Chapter 1: Introduction to Law
- Rules are necessary to organize just behavior in a given society; to regulate what is just
to avoid chaos. The law is a set of legal rules that governs the way members of a society
act towards one another.
- Usually rules are applicable in a given society. Such a society may have many different
shapes and sizes. There are many forms of rule, such as a small group of people, a city,
a state, a region, or sometimes even the entire world. On all these levels, law can be
used to organize just behavior.
Trias politica: separation of power; legislative, executive, judicial – this is used in the
Netherlands but not in its pure form. The constitution was written in 1848 by Johan Thorbecke.
Legislative powers is the government (ministers and King) and Staten-Generaal (Eerste and
Tweede Kamer) together.
Executive powers is the government, provinces and townships together.
Judicial powers are the judges. They are not checked by the people which is the case in the
original TP theory.
The government has both legislative and executive powers. Montesquieu believed that the
government should not have any legislative powers at all.
Checks and balances: the three above mentioned powers balance and check each other.
- Legislative power checks executive powers; administrative; the ministers have to explain their
policy to the parliament.
- Judicial powers balances the legislative powers; judges checks facts to (international) law, but
judge is not entitled to review constitutional law.
- The standing powers are divided from the sitting powers. The standing powers are the
officials (civil servants) of the Department of Justice, but the section Prosecution is
independent.
- The Supreme Court has the power to judge in a manner that the legislative powers are
checked. The judges of the Supreme Court are independent, the government is chosen by
the people in a democratic manner.
Law organizes just behavior by applying two different kinds of rules:
1. Substantive law: composed of legal rules that define the content of just behavior; what
people are supposed to do, or not to do.
2. Formal law: compose of legal rules that maintain substantive law. What happens when you
don’t stick to the substantive law rules.
Substantive law is rather pointless when there are no means to maintain these rules. If there are
no consequences for violation of substantive law, a society is depending on the goodwill of
people to obey the law.
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,There are two particular relations that need to be managed within societies:
1. Public law: the law that regulates the relations between the government and its citizens. In
many societies it’s the state that oversees the enforcement of the law, and decides when a
citizen needs to be punished for not behaving according to its laws. Simultaneously, these rules
also restrict the power of a state; the state has to act in accordance with its competences laid
down in these rules.
1a: Public substantive law: substantive rules in society everyone should comply with, such as
traffic rules. Protect the public wellbeing/good. When one offends such a law, the state
interferes, and punishes the citizen accordingly, in line with the appropriate formal rules.
1b: Public formal law: formal rules that regulate the legal procedures that need to be taken into
account when a citizen misbehaves. The state is often not unlimitedly competent in punishing a
citizen: formal procedures need to be followed, and evidence should be of a particular quality
before a state may interfere in the life of a citizen.
2: Private law: the law that regulates the relation between citizens or those who act as citizens;
a company is also considered to be an equivalent individual in most legal systems since it’s not
a government that acts on behalf of the public good.
Sometimes, a government institution may also be seen as an acting citizen; e.g. ordering food
for lunch break.
2a: Private substantive law: people may need some substantive rules that regulate the relation
between the conflicting parties to solve some issues.
Branches of Law
In legal sciences, people usually further subdivide law in more detailed categories. The
subdivision is based on the topic or issue that is dealt with by this particular branch of law.
- International cooperation between states; The form is that of public law, states engage in
these kinds of cooperation on behalf of the public good within their society – the effects are
sometimes also noticeable in the relation between citizens. Therefore, it’s not easy to
categorize this particular kind of law as either public or private law.
- Constitutional and administrational law; each state laws are adopted that regulate the way
the state is governed and the fundamental rights their citizens are entitled to.
- There are several branches of private law that relate to doing business; there are laws that
relate to contracts, liability, labor contracts, the legal form of a company, privacy and
intellectual property.
- There are rules that define how to settle a dispute between citizens in both public and
private laws; such rules are formal rules, because their facilitate maintaining substantive
rules in cases where substantive law is violated.
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,Just behavior
Just implies a balance between the values commonly shared in every society; justice,
opportuness and legal certainty.
Justice: the moral conviction of a given society expressed in law (codification)
o Some moral convictions are widely shared and appear in some shape or form in
almost all legal systems around the world. However, there are other moral
convictions expressed by law that are highly controversial; e.g. death penalty.
Be careful in identifying law with justice as synonym:
o Law usually expresses the moral conviction of the legislature. This does not
mean however that this moral conviction is shared with all the citizens of that
particular society.
o Law does not always express a moral conviction; sometimes law is a tool to
effectively regulate something in society that needs to be done (opportuness), or
to establish clarity on someone’s legal position beforehand.
Opportuness: the expression of effectiveness by a given society in law (modification)
o It’s a tool to effectively regulate something in society; what side of the road to
drive.
o In most situations, justice and opportuness go very well hand in hand together
with one another. However, sometimes in a given society, something needs to be
regulated by law from an effective or practical point of view while it’s perceived to
be an unjust legal standard; e.g. laws leading to economic downsizing; majority
of population will disagree, however, the legislature will most likely argue that
there is no other way to effectively organize such issues with the new approach.
Legal certainty: the expression of legality in a given society (predict the
legal consequences of behavior)
o This means that every citizen and the relevant government should be able to
know the legal consequences of their action beforehand, not afterwards. Thus,
law should be predictable. Also, a government may not interfere in the life of its
citizens without a valid legal ground that is applicable at that time.
The origin of law
There are two approaches in legal philosophy that are traditionally distinguished regarding the
origin of the law; the natural law approach and the positivist law approach
Natural law: assumed that the laws emerge from nature. A law doesn’t need to be codified
(written down) first to be a law, but it already exists regardless its appearances; e.g. human
rights. There are a number of different kinds of natural law legal theories, differing from each
other with respect to the role that morality plays in determining the authority of legal norms.
Legal uncertainty and focus on content.
-Advantage: law and justice is not depending on any formalization, and therefore can be applied
because it’s only reasonable to do so.
-Disadvantage: it’s susceptible to misinterpretation.; there’s always the pitfall that someone
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, believes to have a monopoly on the correct understanding of natural law and as a result
imposes this particular understanding of law on others.
Positivist law: assumes that law comes forth from codification; law is only law when it has been
written down first. Legal certainty and focus on formalization.
Advantages:
- People know beforehand what the rules of the game are. These rules are under a certain
degree of quality and consent of the people that are bound by this law is guaranteed.
Protection of people from extreme understandings of natural law
Disadvantages:
- Written law is always two steps behind reality, because one cannot create rules beforehand
that flawlessly provide solutions to every possible case. Usually, some flexibility is required.
- Bureaucracy: over-formalizing relations in society when only written standards can be
applied.
Natural law and positivist law or two opposing extremes in elucidating the origin of law. In most
legal systems, one needs a bit of both to function properly in a balance that suits the involved
society. This balance is not only different per legal system, but also may shift over time.
Legal sources
1. Codified standards
2. The application of law
3. Legal writings and teachings
4. Religious writings and teachings
5. Customary law and principles
1. Codified standards: written rules produced by a legislator.
- Code of Ur-Nammu; first known codified standard, a penal code applied in the
Mesopotamian empire.
- There needs to be room for interpretation and a certain flexibility, so they can be applied in
various cases.
- Principles stem from natural law, written in codified standards and in general wordings are
used in civil law systems and as such, flexible and to be used in a wide range of cases.
- There is naturally a strong emphasis on legal positivism, because written codes are exactly
what positivist consider to be the source of law. But a codified standards needs a bit of
natural law, since a codified standard can never be fully comprehensive and offer a clear
solution to each individual legal conflict.
- For Europe in general and The Netherlands in specific the Corpus Iuris of Emperor
Justinianus (530 AD) laid the groundwork for our law system today
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