Part I of the Course – Law in general
Law
Primary and secondary rules:
Law should meet the following standards:
o Generality, publicity, prospective, intelligibility, consistency, certainty, continuity,
obeyable, enforced according to general understanding of rule
HLA Hart: “Law is the union of primary and secondary rules.”
o Primary rules create rights, duties, privileges, powers, immunities and liabilities
related to behaviour (like social norms)
Uncertain, problematic, inefficient
o Secondary rules (unique to law)
Rules of recognition – how to identify a valid legal rule (certainty)
Rules of change – how rules are introduced, removed adapted, transformed
(dynamic)
Rules of adjudication – who and how it is determined whether a rule has
been broken (efficient)
o Two minimum requirements for a legal system:
1. Primary rules must be obeyed
2. Enforced by officials who respect secondary rules as common standard for
official behaviour
Sources of law
Constitution, legislation, executive orders and administrative rules, doctrine of Stare
decisis (court judgements in some countries; precedent), international treaties – all sources
of positive law. They are primary, valid and authoritative.
Secondary sources (not valid law, but guidance on appropriate interpretations) – scholarly
treatises, commentaries, opinio juris.
Hierarchy of sources and chains of authority:
o Constitution → Acts of parliament → Administrative rule
Generic structure of legislation in Civil Law systems:
1. Constitution
2. 5 major codes
Civil code
Civil procedure code
Criminal code
Criminal procedure code
Commercial code
3. Additional elements
Administrative code & administrative procedure code
Special areas of legislation, such as for social security, environment,
employment, insurance
4. International & European or other regional treaties, agreements
,Legal systems
Basic structure of contemporary legal systems:
Sovereignty – the absolute and perpetual power over all citizens and subjects in a
commonwealth (state). (Bodin)
o Internal sovereignty – control over citizens, internal affairs
o External sovereignty – ability of heads of states to communicate and coordinate
Separation of powers to prevent tyranny, monopoly on power
o Legislative – to create, change and nullify laws
o Executive – to implement the laws of the legislative body
Administrative – to develop further rules and policies to enact legislation
o Judicial – to apply laws to disputes; to interpret laws (in some cases)
Dimensions of jurisdiction – the extent of a legal institution’s authority
o In rem – by subject matter of the dispute; In persona – by the identity of the parties
involved
o Procedural jurisdiction (exclusive, concurrent, original, appellate)
o Territorial jurisdiction – by location of where the actions of the dispute occurred;
the location affected by the actions of the dispute
o General vs specific jurisdiction courts
o Jurisdiction in a federal system (exclusive, shared)
o Universal jurisdiction
Separation of powers
In federal states, the separation of powers occurs at both the federal and the sub-federal level.
1. The Executive Branch
a. President / Prime Minister / Governor ↓
b. Cabinet or government ↓
c. Ministries, agencies, departments
i. Examples: Ministry or Department of Foreign Affairs; Minister of Finance;
Environmental Protection Agency, Police Department; Office of the
Prosecutor; DoJ
2. The Legislative Branch (most democratic), usually composed of an assembly
a. Parliament or Congress (all of its chambers)
b. Parliamentary or Congressional Committees
c. Other offices directed by the Parliament, such as the budget, research or
accountability offices
i. Examples: Member of Parliament or Congress; Congressional Finance
Committee
3. The Judicial Branch
a. Judges at all levels of courts
b. Court staff (court recorders, clerks)
c. In some countries, defence attorneys provided by the state (public defenders)
, Division of the Judiciary
Multi-level court systems:
o Courts of ‘first instance’ with original jurisdiction.
High volume of cases, many of them very minor. Can be general or
specialized.
o Appellate courts
Higher level; reviews decisions made by courts of first instances.
Almost always heard by a group of judges.
o The high courts
Cassation courts will only review the way the law has been interpreted
and applied by the lower courts
Supreme courts will review both the application and interpretation of the
law, as well as the facts of the case.
Constitutional courts review the constitutionality of legislation or actions
of public officials.
o Administrative tribunals
A quasi-court, part of the executive branch, which hears disputes about
administrative decisions and offers first attempts at resolving these
disputes.
The law and legal reasoning don’t particularly care about specific cases, but rather about the
general applicability of the rule. Law tries to find the best outcome for all cases, even if the
outcome for one single case produces problematic results. The law cares about the public
more than about the particular.
The General Part
Objective law – the rule to which the individual must make his conduct conform
Subjective right – the power of the individual that is derived from the norm
Example: If a debtor is told to pay his debt (objective law), the creditor derives the power to
obtain payment (subjective right). If the debtor does not pay his debt, he is liable for damages.
Public law governs the organization of the state and other private entities, and the relations
between them and the citizen, relations in which the state and the public entities are in a
position of supremacy over the citizen. This always involve public authorities and
hierarchical relationships.
o Constitutional, Administrative and Criminal Law
Private law governs the relations among formally equal parties (equality of position
among subjects)
o Civil Law
Property law, Obligations (contractual and non-contractual), Law of
persons, Family Law, Inheritance law
o Commercial law Rules in private law can be either:
Dispositive – changed or altered by the individuals
concerned
