Basic Concepts of Law

Question 1

What are the two fields of law?

Answer 1

Public and private law

Question 2

What is the distinction between public and private law?

Answer 2

In public law the government plays a role and in private law it does not?
Private law is between citizens

Question 3

What are three forms of private law?

Answer 3

• Property Law -> ownership
• Contract Law -> sales, work
• Tort Law -> compensation for damage when there is no contract

Question 4

What are 4 forms of public law?

Answer 4

• criminal law
• constitutional law
• administrative law -> relation state & citizens
• public international law -> relation between states

Question 5

What is substantive law?

Answer 5

Rules that give people rights, or determine

what people should do

Question 6

What is procedural law?

Answer 6

Rules for court proceedings, the organisation

of the judiciary

Question 7

What are legal subjects?

Answer 7

Legal rules require things from, and give rights 
to, legal subjects. Legal subjects are:
- 'natural persons'
= humans 
- or 'legal persons' 
e.g. company with limited 
liability ('B.V.', 'N.V.'), 
foundation, municipality

Question 8

What are some fundamental rights?

Answer 8

Human rights. 
E.g.
- Right to privacy
- Right to freedom of expression
- Right not to be tortured
- Right to freedom of assembly

Question 9

What is contract law?

Answer 9

Set of rules and principles that govern
transactions between parties, setting the
rules and obligations of the parties

Question 10

Contracts usually do not require formalities?

Answer 10

Even if law does not require formalities, it
can be useful to make a written contract.
If problems arise, a written contract makes it
easier to prove (e.g. to a judge) what the
other party promised.

Question 11

What does freedom of contract entail?

Answer 11

Parties can choose

• whether they want to contract
• with whom
• about what (contents of the contract)

Question 12

Contracts cannot require what?

Answer 12

Illegal acts e.g.

• Contract to hire a killer
• Contract requiring singer to remain single
• Selling organs
• Selling babies
• Selling sex - in many countries

Question 13

Property rights are?

Answer 13

‘absolute’ rights; they
can be invoked against everyone: an ‘erga
omnes’ effect

Question 14

Relative rights are?

Answer 14

Only valid against a particular

legal subject

Question 15

What are tangible and intangible property rights?

Answer 15

Tangible:
house, land, car, chocolate bar.

Intangible
trademark, copyright, patent.

Question 16

3 groups of rights are?

Answer 16

1. Rights against a person -Claims, e.g. based on a contract, or on tort law. The other party: an ‘obligation’
2. Rights on an object - Property rights
3. Human/fundamental rights

Question 17

What does tort law entail?

Answer 17

Basic rule: everybody bears their own 
damage
Tort law is about the exceptions:
Under which conditions can somebody who 
suffered damage claim compensation for the 
damage from somebody else?

Question 18

What is fault liability?

Answer 18

A is liable for damage caused to B, because A wrongfully caused damage to B

Question 19

What is strict liability?

Answer 19

A is liable for damage caused to B, even though A did not intentionally or negligently cause that damage

Question 20

Two facets of strict liability?

Answer 20

i) Liability for damage caused by somebody else

ii) Liability without tortfeasor, for damage caused by defective or dangerous thing or activity.

Question 21

What is criminal law?

Answer 21

Rules in which the state prohibits certain forms of conduct and that impose punishment for such conduct

Question 22

Utilitarian criminal law?

Answer 22

Sanctions are only justified if they have beneficial consequences, e.g. deterrence & rehabilitation

Question 23

Retributive theories?

Answer 23

Crime deserves punishment

Question 24

What are the 2 functions of criminal law?

Answer 24

1) Tool to maintain public order and control deviant social behaviour
2) Tool to protect the human rights of civilians (including criminals) against the state.

Question 25

What is the proportionality principle?

Answer 25

Infringements on people’s rights, should only be allowed when they are strictly necessary to investigate a specific offence

Question 26

What does constitutional law entail?

Answer 26

Field of law that regulates the state
The state should comply with legal rules: the
rule of law.

Question 27

What are constitutions presented as?

Answer 27

A document that states what states can do, they are usually harder to amend and a written document.

Question 28

What is the trias politica?

Answer 28

1. Creating legislation - Legislator
2. Practical implementation of rules - Government
3. Deciding disputes - Courts

Question 29

What does administrative law entail?

Answer 29

• Administrative authorities
• Procedural rules for use of public powers
• Objection procedures and protection by courts against the state

Question 30

Various powers of administration?

Answer 30

i) public law competences - imposing tax

ii) private law competences - government buys furniture

Question 31

What are the 2 functions of administrative law?

Answer 31

i) Instrumental function - Rules that bind the administration in its tasks
ii) Safeguarding function - Rules about supervision by courts