Introduction to Law

Introduction to law

WHAT IS LAW?

DEFINITION

- Law is difficult to define

Different definitions | different cultures, nations, ages

‣

General definitions of law :

‣

- We can find numbers of definitions of law by reading texts and documents coming from different cultures

and different times | For instance:

Dictionary of Han's Dynasty [III century b.C.] : Law is punishment

‣ Carl Marx : law is a tool of oppression to exploit the working class

‣ John Austin : A rule laid down for the guidance of an intelligent being by an intelligent being having

‣ power over him

Oliver Wendell Holmes [a judge - someone using law] : The prophecies of what the courts will do

‣

- Sometimes also contrasting with each other

Modern definitions of law

‣

- There are more modern definitions of law witch are also more complex

US Legal Dictionary : A body of rules of conduct of binding legal force and effect, prescribed,

‣ recognised, and enforced by controlling authority

Oxford Dictionary : The system of rules which a particular country or community recognises as

‣ regulating the actions of its members and which it may enforce by the imposition of penalties

Sirena (from the textbook): Law is a social infrastructure which binds its members in that it aims

‣ primarily solving conflicts among them and secondarily promoting their beneficial behaviour

RECURRENT FEATURES:

- Law is somehow connected to prescriptions and sanctions

- Law is always in relation to a society

- Every man needs to get into relation with the others.

Humans are "social beings" at least in the sense that getting what we need and wish requires to

‣ engage ourselves in relation with other members of our community. Humans are relational beings,

inclined to socialisation

We are social : we need others

•

- Society : the typical organisation of a community of men and women.

Like any other organisation, society needs a certain level of stability.

‣ In order to reach stability we need rules governing both the organization of the community, and the

• relations between its members, that we call social order

- Law : set of rules that can guarantee stability and regulate the community

Society and social order are the two blocks that define law || NO law = NO society it’s a strong

‣ connection

- Did Robinson Crusoe need law?

No, because he was alone and la we is used when we are in a community

‣

Why do we need rules?

‣

- We need rules establishing what is permitted and what is prohibited, to what extent a member of the

society is free to do whatever he wants and what kind of behaviors are mandatory, and so on.

Without such rules no society can resist stable and even exist.

‣ 1 - 6

- We have numbers of different kind of rules dealing with the organization of the society and the relations

among its members (religion, morality, customs, etc.).

They all are techniques of social control.

‣

- In our daily life we can appreciate that sometimes these rules matches perfectly, sometimes they differ or

even collide

Examples

‣

- The relations among these set of rules can be indifference, coincidence, conflict :

Helping poor and needy people is a religious and moral rule, but not a legal rule;

‣ Leaving your seat to a pregnant woman is a moral rule (good manners), but neither a religious nor

‣ prescription;

[promises] Keeping your words, or paying your dues are at the same time moral, religious and legal

‣ rules

Refusing blood transfers is a religious rule but not a legal rule a legal

‣

- Different set of rules (religion - legal) have the same function Helping the society

Key features

‣

- What is the key feature of a legal rule? What is the difference between a rule of law and any other social rule?

Key feature : there are consequences - the characteristic feature of law

‣

- It is commonly said that the distinctive character of law is the provision of a sanction

A negative consequence in case of violation of a legal rule (damages, imprisonment, fines, restitutions,

‣ etc)

- The sanction in itself is NOT a typical consequence of infringing a rule of law, because all the social sets

of rules provide for such negative consequences.

We could say that:

‣ The law provides for particularly strong negative consequences, but again it is true also for those

• who follow a religion in which (for instance) eternal damnation is connected to single behaviours.

The general scope of a rule of law makes the real difference: a rules of law is meant to be applied

• to everyone in a community [not true] ; it occurs that a certain law applies only to a limited number

of people in the society — not applied to everyone

How can we understand if a rule is legal or religious?

‣

- Religious and legal rules aren’t completely different : in fact there is no difference in the:

Substance

‣ Source : society

‣ Aim : stability in the relationships

‣

- The rules of law are the only social rules whose duties must be fulfilled and whose sanction are inflicted

by entities that can legitimately use the force to make people respect the rules of law.

- The legitimate use of the force is what makes a social rule a rule of law, and what makes the rules of law

so effective and reliable to achieve the goal of the social order

What differentiates legal rules from others

‣ Officer’s duty = legal law

‣

- Given a society, the whole of the applicable rules of law in that society are called legal systems.

The legal system is therefore the law applicable to that specific community of men and women, to that

‣ particular society

The religious rules can be the base of the legal ones

‣

- Nowadays, the most significant society is the national State, and so the most important legal systems in

the world are the national legal systems which are the products of the State sovereignty.

Different countries have different national legal systems

‣ So that every time we talk about "law" we tend inevitably to consider a specific national legal

• system (Italian Law, English Law, German Law, etc.).

- We can talk about international law, but the international legal system has not the same completeness

and importance than the national legal systems 2 - 6

- The fact that law is necessary to keep every society together each society has a specific set of legal rules

Aimed to regulate relationships among men and women in that specific society

‣

- Law is a product of social interactions

It is socially constructed and science societies are not static, but change continuously, law is not a set

‣ of immutable and universal rules

- Law is the product (mirror) of the society | law changes when society does : we need to adapt law to

change [there are no rules that are always the same]

It should be considered in terms of history, social character and also political

‣ COMPARATIVE LAW

- The expression has two main meanings:

1. The study of different legal systems and their comparison (macro- comparison)

2. The study of single institutions (contract, marriage, death penalty crimes, torts) in a comparative

perspective and with a comparative methodology (micro-comparison)

- The essence of comparative law is the act of comparing the law of one country to that of another.

Most frequently, the basis for comparison is a foreign law juxtaposed against the measure of one's

‣ own law. But, of course, the comparison can be broader: more than two laws, more than law, more

than written words

We are in Italy, we analyse the Italian legal system and we compare it with other ones

ex)

- Steps :

Understand the legal system

1. Compare it with another one

2. Find the differences

3.

PURPOSES OF COMPARATIVE LAW

It has the objective of international harmonisation and uniformation of legal systems (instrumental) |

1. smooth the differences

It is a scientific method to study the relations among the different legal systems all around the world | in

2. order to study them

- In our increasingly globally linked world, comparative law takes an ever more crucial role.

We are entwined in many ways, more than ever in the past. Still, of course, there are differences

‣ among areas of the world and countries, notwithstanding our common linkages.

The key role of comparative law today turns to be : promoting insights and knowledge and, perhaps,

‣ some degree of harmonisation over critical issues or, at least, a measure of common understanding.

- In comparing legal systems, some criteria are necessary to assess and of the

differences peculiarities

two or more systems compared.

- The traditional and still most used criterion is based on the historical and territorial development of

families of legal systems [easiest way]

Families of legal systems : a group of systems with some characteristics in common

‣ Grouping is used to identify similarities and differences |

• Easiest way

- The main distinction in this perspective is between Civil Law and

Common Law countries.

Originated in Europe, these legal systems have been exported

‣ beyond its native territory and became the most influential and

widespread legal systems worldwide

- Law reflects cultures CIVIL LAW

(Continental European countries, Russia, South American countries) | shared framework

Legal system based on Roman Law

‣ 3 - 6

MAIN CHARACTERISTICS

- Body of written law

- Civil Law is characterised by the prominence of statutory law

Statutory law = legislative acts from a parliament

‣ The parliament has the power to create the law || not the judge

‣

- Civil Law countries have comprehensive, continuously updated legal codes that specify all matters

capable of being brought before a court, the applicable procedure, the rights and duties of the people

and the appropriate punishment for each offence

Code

- Code is the name we use to indicate a body of legal rules that regulates as a whole a single area of law

[Civil Code - Civil Procedure Code - Criminal code]

Basic rules are located in acts that require codes civil or criminal for example (= state the principal

‣ laws)

- Codes are the “point of reference” in the subject matter, and the subsequent legislation confronts itself

with the contents of the codes

The forerunner (thing that precedes the coming or development of something else) of the codes in the

‣ European tradition is the French Code Napoléon (1806)

Judge

- The judge just interpret and apply the law (he just gives voice) : his decision is less crucial than in

Common Law countries in shaping civil law than the decisions of legislators

He needs :

‣ To understand the meaning of what is written in the statutory law

• Apply the law

•

- The judges are submitted only to the law : in many countries this principle acquires constitutional

strength

The judge can only interpret and apply the law as it is written, with no binding force of precedent

‣ decisions of the same or a higher court

- Judge : instrument

They are independent

‣ There is no certainty of decisions

‣ We can’t predict - uncertainty in how the law will be applied by a judge

•

- Law : prophecies of what a judge can do said by a judge

COMMON LAW

(England, USA, Canada, India, Austria)

Historical English legal system

‣

MAIN CHARACTERISTICS

- System of precedents : judges have a remarkable role in shaping common law

It’s a case law or judge made law : based on case

‣

- Common law functions as an adversarial system, contest between two opposing parties before a judge

who moderates

- In the typical common law trial, a jury of ordinary people without legal training decides on the facts of the

case

The judge then determines the appropriate sentence based on the jury's verdict

‣

- Common Law countries, even those with significant statutes enacted by the Parliaments

Have no Codes, since in every field of law the point of reference is and still remains the case law

‣ 4 - 6

- They can have Restatements of law : collections of cases created with the purpose to inform and instruct

judges and lawyers about general principles of the common law of that country | are a scientific product

to simplify the work or lawyers and judges, not an official legislative act

- The common law countries are historically based on case law or judge made law

- The authority of the earlier case law is usually divided into two classes:

Persuasive authority

1.

- Includes decisions coming from interior or same-level judicial courts and Tribunals (for example, decisions

of the intermediate appellate courts of the same state in US)

- The judge is not forced to follow these authorities;

It depends on the soundness of the results, on the similarities of the facts, on the prominence of the

‣ court/judge that has previously decided.

Binding authority - doctrine of precedents

2.

- Includes decisions of higher courts of the same jurisdiction and decisions of the same court in previous

cases.

The doctrine of precedent applies only in these cases

‣

- To what extent a court shall follow one of its own decisions or a higher court decision?

The answer depends on:

Similarities of the facts (extremely similar - can’t be identical);

‣ The concrete applicability of the rule described in the “holding" or “ratio of the previous

decidendi”

‣ decision;

The possible contrast with a statute law

‣ COMPARISON

- As a consequence of the two different sources of law and roles of the judges in civil and common law

systems, we can see that:

In :

civil law

‣ Countries the judge can not create law, but is just asked to apply what is written in statutes and

• codes

Uniformity of the decision is achieved by the universal and general character of the written law

✦

Systems, judges are submitted only to the written law, that contains general and abstract rules

• applicable, as such, to all the cases that the judges are asked to decide upon Codified law

In :

common law

‣ Countries the judge can create law by diverting from a prior decision

• Uniformity of the decisions is achieved by the force of precedent

✦

Systems, judges have developed uniform rules using the system of precedents, under which a

• case that shows the same characteristics of a precedent case already decided by another judge,

shall be decided in the same way Non-codified law

EXCEPTION

- In some cases a distinction is impossible :

The single legal system historically is the result of the blend of the two traditions

‣ : South Africa or Japan

Mixed jurisdictions

•

Into the same national State we can find different legal systems referring to both the families

‣ Louisiana among the US or Scotland into the UK

•

- Since some two legal systems around the world show significant coming from the traditions, it is

elements sometimes it is difficult to determine whether we are in front of a common law country or a civil

law country

We need some criteria to qualifying the legal system.

‣ The most important are:

a. Sources of law (codes and statutes; customs and case law)

5 - 6

b. Education of lawyers and judges (academic education; practical education)

In India : you can become a lawyer without any study in law | Practice is more important than

✦ abstract studies based on practice - training period is longer

- Notwithstanding the outlined differences, the two systems incline to converge more and more:

In common law countries Parliaments enact more and more written law which applies with preference

‣ to the judge made law in case of contrast between the two

In civil law countries the authority of precedents of the Superior Courts persuades the inferior judges

‣ as a matter of fact 6 - 6

Persons

INTRODUCTION

- When we analyse how an individual right works in practice, we must take into account that every right is

held by a person, who is entitled to that right

Addressee of a right : people in a community

‣

- No rights can be thought if not connected to a person or a group of persons who hold it

Right without a holder : nonsense law

‣

- It is necessary to understand or can be considered as a person to the law

who what

- Persons is used in legal context to identify a community

Addressee of the law is wider than the common language [people]

‣ NATURAL PERSONS

DEFINITION

- in legal language means :

Natural person

A person in biological sense, a human being

‣ Every human being, since the very beginning of his life, is a person to the law, and therefore can be

• a of a right

holder

The possibility or capacity of being holder (or entitled) of a right is called legal capacity

✦

LEGAL CAPACITY

- Every human being, once born, is a person in legal language

Therefore every human being has legal capacity

‣ It is one of the most important achievements of the modern age of the law

• In the past not all the human beings were considered persons in legal sense, because some of

✦ them had no (or limited) legal capacity

Slaves, foreign people, people belonging to different religions, were considered as objects

ex) [now it is not possible]

- Legal capacity is nowadays recognised to all men and women due to the general acquisition in the

modern legal systems of the principle of formal equality.

What does "formal equality" mean?

‣ It means that every human being is equal to every other human being, no matters the differences in

• race, language, religion, sex, social conditions, etc.

There are inequalities but we are all submitted to the law = equality

•

- The legal capacity can be acquired at birth, no matters the personal, social and familiar condition of the

born

In many legal systems it is possible to be entitled to a right even before being born, in the sense that

‣ even before birth a human being is not without legal recognition as a potential recipient of a right.

It is wider than our lives it extends before our birth and death

•

Examples :

It is possible to give a child who is not born or who is only conceived a property