Chapter 1- What is Law and where can we find it?
Law organizes just behavior in society.
The law is used as a tool to avoid chaos and maintain peace by creating and
setting binding rules.
Substantive law and formal law
Organization of law based on content: i) Rules on content (substantive law)
and rules to maintain/enforce this content (formal law)
Substantive law is composed of legal rules that define the content of just
behavior i.e., standard setting rules - what to do, how to behave.
Formal law is there to maintain or enforce these rules (of intended behavior)
i.e., it deals with the technical/procedural aspects of enforcing substantive
law if it is violated - technical aspect (procedures)
e.g., Traffic rules: Substantive law: speeding near schools is illegal; Formal
Law; rules fines for breaking the speed limit.
Public law and private law
Organization of law based on relations concerned: i) Public law ii) Private law
Public law is the law that regulates the relation between a government and
its citizens. Vertical relationship: State hierarchically superior than citizens.
Public substantive law: Two elements- i) standard setting rules
enforced by the State on people ii) Rules to restrict power of
state (what the state and its organs can and can’t do) e.g.,
Killing or attempting to kill someone is a crime.
Premised around the idea of ‘in service to society and
the public good.
Public formal law: Contains procedures around when a citizen
breaks a law enforced by the government e.g., If you kill or
attempt to kill someone, you can face X charges for X years.
Private law is the law that regulates the relation between individuals/persons
(natural or legal person). Horizontal relationship: all parties are on equal legal
standing.
, Natural person- person (human) in the normal understanding
of the word.
Legal person- Person under the eyes of the law (could be
either human or a company)
So, private law deals with:
1. The relation between individuals
2. The relations between companies
3. The relations between individuals and companies.
Note: The government can also fall into the category of a legal
person sometimes it is not operating in its legal capacity.
Private substantive law: Rules regarding how private parties
are to behave/interact with one another and legal issues
between two parties. E.g., how two parties may enter into a
contract.
Private formal law: Rules to maintain law; legal standards and
procedures regarding seeking legal remedies. E.g., how to sue
someone in case a contract is breached.
The branches of law
a) International law: Private International Law (e.g., International Contract
Law) and Public Law (e.g., International Criminal Law), Economic cooperation.
b) Domestic Law:
Public law
Constitutional and administrative law: In each state laws are
adopted that regulate the way a state is governed and the
fundamental rights their citizens are entitled to.
Other examples: Criminal law
Private law
Includes most branches of law dealt under Business law:
Contracts, liability, labor contracts, the legal form of a
company, privacy, and intellectual property.
, The meaning of ‘just behavior’:
‘Just’ implies a balance between the values of ‘justice’, ‘opportuness’, and ‘legal
certainty.
Justice is the moral conviction of a given society expressed in law.
Rooted in moral values and ethics supported in a society. However,
not all values serve align with the law; so, law and justice are not
entirely synonymous.
“What is right?” - What one traditionally imagines law to be.
Opportuness is the expression of effectiveness by a given society in law.
Some rules are not necessarily rooted in moral standards but are
simply tools to regulate aspects of society. E.g., which side of the road
to drive. No moral underpinnings on the benefit of driving left vs right.
Just practical and effective to set one side to avoid chaos, economic
policies.
Legal certainty is the expression of legality in a given society.
The idea is that every citizen and the relevant government should be
able to know the legal consequences of their actions beforehand, and
not afterwards. Also referred to as Principle of legality - law should be
predictable - every action must be based in law to be considered legal.
e.g., One should be able to know whether cycling while using your
phone is legal or not and if so, what the consequences are of
breaking the rule (fines, other punishments) i.e., a cop can’t
randomly stop you and make you pay the fine if it’s not based in
formal law.
The origin of law
Where does law come from? Two extremes:
a) Natural law: Laws emerge from nature (Laws don’t need to create; they
intrinsically exist and can be deduced without humans having to enact and codify it)
Often rooted in religion (this is law because God/ holy book
said so), moral principles or reason (don’t steal someone
because you wouldn’t want someone to steal from you)
e.g., human rights (ICCPR, ICESCR) -people have human rights simply
because they are human. You can’t kill someone because it’s
immoral and ethically wrong.
