Preliminary Comments: What Is The Law? PDF

PRELIMINARY COMMENTS : WHAT IS THE LAW ? never stop daring. 32 PRELIMINARY COMMENTS Three accepted ways of defining the « law » : 1. Law: « body of behavioral rules, socially dictated and sanctioned, imposed onto members of society» (G....

PRELIMINARY COMMENTS : WHAT IS THE LAW ? never stop daring. 32 PRELIMINARY COMMENTS Three accepted ways of defining the « law » : 1. Law: « body of behavioral rules, socially dictated and sanctioned, imposed onto members of society» (G. Cornu, Vocabulaire juridique) 33 PRELIMINARY COMMENTS 2. Positive law (droit positif): Body of rules of law currently in force (en vigueur) General and abstract (applies to all subjects of law onto a given territory, in the same situation) Coercive (subject to sanctions in case of non compliance) 3. Subjective rights (droits subjectifs): All prerogatives (‘rights’) recognized by positive law, individually or collectivally Rights belonging to subjects of law 34 PRELIMINARY COMMENTS Law subject Law on majority age Jack, 18 years old Today, Jack may vote, go to a since last month club, order a beer… Positive law Subjective rights 35 PRELIMINARY COMMENTS Civil law (S1) Commercial law Constitutional law (S1) (S1) Consumer law (S3) Environmental law Intellectual Property law PUBLIC LAW (S3) PRIVATE LAW Collectivities law Company law (S4) Tax law (S5) Administrative law Labor law (S4) Criminal law 36 TEST YOURSELF #1 1. Being able to claim the ownership of the computer you just purchased is part of : A. Positive law B. A subjective right TEST YOURSELF #1 2. Not being able to steal without the fear of sanctions is part of : (multiple answers) A. Positive law B. A subjective right C. Public law D. Private law TEST YOURSELF #1 True/False True False The rule by which you are not allowed to smoke within Audencia’s halls is part of positive law. The rule by which you respect your parents and elders is part of positive law. The rule of law aims at reaching Heaven. The rule by which you must pay alimony to your brothers and sisters in need is part of positive law. TEST YOURSELF #1 Case study n°1 : It’s year 2155 and machines have taken over Planet Earth. The machines worry about a potential return to power by humans and therefore implement a highly technological surveillance system. In order to track humans, and make facial recognition easier, the machines pass a law which prohibits wearing a baseball cap in public places, which so far was simply a rule of curtesy. You wear caps daily since you are a fan of them, and you wonder what that will mean for you in your daily life? Follow the case study methodology to answer the question. 40 PART I – WHO ARE THE ACTORS OF THE LAW ? never stop daring. 43 PART I – WHO ARE THE ACTORS OF THE LAW ? Judges Two kinds of judges/magistrates in France: Seated judges (FR Magistrats du siège) are immovable, independent and impartial : the ‘real’ judges who apply the law, impose sanctions, make decisions in the « name of the people » Ex: President of the Tribunal judiciaire Standing judges (FR Magistrats du parquet) : decide whether or not to « open » a case, investigate cases, defend the interests of society (mostly in criminal cases), ensure the application of the judges’ legal decisions, conduct investigations Ex: Attorney general / prosecutor PART I – WHO ARE THE ACTORS OF THE LAW ? Auxiliaries of Justice (Legal professionals) Around the Judges Around the Parties Clerk (FR greffier): assists judges and Attorney: assists parties before various parties in administrative work jurisdictions for their legal issues Expert : gives expert opinion on Public officers: technical issues (usually active Notary public : assists parties for real professionals) estate, matrimonial and succession issues Conciliators and Mediators (in the Bailiff (huissier) : assist sparties in the context of ADR - Part IV) serving of official acts TEST YOURSELF #2 Seated judges ?/ Standing judges ? You just commited theft in an IT store and were caught red handed. Identify which judge will intervene at each of the following steps: Steps Seated Standing S/He sued you for theft S/He heard the parties arguments S/He heard the witnesses and experts S/He requested that you receive a conditional jail sentence of two months S/He convicted you criminally for theft S/He ordered you to indemnify the victim