Week 1 law – Introduction
What is law?
- legal families/legal systems: civil law, comon law, muslim law, customary law, mixed law
o west is civil and common law
Civil law:
- codification (written enacte laws)
- french and german legal traditions, and nordic
Common law system:
- case law
- anglo saxons
- law gives rights, boundraries it is everywhere
- Definition of law: Body of rules with binding legal force which are prescribed, recognized and
enforced by a controlling authority
Functions of law
- to avoid conflict: regulating everyday life and interactions and conflicts
o eg traffic light tells people when to cross and when not to cross
o substantive law: rights, regulations, prohibitions, obligations
- Resolving conflicts
o procedurallaw tells you what to do where and how
procedural law is the procedure by which substantive law can be enforced
Sorces of law
1. teaties
2. case law
3. statutes
4. customs
5. principles
6. religious texts
7. moral belives
Dutch sourecs of law
1- treaties
2- case law
3- statutes
4- customs
5- principles
Written vs unwritten law
- enacted law
o coming from a body invested with law making power
o treaties, cponstitution, statutory law (from formal legislator and lower authorities)
(judges only speak the law and say whats in the code but do not make new laws) NL perspective
- Unwritten law
o case law
o customs
o principles
2 main legal systems:
- civil law: codes, french and german mainly (enacted law is inferior to unwritten law)
- common law: case law, anglo saxon ( main source of law is case law, and enacted law is
lower)
Important: the lecture halls are not part of any orthodox church.
Treaties
- international legislations
Constitutions
Statutes
- formal leg: parlaimenta nd gov together
- lower authorities:
Netherlands has 12 provinces, law makers ar ethe provincial states
- provinces divided into municipalities municipal council
- lowest form is the water board
Hierarchy of dutch enacted law
1. treaties
2. charter for the kingdom of the netehrlands
3. constitution
4. acts of parlaiment
5. order in council
6. ministerial regulations
7. by laws
Enectad law: hierarchy and conflict rules
1. higher rule prevails over lower rule
2. newer rule prevails older rule
3. specific rule prevails general rule
- eg art 302 of criminal code aggravated assult is more specific than art 300 cc assault
Sources of unwritten law
- case law=ruling of judges/judge made lw
o additional source in nl
o no formal principle of precedence (no stare decisis)
o However in practise the courts abide teh rulings of highest court
- customary law
o usus and opinio necesitatis (constant and uniform use of teh custom which is thought
to be required by law)
- generla principles
o supplementary law
eg: estoppel rule: murderer cannot get the inheritence of the victim
general principles of good governance (eg: promises must be honored)
general principles tells us the interpretation of rules, if u dont get
exact answer by teh law than the general principles help as tehy float
through the system of hierarchy)
Areas of law
- private law: about private parties, horizontal relationship
- public law: vertical relationships: gov and private parties, less equal and less reciprocal
o constitutional law, criminal law (its not teh victim who bring teh case to court as not
interest of just that person but there is public interest at stake), administrative law
Priavte law is about individual interests
- natural person-natural person
- natural person-legal person
- legal person-legal person (B2B, or municpality, province etc)
Public law
- state authorities – private parties
- we need a public interest
o constitutional law: state and organs
o admin:
o Criminal law: public prossecutor brings the case to court, not tehvictim, he decides
what to prossecute (enough interest, enough evidence?)
Substantive law and procedural law
Substantive law> rules establishing rights, obligations and prohibitions
Procedural law> rules regulating procedures by which rights, obligations and prohibitions are
enforced
Dutch judiciary
- sword: verdict
- blindfold: impartiality
- scales: weighing circumstance sand facts
Dutch court system
- justice in 3 instaces: everything starts at district court of first instances
- if you dont agree with judgement at first instances than go to court of appeal tehy will look at
teh case andteh facts of teh case (court of appeal and lower courts answer questions of fact,
supreme court answers questions of law)
- Cassation: supreme court makes decision: questions of law
o nullify (quash) and refer back to the same court
o nullify and refer to another court
o overrule and pass judgment itself (if facts are clear)
Dutch judiciary Five basic principles
1) independent judges
2) impartial judges
3) public court hearings
4) justice administered in three instances
5) within reasonable time-frame
