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Summary Introduction to Law
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Summary Introduction to Law chapter 1 - 14 Jaap Hage, Antonia Waltermann, Bram Akkermans 2nd edition
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Introduction to LawChapter I : Foundations
1. What is Law ?
Law has no set definition, but most legal phenomena share common characteristics, such as :
• Laws are rules that govern society (religion, etiquette, morality, etc)
• Laws are enforced by collective means, often the state
• Laws are explicitly laid down by state bodies – positive laws
Laws and morality are often linked, as a law should not be something that violates morality.
However, there are several differences between law and morality :
• Degrees vs binary: Morality is a scale of grey where law is black and white
• Moral standards are important for the functioning of a society and this is not always the
case for legal rules
• Morality cannot be enforced by the state, only if it takes the form of a law
There are two kinds of moralities:
• Positive morality : moral standards that are broadly accepted at a certain time and place
• Critical morality : rules that should rationally be accepted regardless of what society
says
One advantage of positive law is that it offers legal certainty. In other words, positive law gives
you a clear and often faster result, than trying to reach the « right solution ». Legal certainty
makes you sure about the content of the law, that the law will be enforced and applied
consistently.
2. Roman Law
Our legal systems originate from Roman Law:
- a very elaborated legal system that lasted several centuries.
Roman Law started as a tribal law, as it was the law of a people, the Roman, and not of a country.
Very often, tribal law comes from customary law, which are societal rules that became binding
over time. The origin being vague, because they were natural and rational guidelines, it was often
attributed to an historical legislator. Customary law seems immutable but because it was
unwritten, gradual change would happen to adapt itself to new circumstances. Customary law in
its beginnings is often not easily distinguishable from moral and religious precepts. Romans
would have different laws applying for relations within the tribe or with foreigners being
involved.
Customary law is first unwritten but at some point, it has to be written down, to avoid any
injustice. If anyone can consult the law, governing society becomes equal and can be verified by
anyone. This writing down is called codification.
In a dispute, the legal solution will depend on the content of the law and the facts of the case:
- The Roman legal system would involve a praetor and a index.
- The praetor (jurist) being the counsellor and the only one really knowing the law, he had
a great influence on the development of the law.
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