Week 1:
The origin of law:
Natural law assumes that laws emerge from nature. Does not need to be codified but it
exists. (“A body of unchanging moral principles regarded as a basis for all human conduct”).
Example: human rights.
A disadvantage of this is that it gives legal uncertainty, because it is not codified In WWII
they saw one race as more superior than the other, they believed that those were the
natural laws.
Legal Positivism:
Assumes law comes forth from codification law is only law when it has been written
down first and is used to protect people from extreme understandings of natural laws.
Advantage: People know the “rules of the game” beforehand
Disadvantage: Might lead to over formalization or lag behind because the world moves
forward too fast.
Most legal systems have a balance between these two.
Customary law Could be the way a leader is chosen or how people buy and sell on a
market.
Monism If the EU accepts a new law, it is also the law in the Netherlands, even when it
might contradict existing law in NL
Dualism If there is an international treaty, it has to be transformed into national domestic
law by the legislator chosen by that country
,Macro and Micro comparison: Comparative law:
The purpose of comparative law:
- Gain knowledge
- Evaluating the better law
- Substantiate and application of law
- Improve legal education
- Unification of law
Common law You look at previous verdicts to see what was decided back then to decide
now (U.S., U.K.)
Civil law In 150 countries, all is codified
Socialist law Dictated by politic incentives to decide what the law is
The upper 5 are the 5 legal families that exist!
, Substantive and Formal Public/Private Law:
Substantive Law Define “rules of the game”. Legal rules that define the context of “just”
behaviour (organizing behaviour) you are not allowed to steal
Formal Law How to maintain this just behaviour. What happens when you break the
law?, how does the process go? (Maintaining the intended behaviour) if you steal, you
will receive a fine of €500 and spend the night in jail.
Public Law Regulates relationship between state and citizen
Private Law Regulates relationship between citizens
The origin of law:
Natural law assumes that laws emerge from nature. Does not need to be codified but it
exists. (“A body of unchanging moral principles regarded as a basis for all human conduct”).
Example: human rights.
A disadvantage of this is that it gives legal uncertainty, because it is not codified In WWII
they saw one race as more superior than the other, they believed that those were the
natural laws.
Legal Positivism:
Assumes law comes forth from codification law is only law when it has been written
down first and is used to protect people from extreme understandings of natural laws.
Advantage: People know the “rules of the game” beforehand
Disadvantage: Might lead to over formalization or lag behind because the world moves
forward too fast.
Most legal systems have a balance between these two.
Customary law Could be the way a leader is chosen or how people buy and sell on a
market.
Monism If the EU accepts a new law, it is also the law in the Netherlands, even when it
might contradict existing law in NL
Dualism If there is an international treaty, it has to be transformed into national domestic
law by the legislator chosen by that country
,Macro and Micro comparison: Comparative law:
The purpose of comparative law:
- Gain knowledge
- Evaluating the better law
- Substantiate and application of law
- Improve legal education
- Unification of law
Common law You look at previous verdicts to see what was decided back then to decide
now (U.S., U.K.)
Civil law In 150 countries, all is codified
Socialist law Dictated by politic incentives to decide what the law is
The upper 5 are the 5 legal families that exist!
, Substantive and Formal Public/Private Law:
Substantive Law Define “rules of the game”. Legal rules that define the context of “just”
behaviour (organizing behaviour) you are not allowed to steal
Formal Law How to maintain this just behaviour. What happens when you break the
law?, how does the process go? (Maintaining the intended behaviour) if you steal, you
will receive a fine of €500 and spend the night in jail.
Public Law Regulates relationship between state and citizen
Private Law Regulates relationship between citizens
