CO SCI 136 Lecture Notes - Lecture 16: Napoleonic Code, Legal Instrument, Code Of Law
Week 1
Tutorial 1: Introduction to law and legal assignments & (Oral assignment 1).
1. Please explain briefly the following terms: “law”; “legal rights” and “legal obligations”;
“legal sources”; “hierarchy of norms”.
Law: System of rules laid down by a body or person, who has the power and authority to make a law.
In a democratic state, it is the parliament (legislator) in an undemocratic state, it is the dictator.
Regulates the system to regulate the people in justice through judgment based on established rules
that are enforced through the monopoly of violence and established by the authority controlling it.
Based upon collective human experience. Law serves the regularity and the security of the people.
Law can also be a single provision or rule, or a legal principle. Term depends on the concept and
change over time
Legal rights: Rights granted/guaranteed to a subject/an individual by law/a given legal system (e.g.
constitution,). Exist under the rule of a legal system. Eg: the right to remain silent.
Eg: right to write your bike across the street, aslong as you are in the right direction.
Legal obligations: contract, you sign you have to follow some obligations. A duty that can be
enforced by the court of law.
If you pay the rent, you have the right to stay as long as you don’t do something wrong. You have the
obligation to pay your rent, if you don’t, the landlord can sue you and take you to court.
Legal sources: formal, who have a specific value. Legal sources depend on the legal system. You have
different sources, treaties, protocols, constitution:
- Raw experimental data.
- A product of institutions whose output is attributed to a certain normative value such as
parliaments, courts.
- The tool to use those formal sources is called, legal reasoning of which the aim is to convince
the listener. This reasoning is also based on the ability to read and analyze texts.
- Legal sources can be written or unwritten.
1. Customary law: unwritten, a certain legal practice and the actors consider it to be law,
opinion Uris. Eg: concept of international law. Accepted practice, being convinced in legal
terms.
2. Statute law: written, such as code napoleon.
Common law, case law is a legal source. Legal rules can also be made by the judge, as least in theory.
Legal instrument: written source of law.
Hierarchy of norms: Hierarchy of legal documents/statutes in the European legal system after the
entry into force of the Lisbon Treaty: I. Primary law TFEU/TEU (Treaties and General Principles of
Law), II. Secondary law (international Agreements made on a competence that the treaties have
given charter 31, regulations and directives), III. Legislative acts, IV. Delegated Acts (issued by the
Commission), V. Implementing Acts (issued by the Commission) -> Every norm in law is legitimated
by a higher norm -> Bottom-to-top approach up to the constitution/the highest ranking norm/law in
a legal system.
2. What is the difference between public law and private law? To which category do the
following belong: administrative law, tax law, contract law, criminal (penal) law?
Public law: relationship between a state and a government and between the state and the individual.
Eg: constitutional law, administrative (executive bodies have to function according to administrative
bodies) also if you want to build a house, tax law and criminal law (if you shoot someone) it is about
the moral social order of the state. The state acts as a moral leader, the state will prosecute the
other one. The state takes a public interest. It prohibits the injuries of other persons. The public
prosecutor will go after them. The victim can ask for a reparation. Regulates the citizens, ex a parking
ticket. A legal relation with an authority.
If you steal biscuits from a shop, in principle the state is willing to prosecute her, but it depends if the
shop wants to sue you. The shop has a legal right against her. This is more a private relationship. This
is tort.
Private/Civil law: only the relationship between individuals, eg contract law ( if you buy something at
a shop, you have a contract with that shop, receipt and money) the shop can also sue you if you take
something and you don’t pay for it) the validity comes from the contract. The state says, because we
respect promises, I as a state also provide a court system, in case that there is a problem with the
contract, so they can enforce the rights and obligations of the actors. family law and law of tort (
When someone does something wrong to the other such as assault, fraude. You can sue the other
one). You can take civil action against the party, who has done you harm, for a compensation. Torts
are a civil action, private law.
Eg: parking ticket on a private parking space, then they have a claim against you.
3. What is procedural law and what is substantive law?
Procedural law: which state is responsible? Rules that a court has to adhere to in setting a legal
problem. How the suing of something happens in front of the court. Or for elections. Law about a
law. The court is organize according to procedural laws. Parliament has its own procedural rules. City
hall, when you apply for a permit. Laws about other laws. Or about how courts work, how people
forward as witnesses in court.
Substantive law: written law that defines rights and duties such as crimes and punishment. Eg
contract law. What determines the rights and obligations the substance.
4. How is common law defined and what is its opposite term? What is case law? What is
precedent case law?
Common law (UK): rules of a law system developed by court decisions. Judges have key role, no
codes such as civil code or criminal code. More judge made law (case-law). Not written.
Continental law or civil law (Europe): law based on written codes. The judges have no key role. They
only interpret the legislation. There is a division of powers between judiciary and legislative powers.
Judges interpret rather than make law. The judges cannot make rules, the interpret them.
Case law: Part of common law, consisting of judgments given by higher (appellate) courts in
interpreting the statutes (or the provisions of a constitution) applicable in cases brought before
Document Summary
Tutorial 1: introduction to law and legal assignments & (oral assignment 1): please explain briefly the following terms: law ; legal rights and legal obligations ; Law: system of rules laid down by a body or person, who has the power and authority to make a law. In a democratic state, it is the parliament (legislator) in an undemocratic state, it is the dictator. Regulates the system to regulate the people in justice through judgment based on established rules that are enforced through the monopoly of violence and established by the authority controlling it. Law serves the regularity and the security of the people. Law can also be a single provision or rule, or a legal principle. Term depends on the concept and change over time. Legal rights: rights granted/guaranteed to a subject/an individual by law/a given legal system (e. g. constitution,). Exist under the rule of a legal system.
