INTRODUCTION TO LAW MODULE
CHARATERISTICS OF LAW;
- Enforced by collective means; state organs
- Accompanied by specific sanctions
- Punitive (disciplinary, intended as punishment), preventative and restorative
- Stable and uniform but open to evolution
TWO »BASIC« DEFINITIONS OF LAW;
First: a set of universal moral principles in accordance with nature
Second: a collection of valid rules, commands or norms that may lack any moral content
What is Law?
Principle of governance in which all persons, institutions and entities, public and private, including
the State itself are accountable to laws that are publicly promulgated*, equally enforced and
independently adjudicated* and which are consistent with international human rights norms and
standards.
*promulgated; publicized, communicated
*adjudicated; examined, judged
THE DIFFERENCE BETWEEN LAW AND MORALITY
Law; system of rules, deliberately changed by entities vested with the authority to do so, can develop
quickly, pre-made official sanctions
Morality; system of values and principles, cannot be changed intentionally, do not require formalities,
develops slowly, no official sanctions (might be subject to censorship; sociology)
THE HART-FULLER DEBATE (Grudge Informer Case)
NATURAL LAW (Fuller); certain rights/values are inherent by virtue of human nature, law can
inherent morality, can be universally understood through human reason
vs.
LEGAL POSITIVISM (Hart); law is a collection of valid rules; may lack any moral content, legal
rules often coincide with moral principles but a connection with morality is not a necessary feature of
law
, NATURAL PERSONS; human beings (deceased people are neither natural nor legal persons) and
LEGAL PERSONS; entities that have received the status of legal subjects
The Nuremberg Trials; prosecution of prominent Nazi leaders for their roles in the Holocaust
key point for the development of cases on war crimes, crimes against humanity, aggression
Truth and Reconciliation Commission (South Africa, 1996); amnesty in return for a full disclosure
of Apartheid crimes committed, documentation of crimes, perpetrators held to account, empowering
victims, restorative justice (rather than just punishment)
Brown v Board Education (1954); segregation in schools was unconstitutional
CONTENT OF LEGAL RULES
1. Obligations »TO DO« obligation to perfom a certain type of action, sanctions may arise from
failure to comply, can apply generally; sometimes a certain status may be needed. Example; a
car driver must turn on their car lights when it gets dark
2. Obligations »TO NOT DO« also known as a prohibiton, sanctions may arise, obligation to
refrain from something. Example; anti-doping rules in sports law
3. Permissions absence of prohibition, in law, what is not prohibited is usually permitted
(example; stepping on the grass is OK, if no rule states otherwise) and sometimes permissions are explicit
(example; police officers are allowed to perform body searches)
4. Rights interest protected by law. Example; right to be free from torture, inhumane and degrading treatment
5. Definitions the conditions required for a factual situation to acquire a legal meaning
BRIANCHES OF LAW – WHAT DIFFERENT TYPES OF LAW EXIST?
Private law; relationship between individuals and groups in society (between individuals and
companies, between companies and companies and so on,…)
- Contract law (states that agreements are important, both parties benefit from the agreement
that is legally enforceable, a basis of whole economic system)
- Tort law (gaps in contract law, a wrong that has been done and needs to be redressed)
- Property law (answers the questions about what is property, who can own it, what can the
owner do with it and so on)
Public law; relationship between individuals and the state
- Constitutional law (decisions on who is in charge, what powers should they have, what are our
rights,…)
- Administrative law (what powers do officials have, how can they intervene,…)
