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Law1. Introduction
1.1 What is law?
Definition of law
Enforceable
o Mandatory
Rules of conduct
o How to behave
Imposed by the public authority
Structuring civil society
o Try to help make society work
“Entering into a contract is binding”
o Rule of law
“It’s an unwritten rule that one should always arrive on time at an appointment”
o Rule of civility and decent behaviour
1.2 Distinction
Mandatory rules of law vs default rules of law
Mandatory rules of law
o Laws that purport to apply irrespective of the law chosen by the parties to govern
their contractual relations
The legislate is of the opinion that certain situations need to be protected.
Whatever parties might decide, the law will always prevail.
F.e. in labor
Default rules of law
o Rules of law that can be overridden by a legally effective agreement (gap filler)
o The rules are applicable as long as parties have not made rules for themselves.
Public policy rules vs mandatory protecti ve rules
Mandatory rules of law
o Public policy rules (French: ordre public)
Body of principles that underpin the operation of legal systems in each
state. This addresses the social, moral and economic values that tie a
society together: values that vary in different cultures and change over
time.
Principles that we can not deviate from
o Principle: you can only be married to one person in Europe,
this is not always an issue in other societies
o Mandatory protective rules
1
, Rules that purport to apply with the aim to protect the economic weaker
party to a contract
Once a conflict has arisen, the parties to a contract may deviate
from such mandatory rules by a separate agreement
o Labor law, renting a house
1.3 Sources of law
Where can the rules of law be found:
Legislation
Jurisprudence (case law)
Legal doctrine
Customary law
Legislation
o Legislation “sensu stricto” (narrow sense of the word)
Act (of Parliament)
o Legislation “sendu lato” (broad sense of the word)
Treaties, Constitution, Acts, Presidential/Royal decrees, Governemental
decisions, European regulations or directives …
Jurisprudence
o Interpretation and application of a general rule of law by a judge or a court of law
on an individual situation
In continental European law:
No precedent or authority (<> Common law)
o Once a decision is made it’s only binding for the litigating
parties, not for later parties
o Common law: Anglo-American system
Legal doctrine
o The systematic, analytically evaluative exposition of the substance of private law,
criminal law, public law etc.
o Legal doctrine picks up questions from legal practice and discusses them in a
more general and profound manner
What lawyers write for other lawyers, the discussion of legal problems
Customary law and legal principles of law
o Customary law is, by definition, intrinsic to the life and custom of indigenous
peoples and local communities
Unwritten, how we do things, how civil society is organized
Actual importance in modern legal systems is limited
What are (unwritten) legal principles of law?
o They are mostly derived from existing elements of the legal
system:
With statutory support
E.g. general principal of “good faith”
o Art. 1134: partners should act in
good faith
o In disputes
2
, Without staturory support
E.g. reasonableness principle
1.4 Legal systems
Civil law systems
o A body of law derived and evolved directly from Roman Law, the primary feature
of which is that laws are struck in writing, codified, and not determined, as in the
Common Law, by the opinions of judges.
o Basis: legal text, result of codification
Common law systems
o A body of law based on the opinions of judges and historic customs
o Basis: opinion of the judges and the customs
Religious law systems
o Iran f.e.
1.5 International Law
What is international law:
o Law of treaties
o How countries make agreements
o Contact between two or more states
o The law applicable on international organizations
1.5.1 Council of Europe
= organization located in Strasburg, France, separate international organization (is unrelated
to the European Union)
Who they are
The Council of Europa is the continent’s leading human rights organization
o 47 member states, 28 of which members of the EU
o All member states signed up to the European Convention on Human Rights
Human rights
Democracy
The rule of law
o The European Court of Human Rights oversees the implementation of the
Convention
Strasbourg
What they do
Protection of values
3
, Institutions & HQ
Achievements
Human rights
Democracy
4
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