sources of the law Flashcards
sources of law
-Different areas of the law= different sources (some concern w statues, some w customs, etc.)
-Council of europe= own international body, has council and representative organs (like european court of human rights, has smaller to bigger chambers, 3-6 judges) and used to have commission (would defer courts to european court of human rights)
- Court of Justice of Europe = no relation to the council of europe
- source= origin, causa
some info abt Friedrich Karl von Savigny
tried to academize the study of the law, started the historical school of law; let’s study law as a study of history, did history of law (roman law and its development up to savigny’s time); historische rechtsschule, Karl Marx studied w him; (historische rechtsschule easily misunderstood, bc ppl think causa finalis/goal of the law should be the aim; but in order to know where u are going, u need to know where you’re coming from, source still present today, bc start and development important ) law = like river (developed over time, need to look at source and need to steer it where u want it to go)
hierarchy of legal system 1
- European Union law
- Public international law
- National law
- Constitutional law
- Ordinary law/statues
- Decree
- Municipal acts
hierarchy of legal system 2: EU and PIL (differences, USA)
- EU= more than public international law (= supreme source of law), superior than national law
- EU starts w intergovernmental phase, after Lisbon treaty 2009 EU integrated phase, turning EU law from public international law into a new legal order, that is distinct from PIL
- PIL treaties= need to be internally ratified,
- PIL, 2 states= like dinosaurs, so they mind their business ; when they conclude a treaty the executive branch within the state concludes the treaty, but in democracy, the executive cant make those decisions on their own, follow transformation doctrine (so public int. Duty gets transformed to be applicable in state), treaties dependent on national implementation
- Charming Bettsy in US= if national law has a certain vagueness to it, then by default that interpretation w conformity w PIL is chosen (but domestic law is superior to PIL, so they sometimes break PIL)
- Hierarchy of legal systems get rearranged through ur studies
Maastricht case
the german constitution court had to assess to what extent the EU was in doubt w the power to legislate over germany (EU by default is not in doubt in any official power, derives power from member states that give EU the power) ⇒ germany can decide how far that power goes, constitutional court gets to decide how much power is given to the EU ——–> from EU point of view, EU law is universally and directable applicable , constitutional court does not have authority to decide shit over EU law
EU law sources and international law sources
- EU law sources: directives, regulations, decisions, recommendations and opinions (article 249 TFEU)
- Sources of international law: article 38 statute of the International Court of Justice, international conventions (treaties) , international customs, general principles of law, judicial teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determinations of rules of law (subsidiary= supports, but its secondary/inferior, = helps interpreting the other sources, but aren’t source in their own right) (general principles of law recognised by civilised nations) (differentiation between customs and general principles, bc there is no proof for general practices, but u still need it sometimes, general principles= informally) more relaxed version of customary law) (epistemology = being; ontology= knowing) ===> epistemological sources (how do i know what the law is)
- Public and private law depend on the subject matter (same matter can be public law in one country, private in another)
- PIL weakness= not really totally enforced, application not always coordinated (by different courts in different countries)
National law:
1.Ordinary law
- Constitutional law (is even formally higher - ranking than ordinary national law; these statutues are endowed w supreme values; ordinary statutues are measured by constitutional standards)
- Statutes (enacted in a legislative procedure, other legal sources are inferior to are inferior to statutory law, When a legislator regulates an entire area of law, it adopts a holistic approach)
- Statutory instruments (eg regulations) (can be passed by smaller power or , executive branch) (“fast tracked law”,so system is flexible)
- Contracts
- Create binding law as well - > in general inter partes
- Legitimacy in itself or bc of a statute? § 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 - Judicial Decisions:
-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
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
- Case law system VS civil law system (case law system= technically Europe does not recognise judicial decisions as law (there are exceptions, ex: supreme court rulings often base themselves on other cases) (realist perspective: europe also a case law system, bc we also search guidance from higher courts, so much so that decisions from like supreme court is treated like law/ like a statue) (there are cultural differences w the systems of law, ex: the art of developing/ interpreting statutes is less “done” in the US/ UK, but they know how to distinguish (= they focus on similarities of a case only, when they need it for their case, bc big art of case law system is being able to differentiate between which cases are relevant and which aren’t) (some countries focus only on case law, some on civil law, some use both (for ex: mauritius, bc of multiple colonial influences ))
- Common law system is characterised by cultural differences compared to civil law traditions
- In common law system, court decisions are besides statutes a source of law
- They only bind the parties - instead the principle stare decisis is relevant (the determination of a statue is then for ex binding, and can only be overruled under certain circumstances)
sources of PIL
- International conventions:
- for most part governed by the “Vienna convention on the law of treaties” (1969), which itself is a treaty under PIL
- ex: Charter of the UN (1945) - International customs
- most basic legal source, no institutional setting needed
- binding to a certain scope
- two required 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
3.General principles of law recognized by civilized nations:
- General principles that are commonly represented in multiple legal traditions of the
world
- i.e. pacta sunt servanda (=agreements must be kept)
- 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
- subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination
of rules of law:
- - 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
The Nature of EU Law:
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.
Sources of EU law
- Primary law (e.g. treaties such as the TEU, TFEU and CFR)
- Secondary law (e.g. regulations and directives):
- Regulations (Art 288 (2) TFEU), binding, directly applicable, address individuals, doesnt require transposition by MSs)
- Directives (Art 288 (3) TFEU), binding, no direct effect (safe for late transposal), address primarily the MS, set an objective the MS must achieve) - Decisions by EU authorities (e.g. CJEU, Commission)
- Soft law by EU authorities (e.g. guidelines, recommendations)
Carlill v Carbolic Smoke Ball Co
EWCA, Carlill v Carbolic Smoke Ball Co,
Judgment of 7 December 1892:
-a leading case of English contract law
- The judgment constitutes legally binding authority and not just persuasive authority
- There is ratio decidendi: the decision follows necessarily and sufficiently from the
facts and the law (“if and only if“)
facts:
- Defendant: Smoke Ball Company
- a legal person that can have rights, obligations and be sued
- Plaintiff: Elizabeth Carlill
- Claim: 100 Pounds, based on an advertised promise
“The defendant, the proprietors of a medical preparation called “The Carbolic Smoke
Ball,” issued an advertisement in which they offered to pay 100 [Pounds] to any
person who contracted the influenza after having used one of their smoke balls in a
specified manner and for a specific period.”
“The plaintiff on the faith of the advertisement bought one of the balls, and used it in
the manner and for the period specified, but nonetheless contracted the influenza
[…]”
Defendants Appeal:
- No contract was concluded – then, there is no claim
- The words only express an intent, but no promise because they are too vague
- EWHC, Williams v. Carwardine (1833) is not comparable and applicable
- Unlike this case, Carlill has no control over the event in question
There is no consideration
- Carlill did not accept the offer
- Even if it were a contract, it would be a wagering contract, which is void
Plaintiffs Argument:
- The offer is specific enough
- The advertisement was an offer, which Carlill duly accepted
- Doing an act indicated is an acceptance, reference to Brogden v. Metropolitan Ry. Co.
(1876/1877)
Judgment:
- Firstly, the contract is no policy, secondly, it is not a bet (wagering contract)
- There is a distinct promise expressed in language, it is no puff due to money deposits
- Notification is in such cases not necessary, and it is a continuing offer
- the burden of argument lies on the defendant
- In contra proferentem: if somebody uses language, by default, it will be interpreted against him
Judgment – Consideration Argument:
- is the contract an unenforceable pactum nudum?
= any act of the plaintiff from which the defendant derives a benefit, or any detriment sustained
by the plaintiff
➢ There is consideration because it is a detriment to the plaintiff to use the smoke ball
➢ There is consideration because the company benefited from the advertisement by the increase in sales of their product (Reference to Gerhard v. Baits (1853))
