Summary of About Law: An Introduction - Honoré, T. - Business Law - University of Twente - International Business Administration - HOLI module
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About Law
Summary of the book About Law: An Introduction, written by Honoré, T. Originally, the summary was written for the subject: Business Law of the Holi module, University of Twente.
Business Law - About Law: An Introduction (Honoré)
About Law: an Introduction, by Tony Honoré
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Honoré Chapter 1.
Law has several aims. They are all concerned with making society more stable and
enabling people to flourish. (1) Law sets up an official framework of compulsion. (2)
Law provides facilities for people to make their own arrangements. (3) Law settles
disputes and (4) Law settles what system of government is adopted in a country, like a
state. The state is a political unit with territory that the international community treats
as independent. The system of law adopted in different states show similarities.
Modern states can be divided in three independent branches. The legislature makes
laws, the executive government puts laws into effect and the judiciary decides on
disputes between the laws. On top of the system of law in a particular state lies
international law. It serves the international community, aims for stability and
encourages trade and other contacts between countries.
To be effective in the long run, law needs to be built on a basis of morality and self-
interest. People need to be guaranteed that obeying the law is profitable in their own
situation. Law also claims to be morally sound, a normative guideline. On the other
hand, morality by itself does not give clear guidelines. Therefore, law and morality
support one another. It is not the case that everything which is a moral right must be
turned into a legal duty. There’s much to be said for keeping law to the minimum.
Lawyers have a central position in the system of law. They study the triple system of
official rules; the statutes made by the legislature, the regulations of the executive
government and the case law in court. However, for every new unforeseen situation,
the law needs to be interpreted and implemented accordingly. Laws are general and
aren’t necessarily in accordance with a particular case.
There is a distinction to be made between English legal systems (common law) and
French/German legal systems (civil law). Secular law in these western countries leave
out religious systems of law. However, these legal systems consist of the same basic
divisions. (1) Constitutional Law is concerned with the basic principles on which the
society rests. It lays down how the power of the state is divided between the three
branches. (2) Criminal Law is aimed at combating what the wrongs did in the society.
(3) Private Law is concerned with rights and duties of individuals towards one
another.
, Honoré Chapter 2.
Some aspects of law cannot be understood without its history. History helps to show
how law evolves or fails to evolve. One important theme in this field is the distinction
between common and civil law. In civil law systems the main branches of the state are
embodied in written codes, a clear and comprehensive guideline. This guideline is
studied by legal scholars and commented upon. Court decisions are secondary to the
role of scholars. In common law countries, the order of importance is the other way
around. In civil law, reasoning from general principles is the norm. Common lawyers
tend to mistrust appeals to broad principles.
In ancient times, laws were written down by rulers to impress subjects and spread a
sense of security. As soon as these laws became more complex, some people in
society made it their business to become expert in laws. They were the first lawyers.
This tradition was continued in Rome, where the interpreters of law became more
dominant. They advised magistrates, senators and even the emperor. The advice they
gave was unwritten legal code.
Over the years, these legal experts published many law books. The eastern emperor
Justinian gathered all these books; they made up the civil law. These books remained
guidelines for legal practitioners in Europe centuries after the fall of the Roman
Empire. However, during the periods of the Renaissance and the Enlightenment, a
critical spirit was released, to subject the codes to reason. To improve the legal codes,
two aims were supposed to be fulfilled. First, the codes were supposed to cover any
legal question that was bound to pop up. Second, the law was supposed to be
understandable for every man. The second aim became less important as time went
by. The German code that came into force in 1900 fulfilled only the first goal, but was
seen as sufficient and functional nonetheless. Developments in English speaking
countries showed a different pattern. There, the influence of legal scholars on law-
making was marginal. Law was created on professional tradition and on the opinions
of judges. Legal education could only be completed on the job.
In the near past, the distinction between common law and civil has become less clear.
The adoption of case law by civil law systems and the employment of university-
trained lawyers in common law has contributed to this development.
, Honore Chapter 3: Government
Constitutional governments: there are some legal limits on the power of the ruler.
Apart from legal limits there are practical limits and morality and self-interest also
play a part to what a government can do. But only law can give the limits on
government power a settled form.
The Rule of Law
Governments powers are limited by law and citizens have a core of rights that the
rulers are bound to uphold.
Governments are not to be trusted, therefore need of legal controls:
1. Separation of powers
2. Federalism
3. Bill of Rights
British constitution: example of trustful view, less legal controls, legislature
sovereignty
American constitution: skeptical view, all controls
The trustful view: Legislative Sovereignty
The British parliament (House of Commons, House of Lords, the Queen) = sovereign
legislature.
External sovereignty: independence in international law, if state is recognized as
independent as a sovereign member of the international community.
Internal sovereignty: the right of the legislature of the state to make any law it pleases.
The skeptical view: checks and balances
Checks and balances are called for when a government had to be limited by law. Only
effective when a state has a written constitution.
Separation of power: legislature makes laws, the executive enforces the law/ governs
the country and judges decide the disputes
Federalism: divide power on geographical basis; regions. Powers to make laws, to
govern and to judge are each divided between the federal state and the regions.
Bill of Rights: divide power between state and private citizens. Bill of Rights consists
of rights that cannot be taken away by legislature, government or courts.
Another way to limit freedom of governments is by judicial review. Judges can be
given power to review acts of the government or even acts of the legislature to see if
they conform to law.
, Honoré Chapter 4 Property
Property is:
- anything that has money value and can be cashed or exchanged
- someone has an exclusive right to it
Reasons for protecting property:
-Protecting private property helps the owner becoming more independent
-Econ. and Domestic life can be carried out without too much interference by
others -Property law can be used to create assets of a sort that did not exist
before, such as patents and copyrights, thereby rewarding originality and
stimulating enterprise.
Property law is based on the view that even an unjust spread of the resources available
to a society is better than a free for all.
Law of property gives answer to two questions:
What counts as property?
Property must have some value; things have only value when it can be controlled, for
which the legal term is possession, can be either physical or legal.
Some physical property has apparent value, like land and buildings whereas others
have little value apart from what the law gives it: money. These are examples of
property based on physical control, or physical control plus a legal monopoly
Sometimes the law itself creates property
Copyright: a legal invention: gives the author a monopoly of the righty to reproduce
the original.
Rights under contracts: e.g. employee’s right to a salary or a seller’s right to be paid
the price of something he has sold.
Shares: shares are created by a contract between company and shareholders.
Who owns what?
By ‘owner’ is meant the person who has the best right to control the thing in the long
run.
Several factors taken into account: Rewarding initiative, Giving effect to agreements
to pay for or transfer things, Encouraging trade, Seeing that things are properly looked
after.
When the owner loses his ownership without permission, the rule is as follow: His
duty to pay his debts is given priority over his rights as an owner.
, Regarding buying and selling certain property one cannot always know if the seller is
really the owner. One solution would be a register of ownership, e.g. often the case
for owners of land. However for most ordinary goods a register is too expensive and
inconvenient. This means that people have to buy in good faith, but when sold
property turns out to be not owned by the seller, two ideas about ownership compete:
1.A person cannot be deprived of his ownership without his consent. This idea gives
priority to long-term security. 2.When you buy something in good faith, the buyer’s
security has priority over the owner’s security.
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