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WHAT IS LAW/WHERE DOES LAW COME FROM (06/010/2022)
Course goal: understand the legal conceptual framework and legal reasoning to conflicts in
society and apply it
Legal framework: not learning the rules by heart but apply and explain
Reflect on legal issues from your own legal system (self-study) -> exam question
Separation of power:
1. Legalization parliament
2. Executive government trias politica
3. Judiciary courts
Checks and balances = system to avoid corruption by giving every branch the power to
check and correct the use of power from the other branches
SOURCES, BASIC CONCEPTS, FIELDS OF LAW
An introduction to the western legal system
• Focus on the Western secular (= church and law are separated) legal system, rather
than a legal system
• Focus on the system rather than on specific rules
• Focus on how society is organized and how people should treat one another
• Focus on how lawyers go about to solve cases/legal problems
Sources of law
Legal rules legislative branch + executive branch
Court decisions juridical branch (precedents; case law)
Custom law binding but unwritten (naturally obligated guideline)
Legal writing authoritative but not binding (scholarship; books, case notes)
Positive law = applicable and enforceable at a given time
Legal systems around the world vary greatly, but they usually follow civil law or common
law. In common law, passed legal precedents or judicial rulings are used to decide cases at
hand. Under civil law, codified statutes and ordinances rule the land.
Civil law Common law
• based on the rediscovery and ‘reception’ of • unification of the English legal system: royal
Roman law: local customary law and ius commune representatives travelling around to administer
• national law and codification the law
• legal reasoning: creation and application of • uniform application of the law by courts of justice
statutory
GENERAL rules
FEATURES OF THE LAW (13/10/2022) • legal reasoning: by way of analogy to previous
e.g. France, Germany, Croatia cases
e.g. England, Wales, Ireland
Mixed legal systems: Scotland, South Africa, Louisiana (USA)
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,Cato Sluyts
Distinctive features of law
• Substantial part of law exists in the form of legal rules that are enforced by collective
means and in particular by organs of the state
• These rules don’t only specify how people should behave, but also contain
definitions, division of state competence, etc.
What it’s not
• Moral rules, natural laws, social conventions…
• Animals/objects are excluded only outward human behaviour
• Relevance/examples?
o When your father promises to buy you a car when you graduate, is that legally
enforceable? Obviously not, unless it’s a written contract (with a notary)
o Can civilians force the state to take actions against climate change?
o Is a retail shop obliged to pay its rent during a lockdown? Depends per case
o Is breaking off an engagement legally enforceable? Is it a tortious act? depends
Dura lex, sed lex? = ‘the law is the law’
• The importance of legal certainty sometimes prevails over the best solution
o Certainty about the content of the law
o Certainty that the law will be enforced
o Certainty that the law will be applied consistently
o = general and impersonal nature
Legal concepts bring about and maintain the existing state of the world
However – as our society evolves, so does the law!
• E.g., Antwerp 29 April 2019: “Animals are not objects, but creatures with feelings, who
have certain rights” -> custody of pets and visiting rights in case of divorce
Legal barriers: slowness in responding to changing societal values
-> But the legal system provides the tools for change, you just have to choose the right
politicians (E.g., Belgium 1948: women get the right to vote)
Two sides of the same coin
• Law as a societal phenomenon (objective)
o Set of general (un)written rules for outward behavior of people living in a social
context
o Observance of these rules is enforced by the State
• Law from an individual perspective (subjective)
o A specific claim that a person derives from a legal rule
o Obligation to do / to give / to abstain from
• Our (subjective) rights are derived from the (objective) law
o I have rights because my claim is protected by/grounded in law
o I can claim my property because the law protects the right of personal property
o Rules on property (acquisition, loss, expropriation, theft, etc.) are part of the law
o Based on these rules I can claim personal property (i.e., my right)
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,Cato Sluyts
Legal actors and their rights
• Natural person: you and me
• Legal person: company, non-profit organization
-> Both are subjects of law, which means: both have rights and obligations
o E.g., you can sue a company (in principle not its owners or directors – separate
person with a separate patrimony)
Relevance of this distinction
• Fundamental idea and prerequisite when going to the civil courts
• The law grants me a right, so I claim my right based on the law
o E.g., article 1382 French/Belgian Civil Code - tort law: “Anyone who, through his
act, causes damage to another by his fault should be obliged to compensate the
damage” -> E.g., breaking an engagement (more examples in ppt)
What about the state as a subject to law
Difference between the State and individuals
• The State represents and defends the general interest and therefore has certain
o Prerogative e.g., property law: public domain, expropriation by the State
o Obligations e.g., property law: property is a social arrangement that should be
protected by the State
• As a state, because you deal with tax money, you must make sure that there is
competition and you must choose the best bidder, you can’t decide arbitrarily because
the state represents the general public interest -> if the state doesn’t you can sue them
Fields of law
• The ‘summa division’ is not always clear-cut
o European Union law
o Labour law
o Etc.
Substantive law and procedural law
• Substantive law: rules that give people rights and determine what people should do
• Procedural law: means through which compliance with duties and respect for rights
can be enforced
o E.g., murder suspect is released because of ‘procedural error’
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, Cato Sluyts
INTRODUCTION TO PRIVATE LAW (20/10/2022)
Tort law
“Body of rules determining the circumstances and conditions under which harm suffered by
a victim will be borne by another person, most frequently, the perpetrator of the harm.”
• Damage to goods, bodily harm, mental distress, violation of copyright, trespassing
• Some events cause damage -> starting point: “the loss rests where it falls”
• Unless: special circumstances under which loss will be shifted to a person other than
the injured person
o Fault – damage attributed to an act of someone else
o Other liability (e.g., strict liability) – allocation of risks
• Balancing the interests may differ in different legal systems
Different approaches of torts law in general
• Focus on the victim and its damage
o Full compensation
• Focus on the injurer and its punishment
o Punitive damages
o Compare with criminal law
Common law of torts
• Traditional case-based common law: different rules being fine-tuned to the various
kinds of case. However, development towards tort of negligence as main focus
o Donoghue v Stevenson [1932] AC 562
o Someone commits tort of negligence if they breach a legal duty of care owed to
another person and their interests and if this breach resulted in damage to them
-> Negligence: four conditions
1) there is a duty of care towards a group of people (of which the victim is one)
2) this duty has been breached
3) there must be damage
4) the damage is caused by the breach, ‘proximate’ cause (and the damage was not too
remote a consequence of that breach)
Burdon of proof
• Strict liability: you don’t have to prove a fault or a mistake, you only have to prove
the damage
o E.g., USA: manufacturer is liable for harm caused by defective goods even if it is
not at all a fault/mistake
o E.g., UK: Consumer Protection Act 1987 (implementing Directive 85/374): strict
liability for personal injuries and some property damage
Civil law
• Legal basis
• Not many torts as far as legislation is concerned – general approach
• Different kinds of wrongful acts: case-based assessment ( ̴ common law)
• No a priori limitation as to the class of protected persons (≠ common law)
o No proof of a duty of care towards the plaintiff
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