The Hierarchy of Laws: Understanding and Implementing the Legal Frameworks that Govern Elections Introduction All countries have a legal foundation, generally consisting of “The people are the only legitimate a founding document, such as a constitution, and the laws fountain of power, and it is from passed by the national legislature and other levels of lawthem that the constitutional making authority. These laws function in a hierarchy, which charter…is derived.” determines how they rank in authority and how the authority and scope of each level is derived from the –James Madison, The Federalist constitution. 1 The hierarchical structure varies from country No. 49, 1788 to country, and depends on the form of government. 2 However, there are general principles that are common to most countries and are key to determining the purpose of each piece of law within a legal and regulatory framework, and ultimately enforcing their authority and validity. This paper is intended as a guide for election practitioners who are interpreting, developing, and implementing legal and regulatory frameworks for elections, and who should understand the hierarchy of these laws. For each level of that hierarchy, this paper sets out the law’s purpose; the actor with drafting responsibility; the source of authority; the actor with enforcement responsibility; the amendment process; and why it has more authority than the form of law one step below it. Understanding these principles of hierarchy can help election management bodies (EMBs) fully execute their legal mandate to develop and enforce rules and procedures that give effect to electoral laws, and ultimately protect fundamental civil and political rights. Understanding the hierarchy of laws helps with developing a clear and consistent legal and regulatory framework for elections, by ensuring the appropriate content and detail is contained in each level of hierarchy. The Hierarchy of Laws Respect for the hierarchy of laws is fundamental to the rule of law, as it dictates how the different levels of law will apply in practice. In general, the fundamental levels of hierarchy consist of: a constitution or founding document; statutes or legislation; regulations; and procedures. This paper also touches on treaties Governments with no legal foundation are not recognized as legal nations (de jure), but as ungoverned or having only a de facto government. See Wheeler, Everett P. "Governments De Facto." The American Journal of International Law 5.1 (1911): 66-83. 2 These forms include presidential, parliamentary and totalitarian systems, including those with a one-party rule, and monarchies. For example, in a federal nation such as the United States, the laws of the individual states are very important and are only subservient to federal laws in specific fields. In some federal nations, particularly those without a long state history, the states may have far less authority and legislate in fewer fields. In unitary states, legislative power is centralized in the federal legislature and local government legislates only relatively fewer and minor issues. In some nations, the constitution defines all of the hierarchical structure down to all levels and in others it provides for the national legislature to determine the process of delegation of authority from one level to a lower level. For example, in many federal nations, such as Canada, the constitution defines the fields in which states or provinces may legislate, but allows the state or province to decide what local matters are delegated to cities or counties. 1 1