Sources of Law

Question 1

Legitimacy of the Law in positivism? which cause?

Answer 1

Cf. Chapter 2 of this lecture – „Natural Law, Justice, Positivism and Liberty“
➢ For this section, we presume the causa efficiens of positivism as the legitimacy of law

Question 2

The hierarchy of the legal system (outline)

Answer 2

1. Public International Law
2. European Union Law
3. National Law
   a. Constitutional Law/Statutes
   b. Ordinary Law/Statutes
   c. Decrees
   d. Municipal Acts

Question 3

What are the sources of public international law according to Article 38 of the ICJ Statute?

Answer 3

International Conventions:
General or particular agreements establishing rules expressly recognized by states.
International Custom:
Evidence of general practice accepted as law (opinio juris).
General Principles of Law:
Recognized by “civilized nations.”
Subsidiary Sources:
Judicial decisions.
Teachings of highly qualified publicists (subject to Article 59).

Note: Subsidiary sources are used to determine rules of law.

Question 4

a. International Conventions:

Answer 4

International treaties are now for the most part governed by the
Vienna Convention on the Law of Treaties (1969)
- The convention itself is a treaty under public international law
- Other examples:
- European Convention on Human Rights (1950; in force: 1953)
- Charter of the United Nations (1945)

Question 5

b. International Custom

Answer 5

Most basic legal source – no institutional setting needed
- It is binding to a certain scope
- Requires two elements:
- Longa consuetudo (long standing practice)
- Opinio iuris (the long standing practice is regarded law)
- Caveat: Customary Law is sui generis – it belongs to European Union Law and National Law as well

Question 6

c. General principles of law recognized by civilized nations:

Answer 6

General principles that are commonly represented in multiple legal traditions of the
world
- i.e. pacta sunt servanda
- 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 7

What are subsidiary means for the determination of rules of law in public international law?

Answer 7

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 8

2. Sources of European Union Law
   The Nature of EU Law:

Answer 8

CJEU, C-26/62, Van Gend en Loos:
The European Economic Community constitutes a new legal order of international law for the
benefit of which the states have limited their sovereign rights, albeit within limited fields, and
the subjects of which comprise not only the Member States but also their nationals

Question 9

2. Sources of European Union Law

Answer 9

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 10

Secondary Law:

Answer 10

Regulations (Art. 288 (2) TFEU):
* binding
* directly applicable
* address individuals
* do not require transposition by Member
States
Secondary Law:
Directives (Art. 288 (3) TFEU):
* binding
* no direct effect (safe for late transposal)
* address primarily the Member States
* require transposition by Member States
* set an objective that Member States must achieve

Question 11

What does national law consist of?

Answer 11

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

Question 12

Constitutional Law

Answer 12

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 13

Statutes:

Answer 13

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 14

Regulations:

Answer 14

Commonly issued by the administration
- Regulations may only be issued on a statutory basis
- Article 18 (2) B-VG: Every administrative authority can on the basis of law issue
ordinances within its sphere of competence.

Question 15

Contracts:

Answer 15

Create binding law as well – in general inter partes
- Legitimacy in itself or because of a statute?
- § 859 ABGB: The personal rights in rem, pursuant to which a person is obliged to a
performance, are based directly upon law, a legal transaction, or an incurred damage.
- Cf. International Treaties (Art. 38 lit a ICJ-Statute) or philosophical social contracts

Question 16

Contracts: example from the ABGB?

Answer 16

§ 861 ABGB:
Whoever declares that he intends to transfer his right to someone else, which means that he
will allow or give him something, do something for him, or refrain from something to his
benefit, makes a promise. However, if the other person validly accepts the promise, a contract
is concluded by mutual consent. As long as the negotiations are pending and the promise has
not yet been made or has neither been accepted in advance nor afterwards, no contract is
established.

Question 17

Judicial Decisions:

Answer 17

§ 12 ABGB:
Court orders in relation to individual cases and decisions rendered by courts relating to
specific lawsuits do not have the same legal effect as a law. They cannot be extended to other
cases or to other individuals.
➢ Austria follows the civil law tradition
In the civil law tradition, court decisions only bind the parties
- Beyond that, decisions are technically only legal opinions
➢ Nonetheless, court decisions are in fact of great significance

Question 18

What characterizes judicial decisions in a common law system?

Answer 18

• The common law system is characterized by cultural differences compared to civil law traditions
• for instance, in scholarship – cf. legal realism
• In a common law system, 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 19

What is the significance of Carlill v Carbolic Smoke Ball Co in English contract law?

Answer 19

It is a key case in English contract law.
The decision is legally binding (not just an example to follow).
It shows the legal rule (ratio decidendi): The court’s decision directly follows from the facts and the law in the case.

Question 20

What were the facts of the advertisement in Carlill v Carbolic Smoke Ball Co?

Answer 20

Defendant: Carbolic Smoke Ball Company.
Issued an advertisement offering £100 to anyone who contracted influenza after using their smoke ball as instructed.
Plaintiff: Elizabeth Carlill relied on the ad, bought the smoke ball, used it as directed, and still contracted influenza.

Question 21

What were the defendant’s main arguments in Carlill v Carbolic Smoke Ball Co?

Answer 21

No contract concluded:

The advertisement was too vague and expressed intent, not a promise.

No consideration:

Carlill did not provide consideration for the alleged contract.

No acceptance:

Carlill did not formally notify acceptance of the offer.

Void contract:

Claimed the contract was a wagering agreement, which is void.

Question 22

What were the plaintiff’s arguments in Carlill v Carbolic Smoke Ball Co?

Answer 22

Specific Offer:

The advertisement was specific and constituted an offer.

Acceptance by Action:

Carlill accepted the offer by performing the required act (using the smoke ball).
Referenced Brogden v. Metropolitan Ry. Co. to support that action constitutes acceptance.

Question 23

What were the key points in the judgment of Carlill v Carbolic Smoke Ball Co?

Answer 23

No Puff:

The promise was not mere advertising puff due to the deposit of money.

Notification Not Required:

Acceptance in such cases does not require prior notification.

Continuing Offer:

The advertisement constituted a continuing offer.

Contra Proferentem Rule:

Ambiguous language is interpreted against the party using it (the company).

Question 24

How was consideration established in Carlill v Carbolic Smoke Ball Co?

Answer 24

Detriment to Plaintiff:

Using the smoke ball was a detriment to Carlill.

Benefit to Defendant:

The company benefited from increased product sales due to the advertisement.
Referenced Gerhard v. Baits (1853) to support this argument.