Module 1: What is Law?

• What is Law?

  • A substantial part of law exists in the form of legal rules that are enforced by collective mean and in particular by organs of the State.
• What are the characteristics of law? (9)

  • Prohibitions → do not kill
  • Obligations → pay income tax
  • Rights → everyone has a right to privacy
  • Competences for public authorities → the police can ask drivers to show their driving licence
  • Definitions → personal data is any information that can directly or indirectly identify a person
  • Usually adopted by the legislative power
  • Regulates society
  • Can only be changed following specific procedures
  • Enforceable → in court
• What are the characteristics of law? (9)

  • Prohibitions → do not kill
  • Obligations → pay income tax
  • Rights → everyone has a right to privacy
  • Competences for public authorities → the police can ask drivers to show their driving licence
  • Definitions → personal data is any information that can directly or indirectly identify a person
  • Usually adopted by the legislative power
  • Regulates society
  • Can only be changed following specific procedures
  • Enforceable → in court
• The difference between subjective (rights) and objective (law)?

  • Law as a societal phenomenon (objective) → the rule that has been set
  • Set of general written rules for outward behaviour of people living in a social context
  • Law from an individual perspective (subjective) → a specific claim that a person claims from that rule
  • A specific claim that a person derives from a legal rule
  • Our (subjective) rights are derived from the (objective) law
• What is the difference between natural persons and legal persons?

  • Natural person → you and me
  • Legal person → company, non-profit organisation, …
  • Both are subjects of law
  • → both have rights and obligations
  • Example: you can sue a company
• What is the constitution?

  • = specifies the basic allocation of power in a society, it specifies who gets to decide what the laws will be
  • Highest piece of national legislation (all national law must comply with the constitution - supremacy of the constitution)
• What is legislation?

  • = Written law created by Parliament
  • Thanks to these legislations individuals and the authorities know the limits and consequences of their actions.
  • Examples:
  • Civil code, criminal code, …
• Customary law


  Binding, but unwritten (often replaced in time by legislation or case law)
• Customs and traditions can find their ways into laws or can complete them
• Customary law

  • Gives space for differences in different cultures/regions
  • Cannot contradict the purpose of the relevant legislations
• Customary law in tribes

  • The head of the tribe gets the first pick when an animal is caught in a hunt
  • This may be merely a kind gesture by the hunters towards the tribe leader at first
  • If this act is repeated over time, members of the tribe will count on its reoccurrence and there will be reproaches if the chief does not get the first pick
  • In the end, these reproaches may become so serious that the hunters will be punished if they do not offer the chief the first pick
• What is the difference between rule of law and rule by law?

  • Rule by law = a state depending on law for it’s functioning
  • Rule of law (Rechtsstaat) = a state depending on law for it’s functioning whereby the law is guided by certain values, examples: human rights, democracy, …
• Why do we need a hierarchy of norms?

  • To ensure all acts of the legislative/executive/judiciary respect the rule of law
  • To solve the possible conflict between the norms (if one of these legal instruments prevails, we cannot decide which norm to apply)
  • To establish the unity and consistency of norms that provides stability and foreseeability
  • To ensure no administrative regulation deviates from legislation and no legislation deviates from the rules set in the Constitution, which guarantees fundamental rights and freedom.
• What is the difference between public law and private law?

  Public Law:

  • Relationship between the State and its citizens
  • Organisation of and action by public authorities
  • Constitutional law, criminal law, administrative law
  • Example: Property rights → ownership regulations, right of ownership = human right

  Private Law:

  • Relationship between private parties
  • Organisation of the right and obligations of the members of a society
  • Contract law, law of obligations, property law, …
  • Example: Property rights → relationship between lessor and lessee, neighbour law
• • What is the difference between substantive law and procedural law?
  • Substantive law = rules that give people rights and determine what people should do/are not allowed to do
  • Procedural law = a set of established forms for conducting a trail and regulating the events that precede and follow it
• • What is Syllogism?
  • an argument with two premises (starting points) and a single conclusion.
• What is the format of the formulation of a legal rule?

  • IF condition x THEN legal consequence y
  • Ex. IF somebody acted wrongfully toward another person, and if he or she thereby caused damage to this other person, THEN he or she must compensate this damage.
• What is legal interpretation?

  • Methods of legal interpretation are used to decipher the meaning of a legal rule
• What are the methods of legal interpretation?

  • Grammatical or literal interpretation
  • Legislation can define the terms needed for an interpretation based on the wording.
  • Systematic interpretation
  • = Looking at the context of a rule.
  • Teleological interpretation
  • What is the purpose/objective of the rule in question? What do we want to protect?
  • Historical interpretation
  • Understanding the will of the legislative power, for example based on preparatory documents.
• What are the three principles to deal with conflict?

  • Lex superior:
  • In case of conflict, the superior rule overrides the inferior rule
  • Lex posterior:
  • The newer rule prevails over the older one
  • Lex specialis:
  • The more specific law prevails over the general one
• What is a case?

  • A situation revealing one or more legal questions