Sources of law

Question 1

What are the sourecs of public inyterbational law?

Answer 1

According to Art 38 of Statute of ICJ:
a. intrenational conventions
b. international custom (as evidence of general practise of the law)
c. the general principles of law
d. judical decisions and the techings as subsidiary means of the demerminatoon of rules of law.

Question 2

What are the requirements to the internatioanal custom?

Answer 2

1. longa consuetudo (long standing practice)
2. opinio iuris (the long standing prcatice is regarded law)

Question 3

What are the features of the general principles of law recognized by civiliezed nations?

Answer 3

-General principles that are commonly represented in multiple legal traditions of the world
- i.e. pacta sunt servanda (the agreement must be kept-binding nature of treaties and agreements, emphasizing that parties must perform their obligations in good faith)
- Often, general principles are a subsidiary legal source
- General principles are sui generis – they also belong to European Union Law and National Law for example

Question 4

What are the featuers of subsidiary judical decisions?

Answer 4

-Subsidiary means for the determination of rules of law = sources of legal reasoning
- No sources of law – hence not in general binding
- Cf. Article 59 ICJ-Statute: The decision of the Court has no binding force except between the parties and in respect of that particular case.

Question 5

What are the siurces of the EU law?

Answer 5

1. Primary law (e.g. treaties such as the TEU, TFEU and CFR)
2. Secondary law (e.g. regulations and directives)
3. Decisions by EU authorities (e.g. CJEU, Commission)
4. Soft law by EU authorities (e.g. guidelines, recommendations)

Question 6

Whta are the sources of National law?

Answer 6

1. Ordinary Law
   a. Constitutional law
   b. Statutes
   c. Statutory instruments (e.g. regulations)
2. Contracts
3. Judicial Decisions

Question 7

What place does the constitutional law has in the national legal order?

Answer 7

-is even formally higher-ranking than ordinary national law

• Contains norms that regulate the legislative procedure
• Materially, these statutes are endowed with supreme values
• Effectively, ordinary statutes are measured by constitutional standards

Question 8

What are statutes? What are their features?

Answer 8

• enacted in a legislative procedure
• Caveat: constitutional law is also statutory law
• Other legal sources, regulations for example, are inferior to statutory law
• When a legislator regulates an entire area of law, it adopts a holistic approach
• the result is then a code (e.g. ZPO)
  ➢ Expression of parliamentary sovereignty

Question 9

What are regulations?

Answer 9

-Commonly issued by the administration
- Regulations may only be issued on a statutory basis

Question 10

What role do judical decisions play in the civil law and in common law traditions?

Answer 10

1. CIVIL LAW-court decisions only bind the parties->Beyond that, decisions are technically only legal opinions
2. COMMON law- court decisions are besides statutes a source of law
   -They not only bind the parties – instead, the principle of stare decisis is relevant
   - The determination of a statute is then for example binding, and can only be overruled under
   certain circumstances

Question 11

What is NUDUM PACTUM?

Answer 11

Contract that lacks condsideration and therefore is not legally enforcable. In contract law, for an agreement to be binding, it generally must involve consideration→both parties must exchange something of value→smth has to be given and taken

Question 12

Is there a consideration in the case of [old lady] vs Carbolic Smoke balls?

Answer 12

Yep, because
- detriment to the plaintiff to use the smoke ball
-company benefited from the advertisement by the increase in
sales of their product

Question 13

What is the difference between objective and subjective law?

Answer 13

1. OBJECTIVE-enacted by legislator, focuse on the rule itself, but not on the rights and claims of individuals→ covers public law
2. SUBJECTIVE- indovidual rights that arise from objective law focuses on how the law applies to individuals and their specific entitlements→private law

Question 14

What is the difference between private and public law?

Answer 14

1. PUBLIC law:
* * deals with relation between state
* and citizen
* * principle of subordination
* * rights and duties set by statute
* - Constitutional, Administartive and Criminal law

**2. PRIVATE law: **
* deals with relation between
individuals
* principle of equality
* rights and duties can be amen
ded by agreement (contract)
-General Civil, Consumer, Commercial, Labour law

Question 15

substantive vs procedural law?

Answer 15

1. SUBSTANTIVE law
   * determines what legal subjects may and may not do
   * all legal norms regulating the content, creation, alteration, transfer
   and expiry of rights and obligations
   * private or public law
2. PROCEDURAL law
   * all legal provisions concerning binding decision-making
   * rules for judicial and non-judicial proceedings (e.g. arbitration)
   * deals with- jurisdiction (norms of competence)- manner in which a decision is reached- form of the decision, its notification and effectiveness
   * part of public law

Question 16

mandatory and supplementary law

Answer 16

1. MANDATORY law (ius cogens)
   * rules which cannot be deviated from by contractual agreement
   * reasons for binding effect e.g.- protection of public interests (the ‘general weal’)- protection of weaker parties- protection of third parties
   * sometimes only unilaterally mandatory- e.g. consumer law, employment law
   -no derogation is permitted, even by agreement between states.
   -examples: prohibition of genoside, torture etc
2. SUPPLEMENTARY law (ius dispositivum)
   * statutory rules from which one may deviate (e.g. in a contract)