International Law and Business
Chapter 1
What is law and where can we find it?
What is law?
Law is used as an instrument to organize just behavior in a society.
Law organizes just behavior in two ways:
1. Substantive way (materieel) organizing behavior
a. Substantive means, the legislation in itself.
e.g., we have speed limits, e.g., 100 km per hours. This is a
substantive law, there is a maximum limit on speed. You have to
use the right site of the road and not the left side of the road, that
kind of things. We need those rules to organize just behavior. Whit
just rules you will get nowhere.
You need rules to make sure that the substantive rules are actually
lived up! And if not, that there is a consequence.
Je mag niet stelen.
2. Formal way, maintaining the intended behavior
a. e.g., rules to actually arrest someone.
What legal relations do we organize?
1. Public law (e.g., tax)
2. Private law (company can also be private)
What is just behavior? (rechtvaardig gedrag)
- Justice: e.g., shooting by someone, you want justice. A moral conviction
of what is right. A value judgement.
- Legal certainty: (rechtszekerheid) I should beforehand know that there
are punishments for this and that. Establish clarity on someone’s legal
position beforehand (legal certainty). This means for instance that a
, citizen cannot be punished for something that was not forbidden at the
time of his actions.
- Opportuness: should be practical. Sometimes law is a tool to effectively
regulate something in society that needs to be done (opportuness).
Example:
1. death penalty
2. speed limit
What is the nature of law?
1. Natural law
Exists naturally
Focus on principles/content
Legal uncertainty
2. Positivist law
Exists once written down
Focus on formalization
Legal certainty
Where can we find law?
Legal sources
1. Codified standards (monism, dualism) (e.g., Netherlands = more
monistic) (the written down texts that define your legal position).
Are basically written rules that helps us understand how we organize just
behavior.
a. International level
i. Between countries, or a group of countries
ii. Treaty, covenants, conventions (highly political,
governments at the highest level, human right related,
business related)
iii. Bilateral/multilateral
iv. Signature and ratification
b. Domestic level (binnenlands)
i. Mostly adopted by a parliament or another ruler that
enables us to predict beforehand what the consequences of
our legal actions will be because its written down in
textbooks, in law books.
ii. Hierarchy of codified standards (which standards perceived)
iii. Role of constitution (grondwet)
2. Application of standards / of law (toepassing van de normen)
, Sometimes we need to apply legislation in a particular given case to
make it more specific. In most countries this is done by the courts and
tribunals who produce case law.
Courts and tribunals
Sometimes we see that the administration is responsible for applying the
application of law and this is mostly done in the case of administrative
procedures naturally and this has to do with permits or the the
understanding of particular community regulations in which the
administrative authorities in a country administer the law in itself.
a. Case law (jurisprudentie)
i. Basically an application of law.
ii. It could be for instance an interpretation of codified
standards to make it more colorful to make it more specific
to apply these codified standards on a particular given case
and in doing so give a particular meaning a more detailed
meaning to the wider codified standards.
iii. stare decisis (a word we use when a course rule the same
way in several cases)
b. Principles of good governance (beginselen van behoorlijk bestuur)
i. Margin of discretion (beoordelingsmarge)
c. Military rule (are most temporary, but last not long)
The military, the army is responsible for applying legislation.
Mostly temporary situation in which the military for instance
commits a coupe data. ??. but sometimes we have a long lasting
military regime in which the military is primarily responsible for
applying the law.
3. Legal writings and teachings
At some point, churches courts might refer to the works of academia
who did research in a particular field of law or have an opinion about
how to use the law in a particular way. So, the course literally refers back
to publications of academia. Therefore, we consider legal writings and
teachings also a separate source of law.
a. E.g., journal
4. Non legal writings and teachings
Religious writings and teachings
, We have two kinds of states basically. We have secular states and non-
secular states.
In a secular state there is a clear distinction between religion on the one
hand and governance on the other hand. They are separate from each
other.
However, in a non-secular state there is no such thing as a separation
between religion and state affairs. Its merged. And therefore, in such
states we see that religious writings and teachings are or could be a
fundamental source of law. For instance, when we take article 1 of the
constitution of Saudi Arabia quote it says, the kingdom of Saudi Arabia is
a sovereign Arab Islamic state with Islam as its religion, god’s book and a
sunnah of his prophets, god’s prayers and peace be upon him are its
constitutions, Arab is its language and reality is its capital.
So, its quite important in this country to understand the holy writings
and to be able to use this as a source of law.
a. Secular state vs. non-secular state
e.g., in some countries the Koran is the main source of legislation/law
e.g., in some countries law is produced by god
5. Customary law (gewoonterecht)
Law is not always written down. It’s not necessarily written down in a
codified standard or in case law or in any kind of book. Sometimes law
simply merges or can be deduced from a long-lasting habit. So,
sometimes customary law is considered to be a source of law. And we
see this more often in the context of family law and more traditional
types of legislation. So e.g., traditional wedding in India, the wedding
rules are such are not necessarily written down, they are just a habit, a
tradition that is considered to have the same authority as if it would be
law, therefore we consider this as a source of law.
To be customary law is generally accepted that you have to comply with
two prerequisites.
a. Usus (a habit should be there for a long time)
It’s a Latin word in which we basically say well it’s a habit. It’s
something we simply do. It’s some sort of a tradition if you like. So.
getting married in a particular way using particular traditional rules
and so on, can be a habit. The idea is that this habit is not just a
new thing, but it is an established practice, it’s something we’ve
done for a long time, for a longer period.
b. Opinion iuris sive necessitates (believe that that is what should be)
