Chapter 1 - Introduction Flashcards
Law
A set of enforceable rules of conduct imposed by the public authority in a structuring civil society. (BUT rules of law and rules of civility aren’t the same. ‘Entering a contract is binding’ is a rule of law, but the unwritten rule of having to be on time is simply a rule of civility.)
Mandatory rules of law
Laws that purport to apply regardless of the law chosen by the parties to govern their contractual relations. One is not allowed to deviate from this. Ex. labour laws
Default rules of law
Rules of law that can be overridden by a legally effective agreement. (“gap filler”) Ex. rental law
Public policy rules
Body of principles that support the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time.
Mandatory protective rules
Rules that purport to apply with the aim to protect the economically weaker party of a contract. Once a conflict has arisen, the parties involved may deviate from such mandatory rules by a separate agreement.
Rules of law
- Legislation
- Jurisprudence/case law
- Legal doctrines
- Customary law
Legislation ‘sensu stricto’
Parliament created acts. This can either be a regional or federal parliament.
Legislation ‘sensu lato’
Treaties, the constitution, other acts, presidential/royal decrees, governmental decisions, european regulations or directives, …
Legal doctrine
The system, analytically evaluative exposition of the substance of private law, criminal law, public law, etc.
=> A legal doctrine picks up questions from legal practice and discusses them in a more general and profound manner. It can be a PHD thesis, a remark, etc.
Customary law
Is intrinsic to the life and custom of indigenous peoples and local communities. It goes back to the real origins of law, but its actual importance in modern legal systems is limited because it contradicts codified law.
Legal principles
Mostly derived from existing elements of legal system.:
- With statutory support
Ex. general principle of “good faith”: people should act in good faith
- Without statutory support
Ex. Reasonableness principle: People should be reasonable.
Legal systems
1) Civil law system
2) Common law system
3) Religious law system
Civil law system
A body of law derived and evolved from Roman law. Laws are struck in writing, codified, and not determined by the opinions of judges.
Common law system
A body of law based on the opinions of judges and historic customs.
Religious law system
A body of law based on religion
