Introduction to Law - second Edition
Springer International Publishing Ag
9783319861142
Jaap Hage
Complete summary
,
,Foundations
Characteristics of Law
- Most law exists in the form of rules, that prescribe behavior and contain
definitions of terms, etc.
- Legal rules are enforced by collective means, in particular by organs of a state.
- Most legal rules in law are created by state agencies.
Positive Law - Law that is laid down - it is in force
Codified law already existed before it was written down, whereas created law is
completely new.
Differences between Morality and Law
- Law gives guidelines for behavior, morality sets standards for what is
considered good or bad.
- Law does not, like Morality, have grey areas - something is either permitted or
not.
- Law is not necessarily, like Morality normally is, considered important for the
well-functioning of society
- Law is enforced by state organs, morality as such is not.
- If law clearly violates morality, some do not want to call it a legal rule.
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.
It avoids manipulation of rules to advantage of a small group
Law often prefers the clear result above the uncertainty of the 'best' solution for a
problem.
Legal Certainty has two aspects:
1. Certainty about the content of the law;
2. Certainty that the law will be enforced.
Law Systems
Roman Law - Impressive legal system of the Roman Empire from 8th century BC
- 6th century AD. In the times of the reception (12th-17th century) it was also
known as civil law.
Tribal Law - Legal system of a tribal group (in the Roman case mostly family ties)
Customary Law - Spontaneously grown guidelines for behavior in the form of
mutual expectations, which are accepted as binding after some time. The origin
is frequently attributed to a historical legislator (like God) -> customs gained a
status of immutability.
, Customary law is the predecessor of today's positive morality.
Common Law - Law based on precedents (decisions made on cases before the
one at hand).
Equity - deals with fairness of law, by mitigating harsh results from common law.
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 of
Westphalia.
International Public Law - deals with mutual relations between national states.
Ius Civile and Ius Gentium
Ius Civile - Roman law for its citizens
Ius Gentium - Roman law for foreigners
Stare Decisis - 'Stand by your decision', a rule applied for courts in common
law, so decisions could be usable as precedents.
Ius Commune - The Roman and Canon Law as they had spread in the reception
in Europe.
In the High Middle Ages, the Roman Law Digest was rediscovered and applied
again. In England, another development had taken place - Common Law came
into place after the Norman Conquest in 1066.
Roman Law (only the Digest) and Canon Law spread all over Europe through the
increasing popularity of law schools from the 12th until the 17th century. Both
laws were accepted and known, because Roman Law was based on reason
and both laws were better accessible than customary law. This development
became known as the 'reception' of Roman Law.
Rational Law
Roman law gained acceptance, because it was rational, thus containing 'good'
rules. It was seen as ratio scripta ('reason written down'). Examples of
important people creating natural law were Hugo Grotius, Samuel van Pufendorf,
and Christian Wolff (All in period of Enlightenment).
National Law and International Public Law became known as the 'Westphalian
duo'.
Codification
French Law was codified in a number of 'Codes' shortly after the French
Revolution.
Codification:
- brings legal unity;
- creates legal certainty;
- emphasizes the legal power of central law-making agencies;
- guarantees the influence of the people on the content of law.
The 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.
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