Notes mandatory readings and knowledge clips.pdf

Notes mandatory readings and knowledge clips Tuesday, 3 September 2024 20:02 Workshop 1: fundamental concept of law - Page 1-10 - Two principal answers to the question /what is law?/ ○ One belief is that law consists of a set of universal moral principles in accordance with nature...

Notes mandatory readings and knowledge clips Tuesday, 3 September 2024 20:02 Workshop 1: fundamental concept of law - Page 1-10 - Two principal answers to the question /what is law?/ ○ One belief is that law consists of a set of universal moral principles in accordance with nature (when a man made law disregards nature- cruel, inhumane- I doesn’t get to be law. Law has to meet moral standards). This view (adopted by so-called natural lawyers) dates back to the time of ancient Greece ○ The other principle perceives the law as fundamentally a vehicle for the protection of individual right, the attainment of justice, or economics, political, and sexual context (law is social phenomenon, the law is an artefact of human creation, valid rules, commands and norms that may lack morality) (so-called positivist) - Purpose of law: ○ Creating a system to regulate human conduct by establishing standards, maintaining order ○ Resolving disputes and protecting liberties and rights - Despite the importance of law in society, its manifestation in general code first appeared around 3000 bc. Prior to this laws exist only in the form of custom - Among the first written codes is that of Hammurabi, king and creator of the Babylonian empire. It appeared in about 1760 bc (around 282 rules) - Striking example of law-making may be found in the laws of the Athenian statesman Solon (6th century bc) regarded by the Greeks as on the seven wise men ○ he installed laws that significantly reformed the economy, politics, marriages, and crime and punishment. ○ He divided Athenian society into 5 classes based on financial standing (one's obligations (including tax liability) depended on one's class) - Between the 1st century and the middle of the 3rd century (so-called classical jurists), Roman law a condition of considerable sophistication. Between ad 529 and 534 therefore there was an attempt put the enormous output into systematic, comprehensive codification. The three resulting books, the corpus juris civilis (comprising the digest, codex and insitutes) where to be treated as definitive: a conclusive statement of law that required no interpretation. - Distinctive features of western law: ○ Clear demarcation between legal institutions (including adjudication, legislation, and the rules they spawn), on the one hand, and other types of institutions, on the other ○ Legal authority in the former exerting supremacy over political institutions ○ Legal doctrine which constitutes the principle source of the law and the basis of legal training, knowledge, and institutional practice ○ The concept of law as a coherent, organic body of rules and principles with its own internal logic and, the existence and specialized training of lawyers and other legal personnel - In the view of Albert Venn Dicey (an introduction to the study of the law of the constitution, 1885) the concept of the rule of law consisted of the following three principles: ○ The absolute supremacy or predominance of regular law as opposed to the influence of the arbitrary power (law above men's own wims and interests) ○ Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts ○ The law of constitution is a consequence of the rights of individuals as defined and enforced by the court - Napoleonic civil code 1804 & BGB (Germany 1900) ○ More concise- accessible and comprehensive ○ Model for civil codes in other parts of Europe & the world Characteristics of law - typically enforced by collective means (in particular, state organs); - accompanied by specific sanctions - punitive but also preventative and even restorative - stable and uniform but open to evolution Page 66-91 - Being or doing good is not necessarily synonymous with obeying the law, even though the law, its ideas, and its institutions are often informed by moral lay - The relationship between the law and the moral practices (or 'positive morality') adopted by society may be represented by two partially intersecting circles. Where they overlap we find a correspondence between the law and moral or ethical values (e.g. murder is both moral and legally prohibited in all societies) - Outside the overlapping zone, on one hand, acts which are legally wrong but not necessarily immoral (e.g. exceeding your time on parking meter) - On the other hand, conduct which is immoral but not necessarily unlawful (such as adultery) - The eight essential principles of 'inner morality of law': ○ Generality (it applies to everyone, not to certain classes) ○ Promulgation (i.e. published) ○ Non-retroactivity (prospectivity- if it is expected to happen in the future-) Clarity (intelligibility- being capable of being understood-) workshop 1 Page 1  ○ Clarity (intelligibility- being capable of being understood-) ○ Non-contradiction (stable) ○ Possibility of compliance (practicability) ○ Constancy ○ Congruence between declared rule and official action (i.e. harmony) - Hart v Fuller (naturalist (if law conflicts with morality it isn't a valid law) v positive (if the law at the time is prosecuted in the right way it's still a valid law even if it isn't morally right) lawyers) - Some legal rules (terms) ○ Obligation (to do, obligated to do some type of action, sanctions may arise if not compliant, can be enforced by agents with a status) ○ Prohibition (not to do, obligation to refrain from something, sanctions may arise if not compliant) ○ Permission (to do, absence of prohibition, standing on grass, agents doing body search, no sanctions) ○ Rights (interest of the protected by law (to be or to protect someone or something from something or someone) ○ Definitions (a statement of what a legal term entails (i.e. the conditions required for a factual situation to acquire a legal meaning, certain further legal consequences may follow from them - Hart v Devlin (it started with the appointed question to examine homosexual offences and prostitution. Devlin argued that society has every right to punish conduct that, in the view of the ordinary member of society (the man in the jury box), is grossly immoral (i.e. homosexuality and prostitution). He beliefs that social cohesion is undermined when immoral acts are committed- even in private, and even if they harm no one. Hart does not shrink from supporting paternalistic role for the law. He acknowledges that there may be circumstances in which the law ought to protect individuals from physically harming themselves. A key distinction drawn by Hart between harm and public spectacle, on one hand, and offence caused merely through knowledge, on the other. Hence some sexual acts in public ought to be punished by law, because they disturb social cohesion, or offend religious beliefs) Workshop 2: branches of law - Page 34-64 - Nomostatics ( and Nomodynamics ○ Hans Kelsen ○ Law as an order (permissive and coercive) of human behavior ○ Order as a system of norms; every norm obligates human beings = observe certain behavior under certain circumstances ○ Circumstances may be human behavior or natural events - Domestic law (municipal law) ○ Law of the state whereas citizen or legal entity is best ○ Mental distinction is between public and private law ○ Public law - governs relationship between state and citizens in a vertical way ○ Private law - governs relationship between individuals or legal entities in a horizontal way ○ E.g. Human rights can be part of constitutional law; protect an individual from the behavior of another and not only the state so we can have a horizontal dimension of public law as well - At the core of most legal systems: ○ The law of contract ○ Tort law ○ Criminal law ○ Law of property - Public and private law: ○ Public law governs the relationship between citizens and state ○ Private law concerns that between individuals or groups in society Constitutional and administrative law is the archetypal example of public law workshop 1 Page 2  ○ Constitutional and administrative law is the archetypal example of public law ○ Criminal law, since it largely involves prosecution by state against offenders, belongs to public law ○ Law of contract is one of the many limbs of private law - Labour or employment law ○ Defines the proses of hiring ○ Proses of firing ○ Salary ○ Social security ○ Retirement - Contract: ○ Agreement or a social arrangement is not an contract (not binding) ○ In order to constitute a binding contract, the law requires that the parties to the agreement actually intend to create a legal relation ○ By making an offer the 'offeror' expresses- by word, speech, fax, email, or even by conduct- his readiness to be bound in contract when it is accepted by the person to whom the offer is addressed ○ Unilateral (no exchange of promises between the two parties) ○ Bilateral (an exchange of promises between two parties) ○ Breach of contract (both parties gain something from the exchange of good, one ignores the agreement, you may invoke the law to obtain a remedy) ○ Common law is normally regarded as pragmatic and business oriented (common law requires the promisee must give 'consideration'- payment or money) ○ Civil law tends to be more moralistic ○ A contract doesn’t have to written, though the increasing government paternalism- in the name of consumer protection-, has, however, generated a rise in the number of formalities, including written contracts ○ Mistake, misrepresentation, under the influence, or duress may render a contract voidable ○ In case of a party's breach outside her control- natural disasters offer the best example- she may be released from the obligation of the contract - Property ○ Property includes land, buildings, and goods ○ Common law distinguishes between real property (land as distinct from personal or movable possessions) and personal property ○ Civil law distinguishes between movable (corresponds roughly to personal property) and immovable (corresponds to real property) property ○ Intellectual property (which includes copyright), as owner of a copyrighted book, I have a monopoly of various rights over its copying and reproduction ○ Owner: generally determined by discovering who has the strongest long-term rights to control the thing in question - Corporate law ○ Formations of businesses ○ Restructuring ○ Merging ○ Separating ○ Buying and selling of companies and its assets - Family law ○ Relates to marriage, divorce, children, child support, adoption etc ○ Other matters regarding family relationships - Tort law ○ Civil wrongs (include injuries to my person, property, reputation, privacy, even peace of mind ○ This law grants victims ('plaintiffs) the right to obtain compensation for their loss ○ Torts may also sometimes be breaches of contracts ○ Common law of tort is a veritable cornucopia of wrongs (trespass to land, trespass to person (which include assault and battery), nuisance, defamation, and breach of statutory duty) ○ Tort of negligence, which is based on the fault principle (duty of care; you must take reasonable care to avoid acts or omissions which you can reasonable foresee, in this law, your neighbour or the people you are responsible for are the once closes to you. Caused injury or damage, the plaintiff must prove the defendant's conduct actually caused injury or damage - Civil law ○ Punishes serious forms of antisocial behaviour: murder, theft, rape, blackmail, robbery, assault and battery ○ Requires evidence of fault- intention or negligence- to convict a person ○ The criterion of 'harm' will differ according to the social and political values of each society, but all agree that conduct that impairs the security of the community or hurts the physical well-being or welfare of its members constitutes 'harm' ○ Using 'reasonable force' to defend yourself is defendable ○ Other defences include duress (where you are forced at the point of a gun to commit crime), mistake (you genuinely believed the thing you took was yours), incapacity (too young to form requisite mens rea refers to criminal intend), provocation, and insanity - Constitutional law ○ Bill of rights that contain exercise of the power of government by conferring individual rights and freedoms on citizens (starts with 'we the people..' 'allen die zich in Nederland bevinden' ○ Such laws include; freedom of speech, conscience (equity), religion, the right of peaceful assembly, freedom of association, the right of privacy, equality before and equal protection of law, right to life, right to marry and found a family ○ 2 Goals: (1) revealing role and power of institution within the state and (2) regulates relationship between citizens and the state Supreme law of the state and mirror of the society workshop 1 Page 3  ○ Supreme law of the state and mirror of the society - Administrative law ○ Administrative law governs the exercise of the powers and duties by public officials (e.g. police officers) so they can do better public services ○ Guarding, ensuring that the public bodies act lawfully, do not exceed the powers given to them - Criminal law ○ System that focuses on crimes and the punishments of those who commit crimes ○ Involves the government (whether they want to punish someone who breaches the law) ○ Defines what is forbidden ○ Works as a preventive mechanism ○ It imposes sanctions/penalties ▪ Incarceration, fines, community service etc. - Public international law ○ Regulate the relations between sovereign states (Geneva conventions, united nations etc) ○ Geneva conventions (comprise four treaties and three protocols governing the standards of international law in respect of the humanitarian conduct of war) ○ United nations and other international organizations ○ International labour organization ○ UNESCO (united Nations Educational, Scientific and Cultural Organization) ○ World trade organization ○ International monetary fund ○ International court of justice (ICJ, based in The Hague, 1945, under the UN Charter in order to settle legal disputes between states and issue advisory opinions on legal matters ○ International criminal court (ICC, based in The Hague, 2002, hears prosecutions of alleged perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression - International law Private international law - cases within particular legal systems in which foreign elements obtrude raising questions about the application of foreign law ○ Disputes between private parties incorporated in different states ○ Domestic law/municipal law Public international law - constitutes a separate legal system altogether; covers relations between states or state entities representing nations from human rights to satellites and from cultural heritage to environmental issues ○ Relationships between states ○ Autonomous sphere in itself Blurred lines between international law and municipal or domestic law ○ Decision of 1929, PCIJ (Permanent Court of International Justice) ○ Suggested to attend hearing before the ICJ/PCIJ while studying here ○ Lines are sometimes blurred; no clear distinctions between international law and domestic/municipal law - European law ○ Broad area of rules governing powers of EU institutions; everyday reality of people of European union (27 member states) ○ Primary EU legislation = consists of Treaty of European Union and Treaty of the Functioning of the European Union ○ Secondary legislation = legislation made under fundamental treaties by the council, parliament, commission ○ (Regulations, Directives, Decisions, Recommendations and Opinions) ▪ Regulations - general rules directly applicable to every member state of EU and become law of every member state ▪ Directives - binding on member states as to result to be achieved that allow each state to choose appropriate way of achieving the result ▪ Decisions - fully binding but only bind person to whom they are addressed ▪ Recommendations - non binding instruments; offer guidance on interpretation or content of EU law □ European Commission issues recommendations on subjects as suspects in criminal cases, policy guidance on public finances □ Other European institutions: European Parliament, The Council, European Central Bank ▪ Opinions - non binding instruments by which EU conveys an evaluation along with possible actions that can be taken with regard to certain issue without imposing mandatory legal framework Case law of European court = important in EU law International agreements w/ Non-EU countries or w/ international organizations - also important Disagreements = separate from primary law and secondary legislation Gives EU citizens many opportunities - Transnational law ○ Philip Jessup (1956) = one of the pioneer of International law and founder of Transnational law ○ Public and private international law, domestic law and beyond (includes all law which regulates actions or events that transcend national frontiers) ○ Known for his dissenting opinion (means disagreement of one judge w/ majority of judges at ICJ 1966) ○ Relevant in the Apartheid, when the court dismissed the complaint by Ethiopia and Liberia against the inquisition of Apartheid ▪ Decision was made on technical ground that these countries did not have sufficient legal interest in the claim, as a result workshop 1 Page 4  ▪ Decision was made on technical ground that these countries did not have sufficient legal interest in the claim, as a result the court did not assess the substance of the case = denied based on procedural grounds ▪ E.g. International human rights law, international trade law Written (US) vs. Unwritten Constitution (UK) Rigid (some part of the constitution cannot be modified by the same procedure that is used to enact statutory law) vs. Flexible Constitution (all parts of the constitution is able to be modified by the same procedure that is used to change or enact any statutory law) Supreme (holds the ultimate authority of society. Making it the highest governing power) vs. Subordinate Constitution (drafted and introduced into a country by a second party (external suborning power), it can be amended by the external power) Unitary (central government over rules the local governments- doesn't possess constitutional power ) vs. Federal Constitution (intermediate level of authority between the central and the local governments) Separated (legislative (makes law), executive (executes power where law is breached), judicial (judges)) vs. Fused powers Constitution (when parts of powers are intermingled with each other) Monarchical (a system wherein a monarch is at the head of a state (whether this is active /leader/ or inactive /ceremonial/) with a constitutionally organized government) vs. Republican Constitution (the constitution and the leader of the country is elected by the citizens) - Workshop 3: legal analysis 1. What makes a problem a legal problem? a. A situation where there is a right, an obligation and a breach of law 2. How do you convince the court that the alleged facts have in fact have occurred? a. Through providing evidence based facts 3. How do you convince the court that the law applies to this situation? a. This is done through argumentation - Applying the law and legal analysis ○ First-to-do: in order organized the facts for yourself, make an overview of parties and events, who did what to whom? ○ You then conduct research, and learn the following law (rule) that may be applicable ○ Break the rule (law) into its elements: ▪ Conditions (look for key words, when, if, either, AND) ▪ Legal consequence ○ ○ Apply each element of the rule (law) to the corresponding fact(s) ▪ Condition ▪ Fact ▪ Proposition deduced Draw a conclusion workshop 1 Page 5  ○ Draw a conclusion ▪ Did break the law ▪ Did not break the law Workshop 4: common law vs. civil law ○ Common law consists of: (statute, legislation, case law) - Main differences ○ Civil law is codified (arranged and put into a systematic code), common law is uncodified (not written in law or statue) ○ Common law is cases (legal precedent established by the court, individual judgements), not texts (broad legal codes) ▪ e.g. Roe v Wade privacy and abortion ▪ Donoghue v. Stevenson negligence within tort law ▪ Carlil v. Carbolic Smoke Ball Company contract law ▪ Brown v. Board of Education desegregation) ○ In the common law, precedent (an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances) is supreme (this is an obligation to abide by, if the courts are the same or of higher level) ○ 'where there is a remedy, there is a right' vs. 'where there is a right there is a remedy' ▪ Within civil law there are codes created laying out the legal rights possessed by individuals ▪ Response to overreaching judicial power (response to breaching law) ▪ Within common law judges have come up with specific actions and specific writs that individuals are able to claim (judicial remedies) ▪ Different actions are available to individuals, for different areas of the law ○ Roles of judges and juries ▪ within civil law this looks like: applying the law (codes) to given circumstances, do not legislate (create law), limitations of judicial power, ▪ In civil law, the process is inquisitorial- the court (or part of the court) is actively involved in establishing the facts of the case (judges are active) ▪ In common law, the process is adversarial- the court acts as a neutral referee between lawyers (judges are inactive) □ Juries also common in criminal trails- juries decides whether the accused factually committed a crime, as explained to them by the lawyers ○ Both laws come to the same conclusion, but the way they get there is different - Distinctive features of western law: ○ Clear demarcation between legal institutions (including adjudication, legislation, and the rules they spawn), on the one hand, and other types of institutions, on the other ○ Legal authority in the former exerting supremacy over political institutions ○ Legal doctrine which constitutes the principle source of the law and the basis of legal training, knowledge, and institutional practice ○ The concept of law as a coherent, organic body of rules and principles with its own internal logic and, the existence and specialized training of lawyers and other legal personnel ○ In the view of Albert Venn Dicey (an introduction to the study of the law of the constitution, 1885) the concept of the rule of law consisted of the following three principles: ▪ The absolute supremacy or predominance of regular law as opposed to the influence of the arbitrary power (law above men's own wims and interests) ▪ Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts ▪ The law of constitution is a consequence of the rights of individuals as defined and enforced by the court Workshop 5: legal sources, hierarchy and norm conflicts - Law (unless otherwise noted, or if the context makes it clear, the term 'law' should be understood in a broad sense, and not limited to legislation) Refers to a legally-binding rule (i.e. legislation) workshop 1 Page 6  ○ Refers to a legally-binding rule (i.e. legislation) ○ Field of knowledge that deals with those rules - Separation of powers (for balance, so none act out of their power) ○ Judiciary (powers to make judgements on law) ○ Executive government (power to put law into action) ○ Parliament/legislative (power to make and change law) - Sources of law ○ The origin of the rules that govern a specific legal community ○ Clarity about sources of law is necessary for legal certainty and rule of law ○ What is or isn't a source of law is different in specific jurisdictions and communities - Primary sources (the rules themselves) (official bodies, are therefore binding) ○ Rules/norm conflicts (main principles to solve a rule/norm conflict are: ▪ Lex superior: rules of higher hierarchy take precedence over lower ones (e.g. constitution takes precedence over statutes and regulations) ▪ Lex specialis: rules that are more specific take precedence over general rules (e.g. special rules on transport of passengers by road take priority over general rules about driving) ▪ Lex posterior: new rules that replace old ones will normally prevail the previously existing rules ○ Constitution: establishes the basic building blocks of the state (in a nutshell, it lays out the rules according to which a nation is organized) ○ Legislation/statutes: rules that come from the respective legislative body (e.g. the US Congress or the Dutch parliament), these legislative rules must comply with the constitution ○ Treaties: international agreements in which 2 or more nation states agree to be bound by certain rules (agreements with countries to produce legal harmony) ○ Administrative Regulations: norms created by administrative state as part of the fulfilment of its functions (e.g. the US FDA issuing rules about specific medication) ○ Case law: court decisions in which a legally-established court applies the law to a specific case ○ Customary law: binding uses, traditions, and customs within a specific legal community, accepted to applicate to cases that do not conflict with already existing regulations (constitution) ○ - Secondary sources (background resources that analyse and interpret the rules, although there not binding, they can directly influence the creation of primary sources- books, research papers) workshop 1 Page 7