Law of the Dominican Republic
Encyclopedia
Dominican law theorists make a fundamental distinction between primary sources of law, which can give rise to binding legal norms, and secondary sources, sometimes called authorities. The primary sources are enacted law and custom
, with the former overwhelmingly more important. Sometimes, “general principles of law” are also considered a primary source. Authorities may have weight when primary sources are absent, unclear, or incomplete, but they are never binding, and they are neither necessary nor sufficient as the basis for a judicial decision. Case law
and the writings of legal scholars are as such secondary sources.
Primary sources of law included enacted law, custom, and general principles. Enacted law includes legal rules adopted by the legislature
, the executive and administrative agencies. The various types of enacted law form a hierarchy
with the constitution
at the pinnacle, followed by legislation
, then by executive decrees, then by administrative regulations, and finally by local ordinance
s. Account must also be taken of the increasing importance of international treaties and conventions. Parliamentary legislation, including the Civil and Commercial codes, is today the principal source of law in the Dominican Republic
.
While custom is technically considered a primary source of law, in practice custom is more often than not routinely dismissed as of slight importance. As might be expected, custom (in the form of trade usage) plays a greater role in commercial law than it does in civil law generally.
It is sometimes said that “general principles”, derived either from norms of positive law
or from the existence of the legal order itself, are a primary source of law. They are characterized as such by some French and Dominican scholars in discussions of the judicial doctrine of abuse of rights and the expansion of the notion of unjust enrichment
.
Authorities, or secondary sources of law, include case law (jurisprudencia) and doctrine. While case law is plays an enormous role in the everyday operation of the Dominican law system, because of the necessity to interpret and apply the “written” law, its legal use is mainly limited to deciding particular cases. Judicial pronouncements are not binding on lower courts in subsequent cases, nor are they binding on the same or coordinate courts. As a practical matter, however, it is generally recognized in the Dominican law system that judge
s do and should take into consideration prior decisions, especially when the settled case law shows that a line of cases has developed. Dominican judicial decisions have de facto weight in order to provide reasonable certainty
and predictability
; to meet the elementary demand of fair
ness that like cases be treated alike; and the related, but distinct, consideration that justice should not only be done, but should appear to have been done. Dominican courts commonly accept French case law as a source of law whenever the legal texts of the Dominican Republic and France are the same.
The writings of legal scholars (doctrina), like the court decisions, are considered authorities in the Dominican law system. The role of doctrine is, however, quite different from that of the case law. While case law authority operates to settle the law and to assure a degree of consistency within a judicial hierarchy, scholarly writing exerts its greatest direct influence
when the law is unsettled or when there is no established law on a point. Thus, the doctrine indirectly controls, to a great extent, the judges’ understanding of the case law. The weight attached by judges to doctrinal writing varies according to a number of circumstances, including the reputation
of the author and whether the view expressed is an isolated one or represents the consensus of the most respected writers. In general, it can be said that Dominican judges pay close attention to scholarly opinions (from Dominican as well as French sources), as expressed in general and specialized treatises, commentaries on the codes, monographs, law review articles and case notes, and expert opinions rendered in connection with litigation. Persistent doctrinal criticisms will often prompt re-examination of a holding, and will sometimes even lead to the abandonment of an established judicial position.
Dominican Commercial Law, whose direct and main source is the Commercial Code, has as subsidiary sources, the Civil Code and the trade customs. Many consider that Article 18 of the Dominican Commercial Code is the text that legitimates the Civil Law as an important source of the Commercial Law. However, there are important stipulations of the Civil Code that evidence the interdependence of both texts, as for example Article 1107 of the Civil Code comes to show .
The legitimacy
of trade customs as a subsidiary source of the Dominican Commercial Law can be derived from several articles of the Dominican Civil Code such as articles 1135, 1159 and 1160 .
Convention (norm)
A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....
, with the former overwhelmingly more important. Sometimes, “general principles of law” are also considered a primary source. Authorities may have weight when primary sources are absent, unclear, or incomplete, but they are never binding, and they are neither necessary nor sufficient as the basis for a judicial decision. Case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
and the writings of legal scholars are as such secondary sources.
Primary sources of law included enacted law, custom, and general principles. Enacted law includes legal rules adopted by the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
, the executive and administrative agencies. The various types of enacted law form a hierarchy
Hierarchy
A hierarchy is an arrangement of items in which the items are represented as being "above," "below," or "at the same level as" one another...
with the constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
at the pinnacle, followed by legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, then by executive decrees, then by administrative regulations, and finally by local ordinance
Local ordinance
A local ordinance is a law usually found in a municipal code.-United States:In the United States, these laws are enforced locally in addition to state law and federal law.-Japan:...
s. Account must also be taken of the increasing importance of international treaties and conventions. Parliamentary legislation, including the Civil and Commercial codes, is today the principal source of law in the Dominican Republic
Dominican Republic
The Dominican Republic is a nation on the island of La Hispaniola, part of the Greater Antilles archipelago in the Caribbean region. The western third of the island is occupied by the nation of Haiti, making Hispaniola one of two Caribbean islands that are shared by two countries...
.
While custom is technically considered a primary source of law, in practice custom is more often than not routinely dismissed as of slight importance. As might be expected, custom (in the form of trade usage) plays a greater role in commercial law than it does in civil law generally.
It is sometimes said that “general principles”, derived either from norms of positive law
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
or from the existence of the legal order itself, are a primary source of law. They are characterized as such by some French and Dominican scholars in discussions of the judicial doctrine of abuse of rights and the expansion of the notion of unjust enrichment
Unjust enrichment
Unjust enrichment is a legal term denoting a particular type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.Definition:...
.
Authorities, or secondary sources of law, include case law (jurisprudencia) and doctrine. While case law is plays an enormous role in the everyday operation of the Dominican law system, because of the necessity to interpret and apply the “written” law, its legal use is mainly limited to deciding particular cases. Judicial pronouncements are not binding on lower courts in subsequent cases, nor are they binding on the same or coordinate courts. As a practical matter, however, it is generally recognized in the Dominican law system that judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s do and should take into consideration prior decisions, especially when the settled case law shows that a line of cases has developed. Dominican judicial decisions have de facto weight in order to provide reasonable certainty
Certainty
Certainty can be defined as either:# perfect knowledge that has total security from error, or# the mental state of being without doubtObjectively defined, certainty is total continuity and validity of all foundational inquiry, to the highest degree of precision. Something is certain only if no...
and predictability
Predictability
Predictability is the degree to which a correct prediction or forecast of a system's state can be made either qualitatively or quantitatively.-Predictability and Causality:...
; to meet the elementary demand of fair
Fair
A fair or fayre is a gathering of people to display or trade produce or other goods, to parade or display animals and often to enjoy associated carnival or funfair entertainment. It is normally of the essence of a fair that it is temporary; some last only an afternoon while others may ten weeks. ...
ness that like cases be treated alike; and the related, but distinct, consideration that justice should not only be done, but should appear to have been done. Dominican courts commonly accept French case law as a source of law whenever the legal texts of the Dominican Republic and France are the same.
The writings of legal scholars (doctrina), like the court decisions, are considered authorities in the Dominican law system. The role of doctrine is, however, quite different from that of the case law. While case law authority operates to settle the law and to assure a degree of consistency within a judicial hierarchy, scholarly writing exerts its greatest direct influence
Influence
Influence may refer to:In science and technology:*Sphere of influence , the region around a celestial body in which it is the primary gravitational influence on orbiting objects...
when the law is unsettled or when there is no established law on a point. Thus, the doctrine indirectly controls, to a great extent, the judges’ understanding of the case law. The weight attached by judges to doctrinal writing varies according to a number of circumstances, including the reputation
Reputation
Reputation of a social entity is an opinion about that entity, typically a result of social evaluation on a set of criteria...
of the author and whether the view expressed is an isolated one or represents the consensus of the most respected writers. In general, it can be said that Dominican judges pay close attention to scholarly opinions (from Dominican as well as French sources), as expressed in general and specialized treatises, commentaries on the codes, monographs, law review articles and case notes, and expert opinions rendered in connection with litigation. Persistent doctrinal criticisms will often prompt re-examination of a holding, and will sometimes even lead to the abandonment of an established judicial position.
Dominican commercial law
Dominican law has given a commercial nature to all acts, operations or activities carried out by business organizations. Therefore, in considering the applicable law in the generality of cases involving corporations in the Dominican Republic first priority is given the basic principles contained in the Dominican Commercial Code enacted on the July 4, 1882.Dominican Commercial Law, whose direct and main source is the Commercial Code, has as subsidiary sources, the Civil Code and the trade customs. Many consider that Article 18 of the Dominican Commercial Code is the text that legitimates the Civil Law as an important source of the Commercial Law. However, there are important stipulations of the Civil Code that evidence the interdependence of both texts, as for example Article 1107 of the Civil Code comes to show .
The legitimacy
Legitimacy
Legitimacy, from the Latin word legitimare , may refer to:* Legitimacy * Legitimacy of standards* Legitimacy * Legitimate expectation* Legitimate peripheral participation* Legitimate theater* Legitimation...
of trade customs as a subsidiary source of the Dominican Commercial Law can be derived from several articles of the Dominican Civil Code such as articles 1135, 1159 and 1160 .