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Introduction to Law

Introduction to Law

General Part

  • Introduction to Western legal systems

  • Focus Areas:

    • Focus on Western (secular) legal systems rather than a single legal system

    • Emphasis on the system rather than specific rules

    • How society is organized and how people should treat one another

    • How legal professionals resolve cases and legal problems

Sources of Law

  • Questions Addressed:

    • Where does the law come from?

  • Key Sources:

    • Legal rules

    • Court decisions (precedents; case law)

    • Customary law

    • Legal writing (scholarship, including books, articles, case notes)

Formation of a Legal System

  • Trias Politica:

    • Legislative

    • Executive

    • Judicial

  • Definition of Positive Law:

    • Law that is applicable and enforceable at a given time, comprising:

    • Legal rules defined by legislative and executive branches

    • Court decisions issued by the judicial branch

    • Customary law, which is binding but often unwritten (can be replaced by legislation or case law over time)

    • Interpretation of the law

  • Legal Writing:

    • Authoritative yet non-binding

    • Differentiation between de lege ferenda (what the law should be) versus de lege lata (what the law is)

Examples in Law

  • Regulation Example:

    • Regulation of the European Council no. 2022/576 concerning sanctions against Russia for destabilizing Ukraine

    • Belgian Royal Decree from July 14, 2022, implementing sanctions related to public procurement

  • Judicial Example:

    • Article 3.133 Belgian Civil Code concerning overhanging branches (legislative branch)

    • Plot boundaries must be respected; however, a judge may consider requests to cut trees as abuse of rights under specific circumstances.

Historical Overview of Legal Systems

  • Civil Law:

    • Based on the rediscovery and reception of Roman law

    • Local customary law and ius commune

  • Common Law:

    • Emergence through national law and codification, with royal representatives administering law

    • Uniform application of law by courts of justice

    • Legal reasoning through statutory rules and analogy to prior cases

  • Examples of Different Legal Systems:

    • Civil law countries: France, Germany, Croatia

    • Common law countries: England, Wales, Ireland

    • Mixed legal systems: Scotland, South Africa, Louisiana (USA)

General Features of Law

  • Nature of Law:

    • A substantial part exists as legal rules enforced by the state

    • Rules specify behavior, definitions, and division of state competences

  • Important Distinctions:

    • What law is not:

    • Moral rules

    • Natural law

    • Social conventions

    • Animals/objects are generally excluded; focus is on outward human behavior

Legal Examples

  • Legal enforceability examples:

    • A promise by a parent to buy a car may not be legally enforceable.

    • Civilians may not compel the State to act against climate change.

    • A retail shop may not be obligated to pay rent during a lockdown.

    • Breaking off an engagement raises questions of legal enforceability and potential tortious acts.

Legal Certainty

  • Principles of Legal Certainty:

    • Importance sometimes prevails over the best solution

    • Certainty about content of law

    • Consistency in law enforcement and application

    • Legal concepts maintain the state of the world

  • Quote:

    • "Dura lex, sed lex" (The law is harsh, but it is the law)

Evolution of Law

  • Legal Adaptation:

    • Law evolves with society’s values, e.g., the recognition of animals as beings with rights.

    • Legal barriers may slow responses to changing values, but the legal system facilitates change.

Law as a Societal Phenomenon

  • Objective Nature:

    • A set of general (un)written rules for human outward behavior in social contexts.

    • Enforcement is conducted by the state.

  • Subjective Nature:

    • Specific claims by individuals derived from legal rules.

  • Dual Perspectives:

    • Objective (societal) and Subjective (individual) aspects of law are interconnected.

Legal Examples of Property Rights

  • Belgian Civil Code Article 3.67 (para 1):

    • Requirement for property owners regarding goods or animals accidentally on adjacent parcels:

    • The owner must return the item or allow removal (emphasizing property rights).

Legal Actors and Their Rights

  • Definitions of Legal Entities:

    • Natural Person: Individual human beings (you and me)

    • Legal Person: Companies and non-profit organizations

  • Rights and Obligations:

    • Both categories are subjects of law with rights and obligations, e.g., individuals can sue companies without implicating owners personally (separate entities with separate patrimony).

Rights and Law

  • Derivation of Rights:

    • Personal rights are founded in objective law, giving individuals enforceable claims based on legal protection.

    • Example of personal property claims influenced by rules on acquisition, loss, expropriation, theft.

Legal Relevance of Rights

  • Importance in Legal Proceedings:

    • Fundamental distinction when approaching civil courts:

    • Rights conferred by law enable obligations to claim these rights.

    • Example from French Civil Code Article 1240 (Tort Law):

    • Obligatory compensation for damages caused by fault.

Situational Examples of Rights

  • Royal Decree:

    • Grants bonuses to civil servants who meet language course conditions, thus creating enforceable claims.

  • Planning Law Example:

    • Question of subjective rights in a building permit relies on local authority's discretionary power, illustrating public versus private interests.

State vs. Individual Rights

  • State Representation:

    • The state defends the general interest, enjoying prerogatives in property law,

    • Example: State's right to expropriate for public purposes.

    • However, the state also has obligations, highlighting property as a social arrangement requiring protection.

Fields of Law

  • Two Major Divisions of Law:

    • Public Law (relationship between the state and citizens): Which includes:

    • Constitutional law

    • Criminal law

    • Administrative law

    • Private Law (interactions among private parties): Which covers:

    • Contract law

    • Law of obligations

    • Property law

  • Key Examples:

    • Public law includes ownership regulations and property rights as human rights.

    • Private law encompasses relationships in society such as lessor-lessee interactions and neighbor law.

Complex Divisions in Law

  • Challenges in Distinction:

    • The 'summa divisio' is not always clear-cut, with overlaps in fields such as:

    • EU Law

    • Labour Law

Legal Accountability

  • Suing the State:

    • Case Reference: Belgian Court of Cassation, 5 November 1920 (Flandria judgment).