Three constitutive values of law:
1) Legal certainty (zekerheid)
2) Justice (billijkheid / redelijkheid)
3) Instrumentality (bijstand / ondersteuning)
Legal certainty = targets the delicate balance between stable expectations and the ability to
reconfigure or contest them.
Source of law:
1) Provides legal norms with authority based on their origin
2) Makes legal norms binding in their effect in a specific jurisdiction
Legal sources
To ensure legal certainty, only a limited set of sources ‘count’ as sources of law (Only these sources
provide legal norms with authority and make them binding in a specific jurisdiction):
1) International treaties (NL: verdragen)
a. Treaties bind states that have signed and agreed to the conditions of the treaty
2) Legislation (including the Constitution) (NL: wetgeving)
a. Imposes legal norms on those within the jurisdiction (i.e., area of scope)
b. Legislation is binding for all those subject to its jurisdiction.
3) Case law / judicial decisions (NL: jurisprudenties)
a. result of judgments made by courts
b. Decisions made by court by looking at subjective (case) and source. They could
interpret the law if needed.
4) Doctrine (NL: conclusies trekken op basis van uitspraak of jurisprudentie in artikel)
a. body of texts published by lawyers of standing
b. These texts, restatements, treatises, articles or monographs, develop a specific
interpretation of a part of the legal framework.
5) Fundamental principles (philosophy and principles to live by)
a. Principles that are implied in other legal sources, as they inform the applicability and
the application of legal norms.
b. Principles do not function as ‘rules’ that either apply or do not apply, but as an implied
philosophy of law that must be taken seriously when deciding the law.
6) Customary law (NL: gewoonterecht)
a. It requires:
i. usus (a habit of acting in one way rather than another), and;
ii. opinion necessitatas (a shared opinion that this habit is actually based on a
duty to act in such a way).
Legal effect
The law attributes ‘legal effect’ based on specific conditions being fulfilled.
Legal effect is based on ‘illutionary speech act’, which is performative since it achieves what it
declares or rules (I declare a to be p). This achievement that is performed actually consists of what
lawyers call ‘legal effect’.
That is, if all legal conditions are fulfilled than the legal effects apply, and the rule is binding.
Under the Rule of Law, the legislature determines the law but the court has the final say on the
meaning of the law.
1) Legal certainty (zekerheid)
2) Justice (billijkheid / redelijkheid)
3) Instrumentality (bijstand / ondersteuning)
Legal certainty = targets the delicate balance between stable expectations and the ability to
reconfigure or contest them.
Source of law:
1) Provides legal norms with authority based on their origin
2) Makes legal norms binding in their effect in a specific jurisdiction
Legal sources
To ensure legal certainty, only a limited set of sources ‘count’ as sources of law (Only these sources
provide legal norms with authority and make them binding in a specific jurisdiction):
1) International treaties (NL: verdragen)
a. Treaties bind states that have signed and agreed to the conditions of the treaty
2) Legislation (including the Constitution) (NL: wetgeving)
a. Imposes legal norms on those within the jurisdiction (i.e., area of scope)
b. Legislation is binding for all those subject to its jurisdiction.
3) Case law / judicial decisions (NL: jurisprudenties)
a. result of judgments made by courts
b. Decisions made by court by looking at subjective (case) and source. They could
interpret the law if needed.
4) Doctrine (NL: conclusies trekken op basis van uitspraak of jurisprudentie in artikel)
a. body of texts published by lawyers of standing
b. These texts, restatements, treatises, articles or monographs, develop a specific
interpretation of a part of the legal framework.
5) Fundamental principles (philosophy and principles to live by)
a. Principles that are implied in other legal sources, as they inform the applicability and
the application of legal norms.
b. Principles do not function as ‘rules’ that either apply or do not apply, but as an implied
philosophy of law that must be taken seriously when deciding the law.
6) Customary law (NL: gewoonterecht)
a. It requires:
i. usus (a habit of acting in one way rather than another), and;
ii. opinion necessitatas (a shared opinion that this habit is actually based on a
duty to act in such a way).
Legal effect
The law attributes ‘legal effect’ based on specific conditions being fulfilled.
Legal effect is based on ‘illutionary speech act’, which is performative since it achieves what it
declares or rules (I declare a to be p). This achievement that is performed actually consists of what
lawyers call ‘legal effect’.
That is, if all legal conditions are fulfilled than the legal effects apply, and the rule is binding.
Under the Rule of Law, the legislature determines the law but the court has the final say on the
meaning of the law.
