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All lecture and tutorial notes for midtermLecture 1 2 February 2023
What is law?
“A body of rules of action or conduct prescribed by controlling authority and having binding legal
force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence
is a law.” Black’s Law Dictionary, 6th ed., s.v. “law.”
- Subset of rules and principles
- Authority (state)
- Creation: legislation, executive decrees, judicial decisions
- Enforcement: compensation, fines, imprisonment
- Collective dimension
- Democratically legitimized, equality, legal certainty
Characteristics of law
Schools of Legal thought:
- Legal positivism the law was a set of rules given by an authority,
human authority. Written down.
- Natural law the law that came from god/nature. Rules that come just
from being human beings. Human rights
- Others realism
Society is governed not only by legal rules but other types of rules.
- Moral rules
- Religious rules
- Private organizations
- Etiquette
Legal certainty ability to check the consequence of your action.
Historical roots
- Roman law base of the present law, influenced Europe
- Common law influenced England
Sources of law
1. Legislation
2. Judicial decisions
3. Treaties
4. Customary law
5. General principles of law
,Legislation
Legislation is the preparing and enacting of laws by local, state, or national legislatures. This is largely
national affair. Is there a mother of Laws? the constitution (human rights).
Law for a certain place. For example Dutch laws will be enforced in Dutch territory.
Importance of law in line:
1. Constitutional (grondwet)
2. National
3. Regional
Judicial decisions
Judicial Precedent
- Ratio decidendi
- Obiter dicta
- Future courts have to follow the rules created in past courts
Reasoning with Rules and Cases
- Analogy
- Case-Based Reasoning
- Distinguishing
- Broadening
Common law the things the judge says have an enormous effect on the law. The judge writes the
law. What happened in a past case, will have to be applied later on in the system.
Contract law everything you agree with, you have to comply with.
Legal systems of the world
- Common law
- Civil law
Fields of law
- Civil law
o Regulates between private actors
o Contract law, property law
- Public law
o Regulates between the state and its citizens
o Tax law, criminal law (the prosecutor is a representative of the state, the government
is involved)
Treaties
, A treaty is a formal, legally binding written agreement between actors in international law. It is
usually made by and between sovereign states.
Westphalia peace
Different kind: Human Rights, Lex Mercatoria, European Union Law
Customary law
Customary law consists of guidelines for behavior that have grown spontaneously in a society, such
as a tribe, in the form of mutual expectations. After some time, these expectations are accepted as
binding. Two components:
- A certain legal practice is observed
- The relevant actors consider it to be an opinion of law or necessity (opinio juris).
Can be later codified.
General principles of law
Pacta Sunt Servanda
Equity
Equity consists of a body of rules and principles that were developed to mitigate the harsh results
that may, in some cases, arise from the application of common law. As the term “equity” suggests,
this part of the law is particularly focused on obtaining fair results.
Common law vs civil law
Fields of law
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