law summary 2 (2)

• Sources of law

  • Legal rules are enforced by collective means and by organs of the State
  • Most rules are created by legislation or judicial decisions
  • Legal certainty ensures rights will be respected and law applied consistently
• Positive law


  Rules created by legislation or judicial decisions
• De lege lata


  The law that is valid here and now
• De lege ferenda

  Future or past rules
• Not every positive rule is laid down
• Legal certainty

  • Unnecessary to invoke authority to settle disputes
  • Law will be enforced
  • Law applied consistently
• The purpose of law is to end or prevent disputes, not to ensure the best solution
• Legal truth doesn’t always coincide with reality
• Historical development of (private) law (Europe)

  • Roman Law
  • Tribal customary law
  • Codification
  • Development of transnational law
  • Emergence of European Union Law
• Tribal customary law

  Guidelines for behavior that have grown spontaneously in a society
• Codification

  When a law is written down
• Codified law is used for law contained in legislation
• Development of transnational law

  • Rise of human rights
  • Foundations of the EU
  • Revival of the Lex Mercatoria
• Lex Mercatoria


  Set of rules created by merchants to regulate their mutual commerce
• Corpus Luris civilis

  An attempt to codify existing Roman law published by Emperor Justinianus
• Corpus Luris civilis parts

  • Codex
  • Digest
  • Institutions
• Stare decisis

  Legal principle of adhering to precedent
• Principle of stare decisis


  • 1st interpretation of a law must be applied
  • Judge creates a new rule confirmed in doctrine
• Phenomenon of equity

  • Developed to mitigate harsh results of common law
• Legal families

  • Common Law
  • Civil Law
• Common Law

  • Driven by judiciary
  • Stare decisis
  • Equity
• Civil Law

  • Driven by politics and legal scholars
  • Codification
  • Influenced by Roman and canon laws
• Legal syllogism

  Logical structure of legal reasoning
• Legal syllogism steps

  1. Legal rule (premise)

  2. Operative facts (premise)

  3. Legal consequence
• Operative facts

  Facts that attach legal consequences
• Non-operative facts


  Not relevant for legal rule application
• Sources thesis


  Rules traced to an official legal source are legal rules
• Official legal sources

  • Depends on legal system
  • Ex: a contract
• Canons of interpretation

  • Literal rule
  • Mischief rule
  • Golden rule
• Reasoning methods

  • Applicability of legal rule
  • Reasoning by analogy
• Conflicts of law

  Lex superior<|>Lex specialis<|>Lex posterior
• Fields of law

  • Public law
  • Private law
  • Substantive law
  • Procedural law

  
• Public law


  • Government plays a central role
• Private law

  • Deals with mutual relations between citizens
• Substantive law

  • Gives people rights and determines actions
• Procedural law


  • How a law should be applied or executed
• Legal subjects

  Natural persons & legal persons can be held liable, own property, and contract
• Dogs and animals are not legal subjects
• VUB and ABInBev are legal subjects
• Robots are not legal subjects