Definition of Law

Definition of Law

• The term "law" comes from the Latin ius, linking it to justice and jurisprudence.
• Another root is directum, meaning "just" or "equal" in medieval times, seen in words like droit (French), diritto (Italian), and derecho (Spanish).

Two Views of Law

• Legal naturalism connects law to morality and justice, law reflects a higher moral order.
• Legal positivism reacts against natural law, saying law is enacted by authority, regardless of morality.

Statism and Nationalism

• Statism concentrates state control over social and economic issues.
• Nationalism uses laws to back a specific nation's interests.
• Since the 18th century, nation-states use monarchs or parliaments to shape private law.

Westphalian Paradigm

• The Peace of Westphalia (1648) shaped legal systems by establishing state sovereignty.
• Law divided into domestic law (state-controlled) and international law (voluntary agreements).

Comparative Law

• Legal systems are typically discussed in relation to a specific national law, since each state creates its own system.
• Comparative law studies the similarities and differences across legal systems.
• Foreign law involves the legal system of another country.
• Comparative law analyzes multiple legal systems.
• Ernst Rabel (1874-1955) was a key figure in defining comparative law, which was formally established in 1900 at the Congrès international de droit comparé.
• Aim is to assist legislatures, harmonize laws, provide legal education, and influence European legal integration.

Methods of Comparative Law

• Functionalist Approach (Zweigert & Kötz): Focuses on practical functions over formal structure.
• Historical-Comparatist Approach (Zimmermann): Based on the Roman law heritage of Western systems.
• Theory of Dissociation of Legal Formants (Sacco): Recognizes inconsistencies with three "formants" shapring law: legislation, judicial decisions, and legal doctrine.
• Micro-Comparison compares specific legal rules across systems.
• Macro-Comparison focuses on large-scale structural differences.

Legal Families vs. Legal Traditions

• Comparative law categorizes legal systems by historical roots and principles.
• René David groups national laws into "families" with shared concepts.
• Within the Western legal tradition, the most important families of national laws are civil law and common law.
• Legal traditions evolve and include cultural and philosophical approaches to law.

Private International Law

• Addresses legal conflicts in cross-border situations, determining which national law applies.
• Private international law has been largely harmonized within the EU.

Uniform Law

• Aims to create consistency across legal systems.
• International Conventions are treaties followed by agreeing countries.
• Legal Transplants are foreign systems/principles adopted with changes.
• Model Laws are framework laws proposed for domestic adoption.
• Challenges include legal traditions, interpretation issues, and cultural/legal resistance.

Uniform Law vs. Uniform Legislation

• Uniform Law is the goal of harmonization.
• Uniform Legislation is the specific legal text, interpretation matters to avoid consistency issues.
• A comparative legal approach ensures uniformity by analyzing how different legal systems apply the same law.
• The United Nations Convention on Contracts for the International Sale of Goods (CISG) aims to provide a consistent international trade framework.

Natural Law vs. Legal Positivism

• Natural Law claims law is inherently linked to justice.
• Legal Positivism states law is valid when established by a recognized authority, regardless of moral content.

Natural Law and Human Reason

• Natural law theorists connect law and morality.
• Strong Definition "Unjust law is not law" and laws against moral principles are illegitimate.
• Weak Definition, even unjust laws are valid, they should be changed or resisted.

Legal Positivism

• Law is a system of rules created by recognized legal authorities.
• A law is valid if it follows proper procedures, regardless of moral content.
• Legitimacy is based on formal sources instead of moral evaluation.

Hans Kelsen's Normativism

• Law is a hierarchy of norms, each from a higher norm, culminating in a "basic norm".
• Law is separate from morality, application is without regard to personal and moral views.

Problem of Unjust Laws

• Legal positivism can legitimize oppressive or immoral laws.
• With "Law as it is" vs. "Law as it should be" laws are studied as they exist.
• Civil disobedience is supported by distinction, individuals refuse to obey if the law is immoral.

Renaissance of Natural Law: Radbruch's Formula

• Gustav Radbruch stated that, after World War II, a law stops being valid if it is excessively unjust.
• Basis for the prosecution of Nazi officials during the Nuremberg Trials and later in cases against East German border guards.

Structure of Norms

• Legal norms regulate behavior through rules, rights, and obligations.
• If a state of affairs occurs, then a legal consequence follows.
• The logic differs from moral or religious rules through prescribed specific sanctions.

Generality and Abstractness of Norms

• Generality applies to all in the same situation, theft - the norm applies to all thieves.
• Abstractness applies to a certain kind, opposed to a specific event, fulfilling obligations.

Mandatory vs. Default Rules

• Mandatory Rules cannot be changed, this is typical in public law.
• Default Rules can be changed, common in private law.

Normativism

• Hans Kelsen's legal theory sees law as a hierarchy of norms from a foundational principle.
• Laws are not based on morality, validity of each norm is dervied from a higher norm to achieve Kelsen's Pure Theory of Law.

The Legal Hierarchy

• Grundnorm (Basic Norm): The highest, assumed rule that gives authority.
• Constitution: Establishes fundamental rights and legal structures.
• Legislation: Laws created by a legislative authority.
• Regulations and Administrative Rules: Detailed applications of statutes.
• Judicial Decisions: How courts interpret and apply legal norms.

Sources of Law

• Legal concept about from where legal rules derive their authority.
• Sources are classified into Sources of production and Sources of congnition.

Sources of Production

• Mechanisms to create/change laws, including acts to modify/repeal existing laws.
• Legal recognition of customs and traditional practices relies on stability and social perception.

Sources of Cognition

• Provide legal notice about sources of production.

Sources of EU law

• EU law influences Member States and citizens.
• EU law is distinct from international law, directly applicable and supreme over national laws.
• Primary Law: Foundational treaties like the TEU and TFEU which define EU institutions, their powers, and citizen rights.
• Secondary Law: Legislation created by the EU institutions.

The European Court of Justice (ECJ)

• ECJ is the judicial authority of the EU and ensures uniform interpretation of EU law across Member States.
• The court of Justice handles requests, appeals, and certain actions for annulment.
• The general Court hears cases brought by individuals, companies, or Member States against EU institutions.
• Individuals/companies can challenge EU institutions through national courts or directly before the General Court.
• The EU/Member States are distinct with individual systems of legal sources with EU law taking precedence.
• The Costa v. Enel (1964) case first recognized supremacy where EU law prevails over national law.
• The Simmenthal (1978) clarified that all national courts must apply EU law directly and disregard conflicting national provisions without waiting for constitutional rulings.

Relations Between European Law and Comparative Law

• The ECJ acknowledges EU treaties create a unique legal order integrated with national laws.
• EU law is influenced by both international law and the legal traditions of Member States.

The Completeness and Consistency of Legal Systems

• Legal positivism assumes legal systems are complete and consistent.
• Complete: No gaps exist in primary legal rules, as every case is regulated.
• Consistent: No conflicts exist, each case has a single legal outcome.
• Legal systems have gaps and inconsistencies and so secondary rules fill in gaps and rules resolve contradictions.

Filling Legal Gaps: Different Approaches

• When gaps exist, legal traditions approach are used, Common and Civil law.
• Common Law (Anglo-American Jurisdictions): Judges use their discretion, creating new legal norms through precedent.
• Civil Law (Continental Europe): normative mechanisms prevent discretion.
• Analogy (Analogia Legis) happens where laws are applied to governing similar cases, if no specific rule exists.
• Analogy of Principles (Analogia luris) happens where general legal principles are applied.

Resolving Legal Contradictions (Antinomies)

• When rules conflict, courts apply hierarchical, content-based, and time-based criteria.
• Hierarchy means higher-level norms prevail.
• Specificity means specific rules override, chronology means newer replace older ones.

Interpretation of Legal Texts

• Judges interpret laws using grammatical, systematic, historical, and teleological methods.
• Grammatical interprets sticks to the exact wording of the law.
• Systematic ensures consistency with the overall legal framework.
• Historical considers the lawmaker's orginal intent.
• Teleological focuses on the law's purpose and social policy goals.

Doctrine of Stare Decisis

• Precedent adjudicated by a higher court has an absolute force for a lower court.
• Overruling that binding force ceases if a higher court assesses if something is unsound and wrong.
• Distinguishing a precedent is not binding only the cases differ substantially.

Private law and Public law

• Private Law (Droit privé, Privatrecht, Diritto privato) governs relaitonships between private individuals and entities.
• Public Law (Droit public, Öffentliches Recht, Diritto pubblico) regulates the function of the state and the relaitonships between state and individuals.
• Public law applies when the state acts in its sovereign capacity, but private applies when acting as an ordinary citizen.

Private Law

• Private law deals with the mutual relations between citizens.
• Civil Law covers contracts, torts, property, family, and inheritance, and Commercial Law regulates trade, businesses and entities.
• Private equality is when no party has sovereign authority.
• Contracts and Autonomy: Private law allows individuals and freedom to be arranged if they respect the law.

Public Law

• Public law regulates relationships by the state or public authorities.
• Administrative Law regulates interactions between government and civilians.
• Tax Law regulates taxation to the state when they exercise sovereign powers.
• Criminal Law concerns the prosecution of crimes.

Natural events

• Legal systems distinguish between events that have legal consequences and those that do not.
• Legal relevance is defined by specific regulations.
• Occurences or an act has legal consequences when prescribed by regulations.

Legal Acts

• Legal Acts happen with the intent to produce legal effects e.g. wills, marriages.
• Legal Facts are events whether or not they result from human intention.

Types of Legal Events

• Material Facts (Objective Legal Facts) are events with consequences despite human intent.
• Legal Acts (Subjective Legal Facts) have consequences with human intent.

Types of Legal Acts

• Based on Structure can be unilateral, bilateral and Mulitlateral.
• Based on content can be patrimonial or non-patrimonial.
• Based on timing can be inter vivos or mortis causa.

Legal Relations

• A connection between two or more legal subjects that creates rights and duties.
• Includes Rights (can do), duties (shall do/not do).
• Obligations (creditor/debtor), Categorization by Structure-Relative vs Absolute.
• Categorization by Content-Patrimonial vs Non-Patrimonial.
• Categorization by Disposability-Disposable vs Non-Disposable.

Statutes of Limitations

• Statute of limitations the rule that extinguishes rights after a set for not being enforced.
• This ensures legal certainty, encourages dispute resolution, prevents challenges.
• Exceptions (Rights That Do Not Expire) apply to ownership rights and rights.
• Tolling provisions happen when incidents pause on the time limit and interruption is when legal action is taken before expiration.

Legal Subjects

• Legal rules enforce duties and competences to legal subjects.
• Natural Persons have legal obligations and aquire them from birth and these transfer to their heirs.
• Legal Persons (Artificial Entities) include corporations, associations, groups recognized as separate.

Legal Personality and Capacity to Act

• Legal personality the ability to keep rights, with restricted capacity needing legal representatives.
• Capacity to act is the power to create legal relationships e.g. signing a contract, getting married.

When does Legal Personality begin?

• At birth most legal systems recognize a person's rights.
• Before birth systems grant limited rights to fetuses e.g. fetuses, inheritance, damage claims.
• End of legal personality, after death where consequences occur e.g inheritance rights.
• Capacity to Act and Full vs Limited capacity to act is distinct, capacity is at the age of 18.

Legal Restrictions on Capacity to Act

• Minors generally have limited capacity.
• Mentally incapacitated persons may legally require or have legal court supervision.
• Temporary incapcity can render certain legal acts void to do intoxication or distress.

Minors' legal representatives

• Assigned with gurardians or adminstrators to assist with legal matters.

Control and Oversight by Courts

• Representatives by act as agents for their wards, with supervised actions and authorization by courts.

Common Law adoptions for Legal Representation

• Systems generally do not recognize representatives of Common Law, instead court-appointed deputies act.

Protections Incapacities: Adults

• Legal or Judicial Protection: Adults placed under protection due to mental/physical disabilities.
• Guardianship/Administration: Courts appoint guardians or administrators to assist.

Legal Acts by Incapacitated Adults

• Void or voidable: Contracts signed by incapacitated adults are void or voidable.
• Exceptions exist when there are contracts for life activities.

Consumer Protection

• Laws are based on market failures and inefficiencies and are enforced through mandatory provisions.
• The legal definition says a consumer is outside an economic avtivity.

Legal entities

• A legal entity is an organization with legal personality to enter contracts and be liable for rights.
• Public ones being the state and governments.

Enitities and Business

• Corporations (Legal Persons) are entities with personality from owner.
• Unincorporated entities share liability and property.

Rules on Agency

• Entities act through agents who bind the organization in transactions.

Non-Profit Entities

• Tax-exempt and prohibited from distributing profits to members.

Business Structures

• Corporations have public or liability companies with translated shares managed by directors.
• Unincorporated Businesses have GPs that are managed and shared with liability.

Party Autonomy

• It assumes parties are the best at judging their own interests.
• Freedom of contract, the freedom to decide whether to contract with legal subject limits.
• Contracts must be B2BC.

EU contract law

• Transactions aiming that protect weaker parties.
• Regulation of specific contracts and withdrawal is the basis, 114 TFEU allows measures for the market.

National contract law

• This law is put down by legislators and world courts.
• Regulations are for 593/2098 for determining what has to be applied for contract law.

Issue of Jurisdiction

• The 2005 Hague Convention provides rules and enforces judgements.
• The enforcement of arbitration agreements are arbitriation laws.

Proper Law

• This refers to the system governing contractual disputes and obligations.
• Restatments and combinations are a tool for a more broad and harmonious setting.

Drafts and laws

• It is to harmonize across EU laws with commonness.
• This requires PECL.

The Civil Law

• Applies principles to statutes and codes that judges manage, as interpreted by scholars.

Examples

• Some inspiration was a general rule of international law and sales.

Restatements

• This provides a summary of code and principles and consistency.

Supplement of Contracts

• Contracts can be made through other provisions e.g legal/customary practices.
• The jurisdictions supplement Art. 1374.

Civil and Common Law

• Civil law has good faith, good negotiation and needs to be performed in good faith.
• Common law needs to be performed with care, as seen in Yam vs ITC

Contract Drafting

• Outlines rights and obligations with limits.
• The parties should do due diligence to allocate risks.

Boilerplate clauses

• These are for procedural law like the end and amendments.

Juris Civilis

• Roman law foundations.

Civil Law Defined

• Applied based on codified laws and stats administered by a judge.
• In Europe it is dominate

Common Law Origins

• In england after 1066 and developed through court decisions.
• Courts rely and make their rules based on past precedents.
• There is common law vs equality.
• The judiciary acts ensure flexibility.

Points

• Civil and common law are different.
• Some countries combine harmonizing across.