal standard 29 .
Kelsen in his criticism of Esser reminds that "if there is a difference between a principle and a norm, than a principle cannot be a norm" 30 . R. Dworkin in his strategy of the general attack on legal positivism is targeting on the fact when: […] lawyers reason and dispute about legal rights and obligations, particularly on those hard cases when our problem with these concepts seems most acute, they make use of s tandar ds that do not function as rules (that are not rules), but operate differently as principles , policies, and other sorts of standards 31 . 26 I. Kant, Rechtslehre, Berlin 1988, p. 127 Dworkin characterizes the distinction between principles and rules as follows: The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion, than either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision 32 .
He is characterizing a legal principle as "a reason which is an argument in a certain direction, but which doesn't make a certain decision necessary". He understands legal rules and legal principles as "building-stones of the valid law".
R. Alexy in his theory "based on Dworkin and familiar with Esser's dogmatic" 33 brings rules and principles under the roof of the concept of norm. So far both, rules and principles are norms, because both say, what shall be ought. Both can be formulated by the help of the deontic basic expressions of command, permission and prohibition. Alexy finds that principles are distinct optimization orders, which need to be complied with at different levels. Rules are provisions that either must be followed or need not be followed, which is making them definite 34 . In comparison, implementation or formation of principles has nothing to do with a deductive subsumption process. Another difference between principles and rules is that a conflict of principles is solved by "considering the circumstances of the case the preferential regulation is determined between both possible practicable principles" 35 .
Rules and principles according to Alexy are reasons of a different kind. Principles are always prima facie reasons, and rules are, if there is no exception, definite reasons. By the prima facie and definite reasons it is not said for what they (principles and rules) are reasons. They may be seen as reasons for actions or reasons for universal (abstract-general)  K. Llewellyn has described rules in The Bramble Bush in the following way: "Rules […] are important so far as they help you see or predict what judges will do or so far as they help you get judges to do something. That is their importance, except as »pretty playthings«" 36 .
The above-mentioned monography of J. Esser from 1956 Principle and Norm in the Judicial Formation of the Private Law (Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts) is of programmatic importance and had a great influence in German speaking countries. According to the author the principle differs from a legal norm in the way that it "does not contain any binding directive of direct for a certain scope/ sphere of questions, but is rather asking and presupposing a judicial or legislative shape/ characteristic of such directives". Principles as a part of positive law would be eligible for support only if they are institutionally incorporated through legally-advanced acts of legislation, jurisprudence or those of legal life. They are parts of the positive law as "immanent conditions of being and functioning of the individual, without presenting for itself alone the content of a material legal rule/proposition (Rechtssatz)" 37 . C. Canaris as a follower of Esser is claiming that principles "need to their realization and concretization by subprinciples and individual evaluations with self-standing content.
[…] They are no norms by itself, and that's why they are not able of straight (direct) application".
Diverse acceptances of the term principle refer to diverse meanings (normally understood as "fundamental notion"), however close they may be to one another. In colloquial Italian principio is used as a synonym for "beginning". Otherwise, principle may be used as a synonym for fundamental value 38 .
For a long time, the best known of Dworkin's criticism of Hart's The Concept of Law was that "it mistakenly represents otherwise principle is used law as consisting solely of »all-or-nothing« rules, and ignores a different kind of legal standard, namely principles, which play an important and distinctive part in legal reasoning and adjudication". Hart is finally bowing to Dworkin's criticism and pressure stating: stractness or ultimate generality does not change this identification; the way of dealing with them, the way of their application may differ from this one of ordinary rules. Principles are "rules in statu nascendi" or "rules of rules". I do not agree with Kelsen's logical argument saying that "if there is a difference between a principle and a norm, than a principle cannot be a norm". So, the law is a matter of rules, and as an aggregate of rules it is composed of various kinds/modes or types of them, and if I would try to enlist them: Rulesprinciples (general legal ideas), General rules (constitution, statutes, regulations), Individual rules (judicial and administrative precedents and decisions), Rules of Equity… I try seriously to think about including "subjective rights and freedoms", e.g. as (general) principles -although they are "hidden" under the constitution. This version is concerning the genus of the definition, concerning the main differentia it is looking like their relationship to the state (also as a set of rules) in the sense of a body with the purpose of guaranteeing to its citizens a "nugget of freedom".

CONCLUDING REMARKS
I have to remind of the questions from the very beginning of the discussion with my Polish colleagues a few years ago. That time I was among others asked what do I think about Article 87 section 1 of the Constitution of the Republic of Poland adopted on 2 April 1997, which states: "The sources of universally binding law of the Republic of Poland shall be the Constitution, statutes, ratified international agreements (treaties), and regulations". That time I did not give a direct answer, I just pointed out that it depends on how we are treating and solving a few questions more 50 .
The wording of the respective Article of the Polish Constitution is carefully sourced out (e.g. speaking about "sources of universally binding law"). But I can imagine a different wording of "a Constitution" also of a continental European one (after all having roots in Roman law), based on the discussion presented in this article (anticipating/supposing, that the "sources of law" are best fitting in the sense of "forms of law", or in the sense of "general [universally binding] and individual rules [individually binding]" shall be expressed in the Constitution): "The sources of (binding) law shall be the Constitution, statutes, international agreements, judicial and administrative precedents, and other decisions, customary law, equity". U M C S I think that we need an Ariadnean string for all attempts to reach the true level of theoretical explanations, we need it also in the field of law, as something safely leading us from general principles to individual decisions and backward.
Last word, I can imagine raising doubtful objections, so I think the presented discussion shall be continued.