A COMPLETE SUMMARY OF INTRODUCTION TO LAW
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,CHAPTER 1- WHAT IS LAW?
RULES- a substantial part of law which: contains how people should behave, definitions of
terms, creates competencies and etc.
Different kinds of rules:
1. Legal Rules
2. Moral Rules
3. Religion
4. Etiquette
5. Special Organization
LEGAL RULES- unlike the others, these are normally enforced by collective means (state)
- contains very specific sanctions (incarceration, fines, compensation of damage)
which are more specific than the non-legal ones
POSITIVE LAW - laws explicitly created by means of legislation or judicial decisions
- “positive”- positus - Latin for laid down- a law that is valid here and now
- Due to the increasing importance of non- state rules, it leads us to question
this obviousness
- It offers legal certainty- only needs to be looked up in legislations or judicial
decisions
The “really right” predicament creates less favorable conditions for a functioning society.
Often it is better to have no conflicts or fast solutions for the conflicts, than to have a
laboriously reached ‘RIGHT’ solution. Thus, law often prefers the certainty of a clear result
over the uncertainty of the “BEST” solution for a problem.
COLLECTIVE SUPPORT FOR THE ENFORCMENT OF LEGAL DUTIES- if people
are left to their own devices when it comes to enforcing their rights, this decreases the
certainty that the rights will be respected.
THE LAW WILL BE APPLIED CONSISTENTLY- similar cases will be treated in a
similar fashion
ASPECTS OF LEGAL CERTAINTY:
1. Certainty about the content of law
2. Certainty that the law will be enforced
3. Certainty that the law will applied consistently
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, • ROMAN LAW
PUBLIC INTERNATIONAL LAW- a body of law that governs the relationship between
states
TRIBAL LAW- the law of the people connected by family ties, as seen among the Romans
NATION- as the number of people grows larger, the main ties between its members can no
longer be the close family ties. Therefore, the binding factor will then be a shared culture,
that is for instance based on common language or religion. The shared culture is therefore
noted as nation.
CUSTOMARY LAW- the law that consists of guidelines for behavior that have grown
spontaneously in a society, such as a tribe, in the form of mutual expectations which after a
while are accepted as binding.
These guidelines are transmitted from generation to generation and are considered to be
natural and rational. Their origin is usually attributed to a historical, often divine legislator
(Ten commandments). Furthermore, they were also seen as immutable (the law was such
since time immemorial and will never change). However, as customary law starts as
unwritten law, there may be gradual changes that go unnoticed because there are no texts that
facilitates the comparison of recent law with that of older generations. Thus, customary law
may change slowly over the course of time, adapting itself to circumstances, while its image
of being natural and immutable may remain intact.
Customary law is typically not the result of legislation. It consists of rules that are actually
used in a society to govern the relations between the members of a specific society and are
usually not easily distinguishable from religious and moral precepts.
• CODIFICATION
TWELVE TABLES- part of a written Roman law (451 BCE)
PONTIFFS- officials that came from the cast of patricians (societal upper class) which in
case of any doubt would interpret the customary law
PLEBIANS- a lower social class is objected to the practice of interpretation due to fear that
the pontiffs might use it to their advantage.
If customary law is written down and published, its contents could be inspected by anyone
who could read. This shows the importance of certainty of law because it makes it more
difficult for rules that govern society to be manipulated to the advantage of a few.
CODIFIED- a process of writing down a customary law. It resembles laws that were created
by means of legislation.
THE DIFFERENCE: a law that codified already existed before the codification, while law
that was created through legislation did not exist before it was written down.
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, • PRAETOR AND IUDEX
The legal solution in a two-party dispute will depend on:
1. The facts of the case
2. The contents of the law
In Roman law they are linked with 2 roles in the legal procedure:
1. Praetor
2. Iudex
PROCEDURE:
1. The party that is suing had to first approach a praetor and explain his case
2. If the praetor was of the opinion that the case might be successful, he would formulate
a kind of a legal instruction (formula) for the iudex, in which this judge would be told
to grant the suing party a legal remedy if he believed that the factual conditions have
been fulfilled
3. The judge then determines what the facts of the actual case were and whether they
are, in light of the praetor justified this remedy.
DIVISIONS OF ROLES:
1. PRAETOR- responsible for establishing the precise content of law
2. IUDEX- responsible for the determination of these case facts (didn’t require any
special legal knowledge which was fulfilled by laymen)
JURISTS- praetors advisors, had great influence on Roman law.
• THE CORPUS IURIS CIVILIS
CORPUS IURIS CIVILIS- an attempt to codify the existing Roman law and was published
in several parts on the orders of the emperor Justinianus from 529-534.
The parts:
1. The Codex- imperial legislation spanning several centuries
2. Digest- a collection of excerpts from writings of jurists from the period of about 100
BCE-300 CE
3. Institutions- student text book
• COMMON LAW
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