Law
Week 1 – Introduction
1. Civil Law v Common Law
Civil Law - a legal system that originated in Continental Europe and is based primarily on
codified laws. The core foundation of civil law systems lies in written statutes or codes, which
judges refer to when deciding cases. In civil law, the role of the judiciary is more restricted to
applying these laws rather than interpreting them or relying on prior case decisions. (Dutch
legal system)
Common Law – a legal system that originated in England and is based on court decisions
(judicial precedents) rather than codified statutes. In common law systems, the body of law
evolves through the accumulation of judicial rulings, which are guided by principles of stare
decisis (the doctrine that courts should follow previous decisions).
Key Differences:
1. Source of Law:
o Civil Law: Based on codified statutes or legal codes.
o Common Law: Based on case law and judicial precedents.
2. Role of Judges:
o Civil Law: Judges have a limited role, mainly applying written laws.
o Common Law: Judges play a more prominent role in interpreting and shaping
the law through decisions.
3. Importance of Precedent:
o Civil Law: Precedents have little authority. The focus is on the application of
the written codes.
o Common Law: Precedent is a critical source of law, guiding future decisions.
4. Legal Proceedings:
o Civil Law: Inquisitorial system where the judge plays a leading role in
investigating the facts.
o Common Law: Adversarial system where the opposing parties present
evidence, and the judge or jury determines the outcome.
, 2. Definition of Law
Law is a system of rules and principles that govern the behavior of individuals and
organizations within a society, which have binding legal force and effect. These rules are
prescribed, recognized, and enforced by a controlling authority, such as the government or
judiciary, and encompass both the rights and duties of individuals. Law serves not only to
regulate conduct but also to protect individual freedoms and resolve disputes. It consists of
both substantive law, which defines rights, obligations, and duties, and procedural law,
which outlines the methods and processes for enforcing those rights and obligations within the
legal system.
3. Substantive Law v Procedural Law
Substantive law refers to the set of laws that govern how people behave and define the
legal rights and duties of individuals and entities. It establishes the framework for what actions
are permitted or prohibited and provides the legal grounds for enforcing rights and obligations.
Substantive law is the "what" of the law—it defines the substance of legal relationships, such
as what constitutes a crime, what rights one has in property, or what contractual obligations
exist.
Procedural law refers to the set of rules that dictate the processes and methods by which
substantive law is applied and enforced. It defines the procedures for how legal cases are
initiated, how trials are conducted, and how judgments are enforced. Procedural law ensures
that the rights and obligations set forth in substantive law are fairly and consistently
administered.
Key Differences:
1. Purpose:
o Substantive Law: Defines the actual rights, obligations, and duties of
individuals and entities (the "what").
o Procedural Law: Defines the methods and processes for enforcing those rights
and obligations (the "how").
2. Function:
o Substantive Law: Establishes legal norms and regulates behavior (e.g., laws
against theft).
o Procedural Law: Regulates the processes of legal enforcement and
adjudication (e.g., how a trial for theft is conducted).
, 3. Application:
o Substantive Law: Directly impacts how individuals interact with each other
and the state (e.g., you have the right to own property).
o Procedural Law: Governs how the legal system functions, ensuring fair
enforcement of substantive laws (e.g., how a property dispute is resolved in
court).
4. Enacted Law v Unwritten Law
Enacted law refers to laws that are formally written and passed by a legislative body or
another authoritative institution. These laws are officially documented and have a clear,
prescribed legal force. They include statutes*, constitutions**, ordinances, and regulations.
Hierarchy:
1. Treaties – International Legislation
2. Charter of the Kingdom of the Netherlands
3. Constitution
4. Acts of Parliament
5. Order in Council
6. Ministerial Regulations
7. Provincial By-Laws
8. Municipal By-Laws
9. Water Boards By-Laws
* Statutes – (Art. 81 C., Order in Council, Ministerial Regulations, By-Laws) - laws that have
been formally enacted by the legislature. These laws are binding and form a central part of the
legal framework of the Netherlands. Statutes are created through a legislative process involving
both houses of the Dutch Parliament (the Staten-Generaal) and must receive royal assent from
the King to become official law.
** Constitution - the highest legal document (in theory, but keep the hierarchy in mind) that
establishes the fundamental principles and structure of the state. It sets out the basic rights of
citizens, the organization and powers of the government, and the relationship between state
institutions and citizens.
Unwritten law refers to legal principles and rules that have not been formally codified or
written down but are recognized as binding. These laws are often based on customs, judicial
, precedents, or societal norms. In common law systems, much of the law is derived from
unwritten sources, such as case law and customary practices.
1. Case Law
2. Customary Law*
3. Principles of Law**
* Customary Law - unwritten legal norms and practices that have developed over time through
consistent and accepted usage, rather than being formally enacted through statutes or
regulations. These customs become legally binding because they are widely followed by a
community or society and are recognized as authoritative by courts or other legal authorities.
1. Usus (‘sufficiently widespread and uniform’ practice) - The practice must be followed
regularly and uniformly by the relevant community or group over a long period of time.
2. Opinio iuris (legal recognition and acceptance) - general belief within the community
or society that the custom is not just a practice but also a legal obligation.
** Principles of Law - Principle of Honoring Promises, Principle of Freedom of Contract
5. Private Law v Public Law
Private law governs the relationships between individuals or private entities, such as
businesses and organizations. It primarily deals with legal disputes and agreements that concern
private matters, where the state’s involvement is minimal unless one of the parties seeks legal
redress. Private law covers areas like contracts, property, family law, and torts (civil wrongs).
– horizontal relationship
Public law governs the relationship between individuals or entities and the state. It concerns
issues that affect society as a whole and involves regulations imposed by the government to
ensure the public welfare. Public law sets rules for the structure and operation of government
institutions and defines the relationship between the state and individuals, including the
enforcement of criminal laws. (Constitutional Law, Administrative Law, Criminal Law, Public
International Law*) – vertical relationship
Key Differences:
1. Parties Involved:
o Private Law: Deals with relationships between private individuals or entities
(e.g., a contract between two companies).
