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Introduction to Law - Jaap Hage - Midterm Summary
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This document contains a summary of the textbook 'Introduction to Law' by Jaap Hage. It covers the midterm material, namely chapter 1 + 2 + 3.
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Summary: Jaap Hage – Introduction to Law – Chapter 1 + 2 + 3Chapter 1: Sources of Law
Nature of Law multifaceted, changing at high speed (law takes different shapes over the course of
time), legal rules and definitions of terms.
Law specifies how people should behave and what competencies they have (what can people do and
what not). Legal rules are enforced by collective means, with specific sanctions / penalties. These rules
will be applied consistently, which means that similar cases are treated in a similar way.
Legal rules impose duties upon and attribute competences and rights to legal subjects…
Positive (laid down) law most laws are created by means of legislation or judicial decisions, which
leads to legal certainty because 1) it can be looked up (clear content), because 2) it provides collective
support for the enforcement of legal duties, and because of 3) consistency.
Law prefers certainty of a clear result over the uncertainty of the best solution for a problem.
The present-day law system is the outcome of the development of law in Europe (Roman law), which
started out as tribal customary law, which means that a body of law was not the law of a country, but
the law of a certain closely tied population (Romans).
Originally, all law was customary law, but this changed due to developments and unification.
Nation people connected through the binding factor of culture (religion / language / background).
Roman, customary, law consists of guidelines for behaviour that were once mutual expectations,
passed on from generation to generation, but grew to become binding. Customary law is taken to be
immutable (unchangeable), but because it is not written law, it slowly adapts over the long-run. Often, it
is not the result of actual legislation, but this body of ‘law’ is used by society in somewhat moral ways.
Codification the act of laying or writing down law. The importance of writing down law is that it
makes it more difficult for rules that govern society to be manipulated.
Law that was created through legislation did not exist before it was written down (Civil).
International Public Law body of law that governs the mutual relations between national States.
Case facts of the case (praetor, creates formula for a case by interpreting) and contents of the law
(praetor establishes content and iudex determines facts) are important when handling a case.
Praetors were often advised by jurists, who had great influence on the development of Roman law.
Corpus Iuris Civilis (‘body of civil law’) attempt to codify existing Roman law, published in several
parts. These parts were Codex (selected imperial legislation / enactments), Digest (collection of
excerpts from Roman jurists’ writings) and Institutes (textbook); the parts were given force of law.
After the fall of the Roman empire, Roman law was rediscovered (in the Middle Ages) and this led to the
development of Private law.
Roman law did not spread to England, because of the emergence of Common law in this country.
Common Law development the result was a separate legal system through the unification of the
English law system from several customary bodies of law to the use and application of the same
(uniform) law everywhere in the country. Central courts of justice emerged (juries).
Common law (from England) is different than the Civil law system on the continent of Europe, because
these systems developed independently and common law is merely based on reasoning by way of
analogy to previous cases (precedents), whereas civil law is based on written statutory rules.
, Judicial decisions will often function as precedents in similar cases. If a rule already existed, this should
be used as a precedent. If the court creates a new rule / law, this will from now on be used as precedent
(= stare decisis) in similar cases.
The practice to decide cases by analogy to previous cases, combined with the stare decisis doctrine,
means that common law has developed on basis of precedents and case law case-based
reasoning, comparing current / new cases to old cases.
Precedents set in one common law country may still play role in another common law country.
Additionally, the binding nature of a precedent only applies to cases similar to the already decided case.
Equity a body of rules and principles, developed to soften / weaken the results that could arise from
common law application obtaining more fair results. Equity forms part of the law in common law
countries, as it is a kind of judge-made law. This developed when a Court of Chancery developed, with
complaint petitions directed to the Chancellor, asking for reconsideration and correction.
At first, equity was meant as an exception to common law; now it is part of the tradition.
Canon law deals with internal organisation of the Roman Catholic church and with civil affairs.
Canon law was often studied together with Roman law, and due to this (and the fact that studying law
became more popular) the roots of Roman law were spread through Europe.
Reception of Roman law the process in which the rational (ratio scripta / reason written down)
Roman law conquered legal science in Europe. European common law is called Ius Commune.
Natural law law that was established purely by means of reason.
State formation the unification of small units combining into bigger ones, which was a long process
on the continent of Europe. The Peace Treaties of Westphalia stated that European sovereign nation
states would have exclusive power over its own territory, meaning that National law came into
existence.
Westphalian Duo international public law and national law (nation state law). States were
connected through international law, and citizens of nations were connected through national law.
Emperor Napoleon Bonaparte’s reign led to the codification and unification of French law in a number of
Codes, namely private law, commerce law, law of civil procedure, substantive criminal law and
procedural criminal law (the five codes). This created legal certainty and emphasised power of central
law-making agencies. Napoleon’s influence led to the codification of law in many other countries too.
Legal Families developments in law of Europe divided the national legal systems into legal family,
namely Common Law and Civil Law.
Common Law English speaking countries, driven by judiciary, new law through decisions, binding
precedents are used to decide on cases; recently, legislation has become a source of law in common
law countries too.
Civil Law counterpart of common law family, European continent, combination of Roman and Canon
law, French and German families, laws created and written down by legislators; precedents can also
play a role here, but they are not officially binding (suggestive).
Codified / Positive law after the Second World War, legislation was increasingly used to create new
law (as opposed to using pre-existing law).
First, human rights were protected mostly by national law, but later mostly by international law (EU and
UN) states have lost control over part of the law that is binding on their territories and which also
binds them.
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