Introduction to Law and Legal Systems
Chapter 1: Foundations
Characteristics of Law
Rules:
Most law exists in this form.
Rules prescribe behavior and contain definitions of terms, etc.
Collective Enforcement:
Law is enforced collectively by organs of a State.
Creation:
Most legal rules are created by State agencies.
Positive Law:
Law that is laid down – it is in force.
Codified Law:
Existed before it was written down.
Created law = completely new.
Differences Between Law and Morality
Law gives guidelines for behavior.
Morality sets standards for what is considered good or bad.
Law = no grey areas.
Permitted or not.
Morality is important for the well-functioning of society.
Legal rules not necessarily.
Law is enforced by State organs.
Morality as such is not.
Positive and Critical Morality
Positive Morality:
The moral standards and precepts that are broadly accepted at a particular time and place.
Critical Morality:
The moral rules and standards that should rationally be accepted.
Legal Certainty
Positive Law offers legal certainty.
- Avoids manipulation of rules to the advantage of a small group.
- Legal Certainty has two aspects:
- Certainty about the content of the law.
- Certainty that the law will be enforced.
Law Systems
Roman Law:
Impressive legal system of the Roman Empire from the 8th century BC – 6th century AD. In the times of the reception (12th-17th century) it was also known as civil law.
Legal Dispute:
- Praetor – responsible for establishing and interpreting the precise content of the law.
- Iudex (judge) – determination for the case facts.
Corpus Iuris Civilis:
Attempt to codify the existing Roman law.
Published in the period from 529 to 534 AD.
- Codex: Contained imperial legislation of several centuries.
- Digest: Collection of experts from writings of jurists from the period of about 100 BC until 300 AD.
- Institutions: Student textbook.
Tribal Law:
Roman legal system of a tribal group.
In the Roman case mostly family ties.
- Ius civile: Laws for mutual relations between members of the tribe.
- Ius gentium: Law for relations between tribe members and foreigners or between foreigners among each other.
Customary Law:
Spontaneously grown guidelines for behavior in the form of mutual expectations, which are accepted as binding after some time.
- Starts as unwritten law.
- May change over time and adapt itself to the circumstances.
- The origin is frequently attributed to a historical legislator (like God).
- Customs gained a status of immutability.
- Predecessor of today’s positive morality.
When customary law is written down, the law is described as having been codified.
This means that in this sense it resembles law that was created by means of legislation.
Common Law:
From England, and used in the British Commonwealth, Ireland, Wales and most states of the USA, Canada, Australia and others.
Law based on precedents (decisions made on cases before the one at hand).
- Royal Justices: Started with royal representatives who traveled through the country to administer the law. Applied the same law as what is now known as ‘The Common law of England’.
- Stare Decisis: Stand by your decision Doctrine. If a court has decided in a case in a particular way, then the same court and the courts that are inferior to it must give the same decision to future cases that are similar. Looking for similarities and differences between new cases and old cases.
- Equity: Judge-made law. Case-Based Reasoning. Consists of a body of rules and principles that were developed to mitigate harsh results that were the result of common law. Deals with fairness of law and a fair result. Law of trust.
Canon Law:
Law of the Roman Catholic Church.
Natural Law:
Law that was established by means of reason (17th-18th century).
National Law:
Law of a nation state, which was the consequence of the peace treaties of Westphalia.
International Public Law:
Deals with mutual relations between national states.
Ius Commune
Western Europe was divided into a variety of smaller or larger territories.
These territories had their own local customary law.
Different throughout Europe.
Digest and Common law became an object of study.
Reception:
Universities became popular and when students returned home, they took knowledge of Roman (Digest) and Canon law with them.
The same law became spread over whole Europe.
Practical relevance of the European ‘Common law’, which is called ‘Ius Commune’, was not very large because local customary law was still in the lead.
Roman law gained acceptance because it was seen as rational and more accessible.
Rules were considered to be legal because they were rational.
Natural law.
National States and Codification
Peace of Westphalia:
State formation came into action in 1648 when a number of wars were ended by the peace treaties of Westphalia.
Europe was divided into a number of states.
Assumed to be sovereign.
Exclusive power over its own territory.
National Law:
Originally law was of the people or tribe.
Not from a territory.
Nations were formed.
National law became the law of a nation state.
Westphalian Duo:
Mutual relations between national states.
International Public Law:
National law and international public law were brought together.
Westphalian duo.
Codification
French Law was codified in a number of ‘Codes’ shortly after the French Revolution.
Codification:
- Brings legal unity.
- Creates legal certainty because the law was written down and could be inspected by everyone.
- Emphasizes the legal power of central lawmaking agencies.
- Guarantees the influence of the people on the content of the law.
Historic School:
In Germany opposed to codification, because it would fossilize the connection between law and the ‘Volksgeist’.
Therefore, codification should be preceded by historical research on the origins of law, and the reasons behind it.
- Von Savigny was one of the most important representatives.
In 1900, codification happened anyway, as the Historic School lost against the codification movement.
Interpretation:
- Literal rule or grammatical interpretation: Interpreted literally and grammatically.
- Mischief rule or legislative intent: Legal decision maker (judge) gives the rule an interpretation that makes it suit the intention of the legislator.
- Golden rule or purposive or teleological interpretation: Legal decision maker (judge) interprets the rule freely.
Lawyer’s Toolbox:
- Different legal sources, reasoning techniques and the canons of interpretation can be compared to a set of decision-making tools in a box.
Legal Families
- Common law: England, Wales, Ireland.
- Civil law:
- German family (scholar): Germany, Austria, Switzerland.
- French family (democratic): France, Belgium, Spain, Portugal.
From National to Transnational Laws
After WWII more and more law was created.
Also, other developments took place, that became known as Transnational law, that did not fit the Westphalian duo anymore:
- Rise of human rights.
- The EU.
- The revival of the Lex Mercatoria.
Human Rights:
Traditionally, conceived rights of individuals against their government.
After WWII they became part of international treaties (UN).
States lost a part of the law that is binding on their territories and which also binds them.
Ius Cogens:
A set of peremptory norms of international law that are accepted and recognized by the international community of states as norms from which no derogation is permitted.
e.g. the prohibitions of torture and genocide.
European Union Law:
Not governed by a national state nor a system that regulates mutual relations between states.
Does not fit in the Westphalia picture.
The rules that stem from the EU bind the Member States and bind their legal subjects.
Have precedence over the states’ domestic legal rules.
Lex Mercatoria:
A set of rules created by merchants to regulate their mutual dealings.
Commercial relations are normally governed in private law, but it was found not always suitable for the peculiar needs.
Nowadays it still exists in conventions and treaties.
Soft Law:
Conventions that are not officially binding but nevertheless exercise influence on the behavior of commercial partners.
Arbitration:
Decision-making by a third party that is not an official judge.
Recognized by the parties.
A dispute resolution often used in commercial relations.