Definition of Law: Naturalism, Positivism

Definition of Law

• The term "law" comes from the Latin word ius which has an unclear origin but is associated with justice and jurisprudence.
• Another possible origin is directum, meaning "just" or "equal" in medieval times, which has influenced words for law in French (droit), Italian (diritto), and Spanish (derecho).

Two Views of Law

• Legal naturalism (ius quia iustum) says law is inherently tied to morality and justice, believing it reflects a higher moral order, and serves a rational truth.
• Legal positivism (ius quia iussum) is a reaction to natural law, emphasizing that law is what's enacted by legitimate authority, regardless of moral content.

Statism and Nationalism

• The political system of statism involves the state's strong, centralized control over social and economic matters.
• Nationalism uses laws to advance and safeguard the interests of a particular nation, often excluding or harming the interests of other nations.
• Since the 18th century, private law has been influenced by nation-states, where ruling bodies define and enforce laws.
• This shift moved away from basing laws on the scholarly interpretation of texts like Roman law.
• The rise of statism and nationalism in legal systems has shifted the view of law from a universal reasoning product to the will of a sovereign power.

Westphalian Paradigm

• The Peace of Westphalia in 1648 played a key role in shaping legal systems by establishing state sovereignty
• Each state was given the power to create and enforce its laws.
• The paradigm divided law into domestic law, controlled by the state, and international law, based on voluntary agreements between states.

Comparative Law

• In comparative law, law is usually discussed in relation to a specific nation since each state creates its own system.
• Comparative law studies the similarities and differences between legal systems; it looks at multiple systems for analytical purposes, contrasting with foreign law.

Historical Development

• Comparative law was formally established in 1900 at the Congrès international de droit comparé.
• Ernst Rabel (1874-1955) played a key role in defining the field.

Aims of Comparative Law

• Aid to legislatures: Helping improve national and international laws.
• Legal harmonization: Encouraging laws being unified.
• Legal education: Comparative study of law at universities.
• European legal development: Influencing legal integration.

Methods of Comparative Law

• Functionalist Approach (Zweigert & Kötz): Focuses on the practical function of legal rules over their structure.
• Functionalist Approach (Zweigert & Kötz): Focuses on how different legal systems solve similar problems with an emphasis to real-world legal solutions.
• Historical-Comparatist Approach (Zimmermann): Is based on the idea that Western legal systems share a Roman law heritage.
• Historical-Comparatist Approach (Zimmermann): Seeks legal principles that have been preserved or evolved from ancient legal traditions.
• Theory of Dissociation of Legal Formants (Sacco): Acknowledges frequent internal inconsistencies in legal systems.
• Theory of Dissociation of Legal Formants (Sacco): Recognizes the three different elements shaping the law including legislation, judicial decisions, and scholarly opinion (legal doctrine); this creates gaps and contradictions in the legal system.

Micro and Macro Comparison

• Micro-Comparison: This approach Compares rules or doctrines across systems such as regulations for contracts, property, and criminal offenses.
• Macro-Comparison: Focuses on large-scale structural differences between legal systems.

Legal Families vs. Legal Traditions

• Comparative law is used to systemize legal systems by historical roots and fundamental principles.

Legal Families

• The term "Legal families" by René David refers to categorize national laws sharing similar concepts and historic connections.
• In the Western legal tradition, the two most important families of national laws are civil Law and common law.

Legal Traditions

• Legal traditions are considered to be more dynamic compared to legal families, this is because they evolve over time.
• A legal tradition includes cultural and philosophical approaches to law.

Private International Law

• Private international law manages legal conflicts in cross-border situations determining which national law is applicable to cross-jurisdictional case.
• In the European Union, private international law is largely harmonized.

Uniform Law

• Uniform law works to create consistency across legal systems converging rules and standards.

Methods of Achieving Uniform Law

• Countries agreeing to follow International Conventions with treaties
• Legal Transplants involce adopting foreign legal systems or principles
• Framework laws, known as Model Laws, are proposed by organizations that nations can incorporate domestically.

Challenges of Uniform Law

• Differences in legal traditions such as civil law versus common law.
• Interpretation issues where, even if laws are uniform, national courts interpret them uniquely.
• Resistance in countries which reject foreign laws due to tradition.

Uniform Law vs. Uniform Legislation

• Uniform Law can also be refered to as the goal of harmonization.
• Uniform Legislation is the physical legal text adopted in multiple countries.
• Just adopting laws doesn't guarantee uniformity; interpretation is a key factor.
• Uniformity ensures a comparative legal approach that involves analyzing how different legal systems apply the same law, as highlighted by scholars like Ernst Rabel.

International Conventions

• The United Nations Convention on Contracts for the International Sale of Goods (CISG) is an example of an International Conventions, designed to provide a consistent legal framework for international trade.
• Courts vary in interpretation of provisions which reduces effectiveness.

Natural Law vs. Legal Positivism

• Natural Law Theory (ius quia iustum) says law is inherently linked to justice where unjust law is not truly a law.
• Legal Positivism (ius quia iussum) says as long as law is established by recognized authority, the moral content is irrelevant.

Natural Law and Human Reason

• Natural law theorists believe that law and morality are deeply connected.
• Strong natural law definition claims an unjust law is not law (lex iniusta non est lex), deeming illegitimate laws that contradict fundamental moral principles.
• Weak natural law definition claims that unjust laws are legally valid but can be subject to change or resistance.
• Natural law assumes laws should be based on reason and justice, not merely authority commands.

Legal Positivism

• Legal positivism claims Law is a system of rules created by recognized legal authorities, and a law is valid if it follows procedures, legitimizing law based on formal sources, not moral evaluation.

Key Ideas from Hans Kelsen's Normativism:

• The philosopher Kelsen viewed Law as a hierarchy of norms with each norm derives validity from a higher norm, culminating in a "basic norm" (Grundnorm).
• According to philosopher Kelsen Law is separate from morality and should be applied as written, regardless of personal morality.

The Problem of Unjust Laws

• One criticism of legal positivism is that oppressive or immoral laws can be legitimized simply by enactment by recognized authorities.
• Legal positivists claim study of law should be observed as it currently exist rather than how it out to be, known as "Law as it is" vs. "Law as it should be".
• In civil disobedience, there may be a justification to refuse obedience if the law is immoral.

The Renaissance of Natural Law: Radbruch's Formula

• Gustav Radbruch proposed that an Excessively unjust law is not a valid law.
• This principle justified the prosecution of Nazi officials during the Nuremberg Trials and was later applied in cases against East German border guards.

Structure of Norms

• Legal norms are foundational and regulate behavior establishing rules, rights, and obligations.
• Norms follow a conditional structure which means legal norms specify sanctions for violations.

Generality and Abstractness of Norms

• Generality is when a norm applies to individuals in similar situations and does not target a specific person but applies to all thieves.
• Abstractness is when a norm applies to all situations of a certain kind.

Mandatory vs. Default Rules

• Mandatory Rules (Norme Imperative) cannot be changed or excluded by individuals, are typical in public law, and are usually related to criminal and administrative law.
• Default Rules (Norme Dispositive) which can be changed or excluded by private agreements, are common in private law, and specify contract terms that can differ from the legal default.

Normativism

• Normativism is a the legal theory which sees law as a hierarchical system of norms deriving their validity from a basic principle.
• Laws are not based on morality therefore each norm derives validity from a higher norm in a structured system that is the Stufenbau theory.
• Ultimate source of legal validity is the "Grundnorm" (Basic Norm), presumed rather than derived.

The Legal Hierarchy

• Grundnorm (Basic Norm): Highest rule that gives authority to the legal system.
• Constitution: Establishes fundamental rights and legal structures.
• Legislation (Statutes, Acts, Codes): Laws created by the legislative authority.
• Regulations and Administrative Rules: Detailed applications of statutes.
• Judicial Decisions: Courts interpret and apply legal norms

Soft Positivism

• Soft positivism incorporates principles of justice and moral values when recognizing a norm.

Sources of Law

• The concept of "sources of law" refers to the origins from which legal rules derive their authority.

Two Categories of the Sources of Law

• Sources of production are mechanisms through which laws are created or changed and are intended to introduce regulations or modify/repeal existing regulations.
• Customs/traditions must meet criteria to be legally recognized: Objective stability over time and be socially viewed as legally binding.
• Sources of cognition provide legal notice such as the Official Journal of the European Union.

Sources of EU Law

• The EU law influences both Member States and individual citizens and is distinct, directly applicable and supreme over national laws.

The Sources of EU Law are Divided into Primary and Secondary Law

• Primary Law: The foundational treaties of the EU; the Treaty on the European Union and the Treaty on the Functioning of the European Union, are examples of Primary Law since they define EU institutions, powers, and citizens' fundamental rights.
• Secondary Law: Legislation created by the EU institutions; Regulations are binding and directly applicable, Directives are binding on results and requires implementation, Decisions are binding to specific parties, and Non-binding acts includes recommendations and opinions.
• Protection of fundamental rights is ensured as the Charter of Fundamental Rights of the European Union is embedded in EU primary law.

The European Court of Justice (ECJ)

• The European Court of Justice (ECJ) serves as the highest judicial authority in the European Union ensuring uniform interpretation and application of EU law across all Member States.

Structure of the ECJ

• Court of Justice: handles requests for preliminary rulings from national courts, as well as appeals and actions for annulment.
• General Court: Primarily hears cases from individuals, companies, or Member States against EU institutions, focusing on competition law, state aid, trade, and intellectual property.

Access to the ECJ:

• Involves individuals or companies who are challenging EU institutions through via national courts which may refer cases to the ECJ for preliminary ruling, and directly before the general court if an EU decision directly affects them.

Relationship Between National and EU Sources of Law

• The EU and Member States operate as distinct jurisdictions, each with their own system of legal sources and transferring certain competences to EU institutions when Member States join the EU.
• EU law takes precedence over national law (the principle of supremacy).

The Supremacy of EU Law

• EU law takes priority over conflicting national laws whether by national court encountering conflicts or is enacted after an EU measure.

Key Cases that Reinforced EU Law Supremacy

• Costa v. Enel (1964) This case established that EU law has priority over conflicting national laws.
• Simmenthal (1978) In this case there was clarification that all national courts must apply EU law directly without waiting for a constitutional ruling.

Relations Between European Law and Comparative Law

• The ECJ acknowledges that, the EU treaties are international agreements that integrates with national laws.
• EU law is influenced by both international law and the legal traditions of Member States.
• EU law should be shaped by both International Sources and Internal Member State laws as noted by Maurice Lagrange, Advocate General.

The Completeness and Consistency of Legal Systems

• Legal positivism claims legal systems are complete, meaning no gaps exist in primary legal rules.
• Legal positivism claims legal systems are consistent and there are no contradictions exist in the primary rules, meaning no case has a single outcome.

Filling Legal Gaps

• It is common for legal systems to have gaps and inconsistencies in law which require mechanisms.
• Secondary rules are used to fill in gaps in primary laws and help for rules in solving contradictions consistently.

Different Approaches to Filling Legal Gaps

• Filling Legal Gaps via the Common Law Approach (Anglo-American Jurisdictions)
• The judges fill legal gaps at their discretion by creating new legal norms through common law precedent.

Civil Law Approach

• Civil law emphasizes avoiding discretion and places a focus on using normative mechanisms for filling legal gaps, such as analogy of laws, or principles.

Resolving Legal Contradictions (Antinomies)

• Hierarchy over rules, content-based rules, and time-based criteria over rules are used by courts when legal rules conflict.

Interpretation of Legal Texts

• Judges interpret laws using Grammar, considering consistency, contemplating the lawmaker's original intent, and focusing on law goals.

Doctrine of Stare Decisis

• A precedent is subject to an absolute force by a higher court for a lower court.
• An action ceases if the court assessed it wrong.
• A precedent is not binding with regard to cases that are substantially different from it

Private law vs Public law

• Private law (Droit privé, Privatrecht, Diritto privato) governs relationships between private individuals and entities like contracts, property, and family law.
• Public law (Droit public, Öffentliches Recht, Diritto pubblico) regulates the structure, function of the state, and institutions, including relationships between the state and individuals.
• The key difference is whether the state acts in its sovereign capacity or like an ordinary citizen.

Types of Private Law

• Private law deals with the mutual relations between citizens
• Civil Law covers contracts, torts, property, family, and inheritance.
• Commercial Law regulates trade, businesses, and corporate entities.

Characteristics of Private Law

• Private law: Is based on the idea of equality, has default rules, and allows Contracts and Autonomy.

Public Law

• Public law regulates relationships where the state or public authorities have a role, usually when using powers.

Main Areas of Public Law

• Administrative Law oversees the interactions between government agencies and civilians
• Criminal Law covers the prosecution and crime punishment for societal protection
• Constitutional Law establishes fundamental rigths and the separation of powers
• Procedural Law oversees and governs legal procedures for enforcing criminal, administrative, and private law.
• Tax Law oversees taxation and is related to financial obligations whether they excersize powers or not.

Legal Relevance of Natural Events

• It is difficult to establish a clear criterion for what is inherently "legal", given the systems distinguish those that have legal consequences.
• Instead, determining legal relevance happens by following the specific regulations based in the situation.

Legal Facts vs. Legal Acts

• The term Legal Facts represents events or actions that produce legal consequences, while the actions of Legal Acts have intent to produce legal effects.

Types of Legal Events

• Material Facts, also referred as objective Legal Facts, are events with legal consequences, while Legal Acts, also called Subjective Legal Facts, are when events have effects because of intent such as signing a contract.

Legal Acts

• Private autonomy is the legal principle granting individuals the ability to create effects when mandatory legal prohibitions exist.

Types of Legal Acts Based on Structure

• Unilateral: Agreement created by a single party
• Bilateral: Agreement between 2 parties
• Multilateral: involves multiple parties

Types of Legal Acts Based on Content

• Patrimonial Acts covers economic transactions such as buying property
• Non-Patrimonial Acts are acts related to personal matters such as marriage

Types of Legal Acts Based on Timing:

• Inter Vivos Acts are effective during the person's lifetime
• Mortis Causa Acts are effective after death

Legal Relations

• A connection between two or more legal subjects creates rights and duties in a legal relation
• Elements of Legal Relations: Rights that entitle a person to a legal benefit or claim Obligations to act in certain ways by another person

Categories of Rights

• Rights can be categorized depending on their structure and nature.
• Relative Rights (Rights in Personam): These rights are enforceable only against specific individuals, such as a contract between two parties.
• Absolute Rights (Rights in Rem): These rights are enforceable against everyone (erga omnes), such as excluding anyone from interfering with the Ownership of property.

Content-Based Classification

• Patrimonial Rights (economic): they Can be evaluated and transferred, and include Property/intellectual property and contract rights.
• Non-Patrimonial Rights (non-economic): they Cannot be measured or easily transferred, and include personality rights like dignity, privacy, and name.

Disposability-Based Classification:

• Disposable Rights: Can be transferred or waived .
• Non-Disposable Rights: Cannot be transferred .

Credits and Obligations

A credit gives a holder the right to demand a performance from another person, and the debtor has a legal duty to fulfill the obligation.

Statutes of Limitations

• A statute of limitations extinguishes rights after a certain period if unenforced.

Reasons for Statutes of Limitations

• Legal certainty, timely resolution, ease in proving facts, and protection of debtor confidence are all reasons to apply the Statutes of Limitations.

Exceptions to the Statute of Limitations

• Rights that do not expire are ownership and rights that are non-disposable.

Suspension and Interruption of Limitation Periods

• Provisions for Tolling can pause the time limit of a particular claim and the limitation period will restart when it comes into effect.

Legal Subjects

• Duties are imposed and competences/rights are assigned to legal subjects which consists of two main categories: natural persons and legal persons.
• Natural persons, such as humans, generally acquire legal personhood at birth where their rights and duties transfer to heirs upon death.
• Legal Persons, or artificial entities, includes corporations, associations, and groups recognized by law having separate rights and obligations.

Legal Personality and Capacity to Act

• "Legal personality" refers to the ability to hold rights and obligations.
• Capacity to act refers to the authority to create or modify legal relationships.

When Legal Personality Begins

• Most legal systems recognize a persons rights from birth, but there are systems that grant limited rights to fetuses, Before birth, for inheritance and wrongful death claims.
• End of legal personality will occur at death with consequences such as inheritance and estate distribution.

Capacity to Act

• Capacity to act gives the ability to enter into and make legal transactions, decisions, and obligation assumtions.
• "Full capacity to act" is acauired at the age of majority, while "Limited capacity to act" applies to minors/legal aid patients.
• Minors generally have limited capacity and may have exceptions for basic transactions, with incapacitated persons needing guardians or supervision.
• Temporary impairment as a result of intoxication, distress, or other conditions may void legal acts.

Natural Persons

• One must be of human nature to be a holder of rights from birth.
• Patrimonial rights such as property, duties as well as debts go into probate.

Legal Representatives

• Legal representatives are authorized to act on behalf of minors in civil law systems.

Minors' Legal Representatives

• Typically, a minor's parents serve as their representatives and must provide consent, if the parents are absent or incapacitated, the minor is represented as a court-appointed guardian.

Incapacitated Adults' Legal Representatives

• In the case of legal incapacitation, their agent must manage legal and financial matters on behalf of the incapacitated person

Control and Oversight by Courts

• Legal representatives act as statutory agents for their wards and are supervised by legal entities in order to authorize administration and classify transactions.

Common Law Approach to Legal Representation

• Common Law systems generally do not recognize automatic legal representatives unlike civil law, and will instead, appoint a deputy.

Legal Acts by Minors

• To protect said demographic, most legal jurisdictions set a minimum age where contracts are void, while others set limited conditions where minors have contractual capacity.

Incapacities of Adults

• Legal incapacitated are generally classified into two forms: Punative or Protective
• Convicted criminal offenders may have Legal disabilities, although they may still have may keep other rights like marriage or wills.
• Protectice incapacities usually relates to the Adults placed under judicial protecion and under legal assistance

Legal Act by Incapacitated Adults

• These are legally voidable and have exception to minor cases for necessities.

De Facto Incapacity.

• De Facto Incapacity relates to people temporarly being unable to act legally due to intoxication or distress.
• These legal acts may be voided if incapacitation was severe or bad faith was detected.

Consumer Protection

• Consumer protection laws are based on market failures such as power imbalances to enforce mandatory provisions.
• Mixed transactions are when a transaction serves both personal and professional purposes, but consumer law applies only if the primary purpose is personal.

Legal Entities

• Legal entities are organizations where legal personality means the ability to enter obligations and contracts.

Types of Legal Entities

• These can be public such as those belonging to the state or private such as in business or organizations.
• Corporations (Private Law) - autonomous entities with separate legal personality from owners (Joint-Stock Companies, Liability Companies).
• Unincorporated Entities (Private Law)- groups sharing liability and property (e.g., General/Limited Partnerships)

Rules on Agency

• Legal entities' agents act through natural people
• The agents state of mind is considered in the case of defects or fraud

Non-Profit Entities

• They are established for educational and charitable purposes.
• These structures are tax-exempt so profits are distributed to members such as foundations and associations.

Business Structures

• Corporations have ownership divided into share and managed by directors.

Unincorporated Businesses

• Partners from different levels share management and their liability.
• Hybrid structures are possible depending on personal debt for partners.

Party Autonomy

• Many contracts are under parties interests

Freedom of Contract

• Indiviuals have the freedom to decide to participate and what terms with limits, commonly recognized in French Codes.
• Laws are in effect when morals or irrational influence is involved.

Uniform Contract Law

• Governs international B2B sales with many considerations

EU Contract Law

• This law primarily governs B2C to aim and protect for consumers
• EU contract laws' legal base is in Article 114 within TFEU, which allows harmonization.

National Contract Law

• It is set up via local legislators given commonalities between global world juridictions.

Choice of Law

• A set of law clauses specify which court has disputational power
• There are multiple regulations to determine contract law with freedom to choose but restrictions in place to protect the consumer when operating in in their home country.

Issue of Jurisdiction

• Jurisdiction comes down to choice of law based on what agreement and commercial matters are taking place.

Arbitration Clause

• Arbitration is governed by international and domestic treaties.
• The 1958 New York Convention enforces those agreemeents

Soft Law vs. Hard Law

• Soft law provides guidance while Hard Law includes legally binding national or international such as for regulations or codes.

Issue of Proper Law

• The proper of the contract refers to what kind of systens are taking place depending on contractual disputes and obligations.
• Contracts are subject to international considerations

Draft Projects of European Private Law

• The aim is to bring together legal states with a harmonized focus while being built from commonalities among the national leal systems and coding future effects.

Principles of European Contract Law (PECL)

• A set of laws are drawn by leading contract law academics set up by leaders seeking to more generally set common laws for EU member states.

UNIDROIT Principles of International Commercial Contracts (PICC)

• It covers the most all of the topics.
• One goal of its formation it to act as a set of interanational sales laws.

Draft Common Frame of Reference (DCFR)

• It began in developed period in 2008-2009 and has grown into a system to harmoize a broader sense for Europe
• Considers requirements for international trade as well.

Choice of Contract Law

• Contracts in law come within a legal framework
• There are rules and regulations that ensure an agreement

Lack of Formal Federak Contracs

• In the US, contract is regulated with federal guidelines based on a systemized summary of practices.

Supplementation of Contacts

• Contracts that bind based on explicict and what legal terms agreed as well as principles of equity.
• Code supplements and practices are found within Civil Codes.

Good Faith in Contract Law

• Good faith is a general principe in civil law

Case Law Examples of Good Faith

• Courts imply with good fatith if there is rulings where behavior is a breach of misconduct
• With these breach, courts find means for commecial accdeptance

Contract Drafting

• Contract drafting is key to create arrangements that act as a certain of obligations.

Common Law

• Common law means parties tend to draft as much in agreement and detail that will lit the judicial agreements.

Boilerplate Clauses in International Contracts

• Key standards clauses should come in the agreement to handle procedural agreements.
• International standards include resolving dispute/interpretation but make more predictable.

Roman Law and the Origins of Civil Law:

• Modern day legal systems found within jurisdiction take much from the systems of Roman law, compiled by Emperor justinana in the 6th century, otherwise known as Corpus luris Civilis.
• Corpus luris Civilis has 4 key sections including: Codex, Digest, Institutes, and Novellae.

lus Civile

• The base of Roman Civil Law governing roman citizens has impacted the 11th and 12th century as the tradition and interpretation of law has been systematized.

Civil Law

• Civil Law is where statutory laws are codified.
• Judges apply the law and follow the separation of power where the legilature creates and the judiciary enforces the power.

Common Law

• Comes from the history of England after the Norman Conquest and comes from respect of judical decsion.
• Judges use past relations and decisions to decide judical disputes for the interpretation.

Equity vs Common Law

• Initially there has court decisions leading to rigid outcomes
• The courts of Chancery created "equity" flexible approaches to address common injustices.

Civil law and common law

• These create legal distinctions and allow globalization to affect their impact and promote different legal systems.