Introduction to the Legal System

Introduction to the Legal System (Module 1)

Definition of Law

• The word "law" originates from the Latin term "directum," meaning straight or just.
• "Ius" in Latin means law, giving rise to terms such as justice, jurisdiction, and jurist.
• There are two views on law: "what has been commanded" (ius quia iussum) and "what is just" (ius quia iustum).

Two Views of Law

• Legal Naturalism views law as a natural, possibly divinely influenced order.
• Legal Positivism sees laws as established by a legal authority, notably developed by Hans Kelsen.

Historical Context:

• The formation of national states in the 18th century, shaped by sovereign entities, influenced the development of private law.
• The "Westphalian paradigm" emerged after the Peace of Westphalia in 1648, ending the Thirty Years' War.

Key Ideas of the Westphalian Paradigm:

• State Sovereignty: Each country has the authority to govern itself without outside interference.
• Domestic Law: Each country's government can create laws that its population must follow.
• International Law: Countries can make agreements with each other, which they must follow voluntarily.

Comparative Law:

• Comparative law studies the similarities and differences between the laws of different nations.
• It is distinct from foreign law, which refers to the legal system of a country other than one's own.

Aims of Comparative Law:

• Aid to legislature: helps lawmakers understand different legal systems to craft new laws.
• Academic Discipline: enhances understanding of global law systems in universities.
• Uniform Law Development: standardizes law across countries for smoother interactions.

History of Comparative Law:

• The International Congress of Comparative Law in 1900 is considered the historical birth of comparative law.
• Ernst Rabel, a German scholar, defined comparative law's scope and methods.

Methods of Comparative Law:

• The Historical Comparatist Approach focuses on the historical and cultural roots of legal systems.
• The Functionalist Approach looks at how laws function and solve problems, disregarding historical background.
• The Theory of Dissociation of Legal Formants deals with complexities in legal systems, acknowledging potential divergence in Legislation, Judicial decisions, and Scholar's opinions.
• Micro-Comparison relies on operational solutions to address real-world legal problems while Macro-Comparison looks at broader legal frameworks

Types of Legal Systems

• Legal families are groups of legal systems in different nations that share common features and historical roots.
• Renè David classified legal systems into families based on shared concepts and characteristics.
• Common law and civil law are the two main legal families within the western legal tradition.
• Mixed Legal Systems include Scotland, South Africa, or Quebec, which combine elements of civil law, common law, and indigenous legal practices.

International Private Law

• Focuses on situations where legal issues involve more than one country and determines which legal system and laws are applicable.
• EU Regulation unifies aspects of international private law for EU member states, standardizing rules across member states.

Uniform Law

• Seeks to make laws and regulations consistent across different countries, to simplify and harmonize legal interactions.
• How: Through legal transplants and conventions, transferring laws between countries or adopting the same legal standards.
• Problem: Potential for a "rejection crisis" if a country's legal system struggles to integrate foreign law.
• Rabel's Perspective: True uniformity is achieved when uniform legislation is interpreted using comparative law.
• International conventions for B to B sales such as CISG and model rules like the UCC play crucial roles in global commerce.

Civil Law and Common Law Jurisdiction unit

Roman Law

• The Corpus Juris Civilis, compiled under Emperor Justinian l in the 6th century, systematized Roman jurisprudence.
• Parts include Codex Justinianus, Digesta, Institutiones, and Novellae Constitutiones.

IUS Civile

• The Renaissance of Roman law from the late 11th to the end of the 12th centuries significantly influenced western legal traditions.
• Irnerius rediscovered Corpus Juris Civilis and taught them, contributing to the foundation of the University of Bologna.

Civil Law

• Characteristics include a division of state powers (Legislature, Executive, Judiciary) and a preference for comprehensive legal codes.
• Examples: Codice civile (Italy) and Code Civil (France).
• Montesquieu advocated for the separation of powers, viewing judges as "the mouth that pronounces the words of the law."

Common Law

• Based on rulings made by judges, creating precedents that future judges must follow.
• Common law develops organically through individual case decisions, unlike comprehensive civil law codes.
• Equity is a separate body of law focusing on fairness to address shortcomings in the common law system.
• Development began with the Norman Conquest of England in 1066, evolving through judicial decisions rather than statutes.

Law and Justice unit

Natural Law

• Natural Law holds that laws are valid if they reflect natural justice.
• Legal Positivism, which emerged in the 19th century, argues that law is defined by legitimate authorities.

Legal Naturalism and Human Reason

• In the doctrine of natural law, any law that deviates is unjust and thus not a true law, leading to the concept that "unfair law is no-law."
• Strong Definition: Judges have the discretion to not apply laws perceived as unjust.
• Weak Definition: Judges apply laws regardless of their fairness, leaving amendments to legislators.

Legal Positivism

• Kelsen's "Pure Theory of Law" posits that law is autonomous from morality and external influences.
• Validity depends on its origins and the process through which it was established, not on fairness or moral value.
• Norm Validation requires a specific method to recognize legally binding norms, focusing on the norm's "pedigree."

Normativism

• Each norm gains its validity from another higher norm. Establishes a clear rule or higher norm; thereby providing a systematic and orderly framework

Judicial Role in Positivism

• Judges are bound to apply the law as it is, not based on personal judgments of fairness.

Renaissance of Natural Law

• Martin Luther King Jr. believed in a moral duty to obey just laws and, conversely, to disobey unjust laws.
• Radbruch's Formula states that law must be just, or it loses authority and should be disobeyed.

Rules, Principles and Legal Systems Unit

Norms

• Laws are not absolute imperatives; unlike religious norms, legal norms include sanctions for non-compliance.
• Norms issue commands enforced by specific penalties and coerce social order.
• If Clause specifies the conditions to trigger the norm, and Then Clause details the consequence, which is not always negative

Scope Of Norms

• Generality applies universally based on conditions met with equal treatment.
• Abstractness requires events to broadly match the if Clause to trigger the Then Clause.
• Example: "Whoever kills an animal will be..." is general, while "An animal" is abstract

Mandatory and Default Rules

• Mandatory Rules can't be set aside by agreements, maintaining public interest supremacy.
• Default Rules can be set aside, essential in private law for supplementing agreements.

Normativism

• Hierarchical Order of Norms and Validity organizes legal norms in a hierarchy. Each norm derives its authority from a higher norm, with the "Grundnorm" as the basic norm.
• Soft Positivism suggests while legal norms primarily derive their authority from their place in the hierarchical structure (pedigree), they also incorporate principles of justice or moral values recognized by society.

Sources of Law:

• They are “Secondary rules" that govern changes in primary ones, ensuring certainty and efficiency.
• Serve to create new rules, amends/ repeal rules and validate if a rule is legal.

Types of Sources of Law

• Sources of Production is a mechanism through which laws are created or altered & consist of acts (decisions by sovereign authorities) and facts (customs & traditions)
• Sources of Cognition inform about laws, such as the Gazzetta Ufficiale della Repubblica Italiana'

EU Law

• Primary Soruces of EU Law consist of foundational legal documents such as treaties. Exs; Treaty of Paris (1951), Treaties of Rome (1957) & the Lisbon Treaty (2007)
• Key examples of foundational documents include the Chapter of Fundamental Rights of the European Union, and decisions by the EU's Judiciary
• Regulations are binding in their entirety and directly applicable, while Directives are binding only regarding the result to be achieved.

Relationship Between National and EU Law

• initially marked by conflicts between the European Court of Justice (ECJ) and national constitutional courts
• EU law takes precedence over national law, regardless of when the conflicting national law was enacted
• EU law principles were first established in Costa v. Enel 1964 and Simmenthal 1978
• Maastricht ruling by the German Constitutional Court emphasized the EU is not a federal state & constitutional courts can review EU actions.
• For subjects within its competence, the EU exercises Legislative Power and Judiciary power

The European Court of Justice:

• Consists of two main courts, the Court of Justice & General court
• The Werner Mangold v. Rüdiger Helm recognizes a general principle for prohibiting discrimination on grounds of age & EU can shape and reinforce EU legal norms.

International Private Law & EU Law

• Downward impact on National Private Law: This is clear in the example of increasing importance of the principle of good faith in Member States' legal systems.
• In the case Charbonnière de Belgique v. High Authority in 1954/1956 Sources of EU law could be derived from international law or internal legal traditions of Member States

Filling Legal Gaps

• There should no be primary rule gaps/contradictions, and each response should be unique
• Hart's View: Gaps filled at the judges discretion
• Ronald Dworkin: Gaps are already exist & may based on law

Englaro Case

• Eluana Englaro suffered a accident & was kept on artificial feeding. She previously stated she didn't wan tot be kept on such conditions.
• the case went to the Corte di Cassazione who ruled a legal guardian can discontinue medical treatment

Analogy

• used in civil law systems and applies to situations that share a similarity with cases that are covered.
• In Italian law, judges apply Analogia Legis where cases are closely related and Analogia luris for laws applied as backup.
• the Swiss model indicates that Judges can apply customary law in cases that have a lack of other specific requirements.
• The French model requires Judges to decide cases on existing laws even if laws seem incomplete

Settling Antimonies

• A situation where two laws both can't exist properly
• There are approaches such as Hierarchical Criterion, Content Based Criterion & Time Based Criterion to solve this

Criteria of Interpretation

• They are the various methods used to determine the scope of application within civil law systems.
• Options include: Grammatical/Literal Interpretation, Systematic Interpretation, & Historical and Teleological Interpretation

Doctrine of Stare Decisis:

• a common law doctrine that requires Courts to follow rulings that have been set out by higher courts. Meaning "to stand by decisions".
• This allows for A Precedent Set by a Higher Court to be applied without dispute (except in overulings) , or distinguished.

Private Law and Public Law Unit

Private Law vs Public Law

• This distinction originates from Roman Law
• Public Law contains governmental functions, as well as law being involved in public action/regulation.

Private Law

• Refers to the relationships between individuals/entities and is divided into Civil Law and Commercial Law

Civil Law

• is broad & consists of daily life, with branches that consist of property law, family law & others

Commercial law specifically targets enterprises and commercial activities

Italian System:

-The Italian Code contains civil & commercial law

Public Law

This law seeks to protect the state's power & function

Branches of Public Law

• Administrative Law: Addresses how agencies function & act in a fair way.
• Criminal Law: Covers how crimes & punishments are carried out
• Constitutional Law: This outlines and protects a country's legal system, rights & freedoms
• Procedural Law: Sets the steps for legal actions
• Tax Law: Concerns taxes are applied to businesses & individuals

Legal Subjects and Legal Acts, Rights and Duties.

Relevance/Factors of Events

• Some are naturally legal & others are not
• Assessing Legal Insignificance: determining when events/actions cease to hold relevance

Legal Acts and Facts:

• Legal Acts are when a legal right causes an event to change.
• Party's Autonomy details rules about the party stating they can freely secure agreements, however they must stay within the lines of the law.

Strucutre of Legal Acts

• Unilateral: There is only one party that causes a declaration
• Bilateral: Legal Acts require mutual agreement between 2 parties
• Multilateral: Require three+ parties to create a legal decision

Content of Legal Acts:

• Patrimonial: have financial interests that can be valued
• Non Patrimonial: Is non financial based
• Inter Viros Acts: Legal Actions during a person's lifetime

Legal/Material Acts and Facts

• it comes from a material object (something that isn't from deliberate human intent) but has significant effects that carry on regardless

Legal Relations

• these are legally defined relationships, where rights and duties/obligations have to be held.
• "credit" rights are considered legal or in claim that holders can claim - and obligations

Categories of RIghts:

• Relative Rights: Only held within an individual level, relating directly to 1 person & no others
• absolute rights; apply universally and are enforced against the world - ownership based
• Rights of Personality = dignity, privacy, image
• Disposable / Non-Disposable rights depend on if the rightolder owns goods that others are allowed to interfere with

Statues of Limitations:

• Definition & Purpose: Statutes of limitations are laws that set a maximum timeframe for events where legal proceedings must be initiated.
• Exceptions: Rights related to ownership/non-disposable rights do not experience time passing

tolling

• is when law is suspended - due to various valid factors
• Interrrpution: When rules are changed

Legal Subjects Unit:

2 Types of Legal Subjects:

• These include Natural and Legal people.

Legal Entities:

• Legal entities include corporations etc
• Although "things" under property, there are other responsibilities that come from it
• New problems arise from robots/AI due to autonomy- new problems come from that

Legal Personality and Capacity to Act:

• Personality comes from vested ability
• it states that legal personality is referred to a person's rights/ability engage within actions.

Natural Persons:

• Are people with basic legal rights
• if death occurs, it is moved to the natural person

Fetuses

• Not considered natural / have influence of legal rights
• this is determined legally and in The US, abortions are legal and within the constitution

Embryos and Fetuses

• They are not treated as natural rights & slavery acts as justification

Legal Capacity of Minors

• Most minors reach full capacity around 18 (however this various country to country/state) as they cannot act in any meaningful legal capacity.

Legal Representation for Minors:

• Civil Law: The legal rights must be taken care of the other's parents
• Common Law: A Formal legal person must manage it

Incapacitities De IURE/FACTO for Adults

• De IURE - protective is offered (appointing someone to look after their affairs), puntitive offers legal solutions for those being threatened
• De FACTO- occurs when they are temporarily impeded within the legal system
• If Severe Impairment or Bad Faith was to occur the adult's legal capacity is void

Consumers:

• natural persons who engage in transactions outside their professional activity
• A Special Case of consumers consists of Mixed Transactions which involve partial and professional people

Legal Entities:

• in civil law jurisdictions we have two types of legal entities; where under a public law, the state is considered a public entity & under private law , companies are considered limited

in Private Law

• Corporations: these can their own internal legal capacity that has it's on assets
• Incorporated: Does not have the same legal existence

Rules on Agency:

• this means acts by the company are carried within actions on it's behalf
• Authority & Binding requires actions legal bind in the contract
• defective concent exists

Non Profit Entities:

• Is for reasons where income distribution must not be made & is given back to the organisation.

Two Types of Non-Profit Entities:

• Includes Foundations and Associations

Constitutional Documents

• Consists of Memorandums, Artiles of Association and Bylaws

Incorporated/Unincorporated Business

• Join stock are considered incorporated & are managed by a public limited company. LLCS = limited liability
• Unincorporated: general partnerships & Limited. However both are jointly liable

Contracts & Obligations Unit

Contract Definition

• contracts come from transacitons where both parties seek to buy/sell on goods, services and operations.
• Formation is given from documents as well as conduct

Contracts in Civil/Common Law

• Civil Originates within Roman Law.
• In Common law, it involves an exchange where something of value is held.

In Common law

• Key Exclusions of both & promises and bails have to be kept while

Contracts in European Law

• DCFR: all can be tied with agreements and relationships that create enforacble actions.
• all the others listed above also have unique requirements

Binding Force of Contracts

• Contracts have to be abided within the way that leglisation is given

Contract and Obligations:

• Contracts are used to give and obligate specific transfers/rights.

contract of Sale

• sellers have to provide delivery and warranties. Buyers have to be aware of payment

Sources of Obligations:

• Obligations come from primary sources (contracts) & Secondary (torts)

Contract Law Unit

Functions Of Law (Party Autonomy

• Contracts must follow autonomy as a standard
• Subsidirary princples follow minimal intervention
• judicial prospective does not alter contracts

• Freedom of contacts cannot be over ridden, however parties must be protected. B2B can be more flexible, however Consumer contracts are less flexible.

EU Law

• UN contract is adopted for Bussinesss to business, to standardise contract

Choice of Law

• EU Law must follows set legislature and it's standard of interpreation
• The United States follow state and federal practices, which are all standard

Understanding Law Unit

• Contract comes from interpertational theory
• Both Objeectively in interpeately

Understadning

• is primarily focused towards objects- both legal and verbal

HOddmann Perspective

• Must be to conveyed
• This means the conttract is understod to it's ffactuual cons

Hodg's Views

• must be objjective

Extrinsic

In interpetting cases

Understanding interpretation in Civil

• Understanding contracts require interpretation at the contract level

Understanding Interpretation

• The German/Frechn Civil Code & UNDRIOT is required to see how contracts are implied/unclear/expressed