Law and Society: Social Contract & Functions

Lecture 1: Law and Society

• Law emerged simultaneously with society.
• Society involves a group living together in the same area at the same time.
• Society cannot exist without rules.
• Thomas Hobbes theorized that a state of nature without rules leads to chaos.

Social Contract

• Individuals willingly exchange some freedom for cooperation benefits.
• The social contract serves as society's foundation.
• Marks humanity's departure from the state of nature.

Functions of Law

• Law fulfills functions with specific objectives.
• Functions can be negative and positive.

Negative Functions

• Prevent people from certain actions.
• Resolve conflicts through preventative rules.
• Provides conflict resolutions if rules fail, preventing societal destruction.

Concrete vs. Potential Conflicts

• Concrete conflicts occur when individuals disagree.
• Some situations may lead to potential conflicts.
• Conflicts are resolved through human decisions via courts, which apply existing rules.

Adaptation of Law

• Absence of specific rules may prompt rule makers to create inspiration and inspiration from past decisions.
• Laws become more predictable with these newly created rules.

Positive Functions

• Fosters and strengthens cooperation among society members.

Lawless Society?

• Law is essential for societal unity and structure.
• Law is a basic element necessary to frame and create society, and keep it together.

Societal Variations in Law

• Laws differ across societies.
• Law has relationships with religion, economics, technology, art, and marketing.
• Example: Sanctions from antitrust authority to Chiara Ferragni.
• Ethics and legality are distinct concepts.

Natural Obligations

• Natural obligations reflect moral or ethical duties.
• Example: Contributing to apartment decor expenses with a girlfriend.
• Italian law doesn't require reimbursement if the couple separates because she contributed out of her own will.
• Contributions are performed from ethic or social reasons.

Western Law

• There's ethnocentrism from western societies that western laws are predominant.
• Ethnocentrism risks turning Western legal features into requirements.
• Societal organizations that don't match Western standards might be unfairly considered invalid and may not be deemed to be a society with a set of valid laws.

Ethnocentrism

• Believes only Western laws are valid.
• Traditionalism risks Western Law being considered final.
• There may not be any progress anymore.

The Need for Institutional Authority

• Enforcement of law requires an institutional authority.
• Enforcement can be done at a local or national level.
• Law is viewed as incompatible with vengeance.
• Authority is needed but people can also settle a dispute alone.

Centralized Power

• Courts are state officials responsible for enforcing laws.

National and International Law

• International law uses conventions as primary source, like sale of goods.
• National and European levels also exist.

Perspectives to Conceive / Analyze Law

• Comparative, Private International, and Uniform Law.

Comparative Law

• Method of legal studies to understand different legal systems.
• Plurality of legal systems allows comparisons and measures of similarities/differences.
• Emrico Amari conceived comparative work in a modern way.
• Ernst Rabel is one of the fathers of comparative law and determined its scope and method.
• An understanding of differences and similarities is more important than making value judgements.

Aims of Comparative Law

• Recognition or display of one or more legal systems does not accomplish any comparative analysis.
• Details need to be analyzed.
• It measures similarities and differences, and importantly it does not say which one it better than the other since there should not be such notion.
• Gaining Topic Knowledge: Gaining knowledge to better use that knowledge.

Indirect Benefits

• Aid to solving legislator conflicts or situations.
• Act as a tool in International Law.
• You may decide to choose the method of another legal system to solve a conflict.

Studying Comparative Law

• A subject at Universities.
• A driver of European Law.

Tertium Comparationis

• Shared element between legal systems that allows for meaningful comparison.
• More political easier with private law.
• Abortion harder because of his religious beliefs.
• Jurists are biased so must analyze with and anti dogmatic and anti conceptual approach.

Main Methodologies

• Functionalist
• Historical
• +(Structuralism)

Functionalist Approach

• Determines practical problems, independently of structure solutions.
• Regulation of substances might have bad effects of people and is the focus of study.
• Must remain neutral when comparing.
• Creating laws requires cultural bias.
• What is Incomparable cannot compare and if in law, can only compare things with the same function.

Historical Approach

• Refers back to common Roman heritage of the legal systems.
• History is part of analysis to compare legal systems in 2024 versus 2020.
• Scholar approach more than concrete.
• Tracing of historical origin and analyze how changed.

Structuralism

• Theory of dissociation of legal formants.
• Legal system is comprised of legislature, judiciary, and scholar decisions, these may differ.

Lecture 2

Micro vs Macro Comparisons

• Micro focuses between the operational and practical problems and addressing them using the 3 approaches.
• Macro compares national laws on constitutional features and legal mentality.
• Micro family with common features are Civil law, Common law, Nordic laws, Roman laws, Germanic

Private Law

• Analyze Internation law which is unique because it is not part of international law.
• Country has its own system which entails some circumstances with application of different.
• Laws may conflict and international private law made to resolve.
• Conflict can arise with a french citizen entering contract with german citizen.
• If rules govern circumstances, conflict can arise.
• Law has to be of choice and shall prevail since each system have their own sets of rules.
• Specifically designs to resolve conflicts.
• Does rules that do not govern circumstances but have guidelines for what law should be used.
• Sorts out which legal systems can rule a case.

Connecting

• Countries try to harmonize laws so few conflicts arise private law.
• There are also different element of a scene where cases connected to different laws.
• Also can be different problems.
• Category that regulates relationship between people and private person and relates to properties family contracts
• Does not regulate public such as the government.

Private International Law

• Domestic rules that select between conflicting national laws.
• It is not sourced internationally, but national and is about its content.
• Divided into two categories: procedural which court, or substantial which laws after court established.
• Less overlap of the laws due to the European union.

Harmonization Process of EU Law

Guiding Principles

• Principles of Choice International Commercial Contracts (2015).
• Hague Conference on Private International Law.

Unique Uniform Law

• State aim to rules the same in all systems.
• Uniform legislation not the same as law.
• If system regulates differently, regulations applied interpreted different creates outcome.
• Uniformity achieved if legislation understood by commonality which can go through analysis.

Examples

• art (1) in convention
• 1969 vienna treaties

Unification of Law

• Increased in private law as especially in business,.
• International convention obligates states to change legal systems.
• Model laws which are not binding gain consensuses.
• Process of uniform for private internation where second is no conflict.
• U.S example of uniform laws
• U.C.C Uniform codes

Lecture 3 : Civil Law jurisdictions.

• Fully implemented doctorine with government being legislature where parliament, executive where government and judge who's judiciary.
• Consequence with Civil are characterized by provilidged statutory laws.
• Statutory law laws that are written down by the state which power over the states.

Civil Code

• Fore runner to contemp codes.
• 1804 Death of Ius based on Roman with laws related and other codification.
• Shifts From fragmented region of laws and inspire other similar codes.

Code Napoleons

• Created shifting fragment
• Louis activism centralizing authority to standalize rules
• Growing sentiments that France needed a unify

Revolution

• The revolution is that you need more equality in France.
• Dismissal with communion with nation
• People thought there should be a clear law to have
• Several failed attempts of the laws before the power

Code Civil and the prototypes

• Structured and droit the best of both written system.

Basic Ideas

• The new more accessible to all citizen previously had and break the federalism.
• Up hold the power of equal. treatment and law to every citizens new rights too.

20 Century Jurists

• Attempt to remodel based on sociol and creative.
• Judge create law and through their decisions
• Reform to adopt new change
• 2006 to reform contact law

Additional Notes

• BGB deals with law to correct damages as so.
• BGB aim to provide correct balance.

Additional Facts

• Criminal deals with offense and harms.
• Eg. defamation of house

German Code Civil

• Looked like they could do the same opportunity.
• Anton advocate began but savigny said need to stabilize laws.
• Provided some unication where all the first steps
• enacted and into power
• Roman but didn't allow German

School of Juris

• Savigny was famous that law and entity that reflect.
• organic law
• systematic laws the Roman
• Represent all regualtions.

BGB The division of main book

Structures

• Property
• Obligation
• Success
• Have general codes which details a concept for users then scholars
• 20th century large parts complete where family mod equal spouses simplify etc.
• Obligate and create privater law
• The code and the civie enter force had the most of both german and French

2

• Doctoring not grounded in english

Common Law.

• In england able because then adapt unique
• No codifiacation

2.2

• Not recognize doctoring judge but previous judge
• State still has power damage

3.

• Have been where system influence
• Louisiana settle late and buy spain with france
• Have still but overide.

4 Some concepts

• Have rule allow such still outline effects for
• They for structure if then for effects also.

Note. and Normativism.

• Guidelines essence function.
• Rules concieved harm obey
• Kelsen develop no norm sanction is
• has have system
• if then then with officer.

Notes pt2

• generality applied anybody states and
• Abstract and behavior to the if then.
• Enitirely defaults mostly here.

Defaults.

• Agree to address the over write rule and seller products agree
• Rules be designed over over state etc
• Private law or rules.

notes.

• loans rate subject
• under interest
• 10

Source

• Source with layer to system.

Primary

• Subject inidvals,

Functions.

• How systme work also give govn power
• Text and law
• Regular the rule undergo system

Rule

• How enforced
• Higher to decied rule and society contracts high

By contentions

• No contratict
• Not realty
• To design resolve
• Common judge also and create referring
• Civil authority rules

Extra notes.

• Extended to certain law
• Example smokng has some thing then.
• Analog application also auries

Systems.

• Authority to system.
• if a state what will fall .
• Hierachical for state what had?
• Content what has then? time what has then

Contradict

• Time can relate what does then.
• Exhaust syste then and provide
• not a apply they have system

Functions.

• Principle and are

Act

Additional notes

• Private power state
• Power author state and
• Horizontal vertical

Extra notes

• How types form

Codificaitons Extra codes.

Code is