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Begginers introduction to law
- Module
- Law
- Institution
- Kings College London (KCL)
This is a beginners guide on general introduction to law.
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Introduction to LawBasic Concepts of Law
Basic Concepts
What is law? Page 2
Historical development of Private Law Page 3
Working with rules Page 5
Working with cases Page 7
Generality/why study the law? Page 7
Legal system Page 8
Enforceability Page 8
Sources of Law Page 9
Important Concepts Page 10
Public Law
The State Page 11
Human Rights Page 13
Constitutional Law Page 14
Administrative Law Page 14
Criminal Law Page 15
Procedural Law Page 16
Private Law
Absolute Rights – Relative Rigths Page 18
Individual Autonomy Page 18
Manifestation of Will Page 18
Legal Transactions Page 19
Contracts Page 19
Torts Page 20
Property Law Page 21
Business Entities Page 23
,Basic Concepts
What is law?
Do' s and Don’ts
Most people would agree that the law governs human behaviour by rules. It forbids certain
ways of behaving, for instance stealing, killing or exceeding speed limits and prescribes
others. For example paying taxes or driving on the right lane. Legal rules are also called
norms.
The law does not stop at setting up rules. It also secures compliance with them by threatening
persons who disregard a rule with some disadvantage, like being imprisoned or having to pay
money. This consequence is called a sanction.
The task of the state is to put the sanction into effect, for instance to put the offender into
prison or to take the money from him. We say: the sanction is enforced by the state.
Is and Ought
The legal rules do not describe facts: they do not tell us anything about reality. Instead they
specifies facts and describes what should happen if they are fulfilled. It says what ought to
happen in certain situations and what consequences should follow if this does not happen.
Example: If a newspaper reports: "Elfriede Blauensteiner was sentenced to jail for life for
killing her husband", it describes facts. The relevant legal provision (§ 75 StGB) says:
"Whoever kills another person will be sentenced to jail for life or to be imprisonnend between
10 and 20 years". It has several effects: First, it prohibits murder; second, specifying that a
murder has been committed, it describes what should happen to the perpetrator.
Right and Wrong
Many people think that the law not only prescribes or forbids certain acts but also indicates
what is right and what is wrong. But how do we know whether the rules set up by the law are
fundamentally right?; how can we be sure that they are just?
The Doctrine of Natural Law tries to answer this question by referring to meta-legal
authority. According to its adherents law is correct if it conforms to the human nature (Plato),
to divine revelation (Augustinus, St.Thomas Aquinas, John Duns Scotus, William Ockham) or
to reason (Cicero, Grotius, Hobbes, Locke, Rousseau, Kant).
The Positivist Doctrine accepts that we have no means of deriving law from a higher
authority. It points out that the law is made up of social norms which are generally accepted
and adhered to (Jellinek) or are formally enacted (Radbruch) or are regularly enforced
(Austin, Holmes, Llewllyn).
Question: What are the aims of law? What do they provide?
A lawyer's description
Law-books usually describe the law as a system of rules enforceable by public authority
requiring the members of a community to meet certain standards of conduct. They go on to
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, state that the law makes sure that the society remains stable and its members are able to
pursue their interests and that disputes are settled efficiently. To this purpose the law should
conform to public morality, without, however turning all moral norms into legal rules.
Historical Development of Private Law
Roman Law
After the enactment of the Twelve Tables ( 450 B.C.), a code that concentrated on the most
important problems that had arisen under the customary law, a body of specialists called
jurists emerged who studied the law systematically and practiced it by giving legal advice
and by teaching. Case by case approach they developed the fundamental legal concepts (e.g.
obligation, property, pledge, contract, possession etc.) and the methods of formal and
substantial reasoning. Formal reasoning works with the meaning of the words, parties'
intent, legislative purpose, analogy, and logical conclusions. Substantial reasoning involves
arguments based on values such as good faith, fairness (equity), public policy or
practicability. It is important to notice that the jurists were no judges and their work was not
concerned with the facts of the case; to ascertain the facts and to decide the cases was left to
the judges; the jurists only gave legal opinions on which the judgment could be based.
Emperor Justinian: Corpus Iuris Civilis
By the end of the classical period of the Roman Law in the 3rd century AD the hundreds of
law books and commentaries produced by the jurists had become totally unmanageable.
Around 530 AD the east-roman emperor Justinian compiled the material into four books, the
Digest, the Institutes, the Constitutions, and the Novels, which where later labeled as the
Corpus Iuris Civilis, a monumental work of about 1 Million words.
Private Law in Western Europe
After the decline of the Roman Empire the Roman Law remained formally in force but was in
practice superseded by tribal laws and local customary laws. In the 12th century Irnerius, a
professor of Grammar at the University of Bologna, started to work on the Corpus scholarly.
He founded a school that became known as the Glossators. They started by analysing the
meaning of the words and went on to uncover the underlying general principles and to
examine the purpose of the rules. Until the 15th century Roman Law spread to the
universities all over Europe. Another school called the Commentators concentrated on
adapting the findings of the Glossators to the practical problems of everyday life. They
developed the Commercial Law and the International Private Law. During the same time
Canon Law arose, the law of the Catholic church, which applied to clergymen and to laymen
as far as marriages and wills where concerned. The graduates from the universities became
judges or secretaries and chancellors to the rulers. Applying the Roman Law they had studied
they gradually overcame the customary local laws. This process is known as the Reception of
the Roman Law. The Roman Law as developed by the medieval scholars became Ius
Commune, the common law all over Europe.
In modern times the idea of the sovereign national state emerged. The rulers aimed at
establishing nationals laws within their territories. It was again the scholars that worked out
national codes on the basis of Ius Commune and the rationalist natural law doctrine that had
been developed since the end of middle ages. The ideal of a code was to present the law in
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