Notes - Introduction to Law

Chapter 2 : Sources of Law

1. What is law about?

1.1 Law and Legal reasoning

 Law governs human behavior by rules (do’s and don’ts):

o Drive on the right/left lane

o Pay taxes

 Law secures compliance:

o If you speed you will pay a fine.

 Law prescribes possible events and compliance:

o Whoever kills another person will be imprisoned to a minimum 15 and a
maximum of 40 years.



Lawyers perspective

 Legal rules : norms
 Compliances : sanctions
 Prescribing : prohibiting and sanctioning


1.2 Positive law and legal certainty


Positive law
 The law that is valid here and now


Legal certainty:
 Positive law means that rules only need to be looked up in legislation/judicial
decisions, SO no judge is needed to settle a legal dispute (content)
 Collective support → no enforcement on your own (enforcement)
 Similar cases treated in a similar way (consistency)
 Examples: the right to appeal, new laws cannot be applied retroactively →
quality of life, security of business

,2. Customary law


Customs
 = Patterns of behavior that develop in a society as a constant
o People learn them as children: observing, participating...
o People follow them until they are confirmed and strengthened by being
understood a law/rule
o People learn it as children or as grownups: they see how things are done
and follow them because it’s understood as a rule
 For example : shaking someone’s hand when you meet them
because it is understood as something that is a law



Customary law
 Rational thing to do
 Becomes unchangeable, fixed
 Not easily differentiated from moral (speak the truth) and religious (Ten
Commandments) rules
 Unwritten
 Synonyms : common law, custom, traditional law, …




3. Common Law

= The law common to the entire population (UK, US, Australia, Canada)

,3.1 Common law


Case Law
 Case law is merely the rules of law announced in court decisions
 Case law may consist of:
 interpretations of statutes, regulations, and provisions in the
constitution
 You will hear the terms "precedent" and "stare decisis" when case law is
discussed


Precedent
 creating the law/rule → a prior case that is similar in legal principle or fact


Stare Decisis
 The practice of deciding new cases with reference to former cases
 If one (higher) court created a precedent the same (and lower) court(s) have
to decide in the same way in similar situations (doctrine of precedents)


Case-based reasoning
 Comparing and contrasting new cases with old cases that have already been
decided


Read chapter Roman Law in the book




3.2 Remedies : Equity / Damages


Correction/remedy/damages to common law.
 Usually monetary
 Returning the parties to an equal footing

, Sometimes, remedies are inadequate → Equity comes into play
 Damages cannot make the injured party whole
 Damages are speculative and uncertain
 Insolvency of the person committing the act
 The harm is so major it cannot be fully compensated by money = no money
for equity
 Three forms:
• Specific Performance: one party to a contract is ordered to perform
according to the contract's terms
• Example: you signed a contract with Louvre to purchase Mona
Lisa (one of the kind)
• This is where a person wants to prevent the occurrence of a certain
activity
• Example: your neighbors have excessively loud parties and you
want to stop them
• Rescission: the original contract is considered to be voidable as if it
was never made


Sometimes money is not enough to compensate the loss
 Custom made iphone is stolen, so the money won’t get the same one back
 When it is a memory, you won’t get is back as well
 When harm is too big, too much damage




Equality : is giving everyone the same opportunity
Equity : is fairness in every situation, you apply what is fair