Samenvatting
Summary Law and Legal Skills Exam Notes
- Vak
- LLS (RGPAR510AD)
- Instelling
- Rijksuniversiteit Groningen (RuG)
Summary for the Exam
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Voorbeeld van de inhoud
Donata Eicks NotesLaw and Legal Skills
RUG 2018-2019
Notes for the Exam: LLS 2018-2019
Week 1: Introduction
What is Law?
Law: is in essence a set of (1) rules pertaining to conduct, (2) established by a controlling
authority – (3) with legal binding force and effect
Recognized by and enforced by controlling authorities
Contestable – there is no fixed definition
o Dependent on the country and the controlling authority i.e. the backdrop/
culture in which these rules were developed & came into existence.
Main Functions of Law:
1. Avoidance of Conflict – Regulation:
Substantive Law
Relates to the giving of Basic Rights and Obligations
o It is law that exists and regulates a specific situation – there is NO conflict.
o E.g. buying a cellphone online: there is (1) an obligation to pay and the (2) right
to receive the cellphone
o Can be found in Civil Code(BW), Constitution & GALA (Administrative Law)
2. Conflict Resolution (Resolving a conflict)
Procedural law
Rules regulating the procedures by which rights and obligations can be enforced
o Tells one how to solve a conflict
o How to make a claim – what court to make the claim at.
o E.g. If you have bought the phone online and you don’t receive it procedural
law will tell you how to best enforce your rights and obligations & how to deal
with/resolve the conflict.
Sources of Law
Taekama: sources range from; Enacted law, Case law, Customary Law & Principles of Law.
Distinguished between;
o Civil Law: Enacted Law (Written) & Case Law (case law is supplementary)
o Common Law: Case Law (Unwritten) & Enacted Law (derived from judicial precedent
– stare decisis – and customs rather than statutes)
1. Written Sources: These have been through a formal legislative procedure made by a
body which has law making power.
Also known as ENACTED LAW
a) Treaties (Conventions, Pacts & Protocols):
It is – International Legislation
o An agreement btw states which have gone through some legislative procedure
nationally or internationally
o Ratification is NB & Necessary to conclude the process: i.e. the treaty is (1)
approved it then becomes (2) legally binding
o Bilateral and Multilateral (can be bound both/many ways)
, Donata Eicks Notes
Law and Legal Skills
RUG 2018-2019
o Dutch Const. Art 90-93
b) Constitution (Basic Human Rights)
Regulates action btw:
o State & Organs
o State & Citizens
Gives Law making powers –
o (Independent Judiciary) – makes up the Judiciary
o Parliament Elections
o governmental organs with rule making authority.
c) Statutes (other legislation)
Legislation enacted by parliament – done by/from a Formal Legislator
o Art 81 Const: “Statutes (Acts of Parliament) are enacted by the (1) Government
and the (2) States General” i.e. the Government and Parliament together
Other Governmental Regulations
** Decentralization of NL: This is where one or more responsibilities have been delegated to lower
public authorities – AND other public bodes can be established pursuant (in accordance with
Statues)
a) Royal Decree: Law coming from the Government
b) Regulations: Law coming from the Minister
c) By-Laws (province, municipalities & water control boards)
III. Provinces
a) General
(12 Provinces) Combination of responsibilities are fairly limited compared to national gov. and Municipalities.
o Tasks include;
Areas regarding physical planning, transport & public works
Establishment and Regulation of Water boards + Water management
Enviro protection & Recreation
Supervision of the administration conducted by Municipalities and Water Boards
b) Provincial states
Members elected for a 4-year term – by the citizens of the Netherlands of each province – elected by proportional representation
o Number of members range btw 39-83, depending on the number of inhabitants of a province.
o Meetings are public and presided over by a royal commissioner (advisory note)
o Principle that not all powers not expressly conferred on the provincial executive/ royal commissioner vest in the provincial state
Provinces Act s43.
c) Provincial Executive
Administrative organ of the province –DUTY = day-to-day administrative duties + financial management
Made up of:
o Royal commissioner
o 3-7 members appointed for 4 years by the Provincial State (max can reach 9 – if part-time members)
o Members can be dismissed if they have lost confidence in Provincial State
Duties include: Settlement of administrative disputes & Supervision of municipal authorities
Provincial State can delegate certain powers to Provincial Executive
o Accountable to the Provincial State for its administration – this now applies regardless of whether the acts, for which the provincial
executive is accountable were performed autonomously or co-administratively
d) Royal Commissioner
Appointed by royal decree for term of 6 years – can be dismissed at any time (Art 131 Const + s61 Provinces Act)
Provincial organ & are accountable to the Provincial States: limited to administrative acts performed by a commissioner in his capacity as organ of
the province
Royal Commissioner Instructions contains list of duties – regulated by statutes – which commissioner performs in capacity as organ of the State
o Include: coping with calamities, civil defense + co-ordination btw local offices of national administration & provincial and local authorities
– appointment of mayor and policemen
PA – assigns supervisory function to commissioner – notifies minister of home affairs for decisions which should be annulled
e) Funding and Supervision
3 main sources of funding:
1. Levy Provincial taxes, dues and other charges (LIMITED)
2. Receive a sum of money (annually) from local authorities’ fund – adjusted using allocation formula reflecting the diversity of provinces
3. Goal orientated grants from the state
State Supervision can be divided into measures:
, Donata Eicks Notes
Law and Legal Skills
RUG 2018-2019
IV. Municipalities
a) General
- Currently 483 have broad responsibilities.
Includes autonomous power to regulate and administer the municipalities own affairs
o E.g. responsibility for public order, morals, health, traffic arrangements + and different recreational and cultural facilities.
o Also responsible for other things by way of co-administration & have NB task in the field of special planning + housing
o Municipalities differ greatly in structures and sizes
o Municipalities Act based on the principle of uniformity of organization
b) Municipal Council
Elected directly by proportional representation from + by inhabitants of the municipality for a 4-year term
Number of members range from 9-45 depending on no. of inhabitants.
Mayor has advisory vote.
For increased involvement between the public and the local administration municipalities establish municipal committees of either a
functional/ territorial nature.
o E.g. neighbor hood or borough councils.
c) Municipal Executive
Management of the Municipality is mainly responsibility of the Mayor (Burgomeester) and the alderman = municipal executive
Appointed by the municipal council – term of 4-years no place on council.
Mayor is chairman of the executive – right to vote in this
Powers come from 3 sources:
1. Municipalities Act – details everyday administrative tasks (s160)
2. Council may delegate powers to executive on fairly large scale (co-administration may be involved with regard to the
exercise of specific powers)
Executive is fully accountable for the policies pursued by the executive – council may dismiss aldermen who have
lost confidence in council.
d) Mayor
Appointed by Royal Decree – term of 6-years (can be dismissed by crown at any time – art 131 const + s61 of the Municipalities Act)
Nomination list – contains two names – will be followed unless there is a strong reason to deviate
Position is different to that of the royal commissioner – mayor must only be seen as a municipal organ not subject to instructions from
gov.
o Accountable to municipal council for all official acts
Responsible for implementations of decisions (Chairman of council and executive)
o Exercises certain degree of supervision – notifies higher authorities of decisions which he thinks should be annulled
Granted autonomous power for purpose of maintaining public order – authority over regional police force with regards to maintaining
Hierarchy of enacted Laws: (Goes from most
important least important)
**charter for the Kingdom of NL – regulates the
relationship btw the NL and other countries
belonging to the Kingdom
, Donata Eicks Notes
Law and Legal Skills
RUG 2018-2019
Collision Rule Guidelines
1. Higher rule prevails over the lower rule: Lex superior derogate lex inferior
E.g. Act of Parliament(Statue) precedes (prevails) over a governmental regulation
o Provincial By-Laws over municipal by laws – Provinces give authority to
municipalities
2. Newer Rule Prevails over later rule: Lex posterior derogate legi anteriori
3. Particular rule Prevails over general rule: Lex specialis derogate legi generali
Netherlands = Civil Law System
Enacted Law (written law Dominates)
Case Law = additional source
o Subdivisions: Germanic, Roman & Nordic
In the NETHERLANDS; courts are not formally obliged to follow decisions previously
made by Supreme Courts – however this is very unlikely but it does happen
**no judicial review of acts of parliament = parliament is sovereign. Parliament has
ultimate power and thus cannot be used to invalidate statues.
OTHER = Common Law System e.g. UK
Case law = unwritten = Dominates
Enacted Law = additional source of law
2. Unwritten Sources: Have NOT gone through a formal legislative procedure BUT rules
with binding legal force
a) Customs – Customary Law
Requirements must be met in order for it to be Customary Law:
o Usus: must be (1) practiced constantly and (2) uniformly over a long period
time i.e. it must be a general practice
o Opinion necessitates/opinion juris: the practice must be legally binding =
regarded/accepted as law
E.g. Rule of Confidence in NL – if majority of parliament does not
have belief in gov. = Gov must step down.
b) Case Law (judicial ruling/ ruling of the judges)
Additional source of law
Only supplements enacted law
No formal principle of precedent: No stare decisis in the Dutch system
o Practice: courts abide by rulings of higher court
De jure courts can rule on cases contrary to higher courts but de
facto precedent
o Case of conflict: case law vs. enacted law = most recent applicable
c) General Principle
Supplementary law – i.e. basic legal values
o Basic values that float behind the legal system and supplement laws
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