Week 1

Law

Body of rules with binding legal force which are prescribed, recognised and enforced by a controlling authority

Substantive law

law that defines rights, obligations, and prohibitions and helps avoid conflicts by regulating people’s behaviour.

Procedural law

law that sets out the procedures for enforcing rights and obligations and helps resolve conflicts.

Enacted laws in the Netherlands is + hierarchy

formally adopted written legislation: Treaties; Charter for the Kingdom of NL; Constitution; Acts of Parliament; Order in Council (Royal Decree / Government Regulation); Ministerial Regulation; Provincial / Municipal By-laws

Constitution

is the supreme legal document that guides the governance of the country. It protects basic human rights, also establishing organisation and functions of government, its governmental bodes, elections, judiciary and rule-making process.

Higher rule prevails over lower rule

Lex superior derogat legi inferiori

Newer (later) rule prevails over earlier (older) rule

Lex posterior derogat legi priori

Particular rule prevails over general rule

Lex specialis derogat legi generali

Unwritten law and its sources

law that develops through custom or judicial decisions rather than formal legislation. Case law (judge-made law); Customary law (usus (practice/behavior in states) and opinio iuris (opinion/belief of states that a certain practice is obligatory under IL)); General Principles of Law

Cassation

a procedure in which the Supreme Court reviews whether the law was applied correctly, but does not normally reconsider questions of fact, which are decided by lower courts (nullify + refer back to the earlier court/nullify + refer to a different court/overrule + pass judgment itself (if facts are clear))

Five basic principles of Dutch Judiciary

1) independent judges; 2) impartial judges; 3) public court hearings; 4) justice administered in three instances; 5) within reasonable time-frame → Art.6 ECHR

Public Law

governs the relationships between individuals and a state

Private Law

governs relationships between private individuals and/or entities

Stare decisis

to stand by things decided (no formal principle of precedent in the Netherlands’s); to ensure consistency and predictability of the application of law.

Supplementary Law

used to fill in the gaps using unwritten EU law, providing default rules that apply when parties did not regulate it

Statute is

a written law formally adopted by a legislative authority.

Treaty is

a formal agreement between two or more states, governed by international law.

Lex mitior

Legal doctrine which means that if the law changes between the time a crime is committed and the final judgment, the more lenient law that is more favorable to the defendant must be applied.