Chapter 1 - “What is law?”, Sources of law
Rules: specify how people should behave, contain definitions of terms, create competencies.
Types of rules:
- Legal rules
- Religion
- Etiquette
- Special organizations (i.e. student associations)
- Morality and Moral rules
Collective enforcement: legal rules are enforced by collective means, in particular organs of
the State. Legal rules have specific sanctions (incarceration, fines, compensation of
damages).
Positive Law: most laws are explicitly created by means of legislation or judicial decisions.
This is positive law, positive in a sense of “laid down”, meaning explicitly created.
Positive laws offer LEGAL CERTAINTY. Three aspects of this are:
1. Certainty about the content of the law
a. The contents of positive law are often easy to determine. Either through
legislation or judicial decisions, it is possible to establish their content.. Thus,
it is not necessary to invoke an authority such as a judge to settle a legal
dispute. Thus, as both parties can predict the judge's decision, no trial is
needed and this saves them both and society at large time and money.
As people most often disagree on what is right or wrong, over what the “right”
solution'' should be, positive law more often concerns itself with the certainty
of having a fast clear result rather than the uncertainty of the “best” solution to
a problem.
2. Certainty that the law will be enforced
a. Positive law offers legal certainty also by providing collective support for the
enforcement of legal duties (enforcement of rights is not left in the hands of
the citizens).
3. Certainty that the law will be applied consistently.
a. Equal cases are treated the same way
Historical development of Law
● Tribal customary law
○ Customary law: guidelines for behavior that have grown spontaneously in a
society (I.e. a tribe) in the form of mutual expectations. After some time, these
expectations are accepted as binding. Customary law eventually is
transmitted through generations for so long that it starts to be considered
“rational”, “natural”, originating from a divine legislator (i.e. God) or otherwise
immutable. It is however unwritten law, so there can be gradual changes that
go unnoticed as there is no text to allow for a comparison over time.
● Codification
○ If customary law were written down and published, its contents could be
inspected by anyone who could read. This is another example of why the
, certainty of law is important: it makes it more difficult for rules that govern
society to be manipulated to the advantage of a few. If customary law is
written down, the law is then described as having been codified.
● Praetor and Iudex
○ Two roles of the legal procedure in Roman law. Praetor and Iudex (judge).
This division of roles made the praetor responsible for establishing the
precise content of the law and the iudex responsible for the determination of
the case facts. As the role of the iudex did not require any special legal
knowledge, it was fulfilled by laymen.
● The Corpus Iuris Civilis
○ The Eastern Empire survived until the fall of its capital Constantinople (now
Istanbul), in a war against the Turkish Ottoman Empire in 1453. However,
long before that, the Eastern Empire reached a cultural summit with the
Corpus Iuris Civilis. This Corpus was an attempt to codify the existing Roman
law and was published on the order of Emperor Justinianus. The first part, the
Codex, contained imperial legislation spanning several centuries. The second
part consisted of the Digest, a collection of excerpts from writings of jurists
from the period of about 100 BCE until 300 CE. The third part, the Institutions,
was a student textbook.
● Common Law
○ After the fall of the Western roman empire, law in that area largely returned to
customary tribal law (i.e. Germanic tribes). In the 11th century Roman Law
was rediscovered, which allowed for a development of private law on the
continent. In England this influence was a lot less strong due to the rise of
Common law as a separate legal system.
■ The unification was brought about by means of a system of royal
representatives who traveled through the country to administer the
law. The task of these royal justices was to apply everywhere the
same law, the law which would eventually become the Common Law
of England. For law to be uniform, it is not only essential that the rules
are the same everywhere, but also that these rules are applied in the
same way. The law consists as much of its rules, as it does in the way
these rules are applied
■ As the English legal system developed independently, it has different
characteristics, in particular the reasoning by way of analogy to
previous cases, as a consequence of the doctrine of stare decisis
(latin: stand by your decisions; if a court has decided a case in a
particular way, then the same court and the courts that are inferior to
it, must give the same decision in similar future cases). This results in
the “precedent” system based on previous decisions made on other
cases. Consequently, English legal reasoning is a form of case-based
reasoning, comparing new cases with old cases that have already
been decided. This system has been exported to the members of the
Commonwealth, and is in use in the US, Canada, Australia and
others.
■ 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.
Originally, equity may have been merely a correction to common law.
However, in the course of time, some branches of law were only
developed in equity, the law of trusts being the most prominent
example.
● Ius commune
○ In Europe Canon law was present, the law of the Roman Catholic Church:
Canon law dealt with the internal organization of the church, but also with civil
affairs such as marriage, contracts, and wills. It was studied in Universities
along the recently rediscovered Roman Law. In this way, the same body of
legal knowledge was spread over Europe, gradually becoming more
important than local customary law. Roman law was seen as ratio scripta,
«reason written down».
● National States and Codification
○ Europe started being divided in a series of sovereign Nation-States with the
peace of Westphalia (1648), meaning that each state would have exclusive
power over its territory.
○ One of the main developments was that law became primarily national law:
rather than law of a people/tribe, it first became law of a territory, and as the
national states formed, the law became the law of a Nation State.
○ Alongside national law, there was law regarding the mutual relations between
national states: International Public Law.
○ National State Law + International Public Law = Westphalian Duo
● Codification
○ The completion of the nationalization process took centuries. A major step
was the French Revolution, with Napoleon’s reign and the codification of
French Law. This was in a series of “Codes” (Code civil = private law; code de
commerce, code pénal = criminal law…). Benefits:
■ Created legal unity in France (as the law up until then was different
from region to region)
■ Created legal certainty, as the law was written down and could (in
theory) be inspected by anyone
■ Emphasized legal power of the central law-making agencies instead of
local judges
■ Guaranteed the influence of the people on the content of the law, as
democratic organs have influence on the legislative process (this grew
in importance later on, with the growing importance of democracy)
As Napoleon conquered a large part of Europe, this codified system was
introduced in several countries across Europe (exception made for Germany,
where the process took longer due to resistance movements against
codification)
● Legal Families
○ National legal systems in Europe effectively were divided into two “legal
families”: the “common law” family (England, Wales, Ireland), whose
developmend was not as influenced by the reception of Roman Law and its
structure was mostly driven by the judiciary; the other side is the “civil law”
family (most other european countries), which were strongly influenced by the
Roman and Canon Law.
, ■ A further division exists in the second group: the countries which have
been more strongly influenced by the French codification movement.
This movement emphasized the role of parliament and democratic
input in making the codification. The creation of law is, from this
viewpoint, firstly a political process. Countries that belong to this
French family include France, Belgium, Spain, and Portugal. On the
other hand, there are countries that belong to the German family, in
which the development of law was driven by legal scholars. Countries
that belong to this tradition include Germany, Austria, and Switzerland.
● Transnational Law
○ Codification led to more use of positive law, but this codification reflected
pre-existing law. Post WW2, legislation started to be increasingly used to
create new law, especially administrative law (regulates the relations between
a government and its citizens). This new law was mostly positive, state-made,
national law.
○ Post ww2 other developments challenged the Westphalian Duo: national state
law and public international law were not exhaustive categories anymore, new
areas of law developed. These included:
■ Human rights: traditionally conceived as rights of individuals against
their governments. They used to be part of national law of states and
safeguarded in constitutions. Post WW2 human rights came to be
protected under treaties (especially under the UN) (page 18)
■ Creation and development of the European Union: the treaties that
created the EU gave EU institutions the power to make new and
independent European legal rules, which the EU court of Justice
decided belong to a separate and autonomous legal system. These
rules do not only bind the member states, but also their legal subjects,
and these rules have precedence over the state’s domestic legal rules.
As a consequence, the Member States of the EU and their legal
subjects are bound by a legal system that is neither the system of a
Nation State nor a system that regulates the mutual relations between
Nation-States. In other words, the existence of EU law does not fit in
the Westphalian duo.
■ Revival of Lex Mercatoria: it is a set of rules created by merchants to
regulate their mutual commerce. In principle, commercial relations are
already governed by the rules of private law (law that deals with
mutual relations between private actors), but it was not always
suitable for the particular needs of trade relations. Thus, in the Middle
Ages, separate and independent body of rules and courts originated to
regulate commercial matters. Today the body of rules governing
international commercial relations is made out of treaties such as the
Vienna Convention on the International Sale of Goods (1980) and
others that are not officially binding but do influence the behavior of
commercial partners (soft law). Lex mercatoria operates outside of the
traditional framework of national states and their mutual relations/their
relations with their legal subjects, and thus is yet again outside of the
Westphalian duo.
