Basics of Law PDF

**Basics of Law** Sources of law We follow different rules in our life (social rules, religious rules, etiquette, student organizations) Not all of the rules are a legal rules - some of them have no law status e.x. giving away a sitting place in tube to the elderly. **What is law?** - Rules -...

**Basics of Law** Sources of law We follow different rules in our life (social rules, religious rules, etiquette, student organizations) Not all of the rules are a legal rules - some of them have no law status e.x. giving away a sitting place in tube to the elderly. **What is law?** - Rules - how we can protect our rights, how to proceed sth, have to behave and not - Collective enforcements - not following the rules is a basis to get fined or punished in legal way in order to learn respecting enforced rules e.x. not following the speed limit (police, court etc.) - Positive law - legal rules, law created by people (president, parliament etc.) - Natural law - rules of the essence of the thing, humanity, we have the right to live and exist. It's not created by the people, it's just the state of nature. **Law gives the power to parliament to create the rules** **Federal law** - universal law for the whole country (Poland) **State law** - different law in different states (USA) Law should be stable, so people remember it, but it's not always respected. **Religious law system - islamic etc. -** occurs in some of the most religious countries ***Common law system*** - USA, Canada (except Quebec), Australia, Hong Kong - courts have power to create legal rules, they can issue a judgement without any enforced legal rules, just based on the opinion. When there's no specific enforced legal rule to solve the dispute, the court can create it. ***Civil law system = Continental law system*** - EU - created by parliament, separation of power : TRIAS POLITICA - legislative, executive, judicial (the purpose is to separate the power to 3 different offices, the powers are balanced). In Poland the president can create the law only in case of war **[The difference between them is the source of law]** **Sources of law** The notion of legal source is ambiguous 1. **Customary Law** The law was originally customary law, it consisted of rules that were in fact used and accepted as binding. People started treating a custom (zwyczaj) as a law you cannot violate. Its based on traditions and history of a country, it can be recognised by government or not. E.g native american tribes- their traditions are enforced in tribal courts. **Unwritten law** is a type of law that doesn\'t come from a written rule or law book, but instead comes from what people have always done or what judges have decided in the past. **This type of law is also called \"customary law\"** and includes things like court decisions that set a precedent for future cases. **2. Most laws are created law** - they were laid down by a body that had the power to do so : legislator, a court (in common law system), or states that have entered into a treaty (international law). **Legislation, cases, treaties are also seen as sources of law** **Law originated from custom, reason, doctrine (work of scholars, articles, books) , legislation, precedent, religions and treaties. They are all sources of origin of law.** **The law has come into existence in many different ways, different sources.** [What do they have in common? ] They represent ways in which the law came into existence. **Sources of validity** 1. Legal rules can be created by persons who, have the power to do so. These rules, which are valid because they were created by recognized rule makers, are called **institutional rules**. 2. The „sources thesis" holds that only those rules can be legal rules that come from a source of law : from a validity source. 3. In current world most rules are a legal rules and positive law. **KNOWLEDGE SOURCES** - the sources from which we take the information about the regal rules. - Rules can be found by reading treaties, judicial decisions, acts, bills, codes, constitution etc. **LEGISLATION** - a way to create the new rules, modify and derogate existing ones. They have different names such as „statute", „act", „decree", „bylaw". Sometimes a large collection of related laws are called a „Code". - Legislation is both a source of origin and validity source of law. Part of the law has been created or codified in the form of legislation, and therefor is a source of origin. The rules created by them are always valid. - A Pearson which can create the law must have the competence to do so. They're called a „legislator" **The laws can be applied to specific :** - Persons - consumers - Territory - Subject of matter - food availability etc. **Institutional rules** The constitution empowers the Parliament to adopt laws. If the parliament made a rule that not everyone obeys, this rule is still valid. Eg. Crossing the street on a red light. These rules are still valid, even if they're not effective. In most cases however, the institutional laws are being obeyed. Most legal rules are institutional rules. ***JUDGEMENTS OF THE COURT - CASE LAW*** \- as a source of law, the decisions of courts play a role that is somewhere in between being merely a source of origin and a source of validity. -the legal decisions for concrete cases tend to influence future decisions because they function as a kind of precedent. *[Case law have a different meaning in ]* 1. Civil law tradition - courts obliged to follow legal rules, have no power of creating new rules 2. Common law tradition - are empowered of make new legal rules if there is no precise rule that can be applied to the judgement. ***Common law tradition - CASE LAW*** 1. One factor is the demand of justice to treat like cases alike -if one case have beed decided in a particular way, it is often assumed that it is unjust to treat a subsequent case, which is deemed similar in all relevant aspects, in a different way. In other words - similar cases should be resolved in a similar way. We can expect that our case in course will be resolved similar as the previous one. From the rational point of view, it would be irrational to give other judgement in a similar situation. Justice and certainty of law means that the earlier judicial decisions can have a strong impact on the future judicial decisions. But the binding nature of precedence only applies to future cases that are similar to the already decided case. The court can point out the differences in cases and argue that they are not similar and shouldn't be bound by a particular precedent. **Common law tradition** 1. courts should give the same ruling to the IDENTICAL cases, it indirectly makes law because identical cases are judged the same way. The court must prove in every aspect that a case is different in at least one aspect to give out different ruling. **Civil law tradition** 1\) courts cannot give out the ruling based on the previous case. They can point out the similarity but they need to base their ruling on specific legal act. (Statutory law) ***Customary law - the oldest law*** We can talk about customary law when 1. we have a „custom" 2. The custom is accepted as a binding Customary law is not a source of law because something can only be customary law if it is already considered to be law. In other words, customary law exists as law in the sense of social rules, custom us merely a source of origin. In Poland it has no meaning. Lex Mercatoria ***RELIGIOUS LAW*** - Sharia law in Islamic countries ***Law made by international organizations*** - UN - ICC - OECD - UNIDROIT - EU **Public Law and private law** **The object of public law** - organisation of the state and the organisation of relations between the state and individual persons **The object of private law** - a relations between private persons, including both natural and legal persons. **How to determine whether a given branch of law is private or public law?** - **The administrativist method** - the authority has a power to determine unilaterally the rights and obligations of another authority or person. This method excludes the equality of parties and the voluntariness of their actions, as individuals must submit to the decisions of the authority. E.g. you want to go abroad, you need to get an issued passport, or you want a driving license, I this case you need to go to the city office. Office of the states issue the decision if you can receive one. - **The civil method** - the parties determine their own rights and obligations by means of declarations and agreements. The parties are equal and act voluntarily. The authorities give decision only if both of these parties cannot make an agreement. E.g. If you want to buy a cup of coffee, but without a coffee, just a cup but there's no specific price. You ask the shop assistant if she will sell it, you cannot force her to sell it, depends on both side of relationship. She might sell it or not. **Criminal law** - a branch of public law because the tracing, prosecution, and punishment of criminals are performed by, or on behalf of, the government. **International Law** - public international law, the law that regulates relations between states and international organisations, is also a branch of public law. \+ martial law, consular law - Private international law - set of rules of procedural law that regulates the relations between physical and judicial persons of different nationalities. **Administrative law** - interactions between government and civilians or private organisations. **Civil law** - legal relations between equal entities, may be natural and legal persons **Family law** - derives from civil law - Divorce and adoption - There is not unlimited equality - parents exercise parental authority over children, the same as guardian. **Labour law** - private law based on a civil method. - A strong public-private element is evident in labour law; Subordination of the employee to the employer Working time Supervision and control over compliance with labour law Parental rights Admission to work is only possible after an initial medical examination. - It does not fit well within the established divisions between public and private law. **SOFT AND HARD LAW** Examples of **soft law include recommendations, guidelines, codes of conduct,** non-binding resolutions, and standards. In contrast, **hard law refers to legally binding instruments, which in international law typically take the form of treaties.** **European Union Law** \- EU states that its hard to differentiate between private and public law however it creates law between states which is public law but it also makes rules about citizens and companies which is private law. **Constitutional law** -public law - Organisation of the state **Checks and Balances principle - on exam!** Human beings are called "natural persons", while organizations that have received the status of legal subjects are called "legal persons". ​ In public law: - natural persons are protected by the human rights assigned to them e.g. privacy and freedom of speech which does not account for legal persons. In private law; - legal persons can inquiry for payment or perform juridical acts. **Trias politica - separation of powers** **Checks and balances** are the mechanisms which distribute power throughout a political system -- preventing any one institution or individual from exercising total control. The words 'checks' and 'balances' are typically used together, but can be thought of as referring to subtly different (though overlapping) things. **Checks are the mechanisms which allow political institutions to limit one another's power -- for example by blocking, delaying or simply criticising decisions. Balances, meanwhile, ensure that a wide variety of views and interests are represented in the democratic process.** This includes structures like federalism, or broader features of democratic functioning such as the existence of multiple political parties. \- **legislative, executive and juridical powers**. To work properly they need to work separately and independently and need to be made of at least partially from representatives of citizens. ​Their goal is to provide checks and balances. The power should not be concentrated in one organ in order to be fair. - **legislative branch** - creation of new legal acts - **Executive branch** - applying the new legal acts created by legislative branch and administering public policy - **Juridical branch** - interpreting the constitution and acts to resolve the disputes that were reported to the court. Theres no country that has perfect separated power but there's also no country that has a lack of separation of power. The branches somehow interlace together because they are to complex to by precisely separated, but none of the branches should have an influence on another. **METHODS OF RULES INTERPRETATION** - **literal rule -literal interpretation -** interpreting literally, as it is written. E.g. dogs are not allowed to the mall, but does it also apply to guide dogs? YES, because guide dogs are still dogs which is stated in the rule. - **Mischief rule -** the rule is made to get rid of some kind of mischief/problem. e.g. dogs are prohibited to entry because its unhygienic and the legislator whats their shop to be hygienic. It does not need to be stated precisely in the content of ruling - **Golden rule -** interpreter determines the purpose of the rule by himself, not looking at the purpose of legislator (mischief rule). If the legal decision maker thinks that disabled persons safety is more important than hygiene he can interpret the rule to his interest. **PRINCIPLES TO DEAL WITH RULE CONFLICT** 1. **Lex superior derogat legi inferiori** - a higher level rule abrogates a lower one​ Eg. A national rule Is more important than a city rule 2. **Lex posterior derogat legi priori** - A later rule abrogates an earlier rule of similar status, unless otherwise stated in the provisions implementing the later rule ​ 3. **Lex specialis derogat legi generali** - A less universal rule is seen as an exception to the general rule​ Eg. The prohibition of dogs in shop might be withdrawn for guide dogs, the prohibition is general rule which might have some exceptions (less universal rule) **The law of contract** **Exchange -** it's a core of contract. One party wants to exchange something with the other one with a belief of some benefit. **Contract law -** a set of rules and obligations that are governing transactions among parties. Rights of obligations of parties is set by various rules. Sources of rules for contracts; - rules made by parties themselves (general conditions - standardised set of rules suited to parties) - Rules from national, European and supernational sources - Informal rules made by others - soft law **Formation of a binding contract** 1. \- **intention to be legally bonded** - to form a contract both parties must be willing to enter into a legal relationship 2. **Offer and acceptance -** offer by the offeror and acceptance by the offeree. Both parties must agree on the rules stated in a document - when can proposal be treated as an offer? - Can the offeror go back on his offer (revoke it) before an acceptance of offeree? Depends on national law or statement in the contract - At what moment in the time does the acceptance leads to binding? **ACCEPTANCE** - there are different rules that state at which time does the contract is binding but it can be for example; after the acceptance by the oferee the contract is binding when it reaches the postoffice of offeror. **Pacta sunt servanda** ([łac.](https://pl.wikipedia.org/wiki/%C5%81acina) umów należy dotrzymywać) -- zasada wyrażająca się w tym, że osoba, która zawarła w sposób ważny [umowę](https://pl.wikipedia.org/wiki/Umowa), musi się z niej wywiązać. **Rules of contracts;** - **consumer protection - protection of a party considered as ‚weaker' e.g.** sellers in eu need to provide consumer with all necessary information about the product - **Withdrawal rights -** it allows the cancellation of contract without any particular reason. E.g. you can send back an item in 14 days after its purchase. Its a deviation of traditional contract law where usually you cannot withdraw from a contract this easily. NO SHOP IS LEGALLY OBLIGED TO OFFER THIS WITHDRAWAL RIGHTS, IT DEPENDS ON THEIR POLICY - **unfairness of contract terms** When a party is forced to bind contract (threat) when theres lack of physical power or legal qualifications (incapacity) when a party contracts under incorrect assumption (mistake) - **prohibited contracts -** the freedom of contract is a civil law, however it does not mean that a party can enter into every contract, even ones that are contrary to law. - **Remedies of the parties** - if one of the party does not perform contracted tasks the second one should get some kind of remedy for it e.g. action for performance, for damages or termination of a contract **Labour law** Functions of labour law 1. protection of rights of workers 2. Integrative function of a social conflict ; when opposing interests of workers and employers occurs workers have; freedom of association, barging and right to strike 3. Stabilising role of economic and political system **Employment contracts in Poland;** - **Probation employment contract** 1\) contract for a short period of time, up to 3 months. Its a contract for newly employed workers and allows to check whether the hiree is fit for a position. 2\) polish labour law does not allow to put probation period into standard employment contract. In order to hire the worker permanently, they need to write a new contract 3\) its not mandatory, employer can hire employee on standard employment contract straight away. - **Definite employment contract** 1\) contract concluded for a fixed period of time e.g. 6 months, 1 year 2\) employer cannot hire the same employee on definite employment contract more than 3 times or 33 months in total. - **indefinite contract** 1\) contract without the specific end date **Every employee gets** - **remuneration** - pay - **Working time guidelines** - 40 hours weekly/8 hours daily or max 48 hours of work with overtime hours, after 6 consecutive working hours at least 15 min break - **Sickness leave -** 80% paid if sick, 100% if sick while pregnant and accident at work or commute 100% - **Holiday leave -** 20-26 fully paid holiday leave annually. Number of days depends on work seniority. It needs to be used - **Maternity/paternity leave -** maternity depends of number of children paternity 14 days **Termination of employment contract;** - **on mutual agreement** - **With notice period -** 2 weeks if he works less than 6 months, 1 month if works more than 6 months, and 3 months if he works at least 3 years. - **Termination without notice period** - can be done only under severe violation of obligations e.g employee came to work drunk or employer hasn't paid him. **International law** - it governs relations between the states **From Montevideo Convention on the Rights and duties of states** 1. **the state as a person should have the following qualifications** **-** *permanent population* *- a defined territory* *- government* *- capacity to enter into relationship with other states* **2) It shall constitute a sole person in the international eyes** **Modern definition** - **a law which deals „with the conduct of states and of international organisations and their relations, as well as relations of their relations with persons"** - **Today not only states are regulated by international law but also big companies/corporations** Pacta sunt servanta again, in regard of international law - states and organisations are obliged to abide by the agreements they commit to. Which includes treaties, even if its contradictory to their national law, the international law takes over on the international area. **Supremacy of International law** - on international level, the international law is superior to national law. Meaning it has more power than national one and should be applied. **Private international law** Private international law is a set of rules of procedural law that regulates the relationships between physical and judicial persons of different nationalities. It determines which legal system and the law of which jurisdiction will apply to a legal dispute among private individuals involving a foreign element. It is also called as conflict of laws. ​ **General principles of law** - good faith - the parties should presume that they will deal with each other fairly and follow the contract to gain benefits. - res judicata - finality of a judgment from court, it cannot be judged again, its a final decision - The impartiality of judges - judges are not prejudiced against any party **Supernational organisation** - it has a power to bind its member states. It has more power than member states which is rare because how an organisation can have bigger country than country. They have more authority than traditional organisations. One indicator of super nationality is that the organisation can make their rules apply to all member states without its further execution by countries. **European Union** **Sources of EU law** The law of the EU can be divided into two main categories:​ - **Primary EU Law​** - **Secondary EU Law​** - **Primary EU Law ​** - Treaties of Maastricht, ​ - Treaties of Am­sterdam, ​ - Treaties of Nice ​ - Treaties of Lisbon​ ​ - **Secondary EU Law​** - Regulations, ​ - Directives, ​ - Decisions, ​ - Recommendations,​ - non binding - Opinions,​ - non binding - Resolutions.​ **Main institutions of EU** - Commission,​ - European Parliament,​ - European Council,​ - Council of Ministers,​ - Court of Justice of the European Union.​ **Commission** - **president - ursula von den layen** - Each country has one representative but it does not represent country, it is to promote good well being of eu. - **European parliament can dismiss commission** - Promote general interest of union **European parliament** - involved in legislative process - Approves eu annual budget - Supervises eu executive 1. **705 members directly chooses from voting in member states** **The council of ministers** - **it consist of ministers from member states and depending on the topic of discussion appropriate minister is sent. E.g. military - minister of military** - They make policy and legislative decisions of eu **European council** - **members of council represent their countries and are a part of negotiations and decision making. Its to ensure proper development of eu** - **President of European council and heads of member states (prime minister or president)** - They meet each 6 months at „Euro summit" **The court of justice of European Union** - **court of justice, general court** - **27 judges from different member states (mandate of 6 years)** They review legality of legislative acts and give preliminary rulings regarding eu institutions