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Business Law & Ethics tutorial answers & notes GRADE 9.6
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Business Law & EthicsWeek 1 (did not make this myself)
1. What does law regulate?
It regulates what is just behavior to avoid chaos. Law organizes just behavior in
society. Example: driving on the right side of the road, the law defines how traffic
participants should use the roads.
Substantive law – legal rules that define the content of just behavior.
Formal law – legal rules that maintain substantive law, rules of the game.
2. Are the following regulations substantive or formal law? Motivate your answer.
a. You cannot buy alcohol under 18 years old.
Substantive law
b. If you are driving through a red traffic light, you have the possibility of a fine.
Formal law
c. The right to marry another person, regardless of their gender.
Substantive law
d. Your will has to be drawn up by the notary.
Formal law
e. The university is the only institution where one can obtain a doctorate.
Formal law
Public law – regulates the relation between a government and its citizens.
Private law – regulates the relation between citizen or those who act as citizens (legal
persons)
3. In the city of Amsterdam there are a lot of rent-a-boat compagnies where tourist
can rent a boat to go sailing on the canals. Those rent-a-boat compagnies have to
follow the rules and regulations regarding the safety, environment and noise
regulations etc. Are those rules of public or private law? Motivate your answer.
Public law, for they regulate the relation between a government and its citizens. In this
case the municipality of Amsterdam tells citizens (companies – like owners of the
rent-a-boat companies – and individuals – the people renting these bats what they can
and cannot do.
The origin of law
Positivist law and natural law
Two approaches have been traditionally distinguished regarding the origin of law. The kegal
philosophical opinions differ in the ultimate source of law.
Positivist law: legal certainty, focus on formalization.
Natural law: legal uncertainty, focus on content.
The origin of law – natural law
Natural law is vulnerable to perspective and therefore due to legal uncertainty
Nuremberg laws November 1935:
The Reich citizenship law and the Law of Protection of German Blood and German Honor:
The Nazis could never prove a biological or racial basis for Judaïsm. Nazi legislators
therefore looked for family genealogy to define race. This legal definition of a Jew in
,Germany covered thousands of people who did not think of themselves as Jew or who had
neither cultural nor religious ties to the Jewish community.
The origin of law – positivist law
In a positivist law approach, it is assumed that law comes from (written) codification/
Pro
Protection of people from extreme understandings of natural law
Con
Written law is always behind on reality
The struggle of China – two major legal philosophies:
- Confucianism (essence of human being in which manifests as compassion, the nature
of things, moral precepts, rites, custom and law)
Versus
- Legal positivists (adoption of written codes to achieve order and restrict unlimited
power and put consequences on misbehaving)
4. Are the following regulations substantive private law, substantive public law,
formal public law or formal private law?
a. The obligation to stop for a red light
b. To get a driver’s license
c. How to start your own company
5. There are different origins of the law systems. What are the two approaches in
legal philosophy?
6. What is the origin of the natural law philosophy, and can you name an example?
In a natural law approach, it is assumed that laws emerge from nature. This means that
a law does not need to be codified, but already exist regardless its appearances. For
example, human rights are inherent to mankind and is a right simply because humans
are born. They do not have to be written down or recognized.
b. What is the origin of positivist law philosophy, and can you name an
example?
In a positive law approach, it is assumed that law comes from codification. That
means that law is only law when it has been written down first. For example, it is
written down in the law that an individual cannot legally purchase alcohol if they
are under 18 years old (this is not perse a natural rule).
7. What are the advantages and the disadvantages in regards to the application of
the natural law philosophy?
Advantages: Focus on the content, no formalities since law emerges from nature
Disadvantages: legal uncertainty
Legal sources of law – legal positivism to natural law
- Codified standards
- Application of law
- Legal writings and teachings
- Religious writings and teachings
- Customary law
, - Legal principles
b. What are the advantages and the disadvantages you can think of in regards to
the application of the positivist law theory?
Advantages: legal certainty and protection of people from extreme understandings of
natural law.
Disadvantages: focus on formalization (and not practice) and written law is always
behind on reality.
Legal source: codified standards
- Codified standards are written rules produced by a legislator
- Legal positivists assume that codification of legal rules is the ultimate source of law
- First known codified standard: Code of Ur-Nammu (Mesopotamia), 2100 BC
- Europe: The twelve tables of Rome – 451-450 BC
- Family law, ownership of land, and tort law
- Example: international treaties
o Bilateral treaty: pact between 2 countries (using space/river)
o Multilateral treaty: pact between more countries (on trade EU
8. Can you name and describe the two approaches in law regarding the effect of
international law in the domestic legal order?
Monism; where a signed and rarefied treaty is automatically part of the domestic legal
order. (NL)
Dualism: where a signed and ratified treaty needs to be transformed into domestic law
first before it becomes part of the domestic legal order.
9. Does national law become instantly null and void after an international law that
contradicts the national law in a monistic or a dualistic system? Motivate your
answer.
In a monistic system a contradictory national law becomes null and void directly after
voting for an international law due to the acceptance of the domestic and international
legal systems as a unity.
10. Countries like Belgium, France and Germany have the approach that when they
sign and ratify a treaty, the content of this treaty from that moment on is
automatically part of their national legal order. What do we call this approach
and what happens when national law in those countries contradicts with the
content of an applicable treaty?
Such a system is referred to as a monistic system, in a monistic system the content of a
signed and ratified treaty is automatically part of the national legal order. All legal
people can make a direct appeal to the rules of the treaty in national courts from that
moment on and contradicting domestic law will no longer apply.
11. Is it possible that an international treaty can be binding in a dualistic system?
In dualist states international law is viewed as the law between states, Domestic law is
the law within the national state. The view is that international treaties are binding ‘on’
states, they cannot be binding ‘in’ states. Therefore, international law needs to be
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