Introduction to the legal system

• Study notes on the introduction to the legal system

Definition of Law

• The word "law" originates from the Latin term "directum," signifying straight or just and has been adapted by languages like French ("droit") and Italian ("diritto").
• "Ius" in Latin means law, giving rise to words like justice, jurisdiction, and jurist with ongoing debate on whether law is defined by command ("ius quia iussum") or justice ("ius quia iustum").

Two Views of Law

• Legal Naturalism is an ancient perspective viewing law as inherent to the natural order, potentially divinely influenced.
• Legal Positivism describes a modern view of law where laws are established by legal authorities, notably developed by Hans Kelsen, dominating prevalent legal discourse.

National States and the Westphalian Paradigm

• The formation of national states in the 18th century, shaped by political decisions of entities like monarchs and democratic parliaments, influenced private law development.
• The "Westphalian paradigm," emerging post-Peace of Westphalia in 1648, ended the Thirty Years' War in Europe.

Key Ideas of the Westphalian Paradigm

• State Sovereignty grants each country autonomy to govern itself without interference, enabling it to create and enforce laws within its borders.
• Domestic Law empowers each country's government to create laws binding on all, addressing internal affairs.
• International Law allows countries to make voluntary agreements with each other, requiring adherence similar to domestic laws and limiting their powers to foster cooperation.

Comparative Law

• Comparative law studies similarities and differences between national laws, aiding understanding of law's function in different concepts and the construction of national/international laws.
• Comparative law differs from foreign law, which refers to a system of a country other than one's own, used in legal cases that involve foreign elements.

Aims of comparative law

• Aid to legislature: It serves as a tool to help lawmakers understand different legal systems which can be useful in crafting new national or international laws.
• Academic Discipline: comparative law is studied in universities to deepen understanding of global law systems.
• Uniform Law Development: studying comparative law can push efforts to standardize law across countries, making legal interactions easier and smoother.

The History & Methods of Comparative Law

• The International Congress of Comparative Law held in 1900 marks the historical birth, with German scholar Ernst Rabel considered a founding figure.
• The Historical Comparatist Approach focuses on cultural and historical roots to understand the evolution of legal traditions.
• The Functionalist Approach examines laws by function and problem-solving without historical context.
• The Theory of Dissociation of Legal Formants helps understanding of legal system complexities by acknowledging divergence in Legislation, Judicial Decisions and Scholar opinions to allow comparative legal scholars to analyze and compare these discrepancies across different jurisdictions.
• Micro-Comparison uses operational solutions for real-world problems.
• Macro-Comparison contrasts micro, examining national laws considering constitutional/institutional factors and overall legal culture.

International Private Law

• Legal families are groups of legal systems in different nations that share common features and historical roots, classified by Renè David based on shared concepts.
• The most important legal families within the Western legal tradition are common law and civil law.
• Legal Traditions, unlike families, focus on cultural practices influencing legal reasoning across nations. Mixed Legal Systems combine elements from multiple legal traditions/families, such as in Scotland, South Africa or Quebec.

International Private Law (conflict of laws)

• International private Law addresses legal issues involving multiple countries to determine applicable laws, in situations like contracts between a French and German party in Italy.
• EU Regulation unifies various aspects of international private law for EU members, standardizing rules.

Uniform Law

• Uniform Law aims to harmonize laws and regulations across countries, simplifying legal interactions between different places.
• Legal transplants involve transferring and modifying laws from one country to another.
• Conventions are formal agreements where countries adopt common legal standards.
• A "rejection crisis" occurs when a legal system struggles to integrate foreign laws due to ingrained traditions, potentially leading to misinterpretation or rejection.
• For Rabel true legal uniformity occurs when uniform legislation is interpreted using comparative law holistically, or else local courts might interpret it domestically leading to problems.
• Both International conventions for B to B sales like the CISG (UN convention), and Model Rules like the UCC (Uniform commercial code) play crucial roles in global business sales.

Roman Law & IUS Civile

• Corpus Iuris Civilis is a collection of Roman Laws compiled under the direction of Emperor Justinian I around the 6th century, systematizing centuries of jurisprudence into four main components:
  • Codex Justinianus
  • Digesta
  • Institutiones
  • Novellae Constitutiones.
• A renaissance in Roman law studies between the 11th and 12th centuries greatly influenced Western legal traditions.
• Irnerius, a Bologna scholar, rediscovered and taught the Corpus Iuris Civilis, contributing to the founding of the Alma Mater Studiorum of Bologna.

Civil Law Characteristics

• A division of state powers: 1) Legislature 2) Executive 3) Judiciary
• Emphasizes organized comprehensive codes for clear and accessible legal guidelines.
  • Example in Italy: Codice civile
  • Example in France: Code Civil
• Montesquieu articulated the separation of powers, believing judges are only “the mouth that pronounces the words of the law."

Common Law Characteristics

• Judge Made Law: It's based on judges rulings which create precedent for following judges.
• Organic Development: It evolves organically through made decisions in judges individual cases.
• Equity is law focusing on rectifying rigidness in the common law system, allowing judgments based on fairness instead of unjust precedents.
• Common law began development after the Norman Conquest of England in 1066.
• Judicial decisions, English Civil War and the Glorious Revolution also shaped common law establishing a system independent of statutes.
• Common law established body of precedents, formalized by the Judicatures Acts of 1873-1875, integration with equity.

Natural Law and Human Reason

• Legal Naturalism states law builds from natural order and truth, aligns with justice, and gains validity reflectively whereas Legal Positivism states laws are valid if enacted by legitimate powers regardless of morality, conceptualized by Hans Kelsen.
• Some believe unjust law is not true law leading them to distinguish between views.
• The Strong Definition allows judges to choose whether to apply unjust laws because they conflict with natural law to allow a more active role in ensuring just laws.
• The Weak Definition still obligates the judge to apply unjust laws regardless, leaving to legislators the responsibility for any amendments.

Legal Positivism

• Kelsen's "Pure Theory of Law" poses rules completely autonomous from religion, morality, termed "pure" as seeks definition by its own standards.
• Law validity depends on how it was created, not on what the law says.
• Norm Validation requires a method to distinguish norms that are legally binding focusing on either the source/pedigree or the formal political institutions by which it was enacted.
• Hierarchy of Norms/Normativism, legality stems from a higher norm so legal application is systematic.
• In positivism, judges uphold validity not necessarily justice, as the application process is compulsory if fitted within established criteria.

Renaissance of Natural Law

• Martin Luther King Jr. thought there were moral requirements, also St. Augustines thoughts that unjust laws should be disobeyed.
• Radbruch's Formula states that law failing to do so loses authority and is disobeyed

Laws as Non-Absolute Imperatives

• They do not rely on moral norms or religion, but can issue commands that have sanctions for non-complience.
• If a religion had the command "Thou shalt not kill" it is just a moral objective.
• Under Kelsen's theory, legal norms depend on sanctions enforcing social order specificed by the commands.

Structure of a Norm

• If Clause specifies a particular situation.
• Then Clause specifies the consequence for that situation.
• Not Always a Negative Consequence, these can modify or nullify the norm instead.

Scope of Norms Characteristics

• Generality must apply universally.
• Abstractness must have a wide enough description that any matching event will trigger the then clause.
• "Whoever" in this case is the general characteristic since it is not specifying a single human but humans as a class and "An animal" is the abstract part since it is not specifying a specific animal

Mandatory v Default Rules

• Mandatory: may NOT be set aside by agreement.
• Public law is composed of these rules, so public opinion is kept above individual interest.
• Default: MAY be set aside by agreement Parties.
• Most private laws allow this, example: supplement agreements.

Hierarchical Order of Norms and Validity

• Each legal norm derives validity/authority from a higher norm above it, most foundational norms being called "Grundnorm" or a basic norm.
• Soft Positivism states that legal norms are grounded in a heriarchy, where values from society like justice are incorporated.
• Strict Positivism would only depend on it's origins.

Definition & Characteristics of The Sources of Law

• Seconday rules govern the possible change of the primary, to ensure: 1) Certainty, 2) Dynamism and 3) Efficiency of the legal system And it is not recognized in each legal systems.

Sources of law Capabilities

• Sources of law are capable of either 1) Creating new rules or 2) Amending or Repealing rules already existing or 3) Validate whether a specific rule is also a legal rule.

Sources of Production divided by Two Categories

• ACTS: made by parliaments, to enact laws
• FACTS: derived from customs
• Sources of Cognition: inform about laws through publications like Gazzetta Ufficiale della Repubblica Italiana

Primary Sources of EU Law

• Foundational legal documents that establish and govern the European union as treaties.
• They detail the responsibility and outlines the powers of the institution.

Founding Treaties

• Treaty of Paris (1951): aim to integrate economic interests reduce the likelihood of conflict between member nations, the Established the European Coal and Steel Community.
• Treaties of Rome (1957): Created the creating a common market with free movement of goods, services, labor, and capital across member states, European Atomic Energy Community (EURATOM) alongside the European Economic Community (EEC).
• Lisbon Treaty (2007): governance structures and enhanced the powers of the European Parliament, it streamlined the EU's constitutional framework & was the most major reform.
• Key Court :also acted as primary sources of law by interpreting the treaties.

The Van Gend en Loos case (1963)

• Legal Decisions: Established the effect, allowing EU law to confer rights on which they can enforce in their national courts & Charter of Fundamental Rights consolidates European citizens rights.
• Treaty on the Functioning of the European Union (TFEU) together with the Treaty on European Union (TEU), the Treaty sets functions, policies, and operations of the EU as explicit.

Secondary Sources of EU law

• Derive from Article 288 of the Treaty on the Functioning of the European Union
  • Regulations: have general application.
  • Directives: are what authorities choose and how it's achieved.
  • Decisions: must be of general application specific to certain entities Non-Binding Acts: opinions provide but doesn't obligate.
• Faccini Dori Case (1994): rules that states binding the EU they are not directly enforceable unless transposed into national Law.
• The relationship between national and EU sources of law: conflicted with the European Cout, now EU is at precedence of the national.

Enel case (1964) & Simmenthal case (1978)

• Where the court ruled union legislative overrides all uniform application across members.
• Further stated that every national court must conflicts with EU legislation which leads to unconstitutionality from the ruling until constitutional court.

The 2003 Maastricht ruling

• Emphasized the court that said it is not a federal state while it has competencies, so their power derived from them states.

The legislative and judiciary Competences

• Legislative Power: creates laws through the EU parliament from member states and EU commission.
• The Judiciary power: Courts ensures the uniform interpretation & application of the union.

EU & Comparative Law

• The european is of 2 main courts The European Court for the justice & general who deal with action rulings annulment by EU governments.
• Where can legal recourse is sort for private actions first within national courts then directly from the legalities.
• The interaction with the National traditions influence the union through their influences where they can implement the constitution.
• The werner vs Rüdiger case showed comparative principles in Finnish court.

Downward impact on National Private law

• Is the impact to give the idea that legal tradition is a great increase because it can gradually shape national principles.
• The sources of the EU can derive from the internal tradition but they insight to the EU and the national which to show positive influence to international affairs.

Filling Legal Gaps

• Two characteristics, Completeness, Consistency
• There also exist 2nd rules to resolve contradictions.
• Case is filled a judge by that case was never addressed in existing standards or the other doesn't see such thing because most can have an implicit moral.
• Analogy: used statued which can imply an existing law based on the situation.

Limitation

• It creates a new standard principle on any other routine with the other ones of which judges are silent.
• Model, judges have a customary and the french courts they are there to help the laws or complete Settling Antinomies: of the contradiction cannot supply which that has a higher source.

Criteria of interpretations

• Make sure the judges are consistency while using systems where write out to determine scope, meaning and intention.

Grammatical

• literal: is an actual writing where that is looked at as that whole system.
• Historical: from their works
• Teleological: goal or law of its application An applicable is it if then a person needs to do.
• Legislature : based on the intentions if the dogs is to maintain the food that will effect those.
• Teleological: it to ensure cleanliness where they might not be well trained.

Stare Decisis

• Used primarily in Common Law this is to follow the higher court unless there are to follow certain things unless there is a lower ones.
• Precedent: a higher is binding unless a higher comes and removes or interprets.
• Distinguishing: courts to use it hand in hand, not identical facts, but must have respect for the ruling

Defining Private Vs Public Law

• This is a distinction between the two types of laws for the origin and the Roman, Public law is when a Government is directly involved.
• Private is if not is when the State dose not play direct part, however the can act as other private like entities when regulating it as branch has it is divided the general public it is civil.

Civil:

• Contract: governed the agreements
• Tort: deals with the wrong
• Property: of use
• Family: affairs.
• Inheritance: from 1 generation to another.

Commercial

• Companies: governed formed.
• Antitrusts: healthy competitions
• Copyrights: creations

The italian code:

• Civil included code and it is the of private the power
• Special: applyable its soverginity

The branches of Public Law

• Administrative: these agencies make rules then and enforce it.
• Criminal deals and their.
• constitutional the basic government, defining ones.
• Procedures that the process action.
• Tax: collecting, they must be in the law