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Notes - Introduction to Law
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Notes of the Introction to Law course
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Chapter 2 : Sources of Law1. What is law about?
1.1 Law and Legal reasoning
Law governs human behavior by rules (do’s and don’ts):
o Drive on the right/left lane
o Pay taxes
Law secures compliance:
o If you speed you will pay a fine.
Law prescribes possible events and compliance:
o Whoever kills another person will be imprisoned to a minimum 15 and a
maximum of 40 years.
Lawyers perspective
Legal rules : norms
Compliances : sanctions
Prescribing : prohibiting and sanctioning
1.2 Positive law and legal certainty
Positive law
The law that is valid here and now
Legal certainty:
Positive law means that rules only need to be looked up in legislation/judicial
decisions, SO no judge is needed to settle a legal dispute (content)
Collective support → no enforcement on your own (enforcement)
Similar cases treated in a similar way (consistency)
Examples: the right to appeal, new laws cannot be applied retroactively →
quality of life, security of business
,2. Customary law
Customs
= Patterns of behavior that develop in a society as a constant
o People learn them as children: observing, participating...
o People follow them until they are confirmed and strengthened by being
understood a law/rule
o People learn it as children or as grownups: they see how things are done
and follow them because it’s understood as a rule
For example : shaking someone’s hand when you meet them
because it is understood as something that is a law
Customary law
Rational thing to do
Becomes unchangeable, fixed
Not easily differentiated from moral (speak the truth) and religious (Ten
Commandments) rules
Unwritten
Synonyms : common law, custom, traditional law, …
3. Common Law
= The law common to the entire population (UK, US, Australia, Canada)
,3.1 Common law
Case Law
Case law is merely the rules of law announced in court decisions
Case law may consist of:
interpretations of statutes, regulations, and provisions in the
constitution
You will hear the terms "precedent" and "stare decisis" when case law is
discussed
Precedent
creating the law/rule → a prior case that is similar in legal principle or fact
Stare Decisis
The practice of deciding new cases with reference to former cases
If one (higher) court created a precedent the same (and lower) court(s) have
to decide in the same way in similar situations (doctrine of precedents)
Case-based reasoning
Comparing and contrasting new cases with old cases that have already been
decided
Read chapter Roman Law in the book
3.2 Remedies : Equity / Damages
Correction/remedy/damages to common law.
Usually monetary
Returning the parties to an equal footing
, Sometimes, remedies are inadequate → Equity comes into play
Damages cannot make the injured party whole
Damages are speculative and uncertain
Insolvency of the person committing the act
The harm is so major it cannot be fully compensated by money = no money
for equity
Three forms:
• Specific Performance: one party to a contract is ordered to perform
according to the contract's terms
• Example: you signed a contract with Louvre to purchase Mona
Lisa (one of the kind)
• This is where a person wants to prevent the occurrence of a certain
activity
• Example: your neighbors have excessively loud parties and you
want to stop them
• Rescission: the original contract is considered to be voidable as if it
was never made
Sometimes money is not enough to compensate the loss
Custom made iphone is stolen, so the money won’t get the same one back
When it is a memory, you won’t get is back as well
When harm is too big, too much damage
Equality : is giving everyone the same opportunity
Equity : is fairness in every situation, you apply what is fair
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