Introduction to Law - second Edition

Introduction to Law - second Edition Springer International Publishing Ag

9783319861142 

Jaap Hage Complete summary 1 / 4

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Foundations Characteristics of Law -Most law exists in the form of rules, that prescribe behavior and contain definitions of terms, etc.-Legal rules are enforced by collective means, in particular by organs of a state.-Most legal rules in law are created by state agencies.Positive Law - Law that is laid down - it is in force Codified law already existed before it was written down, whereas created law is completely new.Differences between Morality and Law -Law gives guidelines for behavior, morality sets standards for what is considered good or bad.-Law does not, like Morality, have grey areas - something is either permitted or not.-Law is not necessarily, like Morality normally is, considered important for the well-functioning of society -Law is enforced by state organs, morality as such is not.-If law clearly violates morality, some do not want to call it a legal rule.Positive and Critical Morality Positive Morality - the moral standards and precepts that are broadly accepted at a particular time and place.Critical Morality - the moral rules and standards that should rationally be accepted.Legal Certainty Positive Law offers legal certainty.It avoids manipulation of rules to advantage of a small group Law often prefers the clear result above the uncertainty of the 'best' solution for a problem.

Legal Certainty has two aspects:

1.Certainty about the content of the law; 2.Certainty that the law will be enforced.Law Systems Roman Law - Impressive legal system of the Roman Empire from 8th century BC

• 6th century AD. In the times of the reception (12th-17th century) it was also

known as civil law.Tribal Law - Legal system of a tribal group (in the Roman case mostly family ties) Customary Law - Spontaneously grown guidelines for behavior in the form of mutual expectations, which are accepted as binding after some time. The origin is frequently attributed to a historical legislator (like God) -> customs gained a status of immutability. 3 / 4

Customary law is the predecessor of today's positive morality.Common Law - Law based on precedents (decisions made on cases before the one at hand).Equity - deals with fairness of law, by mitigating harsh results from common law.Canon Law - Law of the Roman Catholic Church.Natural Law - Law that was established by means of reason (17th-18th century).National Law - law of a nation state, which was the consequence of the peace of Westphalia.International Public Law - deals with mutual relations between national states.Ius Civile and Ius Gentium Ius Civile - Roman law for its citizens Ius Gentium - Roman law for foreigners Stare Decisis - 'Stand by your decision', a rule applied for courts in common law, so decisions could be usable as precedents.Ius Commune - The Roman and Canon Law as they had spread in the reception in Europe.In the High Middle Ages, the Roman Law Digest was rediscovered and applied again. In England, another development had taken place - Common Law came into place after the Norman Conquest in 1066.Roman Law (only the Digest) and Canon Law spread all over Europe through the increasing popularity of law schools from the 12th until the 17th century. Both laws were accepted and known, because Roman Law was based on reason and both laws were better accessible than customary law. This development became known as the 'reception' of Roman Law.Rational Law Roman law gained acceptance, because it was rational, thus containing 'good' rules. It was seen as ratio scripta ('reason written down'). Examples of important people creating natural law were Hugo Grotius, Samuel van Pufendorf, and Christian Wolff (All in period of Enlightenment).National Law and International Public Law became known as the 'Westphalian duo'.Codification French Law was codified in a number of 'Codes' shortly after the French Revolution.

Codification:

-brings legal unity; -creates legal certainty; -emphasizes the legal power of central law-making agencies; -guarantees the influence of the people on the content of law.The Historic School in Germany opposed to codification, because it would fossilize the connection between law and the 'Volksgeist'. Therefore, codification should be preceded by historical research on the origins of law, and the reasons behind it. Von Savigny was one of the most important representatives. In 1900, codification happened anyway, as the Historic School lost against the codification movement.

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