Part 2.pdf

## 2 Divisions of Law The classification of law can be considered from 2 main perspectives. - Division based on the **parties** involved in the legal relationship, leading to the distinction between public law and private law: - Public law pertains to legal matters involving governmental entit...

## 2 Divisions of Law The classification of law can be considered from 2 main perspectives. - Division based on the **parties** involved in the legal relationship, leading to the distinction between public law and private law: - Public law pertains to legal matters involving governmental entities and the public, encompassing administrative, constitutional, and criminal law. - Private law primarily addresses legal relations among individuals and private entities, including civil, commercial, and family law, focusing on personal and proprietary rights within non-governmental domains. - Division based on the **binding force of legal norms**: - **Mandatory rules**: Individuals cannot agree to violate their provisions. - **Default rules**: Individuals may agree on otherwise (Raziq, 2006, p. 99). The last two classifications shall be considered in this study. ### 2.1 Public and Private Law Public and private law are two broad legal categories with specific objectives and govern different relationships. - **Public law** manifests **authority and sovereignty**, while **private law** shows an **absence of force** in the parties' relationship with each other. - In **public law**, the state (one of the parties to the relationship) exercises manifestations of authority in its relationship with the other. - In **private law**, the parties to the relationship are in an equal legal position (Eimraan, 1999, p. 56). Public law is "the set of legal norms regulating legal relations to which the state is a party in its power as an authority and sovereign." This applies to the following: - International relationships regulated by public international law. - Relationships established between government agencies and each other. - The relationship between one of the government entities and the private sector, provided that the government entity exercises its sovereign authority and governs this relationship. In this case, the state uses the manifestations of its authority and sovereignty in its relations with individuals, for example, the confiscation of a property owned by an individual for use for the public benefit for the construction of a public road, the imposition of taxes, customs, and duties on individuals. Private law is "the set of legal norms regulating relations to which the state is not a party in its sovereign capacity." - The parties to the legal relationship are private individuals. - The state leaves the manifestations of sovereignty in its relationship with the other party; it is treated as an ordinary individual in this legal relationship. ### 2.1.1 Sections of Public Law Public law governs relationships in which the state, or any of its entities, participates as a party, interacting with other states or individuals in the exercise of its sovereign authority and jurisdiction. This sphere of law, encompassing constitutional, criminal, and administrative law, primarily concerns the state's involvement in legal relations. Public law comprises the following components: **Public Law** - **Public international law:** regulates relations between states in peace and war, it also coordinates the activities of international organizations such as the United Nations and the Gulf Cooperation Council. - **Constitutional law:** defines the structure of government within a state, specifies its public authorities, outlines their authorities, regulates their relationships with each other, and establishes the political rights of individuals. - **Administrative law:** regulates the activity of the administration and the executive branch during the performance of its administrative functions, showing how it manages public utilities and uses public funds. - **Criminal law:** specifies crimes and imposes special punishment or measures for each crime. - **Public Financial law:** governs how government entities manage and utilize public funds. ### 2.1.3 Sections of Private Law Private law governs interactions among private individuals or associations of individuals, as well as relationships in which the state is involved but does so in the capacity of an individual entity. **Private Law** - **Civil law:** regulates financial relations between individuals such as selling, renting, and insurance in addition to financial relations in which the state, or one of its entities, is a party without its sovereign status. - **Commercial law:** regulates the relationship between merchants, commercial transactions, and the trade profession such as banking, brokerage, and merchant business. - **Labor law:** regulates workers' relationships with employers in the private sector. - **Maritime law:** regulates the relations arising from using ships in maritime navigation. - **Civil and commercial procedure law:** regulates the procedures and protocols governing resolving civil and commercial conflicts within the judicial system. - **International Private Law:** determines the law applicable to a legal relationship with a foreign component and the competent court that considers disputes related to that relationship. ### 2.2 Mandatory and Default Rules Legal rules are generally binding rules, but the **degree of obligation** varies depending on whether the law obliges individuals to adhere to this rule **(mandatory rules)**, or whether the law **legitimizes** any agreement for them that breaches this legal rule **(default rules)**. In some circumstances, the law adopts a more permissive stance, affording individuals a degree of flexibility in how they structure and conduct their activities. In some cases, the legal framework encompasses the **concept of default rules**, granting individuals the right to make choices within certain bounds while remaining compliant with overarching legal objectives. This divergence in the regulatory approach underscores the dynamic nature of the law, where it can act as both a **prescriptive force** and a **facilitator of individual autonomy**, depending on the specific context and societal goals it seeks to achieve. - **Mandatory rules** are fundamental principles of law that are **binding to all**, and parties are not allowed to agree on provisions that violate them. Examples include prohibitions against genocide, slavery, torture, and aggression. - **Default rules** allow the parties to **violate their approach** if they mutually decide on a different course of action. They contrast with provisions set by organizations, which address intricate issues often overlooked by individuals in their agreements. ### 2.2.1 Mandatory Rules Mandatory rules are fundamental principles of law that are binding to all, and parties are not allowed to agree on provisions that violate them. In other words, individuals are not allowed to enter agreements or take actions that violate or undermine these fundamental norms. Examples of mandatory rules include prohibitions against genocide, slavery, torture, and aggression (Raziq, 2006, p. 36). This prohibition is because mandatory rules closely relate to the entity of society and its basic interests. ### 2.2.2 Default Rules Default rules prescribe specific conduct for individuals. Still, individuals are free to mutually decide on a different course of action, unlike mandatory rules, which represent non-negotiable constraints on individual freedom and pertain to matters of public interest. Also, default rules govern situations where no individual agreement exists. They contrast with provisions set by organizations, which address intricate issues often overlooked by individuals in their agreements. ### 2.2.3 Distinction Between Mandatory and Default Rules The distinction between mandatory and default rules is important because of the consequences that mandatory rules eliminate the role of Will and its freedom because every agreement to violate it does not have an effect, unlike default rules. The distinction between them depends on two means: the first is the formality base, which is the formulation of the legal norm, while the second is the objective base, which is the legal relationship regulated by the legal norm (Sarhan et al., 2018, p. 52). - **Formality Base:** the distinction is based on the connotation of the phrase with which the text was formulated. It is mandatory when the sentence includes a word that refers in its meaning to the obligation and the lack of the right to agree on what is contrary to this provision, such as: "it is not permissible, prohibited, invalid, punished, must, must, must...Etc." - **Public Order Objective:** In most cases, the wording of the legal text may not help determine the type of legal norm. Therefore, the second means can be used: the purpose of the legal norm (objective perspective). This method is carried out by researching the content of the legal norm and the extent to which its rule relates to public order and public morals. If the rule relates to public order and public morals, the rule is mandatory, but if its purpose is to regulate contractual relations between individuals, it is a default rule. * Public order is defined as a set of basic interests on which the entity of society is based, whether they relate to religious, political, social, economic, or moral interests in society. That is, it is the set of the highest interests of society that affects the group's entity and on which the social, political, economic, and moral structure is based. - **Political Perspective:** This encompasses the public law regulations specifically governing the actions of state authorities in matters of sovereignty. It also encompasses constitutional law, which delineates the state's political system and outlines the public rights and freedoms individuals are entitled to enjoy. Consequently, it encompasses all the rights guaranteed by the Constitution for every member of society. Administrative law regulations are also classified as public order components since they oversee public funds and state-owned utilities. - **Economic Perspective:** This encompasses regulations governing a state's market economy, which reflect the legislative policies of authorities in overseeing the market. For instance, in economies that embrace free market principles, rules concerning market competitiveness, business freedom, and the absence of restrictions on the movement of goods and capital are deemed fundamental and inviolable. - **Social Perspective:** This plays a crucial role in safeguarding the collective interests of society's members. For instance, the Criminal Code is instrumental in ensuring internal security. It contains rules with a special legal status, known as "jus cogens," rendering agreements to commit specific crimes null and void. Furthermore, family law, which governs family relationships—the cornerstone of society—is paramount. Consequently, it is impermissible to enter into agreements that seek to alter the provisions outlined in family law, including those of marriage, divorce, alimony, inheritance... etc. - **Labor law:** Seeks to strike a fair balance between the interests of employees and employers. Hence, its provisions are deemed a matter of public policy, and deviations from these provisions are generally only permissible if they serve the employee's best interests, who often hold the less powerful position in this contractual relationship.