The rules They are also called "regulatory law", and they refer to all thedecisions produced by the executive power (govern) or by thedifferent administrative authorities (municipality, wilaya, province...). Inprinciple, these regulatory texts do not all have the same binding force,it all depends on the authority that generates them. Thus, the different kinds of textsregulations are situated, in relation to each other, in an orderhierarchical27 As for the object or the field of the regulations, article 72 of theconstitution specifies that matters other than those which are within the scope ofthe law belong to the regulatory domain, that is to say, they are of therests with the government.26 For example, the current Commercial Code of 1996 provides in itsArt. 733 that the provisions of books three and five shall not come into forceone year after the publication of this law. This technique allows thepractitioners to take the time to study and learn about the provisions of thenew law. International conventions These are Agreements between two or more States28, the purpose of which is theregulation of a specific area between states. Basically whenan agreement between entities that are not recognized as Statesinternationally (member states of a federal state, provinces,municipality, public establishment, etc. does not constitute an agreementinternational29, any more than are contracts between individuals or betweenstates and individuals.A distinction can be made, depending on the number of Contracting States, betweenbilateral and multilateral agreements. However, this difference ispurely formal and only affects certain elements of the procedure forconclusion, not the legal nature or the effects of the agreements.Indeed, whether it is a bilateral or multilateral convention, theConvention shall be deemed to be law having binding force onlywhen ratified and published. Ratification thus results from a law passedby Parliament, and publication in the official bulletin takes place in the sameconditions than a national law.The superiority of the international convention over national lawis today clearly affirmed by the constitution30Various terms are used in international practice to designateinternational conventions: treaty, agreement, arrangement, pact, charter,protocol. As an example, we can cite the twinning agreements between two towns from different countries, with the aim of promoting socio-cultural cooperation between thetwo cities. In principle, this type of agreement has nothing to do withwith international conventions. The preamble to the Moroccan constitution affirms in this sense that the
Kingdom of Morocco undertakes to "grant to international conventionsduly ratified by him, within the framework of the provisions of the constitution and §IIIThe hierarchy of legal norms The different sources of legal rule therefore implymany names as we have determined (law, conventioninternational law, regulation, decree, order...), but these do not have the samebinding force in the organization of society. It is moreover for thiswhy the theorist Hans Kelsen developed the principle of hierarchylegal standards according to which no text can go against aanother who would be superior to him, in other words the level legal textsuperior prevails over that of the lower level32. In the constitutionMoroccan this principle is confirmed by the 3rd paragraph of article 6, which specifiesthat "are affirmed the principles of constitutionality, hierarchy andobligation to publish legal standards" To keep to a general presentation, we can organize the differenttexts of laws according to the following pyramid:of the laws of the Kingdom, in respect of its immutable national identity, andfrom the publication of these conventions, the primacy over the internal law of thecountry, and harmonize accordingly the relevant provisions of itsnational legislation". Philippe Malinvaud, introduction to the study of law, LITEC, 13th ed. p. Thus the regulation must not violate the law which in turn must notviolate the provisions of the constitution. In the same way the rulesnewly adopted must respect the previous level ruleshigher but can modify previous rules of the same level. Shelogically leads to the abrogation of the contrary lower rules.The Arabic version of the text is more explicit than the French version inconcerning the confirmation of the principle of the hierarchy of norms“The constitutionality of legal rules, their statute, and the obligation to publish them arebinding principles”: juridiques 1. Constitutional law: As we pointed out above, theconstitution is the supreme law of the nation, from this text derives a certainnumber of legal rules, which we commonly call by lawconstitutional, and which have a certain superiority over the others.This superiority of the constitution comes from the fact that it determines thefoundations of state formation, the political and economic regime ofthe State, the nature of the powers and the attributions of the major institutions, as well asthat the guarantee of rights and freedoms for citizens...2. International conventions: These are signed agreements or treatiesby several sovereign States and whose content becomes a law withbinding force for the signatory countries. By relying on the constitutionMoroccan law, this confirms the superiority of international law over the lawinternal.
3. Organic laws: These are laws whose adoption is provided for by theConstitution to specify the methods of organization and operationpublic authorities34The organic laws are cited in the various articles of theConstitution, there are a total of 19 organic laws: ● the law● constitutional● conventions● international● organic laws● Ordinary laws● regulatory laws Adopted according to a specific procedure, it is necessarily submitted to thecontrol of the constitutional court before its promulgation35.4. Ordinary laws: These are legislative texts passed by Parliamentaccording to the procedure established by the Constitution and in one of the areasexpressly provided for in section 71.5. Regulatory laws: These are the regulatory acts that come backnaturally within the competence of the government: ➢ The Royal Dahir: the constitution granted the King the right to exercise his executive power through the Dahirs. Thus, the King establishes dahirsin the regulatory field1- Organic law on the Amazigh language (article 5)2- Organic law on the National Council for Languages andculturemarocaine (article 5)3- Organic law on political parties (article 7)4- Organic law regulating the right of citizens tosubmit legislative proposals (Article 14)5- Organic law regulating the right of citizens topresent petitions to public authorities (article 15)6- Organic law on the right to strike (article 29)7- Organic law relating to the Council of Regency (article 44)8- Organic law specifying the list of establishments andstrategic companies concerned by appointments tocivilian jobs (article 49)9- Organic Law on the House of Representatives(article 62)10- Organic Law on the Chamber ofadvisers (section 63)11- Organic law on the functioning of the commissionsinvestigation (section 67)12- Organic Finance Law (article 75)13- Organic law defining the rules relating to theconduct of government business (section 87)14- Organic law regulating the status of magistrates(article 112)15- Organic law on the High Council of thejudiciary (article 116)16- Organic Law on the Constitutional Court (article 131)
17- Organic law on appeal for unconstitutionalitylaws (article 133)18- Organic law on regionalization (article146) 19- Organic Law on the Councileconomic, social and environmental (article153)35 Article 85 of the Moroccan constitution of 2011.such as appointment to civil or military functions,delegation of power to the head of government... ➢ The Decree: it is a regulatory act established either by the head of the government or by several ministers. ➢ The decree: The ministerial decree is an administrative act issued by a minister in the organization of his ministry ➢ The circular: It is a purely organizational act which does not have not binding force like the other texts.Section II: Traditional Sources of LawThe rule of law first has its source in the texts previously presented,but by the force of things, these texts sometimes appear unsuited to thespecificities of Moroccan society. It seems more appropriate to look foradaptation or supplement as needed. This explains why the rightMoroccan faithful to the Muslim tradition, continues to take the Shariaas a legislative reference in certain areas. In the same way,custom constitutes a complementary, and above all traditional, source to theMoroccan law.§I: CustomCustom can be defined as a practice that emanates directly from thepeople, it has a habitual character which, as a result, tends to arise inunwritten rule of law. Contrary to statutory provisions orregulations, custom is not the work of the State, it emanates from thewilldirect from the people. We note first of all that custom differs fromLaw by its source.Second, custom opposes law by its slow and undeliberate formation.This slow creation has the advantage of perfectly adapting the rule of lawto the economic and social needs of a category of individual(traders, artisans, etc.). Moreover, the custom is not frozen like alaw, it evolves according to the needs and mores of the group.To speak of a true custom, this presupposes at least the meeting of amaterial element and a psychological element: ❖ The material element: this element supposes that the practice which has object the creation of custom results from a fairly large numberof similar acts, and that it be recurrent, that is to say appliedusual way. ❖ The psychological element: this element supposes a real belief of the group to act under a binding rule. Therecustom is therefore perceived as obligatory behavior byl'opinion commune.Furthermore, the uncertain content of the custom gives rise to problems of
evidence before the judge. It is thus necessary to distinguish between general custom andstrictly local custom. If it is a general custom, such as thecustomary maxims or general trade usages, thejudge must know it and apply it. The applicant does not have to provide proofof the existence of the customary rule and the judge must apply it ex officio. Byagainst, if it is a local or professional custom, the judge mayignore. In this case, the person who intends to benefit from it must provide proofof the existence of the custom. This proof is done by all the proper meansto carry the conviction of the judge: testimonies, expertise...§II: The religionContrary to secular countries36, it is difficult to deny the place of the rulereligion in the Moroccan legal system. The Moroccan constitutionexpressly provides that the religion of the Moroccan State is Islam37, from itsside the new family code has remained faithful to the Muslim tradition tothe image of the majority of Muslim countries. In the same direction severallegal provisions of a religious nature are scattered throughout thedifferent codes and laws applicable in Morocco38.But this observation should not lead us to believe that Moroccan legislationhas as a basic reference the precepts of Sharia in all areas.Indeed, the Moroccan State in the search for economic developmentand social appropriate calls more and more on European rights, in particularto French law. Moreover, a simple reading of the various texts of lawsshows to what extent our law is influenced by this European source.36 Secularism is a system based on the principle of the separation ofstate and religion. Appeared for the first time in France with theFrench Revolution of 1789, it was gradually put in placefor more than a century and today several states claim to bethan secular states. Among these States we can cite the European States, theTürkiye, Albania...37 According to Art. 3 of the 2011 constitution, Islam is the state religionMoroccan.38 For example, we can cite:- the prohibition of loans at interest- the prohibition of the public break of the young person during Ramadan- criminalization of public drunkenness- Art. 986 of the DOC nullifies any company that hasobjects of things prohibited by religion.In summary, it can be said that our legal system39 is influenced by the lawEuropean while remaining faithful to the Muslim tradition.Section III: Interpretative sourcesThe rule of law is drafted in principle in general terms, but is intended toorganize specific situations, so to know if such a legal rulecorresponds to such a situation, it must be interpreted. This task is assigned toprinciple either to doctrine (§I) or to case law (§II).§I: To the doctrinesThe word “doctrine” designates the legal literature orall the opinions expressed on the law by its specialists. We
will see the modes of expression of the doctrine (I), then weconsider the function (II).I. Modes of expression of the doctrineThe doctrine covers the most diverse works that are developedmainly by jurists, especially theoreticians such aslaw professors, lawyers, magistrates, notaries, author of doctoral thesis,etc.39 There are several legal systems around the world, we often speak ofideological systems (secular or religious) liberal systemssuch as the common law system (England, Scotland, Canada toexception of Quebec, Ireland…) and the Roman-Germanic system (theFrance, Belgium, Spain, Germany…). See G. Taormina,Introduction to law, hatchet superior 2006 p. 42 et seq.Three types of writing can be distinguished: ➢ General works devoted, in one or more volumes, to a specific branch of law (civil law, commercial law, criminal law,etc... ➢ Specialized books on limited topics. These are doctoral theses or monographs with a more utilitarian purpose,intended primarily for practitioners. ➢ Periodicals in the form of articles, studies or chronicle of a few pages devoted to a specific theme.II. The functions of the doctrineOne author said that "to measure the role of doctrine, it suffices as aexperience of having a non-lawyer read the Civil Code: …. The unfortunatewon't understand anything." The role of doctrine therefore consists essentially inparticipate in the understanding of the law through analysis and commentarylegal texts. It therefore has an educational role.However, the role of lawyers is not limited to studying and commenting on thewritten rule. They cannot content themselves with interpreting it, studying thelegal institutions only, but also to criticize their structure bylooking for flaws. Indeed, lawyers through their productions have theduty to show the legislator the defect of the rule of law so that the latterintervene to modify it. It is said to have the force of proposal.Inspired by history and comparative law, the jurist must propose rulesbetter, more adapted to social and economic needs. In this sense, thedoctrine participates in the creation of the rule of law or more exactly in itsimprovement. The jurist's mission is to help create the rule ofright, as it comes as close as possible to social reality.The legislator is influenced by doctrine. Most often, projects orbills are drafted with the close collaboration of professors oflaw and practitioners. This is how a commission, made upessentially by law professors, participated in the reform of the codeof commerce of 1996. In the same sense the judges often refer to thedoctrine when applying a rule of law, particularly when itit is a rule of law whose content is dark and ambiguous.§II: JurisprudenceJurisprudence refers to all the decisions rendered by the various
courts of the Kingdom. We speak of judgment when the decision is madeby a court of 1st instance, and judgment when the decision is rendered bythe Court of Appeal or the Court of Cassation.To render a judgment or a judgment under the best conditions, the judgemust first carry out a work of analysis and interpretation of thelegal or regulatory provisions (law, decree, order, etc.).Unlike the Anglo-Saxon system (England and USA) where the judgeparticipates in the creation of the rule of law, in Morocco as in France, the roleof the judge consists essentially in the application of the rule of law tothe occasion of a trial, i.e. its role is limited to the choice of the rule oflaw capable of solving the legal problem posed.So this is not a formal source of the rule of law, butonly from an interpretive source. However, the interpretationidentified by the magistrates may end up having a general scope. It's thatwhich occurs, in fact, when jurisprudential solutions are repeatedconstantly and without interruption. In this respect, it is necessary toapart from the case law of the Court of Cassation, which benefits from an authorityparticular, given the fact that it is at the top of the hierarchyjudicial.40 We will come back to this later in this course.