Introduction to the legal system Partial One

What are the two opposite views of law

• Legal naturalism

• Legal positivism

Legal Naturalism

• Ancient sense

• Law is justice and justice is the rational truth of nature

• Hinged on the ancient sense of nature as a rational order

Legal positivism

• Modern Sense

• The source of law is the establishment of that law by some socially recognized legal authority

• Most famoys conceptualization: Hans Kensen

Westphalian Paradigm

Domestic law vs international law

Domestic law

• The state’s sovereignty entitles it to bind its own citizens by enacting legal rules

• The way to legal nationalism was opened and led to the major codifications of private law of the 19th century

• Peace of Westphalia

International law

• State’s sovereignty can be voluntarily self limited by means of agreeements with other states

• Each contracting state has a duty to give execution to the international agreements it has entered into

Statism and nationalism

Beginning in the 18th century, national states started practicing private law, meaning law was no longer universal or customary but it was state made and nation bound

A political decision of a sovereign entity comes from

• An absolute monarch

• Democratic parliament

Comparative law

A branch of legal science that compares between national laws

The birth of comparative law

31 July to August 4 1900, by E Rabel who is the main father of comparative law and who defined the scope and methods of the field

Foreign law

A proper legal system in a state other than the state being used as a reference

The primary goal of comparative law and how it has changed

Went from having a goal of achieving a uniform law to furthering legal knowledge

The goals of comparative law

1. Aid to the legislature

2. Construct national or international laws

3. Subject to be taught

4. incentive and guide to uniform exising laws

5. Driver of European law

What is tertium comparationis

The first reference for comparison

What are two methods to micro comparison

Zimmerman and Zweigert, Kotz

The Zimmerman method

• Historical approach

• Tertium comparationis is the common Roman/ Latin aspects that western legal systems share

• Comparing how the original laws changed

The Zweigert, Kotz method

• Functionalist approach

• Tertium comparationis defined based off the function that resolves practical issues, regardless of conceptual/ dogmatic framework

Micro vs macro comparison

Micro: Comparing legal systems based off finding similarities and differences between real world solutions to problems

Macro: Comparing the entirety of legal systems, all three branches of government

Sacco theory

Theory of dissociation of legal formants (Possibility of lack of allignment between the three branches: Legislature, judiciary, and scholar’s opinion)

Legal families

Groups of legal systems characterized by common features

Main ones: Civil and common law

Private international law

A set of rules determining which nation’s laws apply, which has jurisdiction, etc.

How does convergence among legal systems happen

Legal transplants or conventions to unifrom law

Uniform law is not just about how laws are written….

It is also about how laws are interpreted and applied, we want to achieve the same result, not the same words on paper

Uniform law

Interpretation and application of uniform legislation

Uniform legislation

Uniform legislation that is adopted

Civil law

• Codified law

• Large systemic codes that contain the guiding principles of judging cases

• Code centered

Common law

• Law developed through judicial decisions

• System evolced historically through courts rather than codification

• Precedent centered

Corpus Iuris Civilis

A collection of fundamental works in jurisprudence, compiled by Justinian the first from 529 to 534 and includes the codex, digests/pandex, institutiones, and novellae constitutiones

Codex

Collection of statutory law (written, enacted laws passed by a legislature)

Digestis/ Pandex

Collection of texts authorized by jurists in the Roman era

Institutiones

Textbook to teach law and a source of law in itself

Novellae consitutiones

Collection of statuory law enacted after the death of Justinian the first

Ius Civile

In Bologna, Irnerius discovered the Justinian compilation and the law began to be taught, first university, study of Roman law spread, 11-12th century

The seperation of powers in civil law

• Legislative

• Executive

• Judiciary

In civil law, what is the done to the core of private law

It is gathered and organized into a civil code, (Code civil, codice civile, etc.), “Judges are just the mouth of law”

Common law history

1066: Rose after the battle of Hastings

1642: European civil law prevented from spreading

1688: Glorius revolution

1789: Frech revolution couldn’t gain ground in England, politics already well established

Explain common law and equity

Complementary branches of civil law that merged in the 19th century via the Judicature Act 1873-1875, Common law is a rigid system based on precedent, strict rules, and monetary remedies developed by royal courts. Equity acts as a corrective, providing fairness and discretionary, flexible remedies when the common law is too harsh or insufficient. 

Positivism: Kelsen’s theory

• Normativism

• The pure theory of law

• Law is separate from religion, morality, etc.

• Positivism, each norm is based off another and so some sort of test is required

Strong definition of natural law

When law is unjust its not law

Weak definition of natural law

When law is unjust, there is room for ammendments

The dillema of unjust law

Positivism can be easily criticised because from its point of view, it must be formally in force regardless of wether its actual content is just

The renaissance of natural law

• Moral responsibility to obey just laws

• Moral responsibility to disobey unjust laws

Radbruch’s formula

If a law departs from justice, positive law is no longer to be considered a law

Ways to overcome formalistic legality

• Distinction between law as it is and law as it should be

• Civil disobedience

• Natural law

• Story of Antigony

Difference between law, religion and morality

Law is a coercive social order while religion binds only those who believe it and morality those who accept it

Kelsen’s theory

A norm is such not because it stipulates a command but because it stipulates a sanction to be applied in case the command is disobeyed

Structure of a norm

• A norm is shaped as a “Hyopthetical independent period”

• With the protasis being the if command that describes the state of affairs

• And Apodosis being the then command describing a sanction

The two characteristics of a norm

• Generality: Refers to how many people or situations the norm applies to

• Abstractness: Refers to how detailed or specific the content of the rule is

Mandatory rules

• May not be set aside by an agreement between their addresses (Most public law, with the paramount of public law being that public interest» private interest)

Default rules

• May be set aside through agreement

• Private law, major role

Kelsen’s Normativism

Norms dislocated in a hierarchy where each depends on the one above it, and a norm is valid if and onlu if it follows the hierarchy, also called a legal order or system

Kelsen’s hierarchy of norms

• Basic norm

• Constitution

• Statues

• Administrative regulations

• Customs

Customs

Binding rules of a legal system, widely socially recognised which leads to enforcement

Soft positivism

• The law of recognition

• Law is actually law when it is recognized by a body, there is a distinction between primary and secondard rules

• Developed by Hart who thought the basic norm was too abstract

Difference between primary and secondary rules

• Primary rules are those that are official like statutes

• Secondary rules shape the concepts and core principles of the primary ones, and so they aim at identifying, changing, and enforcing primary rules

The legal system according to soft positivism

• A legal system is certain, dynamic, and efficient

• A basic norm is considered secondary

• Secondary rules ensure dynamism

• Rules that deal with the enforcement of the primary ones ensure efficiency

Secondary rules

• Sources of law

  • Sources of production: Change the law in force through acts or facts

  • Sources of cognition: Give legal notice about the sources of production

Examples of sources of production

Constitution, statutes/enactments, regional laws, regulations, uses

Acts and facts

• Acts are sovereign decisions intended to enact/ amend

• Facts are customs and traditions that follow stability overtime and view social perception as binding

Why do secondary rules have a major role in the historical development of a legal order

Because they stipulate what acts and facts are capable of wether through creating new rules or ammending

From a hierarchial POV what are the main primary sources of EU law

• Treaty of the EU

• Treaty of the functioning of the EU

• EU charter of rights

The historical primary sources of EU law

• Treaty of Paris in 1951

• Treaties of Rome in 1957

The Maastricht ruling

• German constitutional court in 1993

• Ruled that the EU is not a federal state yet it has sovereign powers

  • Has legislative powers: Parliament, commission, council, European council

  • Has a court of justice

Van Gend En Loose case

• 1963

• EU law is not only applicable to states but also to citizens of those states

Secondary sources of EU Law

• Regulation: General application

• Directives: Binding by result, not binding between individuals but states must interpret in allignment

• Decisions: Binding legal act that could be of general application or be specific

Court of justice vs the general court

Court of Justice: Deals with requests for preliminary rulings from national courts

General court: Rules on actions for annulment brought by individuals, companies, the government, etc.

Preliminary ruling

National court deals with matters of EU law interpretation, verdict on hold, the case is directed to the ECG

Clashes between the ECG and national courts

• Costa vs Enel 1964: ECJ clarified that the EU takes precedence over national law, regardless of whether national law was enacted before or after

• Simmenthal case 1978: Every court should cease the application of legislation that conflicts with community law, without requiring a ruling from the constitutional court

Mangold vs Helm 2005 and the result

• Two individuals versus each other using EU law

• The principle used became a component of EU law without being mentioned in EU primary legislation

• The court used vertical comparison to decide, taking a look at other countries’ laws, a “downward impact.”

• Influence of European private law with regard to the principle of good faith

A legal system should be

Complete: Covers all cases

Consistent: No rules contradict each other

(Secondary rules designed to fill the gaps)

Englaro case

Incomplete laws.

Ruling: Legal guardian may stop the procedure if the state is irreversible and it was the person’s will

Filling legal gaps

Can be filled in by secondary rules, either creating a new law or extending the scope of law

Filling legal gaps in the Anglo American system

Either gaps are filled by judges (Hart) or no gaps really exist because we have implicit law (Dworkin)

Filing legal gaps in Italian law

(1st resort) Analogia legis: Using similar cases in akin branches of law

(2nd resort) Analogia iris: Using the general principles of the state

Filling legal gaps in the swiss model

Sometimes a combination of analogy and discretion by judges is provided for by the law

Atinomies

Inconsistencies in the primary provisions of law

Solving Atinomies

Can be solved by secondary provisions that authorize judges to apply just one of the colliding primary provisions following the:

• Hierarchical criterion: If two collide and one is superordinate, it prevails

• Content based criterion: Broader scope» narrower scope

• Time based criterion: Enacted sooner» later

Example of laws that are not to be applied analogically

Criminal law

What is the main problem of using analogy in law

Determining in which cases a norm is considered exceptional

Criteria of interpretation

• Grammar: Follows the exact wording

• Systematic: Derived from a legal system

• Historic: Uses the objective intention of the legislator

• Teleological: Focuses on policy, and we can narrow or broaden

Legal relevance of natural events

1) Impossible to establish a criterion for distinguishing between what is inherently legal vs what is not

2) When a specific situation is prescribed a regulation, we encounter an occurrence that has legal consequences

Autonomous legal acts

Power to produce your own legal effect

Material fact

Some legal facts are adressed by a norm, irrespective of their particular judgement

Draft common frame of reference

1) Parties are free to make a contract and determine its contents, subject to any mandatory rules

2) Parties may exclude rules or vary their effects, except as otherwise provided

3) Even if a rule cannot be excluded, a party may waive a right that has already arisen and that they know about

Legal acts

• Marriage

• Wills

• Contracts

Structure of legal acts

Unilateral: declaration by a single party (wills)

Bilateral: Sale contracts (Mutual agreement between 2 parties)

Multilateral: Companies

Content of legal acts

Patrimonial: Economic interest

Non patrimonial: Non financial interest or restricted and doesn’t fully define

Inter vivos acts

Designed to govern concerns of involved parties during their lifetimes

Mortis causa acts

Arranging the distribution of assets that come into effect after death

Party autonomy

Patrimony: Broad

Personality: Narrow

Legal relations

Every legal can do corresponds to someone else’s shall do

Obligation: Tie between creditor and debtor

Doctrine of stare decisis

• Lower court must follow higher court, except:

1) overruling: When higher court later declares previous decision was wrong

2) Distinguishing: Saying current case is factually different from precedent

Relative rights

Rights exists only in relation to specific individuals

Absolute rights

Right valid against the entire world

Public law

• The state acts as an authority

• procedural (regulates judicial application)

• Constitutional

• Admin law (Covers the interaction between the government and civilians)

• Criminal

• Tax

Private law

• State acts as a private party

• Civil law (People)

• Commercial law (Enterprises)

Started by roman law, made clear by Napoleon in the 1800

Absolute rights (In rem)

A right in rem entitles its holder to a claim towards anyone interfering with the possession over the good vested to her or him

Examples of rights in rem

• Property (Ownership)

• Intellectual property (Copyrights)

• Industrial property (Patents)

Relevant non patrimonial rights in rem

Rights of personality that are encompassed in the broader genre of human rights

Disposable rights

If the good can be transferred to someone else