Introduction to Law PDF

Jaap Hage · Bram Akkermans Editors Introduction to Law Introduction to Law ThiS is a FM Blank Page Jaap Hage Bram Akkermans Editors Introduction to Law Editors Jaap Hage Bram Akkermans Foundations and Methods of Law Private Law Maastricht University Faculty of Law Maastricht University Faculty of Law Maastricht Maastricht The Netherlands The Netherlands ISBN 978-3-319-06909-8 ISBN 978-3-319-06910-4 (eBook) DOI 10.1007/978-3-319-06910-4 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2014946732 # Springer International Publishing Switzerland 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher’s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) Preface The Introduction to Law that you are now holding is special in the sense that it introduces students to law in general and not to the law of one specific jurisdiction. It has been written with two purposes in mind. In the first place, this book is meant to be used in the course Introduction to Law of the Maastricht European Law School. This course aims to provide law students with global knowledge of the basic legal concepts, elementary philosophy of law, and the main fields of law. Since the European Law School does not exclusively focus on the law of one particular European jurisdiction, there is need for an introductory course that also abstracts from the law of specific jurisdictions. In the second place, and possibly more importantly, this book reflects a special way of looking at legal education. We believe that it is of crucial importance for lawyers to be aware of the different ways in which societal problems can be solved and to be able to argue about the advantages and disadvantages of different legal solutions. Being a lawyer involves, on this view, being able to reason like a lawyer, even more than having detailed knowledge of particular sets of rules. The present Introduction to Law reflects this view by paying explicit attention to the functions of rules and to ways of reasoning about the relative qualities of alternative legal solutions. Where ‘positive’ law is discussed, the emphasis is on the legal questions that must be addressed by a field of law and on the different kinds of solutions that have been adopted by—for instance—the common law and the civil law tradition. The law of specific jurisdictions is mainly discussed by way of illustration of a possible answer to, for instance, the question when the existence of a valid contract is assumed. The editors want to thank the authors who contributed to this book and whose names are mentioned in the headings of the chapters they wrote. Not mentioned in specific chapters but also important are the contributions of, in alphabetical order, Emanuel van Dongen, Amoury Groenen, Sascha Hardt, Philipp Kiiver, Dennis Patterson, Christian Pfeiffer, Dietmar von der Pfordten, Ralf Poscher, Mark Seitter, Anjum Shabbir, Jasmine Styles, André van der Walt, Antonia Waltermann, the anonymous reviewers who kindly commented on draft versions of the chapters, and the many students who commented on earlier versions of the texts. In different stages of the preparation and in different ways, all these persons assisted in making this book possible, and the editors express their gratitude for these contributions. v vi Preface The editors of Introduction to Law are interested in your opinion of this book. We therefore invite you to send comments, suggestions, and questions to jaap. [email protected]. Maastricht, The Netherlands Jaap Hage April 2014 Bram Akkermans Contents 1 Foundations.......................................... 1 Jaap Hage 2 Sources of Law........................................ 23 Jaap Hage 3 Basic Concepts of Law.................................. 37 Jaap Hage 4 The Law of Contract.................................... 51 Jan Smits 5 Property Law......................................... 71 Bram Akkermans 6 Tort Law............................................. 101 G.E. van Maanen and Jaap Hage 7 Criminal Law......................................... 121 Johannes Keiler, Michele Panzavolta, and David Roef 8 Constitutional Law..................................... 157 Aalt Willem Heringa 9 Administrative Law.................................... 189 Chris Backes and Mariolina Eliantonio 10 The Law of Europe..................................... 211 Jaap Hage 11 International Law...................................... 241 Menno T. Kamminga 12 Human Rights......................................... 261 Gustavo Arosemena vii viii Contents 13 Elements of Procedural Law.............................. 287 Fokke Fernhout and Remco van Rhee 14 Philosophy of Law...................................... 313 Jaap Hage Index................................................... 337 Contributors Aalt Willem Heringa Maastricht Montesquieu Institute, Maastricht University, Maastricht, The Netherlands Bram Akkermans Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands Chris Backes Maastricht University, Maastricht, The Netherlands David Roef Maastricht University, Maastricht, The Netherlands Fokke Fernhout Maastricht University, Maastricht, The Netherlands Gerrit van Maanen Maastricht University, Maastricht, The Netherlands Gustavo Arosemena Maastricht University, Maastricht, The Netherlands Jan Smits Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands Jaap Hage Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands Johannes Keiler Maastricht University, Maastricht, The Netherlands Mariolina Eliantonio Maastricht University, Maastricht, The Netherlands Menno T. Kamminga Maastricht Centre for Human Rights, Maastricht University, Maastricht, The Netherlands Michele Panzavolta Maastricht University, Maastricht, The Netherlands Remco van Rhee Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands ix Foundations 1 Jaap Hage 1.1 What Is Law? The main question that must be answered in any introduction to law deals with the nature of law. It does not seem to make much sense to write about law if it is not clear what law is. Although the need for characterization of law’s nature is obvious, it is a need that is not so easily satisfied. The law is multifaceted, and arguably it has been in flux over the years. In the current age of globalization and Europeanization, it is changing at high speed. It is therefore not possible to give a short definition of law from the outset. What is possible, however, is to mention a few characteristics of law. The majority of legal phenomena shares most of these characteristics, but not all legal phenomena share all of them. 1.1.1 Some Characteristics of Law Rules A substantial part of law exists in the form of rules. These rules do not only specify how people should behave (“do not steal,” “pay taxes”), but they also contain definitions of terms, create competences, and much more. An example of a rule that gives a definition can be found in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, which defines “racial discrimination” as “... any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” J. Hage (*) Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands e-mail: [email protected] J. Hage and B. Akkermans (eds.), Introduction to Law, 1 DOI 10.1007/978-3-319-06910-4_1, # Springer International Publishing Switzerland 2014 2 J. Hage Article 37, Section 1 of the International Covenant on Civil and Political Rights provides an example of a rule that creates a competence for the Secretary-General of the United Nations. It states, in connection with the Human Rights Committee: “The Secretary- General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations.” Society is governed not only by legal rules but also by other types of rules. In the next section, we will have a closer look at law’s most important relative—morality. But there are also other types of rules, such as the rules that belong to – a religion (for instance, the Ten Commandments), – etiquette (for example, “Eat with a knife and fork”), and – special organizations such as student associations (for example, “Every member is to perform bar service twice a month”). Collective Enforcement One characteristic that distinguishes legal rules from other rules is that the former are normally enforced by collective means and in particular by organs of the state, while this is not true for the latter. Moreover, legal sanctions have very specific sanctions, such as incarceration, fines, compensation of damage, etc., while the sanctions of nonlegal rules are less specific. For instance, someone who has committed a crime is liable to be punished, and this punishment is brought about by state organs such as the police and the prosecution service. From a moral point of view it is wrong to lie. And although liars may be liable to informal and private sanctions such as reproach and avoidance, they will seldom be sanctioned by collective means. Later we will see, however, that collective enforcement becomes less useful to demarcate legal rules from other rules, because of the increasing importance of non-state rules which may also be categorized as law. Positive Law Another characteristic that distinguishes law from other normative systems is that, by far, most legal rules are created by state agencies, such as parliaments, courts, and administrative bodies. As we will see, this has not always been the case, but at present most laws are explicitly created (or, in legal terms, “laid down”). A law that has been laid down is called positive law. The word “positive” in this connection is derived from the Latin positus, which literally means “laid down.” The idea that law is explicitly created has gained such a strong sense of obviousness that the expression “positive law” has almost become synonymous with “the law that is valid here and now”. The increasing importance of non-state rules, however, is a reason to question this obviousness. Moreover, legal rules can also be repealed, which is not possible in case of, for example, moral rules. 1 Foundations 3 1.1.2 Law and Morality Legal rules are often compared to and contrasted with moral rules. One reason why this happens is because we consider it desirable that the law does not violate morality. Conformity of the law with morality is, in the eyes of some (adherents of “natural law”; see Chap. 14), a precondition for the existence of law: a rule that clearly violates morality would not be a binding legal rule at all. Another reason is that governments see it as their task to enforce the law but not to enforce morality. Therefore, it is important that legal rules can clearly be identified as such and distinguished from rules that are “merely” moral. 1.1.2.1 Differences Between Law and Morality Degrees vs. Binary The law has as one of its main functions to guide behavior, by telling people what to do or not to do in the form of prohibiting and prescribing acts. However, most of morality is not concerned with guidelines for behavior: it does not directly tell us what we should do or should not do. Morality primarily sets standards through which we can evaluate behavior as “good,” “not so good,” or simply “bad.” Good and bad come in degrees: better or worse. From the legal point of view, a particular act is either permitted or not, without such grey areas. However, there are moral rules that do prescribe behavior. Take for example the “Thou shalt not kill” of the Ten Commandments. Moral Standards Important A second difference is that moral norms and standards are normally considered to be important for the well-functioning of society, while this is not necessarily the case for all legal rules. For instance, typical moral rules forbid lies, and wounding or killing other persons. Lying, wounding and killing are serious issues, and so there are moral guidelines that deal with them. These moral rules have equivalents in legal rules, which therefore also deal with important issues. However, there are many legal rules that deal with issues that are not broadly experienced as “serious,” such as the amount of salt allowed in food, the precise form in which requests to government agencies must be made, or the way in which bicycles must be equipped with lighting. State Enforcement A third difference between law and morality is that being legal is a precondition for rules that are to be enforced by state organs; moral precepts as such are not enforced in that way. However, many moral rules and standards have counterparts in the law so that state enforcement of morality is possible in the form of state enforcement of the law. Examples include: 1. the moral prohibition to kill people, enforced under criminal law, which imposes a penalty for “murder” and “manslaughter” (legal terms), and 2. the prohibition to destroy someone else’s property, enforced through tort law rules, which attach an obligation to compensate the damage caused by the destruction. 4 J. Hage 1.1.2.2 Positive and Critical Morality Positive Morality When looking at the relationship between law and morality, it is useful to keep in mind that the very notion of “morality” is ambiguous. On one hand, it may relate to positive morality, the moral standards and precepts that are broadly accepted at a particular time and place. Such “positive morality” at a certain time or place may differ from positive morality at another time or place. It may be the case that in the West all persons are to be treated equally, while in the East elderly people gain certain advantages because they are culturally considered to deserve more respect. Another example would be that views about the moral and societal accept- ability of homosexual behavior have changed over the course of time. Critical Morality On the other hand, “morality” may stand for critical morality, the moral rules and standards that should rationally be accepted regardless of what positive morality says. In general, these rules and standards will not fully coincide with those of positive morality. Suppose that in a particular society the use of drugs is considered as morally bad, no matter what the consequences. But this same society has no moral problem with the use of alcohol, if this use does not lead to misbehavior. One might wonder whether these moral attitudes are consistent. Why shouldn’t the use of alcohol also be considered as unconditionally bad? Or, why is the use of drugs not considered as bad only if it leads to misbehavior? If one asks such questions, one engages in critical morality, and if one concludes that the use of alcohol is “really” as bad as the use of other drugs, one has arrived at a conclusion of critical morality. Very often, when people ask whether something is good or bad, they mean whether it satisfies the standards that should rationally be accepted. Whereas it is in general easy to establish what the standards of positive morality require, it is often a matter of dispute what is required by critical morality. Take the example of giving to the poor. According to positive morality this is probably seen as a good thing, but not required, and not as a moral duty. One way this can be established is by interviewing a sufficient number of people. However, it is not so easy to determine whether there is a moral duty in the sense of critical morality to give money to the poor. In fact there are substantive differences in opinion. Libertarians believe that people are free to do whatever they deem fit with their money and belongings, as long as they do not violate the rights of others. Utilitarians, on the contrary, believe that, morally speaking, people should do what maximizes the total amount of happiness. If giving to the poor increases happiness (the gain in happiness of the poor outweighs the loss of the rich), then according to utilitarians, there is a moral duty for the rich to help the poor. 1.1.2.3 Legal Certainty It is often quite easy to establish the contents of positive law. The rules only need to be looked up in legislation or in judicial decisions. This may take some time, but in the end it is often possible to establish the contents of the law beyond reasonable doubt: positive law offers legal certainty. As a consequence, it is usually unneces- sary to invoke an authority, such as a judge, to untie the knot in a legal dispute. The 1 Foundations 5 parties to such a dispute can predict what the judge’s decision will be, and that saves the parties, and society at large, time and money. The fact that it is often easy to establish the contents of positive law can be obscured by the phenomenon that legal scholars tend to focus on “hard cases”, in which the “correct” legal solution is disputed. Disagreement If the issue at stake is not what the positive law is but what is “really” right, it may be much harder to reach an agreement. Although people frequently agree about what is right or wrong in the sense of critical morality, they also often disagree. This is less attractive as a basis for a smooth functioning society than the certainty of positive law. Often it is better to have no conflicts or fast solutions for conflicts than to have a laboriously reached “right” solution. There- fore, the law often prefers the certainty of a clear result over the uncertainty of the “best” solution for a problem. Positive law also offers legal certainty in a different manner, namely by providing collective support for the enforcement of legal duties. A third aspect of legal certainty is that similar cases are treated in a similar fashion or—in other words—that the law will be applied consistently. For instance, if one citizen is granted a building permit, legal certainty requires that another citizen who is in exactly the same position (and applied for one) should also be granted a building permit. So legal certainty has at least three aspects: 1. certainty about the content of the law, 2. certainty that the law will be enforced, 3. certainty that the law will be applied consistently. 1.2 Roman Law Our present day law did not fall out of the blue sky. It is the outcome of a historical development in which what are called “sources of law” play an important role. As the easiest way to obtain an understanding of legal sources is through history, we will sketch the development of the law in Europe. In this connection, Roman law and common law play a central role. Historical descriptions of the development of law in Europe often start with the impressive legal system built by the Romans in the period ranging from the eighth century BC (Before Christ) until the sixth century AD (Anno Domini or After Christ). Impressive as the Roman system may have become in the course of these centuries, it started out in a simple form, that of tribal customary law. 6 J. Hage 1.2.1 Tribal Customary Law Nowadays we are very much accustomed to law as the law of a particular country, such as German law or English law. More recently, we have seen the emergence of European law as concurrent with national law in the countries that make up the European Union. And, of course, there has existed for a number of centuries a body of law that governs the relations between states. This body is called international law. The law of the Romans, however, was not the law of a country or a state but the law of a people, namely the Roman people. Since they were comprised of a tribal group whose members were connected mostly by family ties, the early law of the Romans was tribal law. If a people grows larger, the main ties between its members can no longer be family ties, or at least not close family ties. The binding factor will then be a shared culture, for instance based on a common religion or language. We call such a people with a shared culture a nation. Nations are discussed in Sect. 8.1.3. Customary Law As with most tribal laws, early Roman law was customary law. Customary law consists of guidelines for behavior that have grown spontaneously in a society, such as a tribe, in the form of mutual expectations, which after some time are accepted as binding. An example would be that the head of the tribe gets the first pick if an animal was caught on a hunt. For the first few times this may be merely a kind gesture by the hunters towards the tribal leader. But if it is repeated over a period of time everyone will count on its reoccurrence, and there will be reproaches if the chief does not get the first pick. In the end, the reproaches may become so serious that the hunters will be punished if they do not offer the chief the first pick. Historical Legislator These guidelines are transmitted from generation to gener- ation and are considered to be “natural” and rational, and their origin is frequently attributed to a historical, often divine, legislator. An example would be the Ten Commandments and other rules which were, according to the Torah, given to the Jewish people by God on Mount Sinai, through the intermediary of Moses. Immutability This ascription to a historical legislator explains another character- istic of customary law, namely that it is taken to be immutable. The law has been such and such since time immemorial and will never change. However, as custom- ary law starts as unwritten law, there may be gradual changes that go unnoticed because there are no texts that facilitate the comparison of recent law with that of older generations. As a consequence, customary law may change slowly over the course of time, adapting itself to circumstances, while its image of natural and immutable law may remain intact. Although customary law is often retrospectively ascribed to a legislator, it is typically not the result of legislation. It consists of rules that are actually used in a society to govern the relations between the members of this society and are usually 1 Foundations 7 not easily distinguishable from religious and moral precepts. It is only at a later stage of development of a legal system that the distinction between legal, moral, and religious precepts can be made. Arguably, such a sharp distinction presupposes a separation between church and state, a separation which has gradually grown in the Western world since the late Middle Ages. But note that this separation has not been accepted in a number of non-Western countries, particularly those that aim to follow Islamic law. Ius Civile and Ius Gentium The tribal nature of classical Roman law is reflected in the fact that the Romans used different laws for mutual relations between members of the tribe (ius civile) and relations between tribe members and foreigners or between foreigners among each other (ius gentium). For instance, ius civile would govern a conflict between two Roman citizens about the use of a piece of land, while the same conflict would be governed by ius gentium if one or two foreigners were involved. The distinction between ius civile and ius gentium only became important in what is called the “classical period” of Roman law, from the 3rd century BC onwards. Although the ius civile was originally meant for use within the tribe, its scope of application was gradually broadened to include all Roman citizens, a group which grew larger and larger in the course of years. 1.2.2 Codification Customary law starts as unwritten law, but this does not preclude that it is written down at some stage. The Roman ius civile, for instance, was written down in 451 BC on what is called the Twelve Tables. The reason was that, if there was any doubt, customary law could be interpreted by the pontiffs, officials who came from the cast of patricians, the societal upper class. The plebeians, the lower social class, objected to this practice because they feared that the pontiffs might use their power to interpret the law to the advantage of the patricians. If customary law were written down and published, its contents could be inspected by anyone who could read. This is another example of why the certainty of law is important: it makes it more difficult for rules which govern society to be manipulated to the advantage of a few. If customary law is written down, the law is described as having been codified. All codified laws are written law and in this sense resemble law that was created by means of legislation. Still, there is a difference: law that was codified already existed before the codification, while law that was created through legislation did not exist before it was written down. 8 J. Hage 1.2.3 Praetor and Iudex If two parties have a dispute about a particular case, the legal solution will depend on two factors: the facts of the case and the contents of the law. In Roman law, these two factors were linked with two roles in a legal procedure, namely the role of the praetor and the role of the iudex (judge). The function of praetor was only instituted in 366 BC. Jurists If one party wanted to sue another, he had to go to the praetor and explain his case. If the praetor was of the opinion that the case might be successful, he would formulate a kind of instruction (the formula) to the iudex, in which this judge would be told to grant the suing party a legal remedy if certain factual conditions had been fulfilled. It was then up to the judge to determine what the facts of the case actually were and whether these facts, in light of the formula provided by the praetor, justified the remedy. This division of roles made the praetor responsible for establishing the precise content of the law and the iudex for the determination of the case facts. Because the role of the iudex did not require special legal knowledge, it could be fulfilled (and actually was fulfilled) by laymen. In modern times we find a role similar to that of the iudex in juries, consisting of laymen who must decide about the facts of the case. In criminal cases the finding of the juries will be “guilty” or “not guilty”. If the function of the iudex is fulfilled by a jury, the function of the judge will resemble that of the praetor. Because the praetor had the task of interpreting the law, he had a considerable influence on the content of the law. However, the function of the praetor was first and foremost a political one, a stepping stone on the way to become a consul. The praetor was therefore not necessarily a trained lawyer. Possibly to remedy this deficiency, the praetor was advised by jurists, who also advised process parties. As a consequence, jurists had, through their advice, a great degree of influence on the development of the law. 1.2.4 The Corpus Iuris Civilis In the year 395 AD, the Roman Empire, which had come to encompass large parts of Europe, Northern Africa, and parts of the Middle East, was split into a Western and an Eastern part. Not long thereafter, the Western Empire succumbed under an invasion of Germanic tribes, and Rome fell and was plundered by the Germanic tribes in 455 AD. The Eastern Empire continued to exist until the fall of its capital, Constantinople (now Istanbul), in 1453 in a war against the Turkish Ottoman Empire. But long before that, the Eastern Empire reached a cultural summit with the Corpus Iuris Civilis. This Corpus was an attempt to codify the existing Roman law. It was published on the order of Emperor Justinianus in the period from 529 to 534 AD and consisted of several parts. One part was the Codex, which contained imperial 1 Foundations 9 legislation of several centuries. Another part consisted of the Digest, a collection of excerpts from writings of jurists from the period of about 100 BC until 300 AD. The Institutions, a student textbook, formed the third part. 1.3 Common Law After the fall of the Western Roman Empire, the law of Western Europe to a large extent returned to customary tribal law, this time to the law of the Germanic tribes that had taken possession of the area. Some remnants of Roman law remained in force for former Roman subjects, side by side with the customary law of the tribes, but these formed only a shadow of the complex legal system that the Romans had built. In the High Middle Ages (the eleventh century until the fifteenth century), several developments took place that had an enduring influence on the development of law in Europe. One of them was the rediscovery of Roman law, starting from the eleventh century. The subsequent “reception” of the Roman law turned out to be very influential on the development of private law on the European continent. In England, Roman law had much less influence, and that had to do with a second important development, namely the rise of common law. 1.3.1 Royal Justices The start of the development of common law as a separate legal system dates back to 1066 AD, when the Norman King William I (the Conqueror) invaded and conquered England. This initiated a movement towards unification of the English legal system, which until then mostly consisted of local customary law. The unification was brought about by means of a system of royal representatives who traveled through the country to administer the law. These “royal justices” applied the same law, and this law was to become the Common Law of England. Another factor that contributed to the creation of the common law was the thirteenth century emergence of central courts of justice. The existence of central courts facilitated uniform application of the law all over the country. For law to be uniform, it is not only essential that the rules are the same everywhere, but also that these rules are applied in the same way. The law consists as much of its rules as of their mode of application. The fact that England already had a uniform legal system is one of the reasons that the rediscovery of Roman law, which had a tremendous influence on the development of continental European law, did not affect English law to a large extent. As a consequence, the English legal system and the legal systems of the continent developed more or less independently of each other. One of the most conspicuous differences that resulted from this separate development is that 10 J. Hage continental legal reasoning focuses on the creation and the application of rules, mostly statutory rules, while the emphasis in the common law tradition has been on reasoning by analogy to previous cases. This is a consequence of the doctrine of stare decisis, to which we will now turn. 1.3.2 Precedent Customary law comes into being if particular guidelines and standards for behavior are traditionally used in a particular society and are experienced as binding. If a regular form of behavior is not experienced as binding, for instance to go to the movies on Saturday evenings, then it is no more than a mere habit; it is not customary law. Customary rules are used by, among others, judges and other legal decision makers. As we will see in Chap. 2, it is usual to distinguish judge-made case law from customary law as a “source of law”. One of the points of this section is that this distinction is not always very sharp. The customary nature of customary law consists partly in the fact that legal decision-makers follow the custom of applying these rules. Customary rules can come into being, or are confirmed, if they are actually used in legal decision making. An example would be the following: A peasant sells a cow to another peasant. The cow turns out to be sick and dies within a few weeks. The second peasant wants his money back. The seller refuses to return the money and says that the buyer should have paid more attention to his purchase. If he had done so, he might have known that the cow was sick. The case comes before a judge, who agrees with the seller: the buyer should have been more careful, since the illness of the cow would have been detected had there been a careful inspection of the animal. In future cases, there is no longer a need to go to a judge about the sale of an unhealthy animal if the animal’s bad condition might have been discovered through careful inspec- tion. In such cases no money will be returned from the seller to the buyer. The decision of the judge will function as a precedent for future cases. Moreover, after some time, the rule that discoverable illness of cows does not constitute a reason to request the return of the sale price will be considered as customary law. Judicial decisions can and often will function as precedents. There are two ways to interpret this. The first interpretation is that the decision of the judge is evidence of the law that already existed before the judge gave his decision. If the rule already existed, it is clear that the same rule should be applied in future cases and also by other judges. A second interpretation is that the judge, in giving his decision, created a new rule that did not yet exist but would exist from the moment that the decision was given. It is also understandable in this interpretation that other judges will have to apply the rule in future cases. It is this second interpretation, namely that courts’ decisions create the law rather than merely state it, that has become prevalent in the twentieth century. 1 Foundations 11 In earlier centuries, the view that judicial decisions were merely evidence of pre-existing law was the fashionable one. Blackstone, a famous English lawyer from the 18th century, wrote that: “[...] the decisions of courts of justice are the evidence of what is common law”. (Emphasis added.) Stare Decisis The second interpretation is confirmed in the doctrine of stare decisis (Latin for “stand by your decisions”). According to this doctrine, if a court has decided a case in a particular way, then the same court and the courts that are inferior to it must give the same decision in future cases that are similar. In 1966 the highest English court, the House of Lords (since 2009: the Supreme Court, and to be distinguished from the political “House of Lords”), announced that it would not consider itself bound by its own previous decisions anymore. By this announcement it created for itself an exception to the stare decisis rule. Case-Based Reasoning The custom to decide cases by analogy to previous cases and the doctrine of stare decisis together mean that common law has developed on the basis of precedents and case law. English legal reasoning has therefore become a form of case-based reasoning, looking for similarities and differences between new cases and old cases that have already been decided. Although legislation also plays a role in English law, the emphasis has traditionally been on common law, which consists of a large body of cases. It may be argued, however, that this focus on cases instead of legislation has lost some of its importance now that the United Kingdom has become a member of the European Union and the laws of the European Member States are converging. Common Law Tradition The English legal tradition has been exported to the members of the British Commonwealth. As a consequence, it is not only England that is a common law country but also Ireland, Wales, most states of the USA, Canada, Australia, and other countries. The common law of all these countries has its basis in old precedents, stemming from the time that these countries were part of the British Empire, but has grown apart since these countries became independent. Still, the precedents in the different common law countries play some role in other countries of the common law tradition. In this sense, common law is a major legal tradition, standing side by side with the civil law tradition that stems from conti- nental Europe. 1.3.3 Equity This picture of the common law tradition would be one-sided if it did not pay some attention to the phenomenon of equity. Just like common law and legislation, equity forms part of the law in common law countries. And just like common law, equity is a kind of judge-made law. There are some differences, however. Equity originated in the fourteenth century AD in England, when persons who were unhappy about the outcome of common law procedures petitioned the King to intervene on their behalf. If the outcome of the common law for a particular case 12 J. Hage was found to be very inequitable, the King, or rather his secretariat, the Chancery, might ask the common law courts to reconsider the case. Later, the Chancery began to deal with such cases itself, and petitions came to be directed immediately to the Chancellor (the King’s secretary) rather than to the King. A subsequent Court of Chancery eventually developed over centuries, creating a separate branch of law: equity. Fairness Equity consists of a body of rules and principles that were developed to mitigate harsh results that might, in some cases, result from the application of common law. As the term “equity” suggests, this part of the law is particularly focused on obtaining fair results. Originally, equity may have been intended to be a correction to common law, where common law remained the starting point when the decision of cases is at stake. However, some branches of law were only developed in equity, the law of trusts being the most prominent example. The following example illustrates how equity differs from the common law. Angela is an unmarried woman of means who has a two-year old son Michael. Angela wants to give £50.000 to Michael, for the unexpected case that she might die. However, Michael is too young to deal with so much money. Therefore, Angela trusts the money to her friend Jane, who will act as a safe keeper for Michaels’ money. Under the regime of the common law Jane would be the only owner of the money and it would depend on her benevolence whether she keeps the money for Michael. Michael would have no legal remedy if Jane abused her position. That is unfair, since the money was meant for Michael and Angela was only trusted with it to keep it for Michael. In equity it is possible to provide Michael with a more robust legal position. Angela will be the legal owner of the money (at common law), but acts as a “trustee”. Michael will be the “beneficiary owner” (owner in equity) of the same money, and has a legal remedy against Angela if she does not keep the money for him. Although nowadays it may be correct to state that equity is part of the law in the common law tradition, originally it was meant as an exception to the law, and therefore not as part of the law. This difference is still reflected in English terminology, where the distinction is made between what holds at law (the common law) and in equity. The historic roots of equity, namely that equity was applied by the Court of Chancery as a correction to what would be decided by “ordinary” common law courts, explain that equity was originally applied by separate courts. A number of reforms of the court structure in England in the nineteenth and twentieth centuries mean, however, that a single court can apply both common law and equitable principles to resolve disputes. It is a matter of on-going debate whether this fusion of courts has also led to a fusion of the common law and equity, or that—as metaphor will have it—“the two streams of jurisdic- tion, though they run in the same channel, run side by side and do not mix their waters”. 1 Foundations 13 1.4 Ius Commune For most of the Middle Ages (roughly fifth to fifteenth centuries AD), Western Europe was divided into a variety of smaller or larger territories, inhabited by different peoples. These territories had their own local customary law, and as a consequence the law in Europe was diverse. As far as legal science was concerned, this situation gradually changed after the rediscovery in Northern Italy of the Digest, at the end of the eleventh century. The Digest became an object of study at the newly founded University of Bologna. Important names in this connection are those of the law professors Irnerius and Accursius, and Bartolus and Baldus in the eleventh to fourteenth centuries. Canon Law Not only had the Digest become the object of a renewed scientific study of the law but also Canon law, the law of the Roman Catholic Church. Canon law dealt with the internal organization of the church and also civil affairs such as marriage, contracts, and wills. There were a lot of diverse texts which discussed this canon law and they were not always consistent. In 1140, the Decretum Gratiani was compiled: a collection of existing texts that were relevant for the Canon law. This document was also an attempt to make the diverse texts consistent. Roman law and Canon law were usually studied together. This is still reflected in the titles “Bachelor of Laws” and “Master of Laws” (plural). In the abbreviation “LLM”, which stands for “Master of Laws” the two L’s represent these two branches of law. The law schools in an increasing number of universities (such as Bologna and Orléans) became quite popular and attracted students from all over Europe. When the students returned home, they took knowledge of Roman and Canon laws with them. In this way, the same body of legal knowledge was spread over Europe. At first, the practical relevance of this European “common law,” which is known under the Latin name ius commune, was not very large because local customary law still had the lead. Gradually, though, the ius commune became more influential, especially where local customary law was found to be inadequate. Customary law could be found inadequate either because of its less sophisticated contents, or because it was hard to access since, as it was customary law, it was not written down. Reception This process, in which Roman law in a sense “conquered” legal science in Europe and which took place from the twelfth until the seventeenth centuries, has become known as the “Reception” of Roman law. One of the reasons why Roman law gained acceptance is that it was considered to be rational, meaning that well- informed people would see that it contained good, if not the best possible, rules. Roman law was seen as ratio scripta, “reason written down”. Being rational has always been one of the modes of existence of the law: rules were considered to be legal rules because they were rational. We can find this in the 14 J. Hage LAW Rationalist law Law that exists as social fact Customary law Positive law Fig. 1.1 Kinds of law definition of law, which was already given in the thirteenth century by the Christian theologian and philosopher Thomas Aquinas. According to this definition, the law is “a rational ordering of things which concern the common good, promulgated by whoever is charged with the care of the community”. This definition was, by the way, not intended as a characterization of Roman law. Natural Law During the seventeenth and eighteenth centuries, there was a strong movement among learned legal writers that emphasized the rational nature of the law, and some authors attempted to establish the content of law purely by means of reasoning. Law that was established by means of reason was usually discussed under the heading of natural law. Hugo Grotius (1583–1645), developed in his book De iure belli ac pacis (On the Law of War and Peace) the outlines of international law and private law on a rational basis. Samuel von Pufendorf (1632–1694) developed in his book De officio hominis et civis juxta legem naturalem libri duo (On The Duty of Man and Citizen According to the Natural Law) large parts of private law, also on the basis of reasoning alone. A similar enterprise was undertaken by Christian Wolff (1679–1754) in his Jus naturae methodo scientifica pertractatum (Natural Law Dealt With by the Method of Science). Rationalist law, along these lines, can be opposed to two forms of law that exist as a matter of social fact, namely customary law and positive law in the sense of law that was laid down (see Fig. 1.1). 1.5 National States and Codification Peace of Westphalia England was already, to a certain degree, united during the eleventh century, but on the European continent the process of unification, in which 1 Foundations 15 small territorial units combined into bigger ones, the modern countries, lasted longer. Although the unification of Italy and of Germany took place only during the nineteenth century, it is often assumed that the process of state formation on the continent reached a provisional end point in 1648 when a number of wars were ended by the peace treaties of Westphalia. In these treaties, Europe was divided into a number of nation states (states corresponding to a nation), which were assumed to be sovereign, meaning that each state would have exclusive power over its own territory. National Law One of the consequences of this development was that law was to become primarily national law. Originally, the law was the law of a people or tribe rather than of a territory. Later, when the different peoples that had flooded Europe in the period of mass migrations (fourth to sixth centuries AD) had settled down and began to mix, the law became local law, attached to territories of varying sizes. Only when the national states had formed could the law become the law of a nation state. Westphalian Duo Alongside this national law, there was law that dealt with mutual relations between the national states. This law is called International Public Law (see Chap. 11). National state law and international public law were taken to exhaust the forms that the law could take. These two became known as the “Westphalian duo.” See Fig. 1.2. With the arrival of national states, the law could become national law, but it still took several centuries before this process of nationalization of the law was finished. A major step was taken with the French Revolution (1789–1799), in which the line of French kings was replaced, first by revolutionary agents and later by an emperor, Napoleon Bonaparte. It was Napoleon’s reign that led to the codification of French law. 1.5.1 Codification Shortly after the French Revolution, French law was codified in the form of a number of “Codes.” They included the Code civil (private law), the Code de commerce (commerce law), the Code de procédure civile (law of civil procedure), the Code pénal (substantive criminal law), and the Code d’instruction criminelle (procedural criminal law). This codification, like others, served several purposes: – It brought about legal unity in France, where until then (part of) the law had differed from region to region. – It created legal certainty because the law was written down and could, at least in theory, be inspected by everyone. 16 J. Hage State State X X X X X X citizens X X X State Fig. 1.2 The Westphalian duo – It emphasized the legal power of the central lawmaking agencies as opposed to the local judges. – It guaranteed the influence of the people on the contents of the law because democratic organs have influence on the legislative process. (This last pur- pose only became relevant later, when democracy became more important.) Partly under the influence of the Napoleonic conquest of large parts of Europe, codifications were introduced at the beginning of the nineteenth century in several European countries, including Belgium and the Netherlands. Germany notably lagged behind because a strong resistance movement rose against codification. This is all the more remarkable since some codifications in Germanic countries such as Bavaria and Prussia preceded the French codification. Codification for the full German empire was (temporarily) postponed. Historical School Under the leadership of Von Savigny (1779–1861), a famous law professor in Berlin, it was argued that the law of a nation reflected the “spirit” of that nation (the “Volksgeist”). Codification would fossilize the law, and the crucial 1 Foundations 17 connection between the law and the spirit of the people would be lost. Therefore, codification should be preceded by historical research on the origins of law and the reasons behind the law, hence the name of this movement of which Von Savigny was one of the most important representatives, the Historical School. In practice, this alleged relationship between the spirit of the people and the developing law was maintained by legal scholars, who wrote comments on the Digest and, in doing so, gradually adapted the law to the needs of society. Development of the law in Germany was, as a consequence, driven by legal scholars. At the end of the nineteenth century, the resistance against codification lost its battle against the codification movement. In 1900 a codified German civil code, the B€ urgerliches Gesetzbuch, entered into force. 1.5.2 Interpretation Where the common law tradition takes cases as its starting point, the civil law tradition that is dominant in the European continent focuses on reasoning on the basis of rules. To allow legal decision makers to reach desirable results by means of these rules, so-called canons of interpretation were developed through which the results of the rules could be adapted to the needs of concrete cases. The Literal Rule or Grammatical Interpretation It is sometimes necessary to decide about the proper scope of application of a rule. For instance, does a rule that forbids the presence of dogs in a butchery also apply to guide dogs? If an issue arises about a guide dog in a butchery, it is necessary to take a decision whether guide dogs are dogs in the sense of the regulation, and this decision should be motivated. One kind of reason to motivate the interpretation of a rule is that the interpreta- tion matches the literal meaning of the words in the rule. Guide dogs are dogs, aren’t they? Therefore, a rule about dogs also applies to guide dogs. The canon of interpretation that states that rules should be interpreted literally is called the “Literal Rule,” and the resulting interpretation is called “grammatical” or “literal interpretation.” The Mischief Rule or Legislative Intent Often, written rules are created to solve some problems. The legislator meant to achieve particular results, and the rule was seen as a means to obtain these results. If a legal decision maker gives the rule an interpretation that makes it suit the intention of the legislator, he is said to apply the Mischief Rule. Suppose that the legislator created the prohibition of dogs in butcheries in order to prevent unhygienic situations in food stores. He considered the case of guide dogs but nevertheless decided not to make an exception, because hygiene was considered to be very important. If a legal decision maker wants to follow legislative intent, he must interpret the rule to make it also apply to guide dogs. 18 J. Hage The Golden Rule; Purposive or Teleological Interpretation When an inter- preter looks at the purpose of a rule, he may revert to the intention of the legislator who formulated the rule. That is the application of the Mischief Rule. However, he may also try to determine the purpose of the rule himself. When we speak of purposive or teleological interpretation, the decision maker applies the so-called Golden Rule. Assume again that the legislator created the prohibition of dogs in butcheries in order to prevent unhygienic situations in food stores. If a legal decision maker recognizes this interest, but finds the interest of visually handicapped persons more important, she might interpret the rule to make guide dogs fall outside the rule’s scope. The Lawyer’s Toolbox We have seen that a legal decision maker who must justify his choice for a particular rule formulation has the choice from different techniques. Some of these techniques are relatively formalist: the decision maker refers to the decision of someone else, a legislator, or a court, and avoids to give a value judgment himself. Other techniques are more substantive: the decision maker engages into reasoning about what would be a good rule. He makes his own value judgment and bases his interpretation of the rule on this value judgment. In both cases, however, the decision maker has to choose a technique. The different legal sources, the reasoning techniques, and the canons of inter- pretation can be compared to a set of decision-making tools in a lawyer’s toolbox. Depending on the needs of the case, a legal decision maker picks a tool that helps him to reach a desirable result. In this connection, he has a certain leeway. 1.6 Legal Families Common Law Family The developments in the law in Europe during the second millennium divided the national legal systems in Europe, by and large, into two “legal families.” On one hand, there is the common law family, which includes England, Wales, and Ireland. Scottish law was influenced by both the common law and the civil law tradition. It is a “mixed legal system”. These systems were not so influenced by the reception of Roman law. Moreover, the development of common law is driven by the judiciary because the judges make new law through their decisions. It must be said, though, that recently legislation has become a more important source of the law in the common law countries too. Civil Law Family The great counterpart of the common law family in Europe is the civil law family. The law of most countries in the European continent has been greatly influenced by the combination of Roman and Canon laws. It is possible to detect a further subdivision within this civil law tradition. On one hand, there are countries that have been strongly influenced by the French codifica- tion movement. This movement emphasized the role of parliament and democratic 1 Foundations 19 input in making the codification. The creation of law is, from this viewpoint, firstly a political process. Countries that belong to this French family include France, Belgium, Spain, and Portugal. On the other hand, there are countries that belong to the German family, in which the development of law was much more driven by legal scholars. Countries that belong to this tradition include Germany, Austria, and Switzerland. The Nordic countries do not fall neatly in this twofold division, and many European countries, including Italy, the Netherlands and Poland, have been influenced by both the French and the German tradition. 1.7 From National to Transnational Laws The period of codification initiated a development towards the use of more and more positive law. The nineteenth century codifications still largely reflected preexisting law. However, during the twentieth century, and especially after World War II, legislation was increasingly used to create new law. This develop- ment took place both in the European continent and in Great Britain. In particular, the large increase in the amount of administrative law, which regulates relations between a government and its citizens, caused a growth in the amount of law in general, and this law was mostly positive, state-made, national law. After World War II, several other developments took place too, developments that meant that the Westphalian duo had to give up its claim to exhaust the kinds of law, even in the Western world. These developments include (but this is not an exhaustive list): – the rise of human rights, – the creation and development of the European Union, and – the revival of the Lex Mercatoria. 1.7.1 Human Rights Traditionally, human rights were conceived as rights of individuals against their governments. Human rights are covered extensively in Chap. 12. Human rights were part of the national law of states and were safeguarded in national constitutions. Ironically, the responsibility of national states to protect human rights is meant to protect citizens against the national states themselves! The scope of these human rights was determined by national judges, who had to decide in particular cases on whether a state had violated a human right. After World War II, human rights came to be protected under treaties. Some of the most important ones have been created under the aegis of the United Nations. 20 J. Hage Examples of treaties with a world-wide scope are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both 1966). The Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations in 1948, is very important. It is not a treaty properly speaking, as it was not created by an agreement between states. In Europe, the European Convention on Human Rights (1953) has also been an influential source of human rights. Because human rights were proclaimed and protected by international treaties, they no longer belonged exclusively to the domain of national law. Although states can theoretically withdraw from treaties, in practice this is often not a viable option. States that have committed themselves to the protection of human rights have undertaken commitments towards their citizens who are, to a large extent, outside their control. This phenomenon is even enforced if the application and interpreta- tion of the treaties are assigned to judicial bodies that are beyond the power of national states. An example of such a body is the European Court of Human Rights, which can deliver rulings that interpret the application of the European Convention on Human Rights, and this is binding on states. So while states can still determine to which human rights they bind themselves by means of treaties, the scope of these rights is often determined by independent courts. In this way, states have lost control over part of the law that is binding on their territories and which also binds them. Ius Cogens This loss of control goes even further when it is assumed that states can also be bound by human rights to which they did not consent in the first place. This is the case if human rights are part of what is known as the ius cogens, a set of peremptory norms of international law that are accepted and recognized by the international community of states as norms from which no derogation is permitted. Prohibitions on torture and genocide and fundamental rules of humanitarian law have been recognized as human rights that are described as ius cogens. A norm is said to be peremptory if it is binding and cannot be set aside by another norm. This means that peremptory norms prevail if there is a conflict of norms. As these examples illustrate, the field of human rights has freed itself, to some extent, from the control of national states and states are, in modern times, bound by legal norms that they cannot control. 1.7.2 European Union Law In the treaties that created the European Union (EU), the institutions of the European Union have been given powers to make new European legal rules. In two famous decisions (Van Gend & Loos and Costa/ENEL), the Court of Justice of the European Union decided that these European legal rules belong to a separate and autonomous legal system. 1 Foundations 21 More about these two famous cases in Sect. 10.6.4. The rules that stem from the EU do not only bind the Member States but also their legal subjects. Moreover, these European legal rules have precedence over the states’ domestic legal rules. As a consequence, the Member States of the EU and their legal subjects are bound by a legal system that is neither the system of a nation state nor a system that regulates the mutual relations between nation states. In other words, the existence of EU law does not fit in the Westphalian picture that takes national states as its starting point. 1.7.3 Lex Mercatoria The Lex Mercatoria is a set of rules created by merchants to regulate their mutual dealings. In principle, commercial relations are governed by the rules of private law, the law that deals with mutual relations between private actors. However, the existing rules of private law were not always found suitable for the peculiar needs of trade relations, and therefore as early as in the Middle Ages, a separate and independent body of rules emerged. For the same reason, separate courts originated, which had more expertise in commercial matters and which operated more swiftly. Nowadays, there still exists a body of rules that govern international commercial relations. This body consists of treaties, such as the Vienna Convention on the International Sale of Goods (1980), and also conventions that are not officially binding but nevertheless exercise influence on the behavior of commercial partners (soft law). Soft law consists of rules which are not binding, but are nevertheless influential. A typical example are the Unidroit Principles of International Commercial Contracts. Arbitration Moreover, disputes in commercial relations are often dealt with by means of arbitration, decisions made by persons who are not official judges but whose decisions are accepted by the parties who invoke their services. On arbitration and other forms of alternative dispute resolution, see Sect. 13.1.1. Because much of the Lex Mercatoria operates outside the traditional framework of national states and their relations towards each other and towards their legal subjects, it also provides counterevidence to the exhaustive nature of the Westphalian duo. 1.7.4 Transnational Law The phenomenon that is illustrated by human rights, European Union law, and the Lex Mercatoria, namely that there are many and important legal phenomena that do not fit in the picture of law that arose after the Westphalia peace treaties, has become known under the name of transnational law. Transnational law might 22 J. Hage summarily be characterized as law that is not made or not enforced by national states or that is not meant for the regulation of behavior of legal subjects within nation states or the mutual relations between nation states. This is a negative characterization: transnational law is law that does not belong to the Westphalian duo. The increasing importance of this branch of law marks an important develop- ment in the long history of the law, which gives rise to new questions about the nature of the law. Recommended Literature Merryman JH (2007) The civil law tradition, 3rd revised edn. Stanford University Press, Redwood City Stein P (1999) Roman law in European History. Cambridge University Press, Cambridge Sources of Law 2 Jaap Hage The question whether a particular rule is also a legal rule can have a large practical importance because the answer may determine whether the rule will be enforced by state organs. Lawyers have developed a number of standards to determine whether a rule has the status of law, and these standards are known as the sources of law. In this chapter, we will take a closer look at these sources of law. More particularly, we will address the following questions: what is a source of law (Sects. 2.1 and 2.2), and which sources of law are recognized (Sects. 2.3–2.7)? 2.1 Sources of Origin The idea that legal rules always stem from a source may derive some of its plausibility from the fact that the notion of a legal source is ambiguous. There are legal sources in at least two senses of the term “legal source”: – sources of origin, – sources of legal validity. Apart from sources of origin and sources of validity, it is possible to distinguish “knowl- edge sources.” Some sources can be used to find out what the law is. For instance, by inspecting the texts of treaties, legislation, judicial decisions, and doctrinal literature, one can find out what the content of the law is. Customary Law The notion of a source of origin is closely related to the different ways in which legal rules and principles can exist. We have seen in Chap. 1 that law was originally customary law, that the law consisted of rules that were in fact used and accepted as binding. For this reason, customary law is usually seen as a source J. Hage (*) Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The Netherlands e-mail: [email protected] J. Hage and B. Akkermans (eds.), Introduction to Law, 23 DOI 10.1007/978-3-319-06910-4_2, # Springer International Publishing Switzerland 2014 24 J. Hage of law, and this means simply that part of the law exists (or existed) in the form of customary law. Rationalist Law Other parts of the law, such as legal principles—and also human rights to the extent that they and their interpretation have not been codified—are counted as law because it seems reasonable that they are part of the law. This phenomenon is strengthened further if reasonable rules and principles find recogni- tion in legal doctrine or even in documents that acquire the status of soft law. In this sense, reason is also a source of law. Created Law By far, most laws are created law, law that was laid down by a body that had the power to do so, such as a legislator, a court (in the common law tradition), or states that have entered into a treaty. Therefore, legislation, cases, and treaties are also seen as sources of law. What all these cases have in common is that they represent ways in which the law, as a matter of fact, has come into existence. Law originated from custom, reason, doctrine, legislation, precedent, and treaties, and this is expressed by saying that custom, reason, doctrine, and so on are sources of origin of law. This observa- tion—that the law has come into existence in a number of different ways—is no more than a mere matter of fact, which has no legal significance. Sources of origin as such have no relevancy to the content of law. This is different from validity sources, however. 2.2 Sources of Validity The legal relevance of validity sources has to do with two related phenomena: 1. Legal rules can be created by persons who, or institutions that, 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 stem from a source of law: from a validity source. This sources thesis is strongly connected to legal positivism, a view according to which the law is something that is made (see Sect. 14.2.2). We have seen that, in the course of history, legal rules came into existence in different ways, representing different sources of origin of the law. All these sources are forms in which the law has, as a matter of fact, appeared in the course of history. The fact that the law has appeared in these forms does not mean that the rules were considered to be law because they appeared in this form. Judicial decisions in the civil law countries illustrate this point nicely. In the civil law tradition, judges are not bound by the decisions of their predecessors or higher courts. Nevertheless, these decisions lead to law in a way that is different, but not so very different, from the way in which they lead to law in the common law countries. Precedents are not 2 Sources of Law 25 considered to be binding, but are nevertheless treated as law. Because precedents are in fact treated as law, they are a source of law in the sense that they are a form in which law originates. But there is no legal duty to treat them as law. Therefore precedents in the civil law tradition are merely a source of origin of the law, but not a validity source. Nowadays, most legal rules are valid legal rules for the reason that they were laid down with the intention that they would become part of the law. In other words, currently most laws are positive law. This seems so obvious that it requires some explanation as to why it is actually not obvious. 2.2.1 Social Rules There are two ways in which a rule can exist within a social group, namely as a social rule and as what may be called an “institutional rule.” A social rule exists within a group if the members of this group tend to follow this rule, if they see violations of this rule as a reason for (self-)criticism, and if they believe that the other members of the group do the same. An example would be a club of film lovers. They have the rule (but not a legal rule) that a member of the club has to go to the cinema at least once a week and should write a review of the film for the website of the club. The existence of the rule manifests itself mainly in that most members do in fact go to the cinema every week and write about it. Moreover, if a member of the club does not go to see a film in a particular week, she tends to reproach herself for that, and the other members of the group may criticize her for this reason. Moreover, she expects that other club members also feel somewhat guilty if they did not go to the movies and also expect criticism for that reason. This situation should be distinguished from a group of teenagers who only have the custom to visit the cinema every week and to blog about it afterwards. If they do not go to the cinema in a particular week, neither do they feel remorse, nor do they see not going as a reason for criticism. These teenagers have a custom or habit, but no rule. Social rules can only exist if they are, by and large, effective. This effectiveness requires that the members of the group in which the rule exists tend to comply with the rule, as well as that they consider violations of the rule as a reason for criticism. 2.2.2 Institutional Rules Institutional rules exist if their existence follows from the application of some other rule. This other rule may, for instance, hold that all the rules created by Parliament are valid rules. Such a rule exists in (almost) all legal systems, but merely as a rule of customary law. It is not formulated explicitly. 26 J. Hage In that case, a rule exists and is valid if it was made by Parliament. Another example would be that a rule was created by means of a contract. A rule about contracts would then hold that rules created by means of contracts are valid. There is of course a difference between rules created by Parliament and contractual rules. The former bind everyone in a country, while the latter only bind the contracting parties. Effectiveness Not Required Effectiveness is not a condition for the validity of institutional rules. If, for example, Parliament has made a rule that hardly anybody obeys, this rule may still be a valid rule. The rule that pedestrians are forbidden to cross the street if the crossing signal is red is an example of such a valid rule, which is violated on a very large scale in the Netherlands. Most of the time, however, a valid institutional rule will be an effective rule. If an institutional rule is not used anymore (desuetudo in Latin), this may be seen as a reason to assume that the rule has lost its validity again. It this has happened, effectiveness had some influence on the validity of an institutional rule. Most Rules Institutional Nowadays, most legal rules exist as institutional rules. They are valid legal rules because they satisfy the conditions of some other rule that specifies which rules count as valid legal rules. Most often, this other rule gives the power to make new rules to some person or institution. If this person or institution then exercises this rule-making power, the rule counts as a valid legal rule. A typical example would be the rule that confers on Parliament the power to make statutory rules. If Parliament exercises this power and makes a statute, the rules in this statute count as valid legal rules because of the power conferring rule. These statutory rules therefore exist as institutional rules. They are valid legal rules, independent of whether they are effective. 2.2.3 Sources of Validity, a Schema A rule makes something into a source of legal validity if it assigns legal validity to what stems from this source. In common law countries, judges are under a duty to follow the precedents created by their own court or higher courts. This rule of stare decisis makes precedents in common law jurisdictions into a source of validity for the law. In the civil law tradition, the most important validity source is legislation. Rules that are made in the form of legislation are, for that reason, valid legal rules. Characteristic of a source of legal validity is that rules that stem from such a source are, for that reason, valid legal rules (see Sect. 14.2.2). Figure 2.1 illustrates the phenomenon of validity sources. The “highest” rule, which is itself not based on any other rule, is the constitution. The constitution itself contains a number of rules that guide behavior (which tell people what they should do), such as human rights rules, and it also contains rules that empower institutions, in particular the legislator, to make additional rules. 2 Sources of Law 27 Constitution Tree of sources Statutory Statutory rule on rule on con- organization of tracts and municipalities wills Local by-law Local by-law on building on parking Contractual rule: Parking regulation time of delivery in marketplace Fig. 2.1 Tree of sources The legislator has used its power to create statutes, and these statutes contain both rules that guide behavior and rules that empower other institutions and also private persons to create even more rules. In this way, a hierarchy of rules results. For instance, a rule of private law will empower citizens to make last wills and contracts. These last wills and contracts then contain additional rules which guide behavior. A rule of constitutional law will empower the council of municipalities to make so-called “by laws,” rules which have only a local scope of application. One such by law may deal with building in the municipality, while another by law may deal with parking in the municipality. It is certainly imaginable that the rules about parking empower Mayor and Aldermen of the municipality to point out parking places, and if this power is used, these decisions by Mayor and Aldermen count as valid law too. The rules that empower institutions and citizens to create more laws make the decisions of these institutions (e.g., bylaws and contracts) into validity sources of law. The rules that are created by these bylaws and contracts are valid legal rules for the reason that they stem from these bylaws and contracts. 28 J. Hage 2.2.4 The Sources Thesis Institutional rules are rules that exist (are valid) because they were created by a person or a body that had the power to do so. Nowadays, most legal rules are such institutional rules. However, the sources thesis claims that all legal rules are institutional rules. Only rules that stem from a validity source, and which are therefore institutional rules, would be legal rules. This means that a court that is to apply the law should only consult validity sources such as legislation, case law, and treaties to find legal rules. If one adopts the sources thesis, it matters what counts as a validity source because it is necessary to find such a source for every valid legal rule. In the Netherlands there was a constructor who built a house for a person called Hubertus te Poel. Hubertus had pointed out a piece of ground where the house could be built. What the constructor did not know was that this ground belonged to the brother of Hubertus, Heinrich te Poel. As a consequence, Heinrich became the owner of the house that was built. (The owner of ground also owns what is built upon the ground.) When Hubertus could not pay for the house, the constructor wanted his money from Heinrich, who had become richer because the house belonged to him. Morally speaking, it was obvious that Heinrich should pay for the house. (The more so because it looked as if Hubertus and Heinrich had conspired to fool the constructor; but that could not be proven.) However, the Dutch Supreme Court had to answer the question whether Dutch law (as opposed to morality) contained a rule to the effect that if because of an event one person became richer and another one poorer without a good reason, the person who became richer should compensate the person who became poorer. According to the Supreme Court, the Dutch law (of 1959) did not contain such a general rule allowing compensation for unjustified enrichment. The Supreme Court could not find such a rule because it confined its search to the validity sources of Dutch law, and because it did not count reason as a validity source. 2.3 Legislation Legislation is a way to create new rules and to modify or derogate existing ones. The products of legislation have different names, such as “statute,” “act,” “decree,” “bylaw,” and many more. Sometimes, a large collection of related laws is called a “Code” or (in German) a Gesetzbuch. Legislation is both a source of origin and a validity source of law. Part of the law has been created or codified in the form of legislation, and therefore legislation is a source of origin of the law. For those legal rules that have come into existence as a result of legislation, and which are for instance not merely codified customary law, the legislation is also the validity source. The English Sale of Goods Act, for instance, contains valid English law, because the rules in this Act were created by means of legislation. Legislation is the validity source for the rules contained in this Act. In order to be able to create law (we will, for the remainder, ignore modification and derogation), an institution (or, less common, a person) must have the 2 Sources of Law 29 competence to do so. Let us call such an institution or person a “legislator.” The competence of a legislator is always confined to making laws that apply to – particular persons (e.g., persons with a particular nationality) and/or – a particular territory (e.g., the territory of a state or a municipality) and/or – a particular subject matter (e.g., food security or financial markets). Trias Politica In order to avoid an overly high concentration of power in the hands of a few individuals, it is desirable to divide the powers of the state among different organs. A common way to accomplish this is to assign different functions of the state to different organs. Administration would then be performed by a different organ than adjudication, and legislation would be performed by yet another organ. This division of state functions among three different institutions is known as the Trias Politica (see Sect. 8.2.2). An additional ideal in this connection is that state organs that exercise legislative powers are, at least in part, made up of representatives of the people. Parliament plays a role in legislation on a national level in all EU Member States. On a sub national level, a municipality often has some kind of community council, which will also play a role in legislation. In this manner, there is a safeguard that the people to which the rules apply have a say in the content of these rules. 2.3.1 Layers of Law This idea of the Trias Politica is still very much focused on legislation performed by a national state and on rules that apply to the nationals or the territory of such a state. The resulting picture is misleading because actually there exists legislation on many levels, including the subnational and the supranational levels, and there is also legislation that is not even linked to a particular territory. In most of Europe, the highest level of legislation is that of the European Union (EU). The EU is competent to create rules in the form of regulations, and these rules are binding not only upon the Member States themselves but also inside the Member States, that is the Member States’ legal subjects. The scope of application of these regulations is the whole of the EU. The EU can also make so-called directives, which obligate Member States to create rules with an aim that has been specified by the EU. These rules will be the result of the national legislation of these states, but their content is mostly determined at the EU level. See Sect. 10.3.1. At the level of national states, there will be a legislative body in which Parlia- ment is somehow involved. This body can create laws that apply in the whole state and/or to all of its nationals. If a national state is a federation, this means that it has what can be called “substates.” 30 J. Hage These “sub-states” are called “states” (USA), L€ ander (Germany), or gewesten (Belgium). Federations are discussed more extensively in Sect. 8.2.1. Substates will have legislative bodies too, which are competent to make rules for their own territories. Provinces, municipalities, and other subnational entities also have legislative powers. Soft Law There are also rules that are not officially binding but are nevertheless influential (see Sect. 1.7.3). Examples of this soft law are the Draft Common Frame of Reference (2010), a set of model rules for European private law drafted by legal scholars, and the Universal Declaration of Human Rights (1948), brought about by the General Assembly of the United Nations. It is not easy to say something in general about this type of “legislation,” but its importance is growing, and soft law should therefore be included in an overview of kinds of legislation. 2.3.2 Principles to Deal with Rule Conflicts There is not even a guarantee that all legislation brought about by one body is consistent, but if there are several bodies that produce legislation that can apply to the same case, such as national laws and laws of provinces, this is almost a guarantee that there will be some conflicts of rules. To deal with such conflicts, several principles have been developed over the course of time. Here we will focus on three of them. Lex Superior Sometimes rules stand in an order based on a hierarchy between legislative bodies. This is, for instance, usually the case if in a particular state legislators operate on different levels. Then the rules of the “central” legislator are considered to be superior to the rules of the local legislators. The Lex Superior principle then holds that in case of conflict, the superior rule precedes over the inferior rule. Thus, Lex Superior holds that national laws would prevail over laws of the province and that laws of the province prevail over municipal laws. Another example would be the prevalence of EU law over the national laws of the EU Member States. Lex Specialis It is very difficult for a legislator to foresee all possible situations to which a rule may apply. As a consequence, a rule may be either overinclusive or underinclusive. A rule is overinclusive if it literally applies to cases in which it was not meant to apply. An example would be a prohibition for any cats and dogs to be present in a butcher’s shop, which is not meant to apply to guide dogs for the blind. A rule is underinclusive if it does not apply to cases to which it was meant to apply. 2 Sources of Law 31 An example would be the rule against cats and dogs in a butcher’s shop, which should also apply to the monkey which Mrs. Jackson likes to take for a walk. Both problems can be dealt with by means of a rule that deals with the specific situation. This specific rule will be in conflict with the more general rule, to which it is meant to be an exception. This conflict is dealt with by means of the Lex Specialis principle because this principle brings about that the more specific rule prevails over the more general rule. The position of guide dogs might be dealt with by the rule that it is allowed for blind persons to bring their guide dog to all public places. This rule would be more specific than the prohibition for butcher’s shops and would therefore prevail over it according to the Lex Specialis principle. Notice, by the way, that it is not always easy to see which of two conflicting rules is the more specific one. Lex Posterior Most of the time, when a new rule is created that is in conflict with a preexisting rule, the old rule is simultaneously and explicitly derogated from. However, in cases where this has not happened, the Lex Posterior principle may be useful. It states that the newer rule prevails over the older one. 2.4 Treaties From a Westphalian perspective, there is a big difference between legislation and treaties. Legislation is a way to create law for the internal use of a state. This law is brought about by national legislative organs that most often have a strong demo- cratic input. Treaties, on the contrary, are a kind of contract between states by means of which their mutual relations are dealt with. Because treaties would not contain general rules that bind citizens, the democratic input into their creation would not have to be as strong as is deemed necessary in the case of legislation that does bind citizens. This picture of the difference between legislation and treaties is mostly outdated. Treaties do not only deal with relations between states anymore. They have also become a way to create legal rules that deal with legal relations that transcend national borders. The most prominent example of this new function of treaties is human rights treaties, which assign rights to individual citizens. Another example is the treaties that have established the EU. These treaties created institutions such as the European Commission and the Court of Justice of the European Union, which have a direct influence on the lives of European citizens. In light of this new perspective on treaties, legislation and treaties are both ways of rule creation, even if by means of different legislative organs. Whereas legisla- tion is a form of rule creation by national and subnational legislative bodies, treaties are a form of rule creation by cooperating states. According to the Vienna Convention on the Law of Treaties, a treaty is an agreement between states. However, these days it is assumed that international organizations such as the United Nations and the European Union can also be parties to treaties. 32 J. Hage Another difference between legislation and treaties is that the scope of applica- tion of legislation will usually be confined to the territory of the legislating state, while treaties will normally deal with international relations or, at least, cases that are not limited to national borders. Human rights, for instance, do not only concern the relationship between human beings and the state on whose national territory they happen to be, but also those between human beings and other agents in general, including states. 2.5 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. We have seen above that legal decisions for concrete cases tend to influence future decisions because they function as a kind of precedent. 2.5.1 Civil Law Tradition Like Cases Alike In the civil law tradition, where a precedent does not officially bind courts, the influence of earlier decisions will depend on at least two factors. One factor is the demand of justice to treat like cases alike. If one case has been 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. It is not immediately clear where this alleged injustice lies. The most plausible reason would be that the law has not changed between the two cases. If the first case was decided correctly, then the second case should be decided similarly, because the law is still the same. This would be a matter of logic, though, and not so much of justice. Rationality A strongly related reason is the rationality of the earlier decision. If the earlier decision was rational, and especially if this rationality is clear from the way in which it was argued, a departure from this earlier decision in a new similar case would be irrational. Legal Certainty The second factor is the demand of legal certainty. If an earlier case was decided in a particular way, this may create expectations among legal subjects with regard to the contents of the law and the way in which future cases will be decided. To give a different decision in a future case not only would be a violation of these expectations but also would create uncertainty that is detrimental to the functioning of society. Suppose that someone sold a sick cow and expected, on the basis of an earlier judicial decision, this to be an irreversible sale because the buyer could have seen that the cow was sick. The seller therefore could proceed to use the money he received from the buyer to buy a new calf. If it was possible for the sale to be reversed, this might bring the seller into 2 Sources of Law 33 financial difficulties. The fear of such financial difficulties may lead the seller to refrain from re-investing the money, and that would hamper further economic activities in society. These two factors mean that earlier judicial decisions can have a strong influence on future judicial decisions and therefore, indirectly, also on the content of the law. However, because judges are not bound by precedents, judicial decisions do not create new law. Case law is therefore not a source of validity in the civil law tradition but merely a source of origin. Case law is law because it is broadly accepted as such; it is not institutional law. Indirect Authority Because precedents are not binding in the civil law tradition, judicial decisions cannot be motivated by reference to case law. What happens, therefore, is that judicial decisions are motivated by reference to statutory law and that case law is used to argue why the rules that are based on legislation have the scope that is necessary to base the actual decision on. The authority of case law is consequently indirect in the civil law tradition. For instance, it may have been decided that an involuntary French kiss counts as a form of rape. The person who forced this French kiss upon his victim can be condemned for violating the statutory prohibition on rape, and the case law is then used to argue why he raped his victim in the sense of the law. 2.5.2 Common Law Tradition The two above-mentioned reasons why p

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