Law and Legal Skills: the Dutch example (RGPAR510AD)
Institution
Rijksuniversiteit Groningen (RuG)
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Law and Legal Skills: the Dutch example (RGPAR510AD)
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Summary LLS
Week 1
What is law?
Law is a body of rules of conduct with BINDING LEGAL FORCE AND EFFECT,
ENFORCED BY CONTROLLING AUTHORITY.
What are the functions of law and the corresponding areas of law?
The function of avoidance of conflict corresponds to the substantive law
area, while the function of resolution of conflict corresponds to procedural
law.
What are the sources of law and which ones are not used by the Dutch
system?
The sources of law are treaties, rulings, statutes (in the sense of legislation),
customs and principles. Religious and moral beliefs ARE NOT USED IN THE
DUTCH SYSTEM
What are the classification of different legal
SYSTEMS/CULTURES/FAMILIES under comparative law? Explain each.
1 The common law syst in which the central source is CASE LAW/JUDGE
MADE LAW (superior to enacted law), with a CASE BY CASE REASONING,
stemming from England (spread to former colonies).
2 The civil law syst in which ENACTED LAW (legislation/statutory law) is the
central source of law (superior to case law), with an ABSTRACT ANALYSIS,
derives from Roman Law having spread throughout continental Europe,
subdivided into Romanistic (eg French), Germanic (eg German), Nordic
Swedish, Danish).
3 The customary law syst, containing patterns objectified in a specific social
setting.
4 The muslim law syst and the
5 mixed law syst.
In which legal system is the Dutch system classified?
Summary LLS 1
, The Dutch system belongs to the Civil Law system, more specifically to the
Romanistic subdivision due to the French influence through Napoleon,
although it recently received German and original Dutch characteristics on its
Civil Code.
What do countries from a certain legal SYSTEM/CULTURE/FAMILY have in
common?
They share the choice of source of law and methods of interpretation, specific
institutions.
What is enacted law and unwritten law?
The difference is based on a FORMAL CRITERIA: written law is law created by
a body with law-making/legislative powers WHILE for the creation of
unwritten law there is NO FORMAL LEGISLATIVE PROCEDURE AND NO
LEGISLATIVE POWER present; it includes case law (rulings of judges),
customary law and principles. HOWEVER, it is still recognized as a source of
law and has binding effect.
What are the categories of enacted law and their definition?
1 Treaties are international legislation, the highest source in hierarchy. In Dutch
law, the monist system (incorporated automatically) is used, WITH THE
CONSEQUENCE THAT rules addressed to citizens can be invoked in Dutch
court (art 93 Gw) and that a national rule is inapplicable if contrary to treaty w
direct application (art 94 Gw).
2 The constitution regulates citizen's rights (hum rights) and the organization
of the State.
3 Statutes are Acts of Parliament, enacted by the gov together with
parliament (art 81 Gw). They are necessary as a consequence of the principle
of legality, by which government actions must have a basis in statutory law.
4 Gov regulations are enacted by the power delegated by a statute to gov
bodies (eg municipality with the power to make regulations/by-laws in art 127
Gw).
What is the hierarchy of Dutch enacted law?
The structure denominated 'Stuffenbau' starts with Treaties as the highest
source, followed by the Charter of the Kingdom, the Constitution, Acts of
Parliament (the bulk of enacted law), orders in council/royal decrees/gov
regulations, Ministerial Regulations and prov/munic by-laws (municipal by-laws
Summary LLS 2
, are under provincial ones, although the former are given more attribution from
the government to legislate).
How does judicial review of statutes work on Dutch law?
Judicial review of statutes is forbidden by art 120 Gw, they can't be
invalidated if they conflict with the Constitution as it is the Parliament's
responsibility. HOWEVER, statutes can be invalidated if they conflict with int
treaty.
Who enacts statutes/statutory law?
The formal legislator, which is the parliament AND government together (art
81 Gw) and lower authorities, which are the government alone, enacting
ORDERS IN COUNCIL, ROYAL DECREES, GOVERNMENT REGULATIONS, the
provinces/municipalities/water board, enacting BY LAWS, and the minister,
enacting REGULATIONS.
What are the rules for determining the hierarchy of enacted law?
1 HIGHER RULE PREVAILS LARGEST COMMUNITY AFFECTED .
2 NEWER RULE PREVAILS OVER OLDER RULE LEX POSTERIOR DEROGAT
LEGI PRIORI .
3 PART RULE PREVAILS OVER GEN RULE LEX SPECIALIS DEROGAT LEGI
GENERALI .
What is the criteria for customary law and importance?
EG On cattle market bargaining, clapping hands qualifies acceptance.
Criteria of usus, which determines that the rule must be practiced uniformly
and constantly,and opinio necessitatis, by which the rule must be regarded as
required by law, that is, the COMMUNITY HAS TO SEE RULE AS BINDING.
Customary law is SUPPLEMENTAL.
How is case law applied in the Dutch system?
Case law is an additional source, providing an interpretation in relation with a
concrete case. There is NO PRECEDENT RULE, that is,no formal obligation to
follow superior earlier decisions (stare decisis - the decision stands), together
with an absence of hierarchy of judges. It is the own responsibility of a judge
to consider sources, as there is no hierarchy, BUT in practice courts follow
Supreme Court's decisions due to the possibility of appeal. The Supreme
Court must guarantee the unity of Dutch law).
Summary LLS 3
, What are general principles?
EG DUE CAUTION, HONORING PROMISES, FREEDOM OF CONTRACT, PAYING
FOR DAMAGES
The are abstract norms referring to basic legal values that compose the
foundation of the legal system; they supplement written rules and support
their interpretation.
What are the areas of law? Explain each
In PUBLIC law, the government PLAYS AN IMPORTANT ROLE being able to
impose a one-sided binding decision on a private party. There is a hierarchy
between the gov and the other party, and the dispute involves the public
interest. It is composed of constitutional, administrative and criminal law.
In PRIVATE/CIVIL law, the dispute involves private parties (citizens and legal
persons, INCLUDES STATE, PROVINCE, MUNICIPALITY acting as a private
party) representing their individual interest in a RECIPROCAL RELATIONSHIP.
In SUBSTANTIVE law, there are rules that establish rights and obligations.
In PROCEDURAL law, the rules regulate the procedure through which
compliance of those rights and obligations can be enforced (includes judiciary
organiz, court proced). There are branches of proc law for each one of subst
law.
What are the characteristics of EU Law and its influence on Dutch system?
EU can't be defined clearly as public or private law; it makes laws similar to
constitutional law (organization of the Union, public law) BUT it also makes
laws regulating the relations between citizens and companies (priv law). The
influences happens since European community law is above national law, and
Dutch citizens can take complaints to ECHR EG Benthem case, art 6 ECHR .
What is the influence of Council of Europe and European Union in Dutch
law?
The Council of Europe's influence is due to the fact thatECHR judgements can
be invoked by Dutch citizens and they bind Member States.
The Court of Justice of the EU's is established through the fact thatnational
courts apply EU law and that civil parties can invoke EU law in a national
court (in cases of direct effect for private citizens).
What are the substantive law codes in the NL?
Summary LLS 4
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