Business law
CH 1
The law
Legal rules = governments are involved
<-> rules of etiquette (e.g. Do not speak with your mouth full / religion
can be both: e.g. “Thou shall not steal”
can depend on the jurisdiction eg. In Greece you can’t wear high heels in archeol. Site
Legal families
- civil law: created because somebody has the authority to decide on laws e.g. a
king -> most of Europe
- common law: created from the solutions judges find for problems -> UK; USA
- religious law: connected to a group of people e.g. Islamic law, jewish law,.. -> North
Africa, Middle East
- customary law: e.g. shaking hands to close a deal -> Africa & Andorra
Mixed or Hybrid systems: don’t fit in other families because of colonised
jurisdictions, combined 2 or more families -> India
Development of (civil) law in Europe
1. Tribal law:
The origins of Roman law, applicable to a group united because of familial
connections. As the population grew, familial ties were replaced by shared culture
and customs for the application of rules -> customary law. It consisted of
unwritten guidelines for behaviour that was transmitted across generations.
2. 285 BCE: The twelve tables
social classes in the empire
plebeians : common people with little to no political rights or representation
patricians: the elites who controlled the government and law. They oppressed the
plebeians and used their privilege to manipulate the legal system for their favour.
The plebeians demanded the law to be written down and made public -> creation
of the Twelve Tables
3. 395: Split of the Roman Empire
The Roman Legal system became too complex and required a lot of time and
recourses to administer and enforce. It became ineffective in certain parts of the
Western Roman Empire because (Germanic) communities began to develop their
own law and customs that differed from or even contradicted Roman law.
Meanwhile the Eastern Roman Empire flourished because of continuity and
stability of the imperial government and the influence and integration of the
Christian religion.
1
, 4. 476: Fall of Western Roman Empire
the Roman law declined along with the Western Roman Empire, until it collapsed
-> the law on the territory of what used to be the Western Roman Empire’s
returned to customary tribal law influenced by Germanic tribes
5. 6th Century : Corpus Iuris Civilis
emperor Justinian ordered the publication of a codex (corpus civilis) where Roman
Law is written down. It consisted of the Codex, the Digest and the Institutes. But
it wasn’t applied a lot because people were not interested since the empire was
declining + language barrier + complexity + regional legal variations
6. 1066: Battle of Hastings in England
England was divided into several independent Anglo-Saxon
kingdoms, each with its own legal customs and traditions. After Norman
King William the Conqueror won the battle of Hastings he introduced reforms:
- Norman legal principles and institutions
- replaced many Anglo-Saxon nobles with Norman ones that were accountable to
the king. They had a role in administering justice an established a system of
royal justices (e.g. royal courts with the kings authority) -> more consisted and
centralised legal system in the country.
The king also introduced the ‘writ’ system: standard process for initiating legal
actions and seeking remedies, the systems developed by his successors ->unified
legal system = common law
=> the English legal system focused on legal customs and consistency in judicial
decisions, it was less receptive to outside influences
7. 11th century: Discovery of the Digest in Italy
A medieval revival of learning came and the establishment of universities sparked
a renewed interest in studying ancient texts, such as the Digest. The University
of Bologna in Italy became a hub for studying it and attracted students from
across Europe.
8. 1453: Fall of the eastern Roman Empire
functional fields of Law : defined by the specific functions that they serve rather than
being strictly categorised within the traditional areas of law
- Private law: relationships between individuals or private orgs
Contract law, property law, family law, extracontractual liability law (civil
wrongs)
- Public law: relationship between the government and
Constitutional law, Administrative law, criminal law, tax law
- Substantive law: rights, obligations, and legal duties of individuals and entities
- Procedural law: processes and methods for enforcing substantive law
2
, Westphalian Duo
- National law: deals with legal relations within the territory of a single state
- International law: legal rules that govern the relations between sovereign states
international organisations and sometimes even those between individuals on the
global stage
Developments that challenged the dichotomy national - international law
- The recognition of the Lex Mercatoria (Law of merchants)
Was used during medieval ages -> evolved into a set of principles and customs
that regulate international transactions, operating independently of national
legal systems
- The rise of human rights as a global concern
World War II -> need for universal framework for fundamental human rights ->
Universal Declaration of Human Rights
- The emergence of supernational organisations
decisions made by supranational organisations are binding on their member
states without requiring the separate approval of each member state e.g. EU
transnational law: recognises that legal issues and norms can transcend both
national and international boundaries,
sources of law
formal/ official sources of law: sources that create legal rules -> constitutive of law e;g.
the codex
material sources of law: help identify and understand the contents of the law, but do
not create legal rules -> descriptive of law e.g. syllabus
- Treaties:
transcend the legal framework of individual states and establish binding obligations
between the states and/or international organisations that have signed and ratified
them e.g. the Treaty of the European Union
Direct effect: citizens can directly invoke and enforce their rights under the treaty
before domestic courts
-> Whether a treaty possess direct effect depends on the national law of the
contracting (or signatory) states
- Fundamental principles:
They shape the legal system of a jurisdiction & shape the legal system of a jurisdiction
!! may not be recognised: may be applied differently as a formal source of law in
jurisdictions
3
, e.g.
rule of law: must be neutral and free from any bias or influence
non-retroactivity of the law: laws should not be applied to actions or events that
happened before the law was enacted
equal treatment before the law and non-discrimination
presumption of innocence: innocent until proven guilty
- legislation/ statutory law/ statue law
Written laws enacted by a public authority through the law-making process, they
provide a set of rules applicable to a wide range of situations
primary legislation: enacted by the sovereign authority of a state, in most of
jurisdictions Belgium incl. = parliament/ congress
-> operates within a hierarchy that includes supreme legislation embodied in a
*constitution: fundamental law of a country ; outlines the powers and limitations of the
government
*supernational legislation: assumes a position of superior legal authority over the
primary legislation = highest sources of national law
secondary legislation: created when the sovereign authority delegates its legislative power
to another entity or authority within the state e.g. local legislation in Belgium
- Case law
in common law systems: formal source of law that stems from the principle of stare
decisis : courts must follow the previous decisions of higher courts and are required to
follow similar reasoning and outcomes when they face similar cases or legal issues
->key components:
Ratio decidendi: the legal principle or rule that is the basis for the court’s decision
obiter dicta: statements or observations made by a judge in a judicial decision that are
not essential to the resolution of the case
in civil law systems : formal source of law that establishes legal principles but rather
serve as illustrations or interpretations of statute law -> Judges in civil law systems are
not bound by previous judicial decisions BUT they may use them as persuasive authority
or guidance in interpreting and applying statutory provisions
Judges in both systems tend to rely on other judicial decisions to ensure
consistency and avoid having their decisions overruled
- Customary law: formal source
guidelines for behaviour that have developed spontaneously within a society, taking the
form of mutual expectations -> overtime: accepted by society as legally binding, even
when there’s no written laws
4
CH 1
The law
Legal rules = governments are involved
<-> rules of etiquette (e.g. Do not speak with your mouth full / religion
can be both: e.g. “Thou shall not steal”
can depend on the jurisdiction eg. In Greece you can’t wear high heels in archeol. Site
Legal families
- civil law: created because somebody has the authority to decide on laws e.g. a
king -> most of Europe
- common law: created from the solutions judges find for problems -> UK; USA
- religious law: connected to a group of people e.g. Islamic law, jewish law,.. -> North
Africa, Middle East
- customary law: e.g. shaking hands to close a deal -> Africa & Andorra
Mixed or Hybrid systems: don’t fit in other families because of colonised
jurisdictions, combined 2 or more families -> India
Development of (civil) law in Europe
1. Tribal law:
The origins of Roman law, applicable to a group united because of familial
connections. As the population grew, familial ties were replaced by shared culture
and customs for the application of rules -> customary law. It consisted of
unwritten guidelines for behaviour that was transmitted across generations.
2. 285 BCE: The twelve tables
social classes in the empire
plebeians : common people with little to no political rights or representation
patricians: the elites who controlled the government and law. They oppressed the
plebeians and used their privilege to manipulate the legal system for their favour.
The plebeians demanded the law to be written down and made public -> creation
of the Twelve Tables
3. 395: Split of the Roman Empire
The Roman Legal system became too complex and required a lot of time and
recourses to administer and enforce. It became ineffective in certain parts of the
Western Roman Empire because (Germanic) communities began to develop their
own law and customs that differed from or even contradicted Roman law.
Meanwhile the Eastern Roman Empire flourished because of continuity and
stability of the imperial government and the influence and integration of the
Christian religion.
1
, 4. 476: Fall of Western Roman Empire
the Roman law declined along with the Western Roman Empire, until it collapsed
-> the law on the territory of what used to be the Western Roman Empire’s
returned to customary tribal law influenced by Germanic tribes
5. 6th Century : Corpus Iuris Civilis
emperor Justinian ordered the publication of a codex (corpus civilis) where Roman
Law is written down. It consisted of the Codex, the Digest and the Institutes. But
it wasn’t applied a lot because people were not interested since the empire was
declining + language barrier + complexity + regional legal variations
6. 1066: Battle of Hastings in England
England was divided into several independent Anglo-Saxon
kingdoms, each with its own legal customs and traditions. After Norman
King William the Conqueror won the battle of Hastings he introduced reforms:
- Norman legal principles and institutions
- replaced many Anglo-Saxon nobles with Norman ones that were accountable to
the king. They had a role in administering justice an established a system of
royal justices (e.g. royal courts with the kings authority) -> more consisted and
centralised legal system in the country.
The king also introduced the ‘writ’ system: standard process for initiating legal
actions and seeking remedies, the systems developed by his successors ->unified
legal system = common law
=> the English legal system focused on legal customs and consistency in judicial
decisions, it was less receptive to outside influences
7. 11th century: Discovery of the Digest in Italy
A medieval revival of learning came and the establishment of universities sparked
a renewed interest in studying ancient texts, such as the Digest. The University
of Bologna in Italy became a hub for studying it and attracted students from
across Europe.
8. 1453: Fall of the eastern Roman Empire
functional fields of Law : defined by the specific functions that they serve rather than
being strictly categorised within the traditional areas of law
- Private law: relationships between individuals or private orgs
Contract law, property law, family law, extracontractual liability law (civil
wrongs)
- Public law: relationship between the government and
Constitutional law, Administrative law, criminal law, tax law
- Substantive law: rights, obligations, and legal duties of individuals and entities
- Procedural law: processes and methods for enforcing substantive law
2
, Westphalian Duo
- National law: deals with legal relations within the territory of a single state
- International law: legal rules that govern the relations between sovereign states
international organisations and sometimes even those between individuals on the
global stage
Developments that challenged the dichotomy national - international law
- The recognition of the Lex Mercatoria (Law of merchants)
Was used during medieval ages -> evolved into a set of principles and customs
that regulate international transactions, operating independently of national
legal systems
- The rise of human rights as a global concern
World War II -> need for universal framework for fundamental human rights ->
Universal Declaration of Human Rights
- The emergence of supernational organisations
decisions made by supranational organisations are binding on their member
states without requiring the separate approval of each member state e.g. EU
transnational law: recognises that legal issues and norms can transcend both
national and international boundaries,
sources of law
formal/ official sources of law: sources that create legal rules -> constitutive of law e;g.
the codex
material sources of law: help identify and understand the contents of the law, but do
not create legal rules -> descriptive of law e.g. syllabus
- Treaties:
transcend the legal framework of individual states and establish binding obligations
between the states and/or international organisations that have signed and ratified
them e.g. the Treaty of the European Union
Direct effect: citizens can directly invoke and enforce their rights under the treaty
before domestic courts
-> Whether a treaty possess direct effect depends on the national law of the
contracting (or signatory) states
- Fundamental principles:
They shape the legal system of a jurisdiction & shape the legal system of a jurisdiction
!! may not be recognised: may be applied differently as a formal source of law in
jurisdictions
3
, e.g.
rule of law: must be neutral and free from any bias or influence
non-retroactivity of the law: laws should not be applied to actions or events that
happened before the law was enacted
equal treatment before the law and non-discrimination
presumption of innocence: innocent until proven guilty
- legislation/ statutory law/ statue law
Written laws enacted by a public authority through the law-making process, they
provide a set of rules applicable to a wide range of situations
primary legislation: enacted by the sovereign authority of a state, in most of
jurisdictions Belgium incl. = parliament/ congress
-> operates within a hierarchy that includes supreme legislation embodied in a
*constitution: fundamental law of a country ; outlines the powers and limitations of the
government
*supernational legislation: assumes a position of superior legal authority over the
primary legislation = highest sources of national law
secondary legislation: created when the sovereign authority delegates its legislative power
to another entity or authority within the state e.g. local legislation in Belgium
- Case law
in common law systems: formal source of law that stems from the principle of stare
decisis : courts must follow the previous decisions of higher courts and are required to
follow similar reasoning and outcomes when they face similar cases or legal issues
->key components:
Ratio decidendi: the legal principle or rule that is the basis for the court’s decision
obiter dicta: statements or observations made by a judge in a judicial decision that are
not essential to the resolution of the case
in civil law systems : formal source of law that establishes legal principles but rather
serve as illustrations or interpretations of statute law -> Judges in civil law systems are
not bound by previous judicial decisions BUT they may use them as persuasive authority
or guidance in interpreting and applying statutory provisions
Judges in both systems tend to rely on other judicial decisions to ensure
consistency and avoid having their decisions overruled
- Customary law: formal source
guidelines for behaviour that have developed spontaneously within a society, taking the
form of mutual expectations -> overtime: accepted by society as legally binding, even
when there’s no written laws
4
