Understanding the Rule of Law

The Rule of Law

• The law encompasses rules designed to organize life in society and regulate social life and relationships between individuals.

Objectives of Legal Rules

• To impose obligations to conform to a certain behavior or accomplish certain acts.
  • Example: obeying traffic laws, paying taxes, settling debts.
• To allow individuals to perform certain acts or activities under specific conditions.
  • Example: permission to engage in commerce or enter into contracts.
• To prohibit behaviors that violate established rules.
  • Example: prohibition of theft, murder, or embezzlement.

Objective Law

• Objective law consists of all the rules aimed at organizing life in society and determining individuals' situations.
  • Example: Relationships within families or based on contracts.

Subjective Rights

• Subjective rights consist of the set of rules specifying the powers and prerogatives recognized for individuals.
  • Example: property rights, rights to join associations, creditor rights.

Characteristics of the Rule of Law

General and Impersonal Nature

• Legal rules apply without distinguishing between individuals, with their application depending on a person's situation or circumstances.

Obligatory Nature

• Violation of legal rules is not tolerated, compliance with the law, whether it be a prohibition or permission, is mandatory.

Imperative Laws

• Imperative laws, or public order laws, are absolutely binding and cannot be set aside by anyone. Even judges must respect them, and individuals cannot avoid their application.
  • Examples: restrictions on marriage due to kinship, criminal law rules, and most public law rules.

Default or Interpretive Laws

• Default or interpretive laws are a set of rules that aren't absolutely binding and can be set aside, allowing individuals to avoid their application if all parties agree.
• If not dismissed, it retains its obligatory nature.
• An example of a common application is in contract law, where Article 502 of the D.O.C. stipulates that the delivery must occur where the item was sold at the time of contract, unless otherwise agreed.

Sanctioned by Public Authority

• Legal rules differ from other rules of conduct because they are sanctioned by public authority.
  • Examples of other rules: religion, ethics, morals, and traditions.

Civil Sanctions

• Civil sanctions aim to repair damages or enforce compliance to restore a right.
  • Nullification: prevents an act from having effect.
  • Damages: compensates for the harm suffered.
  • Direct coercion: enforced against the person to achieve the objective.
  • Indirect coercion: applies to the person's assets.

Penal Sanctions

• Penalties are determined by the nature of the infraction and the severity of the antisocial behavior. Penalties can vary based on aggravating or mitigating circumstances.
  • Aggravating circumstances increase the penalty.
  • Mitigating circumstances lessen the penalty.
• There are three categories of infractions:
  • Crimes: the most serious infractions, resulting in the harshest penalties.
  • Offenses: infractions of medium severity, which can be either correctional or police offenses. Correctional offenses have a maximum penalty exceeding two years, while police offenses have a maximum penalty equal to or less than two years.
  • Contraventions: the least serious infractions, leading to light penalties such as fines or short-term detention.

Legal Disciplines

• The two main categories of legal disciplines are private law and public law. Each of these categories includes a branch with an international dimension, such as private international law and public international law.

Private Law

• Private law focuses on the organization of relationships between private individuals, concerning relations among individuals in various domains.
  • Civil Law: involves rules governing most relationships between people, including contracts, obligations, personal status, capacity, and family relations.
  • Commercial Law: Legislation that regulates commercial activity and relationships between merchants. It encompasses all rules applicable to commercial transactions and applies to commerce, industry, and a significant portion of services.
  • Labor Law: Rules intended to govern the relationships between employers and employees, and also covers social security matters.
  • Criminal Law: Generally regarded as a mixed area of law. It constitutes all the rules like general rules applicable to all infractions, specific rules applicable to each infraction, and the procedure for organizing the conduct and judgment of criminal proceedings.
  • Private International Law: Rules applicable to relationships between individuals involving an international element. This discipline addresses conflicts of nationalities, the condition of foreigners, conflicts of laws, and conflicts of jurisdiction.

Public Law

• Public law consists of all rules aimed at organizing the State and local authorities, like provinces, prefectures, and communes.
  • Constitutional Law: Includes all rules for the political organization of the State. It clarifies the organization and operation of state powers.
  • Administrative Law: Concerned with the organization and functioning of the administration, and the organization of relationships between the administration and citizens.
  • Public Liberties: A set of rules determining the rights of individuals in society and establishes mechanisms to ensure these rights are respected.
  • Public Finances: Rules designed to organize the management of the State's finances and local authorities.

Fiscal Law

• Fiscal law concerns the rules establishing various taxes.

Public International Law

• Public international law is a set of rules aimed at organizing relationships between states and regulating the status of international and regional organizations.

Application of Law Over Time and Space

Application of Law Over Time

• There are consequences of the advent of a new law, which leads to a conflict of laws over time.
  • Two principles used in Moroccan law: the principle of non-retroactivity and the principle of immediate effect for new laws.

Principle of Non-Retroactivity

• Prevents laws from applying to situations that existed before their enactment, ensuring the security and stability of social relations by adhering to the laws in effect at the time legal relationships or facts originated. -Exceptions: Laws of annulment and milder criminal laws.

Principle of Immediate Effect

• New laws govern future events and situations from their effective date, without affecting the past. This ensures future application.
  • Exceptions: Legislators can delay the application of a new law.. In contractual matters, the law in effect at the time the contract was formed generally applies.

Application of Law in Space

• Applies law within a defined territory

Territoriality of Laws

• The Moroccan law is applied to the Moroccan territory

Personality of Laws

• Applies national law to certain individuals even when they are abroad

Sources of Law

Modern Sources

Constitution

• Constitutional rules define the distribution of powers among different institutions and articulate the fundamental rights of citizens.
  • Due to its significance, constitutional revisions require a referendum and can be initiated by the King or by two-thirds of the members of the House of Representatives or the House of Councilors.

Ordinary Law

• Ordinary laws are under the jurisdiction of the legislative branch and are adopted based on proposals or bills submitted by members of Parliament or the government.
• The executive branch can create laws in two cases: during parliamentary recesses for urgent measures, and through decrees based on delegation of legislative authority, which require subsequent approval by the legislative branch.

Regulations

• Regulations are under the exclusive competence of the government.
  • Distinctions are made between decrees of the Prime Minister and ministerial orders.

International Treaties

• International agreements and conventions are signed to organize specific matters.
  • These can be either bilateral or multilateral.

Traditional Sources

Muslim Law

• Rules of conduct mostly originating from the Quran and the Sunna, this is significant in family and inheritance law.

Customary Law

• Rules established through continuous practice and habitual usage that may apply to specific sectors; it is unwritten and transmitted orally.

Complementary Sources

Jurisprudence

• Jurisprudence provides rules that are essential for completing and interpreting the law, derived from court decisions.

Doctrine

• Doctrine consists of research and reflections by legal scholars, professors, and practitioners. These opinions are non-binding but contribute to the formation of legal rules.

National Institutions

• Institutions are essential for organizing the country

King

• According to Article 19 of the constitution, the King is the supreme representative of the nation, a symbol of its unity, and the guarantor of the State's continuity, ensuring respect for Islam and the constitution, as well as protecting the rights and freedoms of citizens and social groups.
  • Powers of the King are at executive, legislative, and judicial levels.

Legislative Power

• Legislative power is vested in the Parliament, which consists of the House of Representatives and the House of Councilors.

Executive Power

• Executive power is entrusted to the government, which includes the Prime Minister and Ministers and is responsible for overseeing the implementation of state policy and the functioning of its services.

Judicial Power

• Judicial power is the responsibility of judges (Magistrates), who are appointed by Dahir and tasked with resolving disputes in accordance with the law. The careers of the Magistrates are managed by the Superior Council of the Magistracy.

Local Authorities

• These include communes, prefectures, and regions, managed by elected councilors under the supervision of the Ministry of the Interior.
• Local authorities have their own budgets and autonomy in managing their services, with budgets funded by local taxes, and state taxes and subsidies.

Moroccan Judicial Institutions

Principles

• Justice is free - individuals do not bear the costs of accessing the judicial system. The state covers the operating costs of the justice system. Litigants are still required to pay judicial fees and costs related to the proceedings. Exemption is possible if the citizen qualifies for legal aid.
• All are equal as religion, ethnicity, geography, or language must not influence the application of the law. The same rules apply to similar situations.
• Judges must demonstrate independence in directing proceedings impartially without bias. The Moroccan constitution guarantees judicial independence from legislative and executive powers. The law includes the principle of irremovability for judges to guarantee independence.
• Magistrates are required to detach from personal convictions and opinions with only case circumstances and data considered to resolve the litigation.

Judicial Structure

Judicial structures are of two types:

• Courts of common law/ordinary courts and specialized or exceptional courts.

Ordinary Courts

• Communal and district courts: made up of a single judge, assisted by a clerk or secretary. The judge isn't required to be a career magistrate, so an elected citizen can fill the role.
  • They handle civil matters involving personal and movable actions not exceeding 1,000 DH, with a possible increase to 2,000 DH if the disputing parties agree. It does not handle disputes related to personal status, real estate matters, or commercial lease termination requests, including minor criminal offenses punishable only by a fine, and cases concerning the suppression of fraud in merchandise.
  • Decisions from communal courts are not subject to ordinary or extraordinary appeals but can be deferred to the court of first instance if rules on competence aren't respected or in cases of recusal.
• Court of First Instance: has a general jurisdiction extending to all cases not within the competence of other courts. Civil cases are ruled in the first and last instance if no more than 3,000 dh is contested.

Penal matters

• Competent to judge offenses and contraventions.
• Courts of Appeal: are composed of specialized chambers which rule on appeals from judgments of the courts of first instance, as well as appeals of orders made by their presidents. It is competent to judge criminal matters in the first and last resort.

Supreme Court

• The court comprises six chambers, is only a judge of the law (not the facts), and is competent to deal with appeals in cassation against decisions rendered in the final instance by the various jurisdictions and actions for annulment for abuse of power against decisions of administrative authorities, and the actions against magistrates and jurisdictions.

Specialized Courts

• Military Tribunal: distinguishes between permanent military tribunals of the Royal Armed Forces. These tribunals handle offenses committed by military personnel and army officers. In wartime, it can be extended to civilians involved in crimes prejudicing the F.A.R. or offenses against the external security of the State
• Administrative Tribunals: are authorized to act on actions for reparation of damages caused by the acts or activities of public bodies, actions related to administrative contracts, disputes relating to expropriation for reasons of public utility, disputes with determination of the tax and the levy of taxes to settle disputes related to the management of the career officials.
• Commercial Courts: are competent to pronounce rulings related to commercial contracts, actions between traders about their business activity, disputes between partners in a company. The judgment is issued in the first and last resort when the principal of the request does not exceed 20,000dh.
• High Court: It is competent to judge members of the government responsible for crimes and offenses committed in the exercise of their functions, where accusations must be signed by at least a quarter of the members of that chamber.
• Court of Auditors and Regional Courts of Auditors: It is mission to monitor the implementation of the laws of finance verifying the management of organizations subject to its control, and provide the necessary information to parliament and government in areas of responsibility.

Judicial Personnel

• It is composed of professional magistrates, and a number of assistants to help the magistrates.

Magistrates

• Do not have the same functions within a court, although they belong to the same body and are subject to the same obligations.

Magistrates of the Bench

• Magistrate whose role is to resolve disputes with independence and free from external influence, they are protected by a rule within the constitution that states Magistrates are irremovable.

Magistrates of the Public Ministry

• Act as a representative of the executive powers, who defend the law and the community.

Assistants to the Justice System

Direct Assistants

• Clerks
• Bailiffs
• Sworn Legal Assistants

Clerks

• Handle the organization of hearings and monitoring procedures.

Bailiffs

• Responsible for communicating procedural acts and enforcing court decisions.

Indirect Assistants

• Lawyers, represent and defends individuals.
• Adoules, who intervene particularly in chraa matters.
• Experts, assist the justice system with expertise in certain areas and are required to provide an expert report.
• Notaries, drafts authentic instruments in real estate matters.

Contract

Notion of Contract

• A contract is an agreement intended to produce legal effects, a convergence of wills generating obligations. It requires at least two parties; distinctions are made between contracts, unilateral legal acts, and collective legal acts.

Formation of the Contract

• Gathering of four conditions is essential:
  • Capacity: assessed when concluding the contract, verifying the legal capacity of the contracting party to commit. The age of majority is set at 18 Gregorian years; the law has set out different phases:
    • From birth to 12 years: total incapacity.
    • From 12 to 16 years: with the possibility of doing acts whose validity will depend on the curator to be able to dispose of the minor's property for experience.
    • From 16 to 18 years: possibility of an advance declaration of majority, some people, even when of age, are considered incapable by decision of justice.
  • Consent: the expression of the common will of the parties to commit. The written form is mandatory in civil matters when the value of the transaction exceeds 250 dh and it must be free from defects (error, fraud, or violence) with fraud being the use of fraudulent maneuvers to trick the person.
  • Object: relates to the object of the obligation arising from the contract, must be determined, possible, and lawful.

Classification of Contracts

• Synallagmatic and unilateral contracts:

  • Synallagmatic makes the following reciprocal obligations
  • Unilateral means to make obligations on the charge of one part

• Commutative and random contracts:

  • Commutative benefits can be measured at the time of conclusion.
  • Random benefits depend on execution of an event.

• Contracts called and nameless are particularly regulated by the law.

• Contracts of mutual agreement and contract of adhesion.

• Consensual contracts are enough to meet the wills of the parties. -Contracts are necessary to return the real object -Formal contracts are necessary to respect the formalities.

• Instant contracts are executions of services, whereas successive executions are benefits

• Individual contracts only require people who have consented to the deal.

Effects of Contracts

• Contracts create, modify, transmit, or extinguish obligations with enforceable force.
• There is an obligation of contract with equally binding law for all parties
• The obligations born from the contract are effective, as it serves as a means of modifying elements to the engagement.
• There is an interpretation of the contract and it must fall with the intention of the parties.
• The strength of the contract is irrevocable, so the one "engagement" cannot be withdrawn.
• The parties may only modify the contract by mutual consent, an exception may exist if the modification is provided by a review clause.