Introduction to Law

Chapter I : Foundations

1. What is Law ?

Law has no set definition, but most legal phenomena share common characteristics, such
as :
- Laws are rules that govern society (// religion, etiquette, morality,…)
- Laws are enforced by collective means, often the state
- Laws are explicitly laid down by state bodies – positive laws

Laws and morality are often linked, as a law should not be something that violates
morality. However, there are several differences between law and morality :
- Degrees vs binary: Morality is a scale of grey where law is black and white
- Moral standards are important for the functioning of a society and this is not
always the case for legal rules
- Morality cannot be enforced by the state, only if it takes the form of a law

There are two kinds of moralities:

- Positive morality : moral standards that are broadly accepted at a certain time and
place
- Critical morality : rules that should rationally be accepted regardless of what
society says

One advantage of positive law is that it offers legal certainty. In other words, positive law
gives you a clear and often faster result, than trying to reach the « right solution ». Legal
certainty makes you sure about the content of the law, that the law will be enforced and
applied consistently.

2. Roman Law

Our legal systems originate from Roman Law, a very elaborated legal system that lasted
several centuries.

Roman Law started as a tribal law, as it was the law of a people, the Roman, and not of a
country. Very often, tribal law comes from customary law, which are societal rules that
became binding over time. The origin being vague, because they were natural and rational
guidelines, it was often attributed to an historical legislator. Customary law seems
immutable but because it was unwritten, gradual change would happen to adapt itself to
new circumstances. Customary law in its beginnings is often not easily distinguishable
from moral and religious precepts. Romans would have different laws applying for
relations within the tribe or with foreigners being involved.

Customary law is first unwritten but at some point, it has to be written down, to avoid any
injustice. If anyone can consult the law, governing society becomes equal and can be
verified by anyone. This writing down is called codification.

In a dispute, the legal solution will depend on the content of the law and the facts of the
case. The Roman legal system would involve a praetor and a iudex. The praetor (jurist)
being the counsellor and the only one really knowing the law, he had a great influence on
the development of the law.

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The Eastern Roman Empire compiled the roman law with the Corpus Iuris Civilis (529-
534). It consisted of the Codex, the Digest and the Institutions.

3. Common Law

After the fall of the Western Roman Empire, the Germanic Customary Tribal Law took the
leading position in Western Europe. In the High Middle Ages, several important
developments took place and had a big influence on the development of law. The
rediscovery of Roman law and the rise of common law were amongst the most important
ones.

Common law dates back to the unification of the English legal system by William I the
Conqueror. Royal representatives and central courts of justice started to appear. Because
of that functioning legal system, England was not very influenced by Roman law and
developed independently. This created quite a different approach on legal reasoning.
While the continental approach focuses on creating new statutory rules, the common law
tradition focuses on previous cases to resolve similar new ones.

Customary law becomes a legal decision-making tool, if it is traditionally used in a

particular society. They then have to be used by legal decision makers.
Judicial decisions function as precedents, why ?
- It is proof of a law existing beforehand, thus the same rule should be applied.
- The decision is a new rule itself, so other judges should apply that rule.  creation
of the law  Stare decisis
Common law has thus become a case law, enforcing precedents. Common law tradition
dates back to the British Empire, consequently, every member or former member of the
Commonwealth uses it. However, each base of precedent has grown independently over
the years, creating various differences.

If a case had an inequitable outcome, persons could petition the King to make it more
equal. This proceeded to create a Court of Chancery within a separate branch of law,
equity. Laws of trusts developed especially in that branch. After a reform, numerous
courts now apply both equitable principles and common law even if the former was
originally created to counter the latter.

4. Ius Commune

During the Middle Ages, the legal system of continental Europe returned to customary
law. The Digest was then rediscovered and studied. This was also the case for Canon Law,
the legal system of the church ruling marriages, wills,… Gradually, Europe established its
own legal system, the Civil Law, which would complete and then replace the local
customary law. This is called the reception of Roman law. It gained acceptance because it
was rational, trying to have the best possible rules. After the 17th century, the law had
two modes of existence : rational law and law that draws its existence from a social fact
(customary law and positive law). This gained the name of natural law, being established
by the means of reason.

5. National States and Codification

In 1648, the Peace of Westphalia ended most of the wars on the continent, leaving behind
a set of sovereign nation states that each had their national legal system. This created the

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Westphalian Duo, where national law coexisted with international public law that
governed relations between states.

Continental law knew its first codification in France, shortly after the Revolution with
Napoléon. This codification brought legal unity and legal certainty. It also emphasized the
central power and the democratic law-making process. Napoléon’s influence extended
that codification to large chunks of Europe, except for Germany, who was opposed to it.
There, the legal scholars were the ones producing development with their evolving
comments on the Digest.

Civil Law focuses on reasoning on the basis of rules, interpreting them, to make legal
decisions. There are various ways of interpreting those canons of law :
- Grammatical or literal  the Literal Rule
- Means to obtain some results  the Mischief Rule or Legislative Intent
- Purpose of the rule itself Golden Rule (purposive or teleological interpretation)
Those techniques are all part of the Lawyer’s toolbox : different legal sources, reasoning
techniques, canons of interpretation.

6. Legal families

On one side you have the Common Law family (England, Wales, Ireland, Commonwealth)
that was not very influenced by Roman Law.
Then you have the Civil Law family, influenced by a combination of Roman and Canon
Laws. It is major in Europe but can be subdivided in two parts. The French family put the
emphasis on the role of the parliament and the democratic input for the codification
(France, Belgium, Spain, Portugal,…). The German family had its development driven by
legal scholars (Germany, Austria, Switzerland,…)

7. From National to Transnational Laws

From the 20th century onwards, the creation of laws was mainly positive, state-made,
national law. But the Westphalian duo wasn’t enough anymore to rule between states.
That is now what we call the transnational law, a sum of rules outside the power of
nations or individuals.

Human rights were conceived as rights of individuals against their governments. After
WWII, mainly the UN made Human rights into treaties. They were no longer part of the
national law system. Thus, states have lost a little control over those laws that are binding
on their territories. It even goes further with Ius cogens, which is binding for every state
and person even if they do not agree. Those are the fundamental humanitarian laws.

The legal system that governs the European Union is another example of transnational
laws to which states are bound, as soon as they become members of the EU. The
European legal rules belong to an autonomous legal system that is neither national nor
between the nations, but is above it (supranational).

The Lex Mercatoria is another set of transnational laws that regulates the commerce. It
was separated in the middle Ages, merchants needing specific courts. Those were put
down in the Vienna Convention on the International Sale of Goods (1980). Merchants also
often use arbitration to settle a dispute.

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 Chapter 2 : Sources of Law

1. Sources of origin

A legal rule always stems from a source, however there are two different types of
sources : sources of origin and sources of validity.
The sources of origin are often the way law was created :
- Customary law : part of the law existed in this way before codification
- Rationalist law : legal principles that are reasonable and/or have recognition in
legal doctrine (soft law) – reason is a source of law
- Created law : law laid down by a legislator
Law originated from custom, reason, doctrine, legislation, precedents and treaties, but
these sources do not give validity to law, they are merely a source of origin.

2. Sources of validity

Legal rules are valid if they have a relevant validity source. These sources can include the
institutional rules, made by recognized decision-makers. Most legal rules are now valid
because they are positive laws.

A rule within a group can be a social rule or an institutional rule. A social rule is seen as
something that should be respected by everyone, and if not, that violation would lead to
criticism.

Institutional rules are rules that stem from a rule. The rule is valid because another valid
rule said so. For such rules, effectiveness is not required, but most probably it will be.
Nowadays, most rules are institutional, because they are made by a valid legislator.

The characteristic of a source of validity is that a rule that stems from that source is valid
because it stems from that source. The highest you can go is the National Constitution,
which empowers legislators and guides behaviours.

The sources thesis claims that all legal rules are institutional rules because only rules that
stem from a source of validity would be legal rules.

3. Legislation

Legislation is a source of origin and of validity. To create law, a legislator must have the
competence to do so. Such competence is always confined to : particular persons, a
particular territory, a particular subject matter.

To avoid the concentration of powers in few people, the principle of Trias Politica is
applied. This consists of the separation of the three powers (legislative, executive and
judiciary) to three different state organs. In this set up, legislative power is often given to
representatives of the people.

The trias politica represents what happens on national level. But there are various layers
of law, such as supranational (ex : the EU) or subnational (ex : federation of substates). All
those levels have legislators that are able to create law that will be enforced on their
territory or on their citizens.
A base of legislation that is fast growing, is soft law, regulations that are not binding but
nonetheless important.
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This system where legislation is created by various bodies can create some conflicts with
which rule should be applied. Several principles can settle those disputes : lex superior
(the highest wins), lex specialis (the most specific wins), lex posterior (the newest wins).

4. Treaties

Westphalian Duo : legislation is inside a state, treaties are between states. Treaties are
then not binding for citizens inside the states, which lessens the importance of the
democratic input.
Now : treaties are legal rules that can be binding and transcend national borders (ex
Human Rights Treaty or EU treaties). Treaties become a form of rule creation by
cooperating states. As such, they are (contrarily to legislation) not confined to a territory.

5. Case law

Civil law
One case that has a very similar precedent will often be treated like cases alike because it
would be unjust if two similar cases had different outcomes. An earlier decision is also
probably based on rationality, in which case another decision in another way would be
irrational. Treating cases the same way would also be a matter of legal certainty, as we
could expect a certain outcome but those expectations wouldn’t be fulfilled. Those factors
mean that precedents can have a strong influence on new decisions, but they are not
binding. Case law stays a source of origin and is not institutional rule. Case law also has
indirect authority, as it is not the base of the judicial decision.

Common law
Here, case law is binding, following the rule of stare decisis. Precedents are a source of
validity, because they were previously adopted by the court. What is binding is then called
the ratio decidendi which consists of the decisive grounds that made the court take that
decision. Some other reasons might exist but not be relevant to the case. Sometimes, the
court has to distinguish the new case from the precedent, because there exist some
relevant differences. If a case is not similar to a precedent, the court is not bound by it. On
the contrary, the court can also broaden a precedent, to make it a new rule. Common law
doesn’t have clear-cut rules but tries to analogize with precedents. Some textbooks have
also been created to describe precedents. Those become a source of knowledge. The next
step is to restate the case law, which then becomes part of the soft law.

6. Customary law

The oldest source of law is customary law, where there must be a custom concerning a
guideline for behaviour that is effective (= usus). A second condition to customary law is
the demand that a custom is accepted as binding and is necessary (= opinio iuris). Custom
is a source of origin, but customary law is a validity source of law because it is already
part of the law.

7. Legal doctrine and reason

Custom is a source of origin, but it is not the only source of law. Two other sources are
part of that category.

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Sometimes, legal scholars have an influence on decision makers, when they have a very
well written argumentation or clarification about the positive law. This influence stems
for their legal doctrine, which can thus count as a source of law because a legal decision
maker can validate it, although it is not always the case.

A second source is reason, as rules that are reasonable will more likely be used in the legal
decision-making context. A judge in the common law system weighing the ratio decidendi
is using his reason to decide, which will eventually turn into law by the stare decisis
mechanism. Being reasonable leads to law via acceptance.

Summary figure

COMMON LAW CIVIL LAW

- Customary - Case law - Customary - Legislation
law - Legislation law - Treaties
- Legal - Treaties - Legal doctrine
doctrine - Reason
- Reason - Case law

Chapter 3 : Basic concepts of law

1. Fields of law

Law is not homogeneous as it is divided into many different fields. Two major divisions of
law in a general way are public and private law and substantive and procedural law.

Public law and private law

In public law, the government as such plays a role >< in private law the government as
such does NOT play a role.

Private law deals with the mutual relations between citizens (property law, contract law,
family law,…). A branch called private international law determines what happens
between citizens of different nationalities.

There are four main branches in Public law :

- Criminal law (tracing, prosecuting and punishing criminals)
- Constitutional law (functioning of a democratic state)
- Administrative law (interactions between citizens and the state)
- International public law (relations between states)

The European Union Law just makes matters a little bit more complicated by acting both
as public law where they resemble the law at a national level, and as private law as they
make legislation that rule between citizens themselves.

Substantive and procedural laws

Substantive law consists of rules that determine what people should do and that give
people rights, duties and competences. Procedural law gives the means to enforce those
rules. It also gives the rules for court procedure and the organization of the judiciary.
There exists a division for each main branch of law : civil procedure, criminal procedure,
administrative procedure,…

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Functional fields of law
Some fields of law do not fit into one category (like EU law). Those fields are then called
functional because they consist mainly of the function they fulfil rather than one of the
main areas.

Substantive
Substantive private
private law
law Substantive
Substantive public
public law
law

Functional
Functional fields
fields
of law
of law

Procedural
Procedural private law
private law Procedural public
Procedural law
public law

2. Rules, operative facts and legal effects

The law is for a small part made of rules that can create rights, describe procedures,
create institutions, etc… Rules do not only prescribe behaviour. Most rules are conditional
sentences, meaning that a rule states a possible fact (when the rule is applicable) and the
consequence if this fact becomes real. The facts that are concerned by those rules are
called operative facts. The rule then attaches a legal effect to an operative fact. You can
then distinguish 3 kinds of legal effects :
- Dynamic rules add new facts to the occurrence of an event
- Counts-as rules bring about that some things count in the law as something else as
well
- Fact-to-fact rules attach the presence of one fact to the presence of some other fact

3. Legal subjects

Legal rules impose duties upon, and assign rights and competences to, legal subjects.
Those can be « natural persons » (human beings) or « legal persons » (organisations,
companies, etc…). The consequences of that vary from one field to another. In public law,
natural persons are protected by human rights, but this protection becomes blurry for
legal persons. In private law, being a legal subject means that you can have rights and can
perform juridical acts.

4. Juridical acts

Juridical acts give legal subjects the power to bring about legal effects intentionally. Some
acts are performed by a juridical body but are not juridical acts, those are then called
factual acts. Dynamic rules attach legal effects to the performance of a juridical act
because the agent intended to bring about these effects with this act. Juridical acts require
the agent (the legal subject wanting to perform an act) to be legally competent to perform
this kind of juridical act with these effects. If the agent is not competent, the juridical act
will be nullified or avoided.

5. Duties and rights

Duties involve a relationship between the addressee of the duty (the agent towards whom
the duty is directed) and some kind of act (a behavioural guideline) that the addressee is
to perform. Prohibitions are duties to abstain from doing something. An implicit
permission to do something exists when there are no prohibitions on that matter

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(=absence of prohibition). Explicit permissions are exceptions to the prohibition, under
certain circumstances. Two concepts that should not be confused are permissions and
competences. Permissions have to do with allowance ; if you do not follow them, you will
act unlawfully. Competences are what you have the possibility to do ; if you perform a
juridical act that is not within your competence scope, the act won’t be valid, but you will
not have acted unlawfully either.

Rights are interests that are protected by law and can be disposed of by the right holder.
Claims are rights against one or more particular legal subjects (rights in personam). They
combine with obligations in the narrow sense to form obligations in the broad sense.
These obligations are the result of a particular event to which a dynamic rule attached the
presence of the obligation as a legal effect. Rights on an object (rights in rem) are relations
between the right holder and the object on which the right rests. Usually they involve
explicit permission by way of exception to a general prohibition that holds for all non-
holders of the right. Often they also involve special powers and competences. Liberty
rights involve explicit permissions usually in combination with some special legal
protection of these permissions.

Chapter 4: The law of Contract

1. Introduction

Contracts are everywhere in our daily life and society couldn’t run if they ceased to exist.
By buying products we conclude consumer contracts. A second type of contract is the
commercial contract, which happens with companies. A contract typically revolves
around an exchange of valuables, where both party will benefit. There are several
questions a lawyer needs to ask himself during the making of a contract :
- When does the contract become binding ? Can any promise be enforced in courts ?
- What should the parties do as a result of it ? Content can sometimes not be fully
clear to both parties.
- What possible remedies are there to a contract if a party does not perform ?

2. Sources of contract law

Rules made by the contracting parties

A particularity of contract law is that a person can, for a great part, decide himself
whether or not he wants to create rules on himself and which rules. You are free to enter
a contract, however, once you have done so, this binds you as if it was law  Freedom of
contract
Very often, the complete rules and the set of exceptions are not made new for every
contract (especially in consumer contracts). There are general conditions that the
professional party can set to ensure that exceptional events are still covered by the
contract. Those make the world more efficient.

Official national, European and supranational rules

If there are no general conditions on which to rest for a particular contract, most of the
time there have been made facilitative default rules that will take place and be valid in the
contract. Other rules include mandatory rules, which make an unlawful contract void.
At a national level, contract is mostly made legislation. At a European level, due to limited
power, the directives are very precise and specific. Above those levels are certain
international conventions, such as the 1980 UN Convention on Contracts for the
International Sale of Goods (CISG).
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Informal rules
Next to those official pieces of legislation, soft law has increasingly influenced the making
of contracts. The Principles of European Contract Law (PECL) of 1995 is one of the most
recognized pieces of soft law amongst legal scholars.

3. Formation of a binding contract

From a promise to a binding contract

A contract is often a promise to do something, but when is it enforceable ?
- There must be an intention to be legally bound and that intention must also be
legally recognized.
- A gratuitous promise is only legally recognized if it is put in a notarial deed.
- CoL : a contract needs consideration, therefore, a gratuitous promise only gains
legal effect if it is put in a deed.
- In case of unequal obligations, the circumstances of the promise must be
considered to check whether both parties did have the intention to be legally
bound.
- Promises in the domestic or social sphere are very often not enforceable by a
court.

Offer and acceptance

The consent of the parties is necessary for a binding contract. This consent consists of an
offer by a party and an acceptance by the other party. Regarding those there are 3 main
questions : When is there an offer ? Can it be revoked ? When does the acceptance turn
into a binding contract ?
There is an offer when a proposition is definite enough to be used as contract.
Jurisdictions differ on the exact difference between an invitation to negotiate and an offer.
The distinctions exist to protect both the potential buyer and the seller from uneasy
situations.
On revocation of an offer, each jurisdiction has its own rules, balancing the interests of
both parties.
The PECL states the moment when the acceptance becomes a binding contract as such :
« The contract is concluded when the acceptance of the offeree reaches the offeror. »

Formalities and protection of the weaker party

A contract can come about in any form (oral or written) and still be binding, if the consent
of both parties is sufficient and no other formalities are needed.
In most cases, formalities do exist to protect the consumer (the « weaker » party) from a
professional seller. These consist of information duty, a written contract and the right to
withdraw from the contract. Contracts thus offer withdrawal rights to the consumer
(which goes a little bit against the principle of contract law) within a certain timespan,
where by returning the good, the contract is off. Other devices to protect the consumer
include cases of incapacity. A minor or a mentally ill is not capable to enter a legal
transaction, if this one is not to the benefit of the weaker party. For a minor, a contract
will be valid if the parents agree or if it seen as normal behaviour. Those rules try to
balance the conflicting interests of the incapacitated and the other parties.

Precontractual liability
A party is not only liable during the contract but also during the negotiations of this one
(depending on the jurisdiction (civil law)) as a withdrawal might cause the other party to
claim compensation for the costs occurred during negotiations. This view is disputed in

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Common Law countries as parties are often adversaries and therefore good faith
negotiations are rarely economically viable.

4. The contents of the contract

Once a contract is concluded, the parties should and will perform the negotiated
obligations. The state only has to intervene when a problem arises. Problems can
originate from interpretation, a perceived unfairness or unlawful contracts.

Interpretation
In case of a dispute because the terms of a contract are unclear, one may interpret the
contract in two ways. The first way is subjective, trying to understand what the promisor
meant. If both parties were able to be aware of that meaning, this shall prevail. In case not,
the interpretation can be objective, in the way that a reasonable person with sufficient
knowledge would have understood it.

Unfairness of contract terms

A question is whether a contract has to be fair and reasonable. Some jurisdictions state
that if the performance and the counter performance were not equivalent, the contract
would be invalid. Contracts made in circumstances where one party is not sufficiently free
(threat) or is incapable of performing (child), can be avoided to stop procedural
unfairness. Threat and incapacity lead to an avoidable contract because the law presumes
that the will of one party could not be formed correctly. In all cases, the interests of the
buyer and the seller have to be balanced.
General conditions are often a take it or leave it offer, in which the consumer has little say
and often little understanding or knowledge of the subject. Courts can test substantive
fairness as well as procedural fairness.

Prohibited contracts
Unlawful contracts are automatically invalidated by the legal system. But sometimes,
views can differ on whether or not a contract violates legal rights, fundamental principles
or morality.

5. Remedies of the parties

Performance
Civil law : If a valid contract exists and one of the parties does not perform, it can be
forced to do so by the state. However, sometimes there are cases of objective impossibility
or unreasonable effort. Some claims can simply not be brought into performance but have
to be turned into damages or termination.
Common law : If a party chooses to not perform, it will have to pay for damages to the
other party, as the contract is a way to increase the welfare of both parties. Most cases will
be dealt with money, however if a specific performance is needed (damages are
inadequate) the claimant can go in equity where the defaulter will be forced to perform.

Damages for non-performance

Common law : Whether the party is at fault or not, it is liable in damages.
Civil law : You can only claim for damages when the party in breach is at
fault/responsible. A case of force majeure can free a party from liability.

Termination for non-performance

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Termination can be claimed only when the non-performance is serious enough. The party
having performed can then claim its money/good back and terminate the contract.

6. Outlook

In contract law, common law and civil law tradition differ on many aspects. Contract law
is always closely linked with property law and tort law. Contract law remains a particular
domain where the parties contracting are very free, including the choice of the
jurisdiction they want to place their contract in.

Chapter 5 : Property law

1. Property rights and property law

Property rights
Relative or personal rights are against a person. Absolute rights are about an object,
tangible or intangible, and are equivalent to property rights. They’re not against someone
so they have effects against everyone (erga omnes). This has the droit de suite as
consequence: if the object of a right falls into the hands of a person who does not hold the
right, the right holder can exercise his right against that person.

Property law as a cornerstone of (private) law

Property law forms the basis for various different areas of law, like tax law, succession
law...

2. Why property rights?

Property rights actually facilitate the free circulation of goods by enabling these goods to
change owners. A free market economy functions on the basis of freedom of ownership.
Property rights also allow to avoid the “tragedy of the commons”, by giving the control of
an object to one entity.

3. Property rights in civil law and common law

Civil law property law

Ownership: property right of a person towards an object (immaterial relation).
Possession: factual relation between a person and an object (material control).
Detentorship: factual relation between a person and an object, not on behalf of the
detentor. The owner’s right is recognized (material control).
Ownership and possession usually go together.

Civil law systems have their base in Roman law and Germanic tribal law. The latter
developed a feudal system. A lord could grant feudal rights (=fee) to his vassal whom in
return had duties towards his lord. A fee contained both a property right and personal
rights (duties). Through time, the rights the landlords held became unclear and this,
amongst other, brought complaint amongst the peasants, who then started the French
Revolution. This event replaced the feudal system by a unitary system of property law
(Civil Code) that abolished positive duties. Germany also strictly split property law and
the law of obligations.

Civil law property systems are unitary: lands and goods are treated alike. Primary
property rights are the most comprehensive rights in a legal system (= right of
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ownership). Under French law, ownership extends to things and claims. Germany
restricts this to only material objects. An owner can vindicate his good, meaning that he
can reclaim possession of the object of his right. There is also only one right of ownership
on a specific good, but it can be held by several persons together: co-ownership.

Common law property law

The common law system comprises two subsections: equity and common law (narrow
sense) that both have their version of property law. Narrow common law distinguishes
land law and personal property law.

Land law
Common law
Common law Personal property
property law law
Equity
The Monarch is the owner of all land: all others hold land from the Monarch in tenure.
English land law is still a feudal system but has been modernised over time, most notably
with the Law of Property Act of 1925. This limited the available property rights to two
kinds of estates at common law: the fee simple absolute in possession (freehold) and the
fee for a term of years (leasehold).
Next to land, there are chattels (movable objects) and choses in actions (among others,
claims) that are subject to personal property law. A primary right is a title but is relative
to other titles. Two persons can have a title over good and the person with the better right
will receive possession. Here, there are several titles possible for one good.

Equity
Common law is quite strict and that has led to the development of equity, a branch closely
related to property law. If there was an injustice towards some property rights, you could
claim remedy to the monarch (equity) who would recognise the entitlement to the land.
This has developed particularly in the law of trusts (ex: knight goes on crusade and
entrusts a friend to protect his family and property but trust is broken by the friend).
There are also property rights on land in equity.

4. Primary rights to use and for security

Primary rights to use and its limitations

The right of ownership or the fee simple or the title is the most extensive property right.
There are limitations set up by the state to not radically change something without
authorisation.

Primary right for security purpose

- Paritas creditorum (equality of the creditors)
- Personal security (a third party is liable for the debtor)
- Property security (mortgage and pledge)
- Reservation (of ownership or retention of title until payment)
- Fiducia cum creditore (transfer of ownership for security purposes)

5. Secondary property rights

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They are rights of lesser importance that can be exercised solely by the holder of the
secondary right or next to the holder of the primary right. An example is usufruct where
the holder of the primary right (the owner) now holds “bare ownership”.

Secondary rights to use

They are property rights that entitle the holder to use the object for a limited duration of
time (either short or long). Usufruct is one example that also contains a droit de suite.
Another example is the right of servitude (ex: right of way). It is created on the land thus
when the right of ownership of the land is sold and transferred, the new owner is still
bound by the right of servitude.

Secondary security rights

They are created to secure the payment of a claim and usually on an object on which the
debtor of a claim has a primary right. There are two types: the right of pledge (on movable
objects and claims) and the right of hypothec (=mortgage, on immovable objects). The
creditor can sell of the object to pay the claim back if the debtor doesn’t do so. They also
give a priority before paritas creditorum.

6. Principles of property law

The principle of Numerus Clausus

There are only a limited amount of types of right that you can create, to prevent abuse.
Parties themselves are restricted in their freedom to create new types of property rights.

The principle of specificity

Property rights are only valid if they are specific enough about the object of the right.
Fungible objects (of what there are plenty) can generally not be the object of individual
property rights if mixed with other objects of the same kind (only the amount counts, not
the exact objects).
This principle is also of importance for the droit de suite.

The principle of publicity

Everyone has the right to know who holds the property right of an object. This differs
from land properties and movable objects properties. Publicity of land property is
realised through a land registry (positive or negative system). For movables, usually when
a person has factual control of the object, it is assumed that he has property righ on it.

The nemo dat rule

Nobody can transfer a property right that he did not have himself first. One must have the
competence to dispose of the right to actually give it away.

Prior tempore rule

Older property rights are more powerful than new ones. Thus older creditors get paid
first (hypothec- right of pledge).

Specific protection
Property rights enjoy a special form of protection, specific enforceability, meaning that
the duties that follow from the right can be enforced as such. The right of ownership is
protected by vindication. In common law this is dealt with under the tort of conversion
law. Violating a property right can make you criminally liable.

The rule of accessority

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This creates an unbreakable link between a property security right and the claim for
which the right was created. A pledge or hypothec always follows the claim (and
disappears with it).

7. Creation, transfer, and termination of property rights

Creation
Some ways in which primary property rights are created:
- Occupation
- Creation
- Mixing
- Accession
- Prescription

Transfer
If a property right is transferred, it must be clear to both parties that the acquirer now has
the ownership of the object. Third parties also need to be aware of the transfer (publicity).
In Europe, there are two ways to do that:
- Consensual system: requires consensus between seller and buyer. The conclusion
of the contract equals the transfer of the property right.
- Tradition system: requires a contract and a special act to transfer the property
right.
The transfer of the property right is usually done via a property agreement. For movables
this is very easy. An immovable will require a deed and registration to be official.
A claim can also be transferred

Termination
A property right can be terminated if the object is destroyed or ceases to exist. It can also
be waived or abandoned by the right holder.

8. EU property law

Uniform rules of private law for EU’s internal market are an increasing topic debate.
However, changing property law bit by bit is not very feasible as one thing affects a lot of
others. The political will might be there but there will be a need for a mixed legal system.
Initiatives have been taken but a uniformed EU is not there yet.

Chapter 6: Tort law

1. The domain of tort

Tort law deals with cases in which a victim suffered damage and wants someone else to
compensate it. However, the main principle of tort law is that everyone must bear his own
damage. Tort law then deals with when do we have to make an exception.

Contract law and penal law

Tort law deals with situations where there is no pre-existing contractual relationship and
does not aim at punishing wrongful behaviour but rather at compensating for those
damages.
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Tort and torts
Tort is a very homogenous field of law dealing with very heterogeneous situations. For
this reason, in common law we say law of torts. One particular tort, the tort of negligence,
where someone breaches his duty of care towards another person, has become
predominant in the field.
In civil law, legislation does not distinguish many types of torts however the judiciary
adapts those and interprets them according to the type of wrongful act.

2. The functions of tort law and the grounds of tort liability

Functions of tort law

- The realization of compensatory justice
- The realization of a distribution of damage over society that is both fair and
efficient
- The granting of compensation to people for damage caused by someone else
- The prevention of damage
Compensatory justice can only be asked from a person with fault liability. Something can
also happen where no one is to blame, but the damage is still shifted to someone else
because of the strict liability. Some reasons to do so are:
- Fairness
- Economic efficiency
- Possibility to recover
- Prevention of damage

The grounds for tort liability

- A tortfeasor acted wrongfully and has to compensate for the damage that resulted
from his wrongful behaviour (liability for one’s own fault)
- Someone is liable for the damage wrongfully caused by the tortfeasor (liability for
a tortfeasor’s fault)
- A tortfeasor is liable for the damage caused by something he owns (car, animal...)
and is responsible for (strict liability)

Fault liability and strict liability

Most systems distinguish fault liability and strict liability. A fault is a wrongful act for
which one can be blamed. There is currently a movement from fault liability towards
strict liability.

3. Liability for one’s own fault (common law approach)

There are 4 conditions that must be satisfied for liability under the tort of negligence:
- There was a duty of care
- This duty was breached
- This caused damage
- The tortfeasor is responsible for the damage

Duties of care
Unethical behaviour does not necessarily mean that one is liable. Tort law deals with the
consequences of legally wrongful behaviour, in other words, if it breaches a duty of care.
Determining who had a duty of care towards who clears up who is liable for the damages.

15
The Learned Hand formula
A judge determined some standards to measure the duty of care:
- Evaluate the probability of the damage
- The gravity of the occurred damage
- The burden of adequate precautions
A breach of duty occurs if one does not take the proportional precautionary measures to
avoid any accident. Liability depends on whether the burden is less than the probability
and the injury.

4. Liability for one’s own fault (civil law approach)

In general, the legislation in civil law uses the following conditions to determine the
existence of fault liability:
- Act or omission that unlawfully violated a legally protected interest
- Act caused damage that qualifies for compensation

Unlawfulness
The definition of unlawful differs in each jurisdiction but they have in common that they
protect both individual rights and (un)written legal norms against both intentional and
negligent violations.

The cellar hatch case

This case is a famous example of the balance between precautionary measures that
should have been taken, the degree of likelihood an accident happened and the damages
that occurred. The Dutch Supreme Court developed some criteria following that case
concerning endangering situations:
- The standards of precautionary measure must be proportional to the likelihood of
the potential victim neglecting his own safety.
- The standards of precautionary measure must be proportional to the likelihood of
an accident.
- The standards of precautionary measure must be proportional to the maximum
gravity of the potential accident.
- Those precautionary measures have to be taken only if they are less burdensome
than the magnitude of possible risk.

Intermezzo: law and efficiency

Damage-causing behaviour can be qualified as a breach of duty or as unlawful because it
violated an unwritten standard. How can we establish that kind of behaviour? Two
methods:
- Ex Post determination of liability= after the damage in a specific case
- Ex Ante determination of liability= a general rule for future cases drawn from one
specific example (focus on prevention of future damages)
Those rules exist for the economic efficiency already explained in the Learned Hand
formula.

5. Liability for damage caused by other persons

Persons that are responsible for other persons (employers-employees, parents-children)

can also be liable for their damages. This is the vicarious liability. The deep pocket theory

16
also allows the victim to be protected against insolvency of the tortfeasor, if someone else
(potentially richer) can pay for the damages.

6. Strict liability

Sometimes, there is a reason to shift the damages to someone other than the victim who
suffered it. This can be that the liable person is somehow responsible for, or profits from,
the possibility of faultless damages. This is strict liability and can concern objects or
animals owned by the liable person.
Strict liability may offer more protection for the injured party, an incentive for improving
safety, better options for insurance, and fewer problems in determining liability. In
industrial processes (and default objects), the arguments for strict liability outweigh the
rest.

Railroads and the development of strict liability

Industrial development changed the view on fault liability, especially concerning steam
locomotives. Strict liability on the companies urges them to take care of the safety of the
passengers. Thus, the burden of proof was shifted from the victim to the tortfeasor (the
Railway companies).

Traffic liability
A person keeping a motor vehicle is held liable for the damage caused by a collision of that
vehicle with a victim. They are also responsible for the people they allow to driv the
vehicle. This could be fault liability but becomes strict liability because of the shift in the
burden of proof and the limitation on what counts as valid excuses.
The Loi Badintair (France) is quite similar. Victims (non-drivers) are indemnified for the
harm resulting from their personal injuries regardless of their own fault unless it was
inexcusable and constituted the sole cause of damage (contributory negligence – ex:
intention to commit suicide).

Liability for things in French law

Again strict liability was empowered by the shift of burden of proof towards the
tortfeasor. The main requirement for the liability of things is an active role of the thing in
case of direct contact. The owner (or the manufacturer) is liable for the thing. This rule
has become more important than the one on personal fault liability.

7. Damage

The Principles of European Tort Law (PETL) clarify what type of damage qualifies for
compensation.
- Recoverable damage: harm to a legally protected interest
- Protected interests: Human body and mind, HR, property rights, economic
interests (scope differs)
- Purely economic interests: low chance of compensation
- Losses of third persons: compensation is larger in case of death

Chapter 7: Criminal law

1. Introduction: the nature and function of criminal law

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Criminal law can be defined as a body of rules by which the state prohibits certain forms
of conduct because it harms or threatens public safety and welfare and that imposes
punishment for the commission of such acts. Criminal law is typically a field of public law
because it deals with public wrongs. A violation of criminal law triggers public censure
and punishment. It is an instrument of social control and control of governmental power,
protecting not only society against crime but also the human rights of citizens, including
criminals, against a too intrusive state. Criminal law creates, protects and limits freedoms.
Criminal law has both a crime control function (sword) and a safeguard function (shield)
in our democratic society.

2. Which conduct ought to be criminal? The criminalisation debate

Some principles help us determine what should be criminalised to avoid over

criminalisation but still maintain order in the society. The rules of use of criminal law are
not fixed but are determined by the current society as our values and norms always
evolve.
- The minimalist principle: criminal law is a last resort, ultimate technique
- The principle of individual autonomy: everyone should be free to do whatever they
want
- The principle of welfare: collective goals and interests must be protected, confining
the individual liberty (interdependent principles)
- The harm principle: criminal law must be used when harm has been made (to
someone or the society)
- Legal moralism: if a conduct is morally wrong, this will influence the
criminalisation but moral standards are not the same everywhere and they change
everyday, making it hard to actually make them a legal basis.

3. Theories of legal punishment

There are two theories of legal punishment to justify the state using criminal law to inflict
burdensome sanctions upon its citizens when they violate certain legal rules.

Utilitarian theories  future Retributive theories  past

- Consequentialism: laws should be used
to maximise the happiness of the society
and to prevent future crimes
- Deterrence: more controverted, its
influence seems less effective
- Rehabilitation: make criminals law-
abiding members of society.
- Crime deserves punishment: offense
and culpability should be punished
- Justice or vengeance? Is retribution
just rationalised vengeance? Is evil
solved by evil?  restore fairness,
societal condemnation, denunciation

4. The structure of a crime

The actus reus and mens rea dichotomy

The attribution of liability generally requires an analysis of two aspects: actus reus (the
objective element) and mens rea (the subjective element). The distinction is difficult to
make as judging one’s mind is never an exact science. Furthermore, both aspects should
generally be present to make someone liable (criminal thoughts cannot be penalized).
Two frameworks for assessing criminal liability

Tripartite structure (Civil law) Bipartite structure (Common law)

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  order is crucial
1. Offence definition 1. Actus reus
- Objective element - Act/ omission?
- Subjective element - Wrongful?

2. Wrongdoing/ unlawfulness 2. Mens rea

- Descriptive aspect (intention
3. Blameworthiness or negligence)
- Normative aspect (blame?)

5. Actus reus: Commission v Omission

The doctrine of conduct traditionally plays an important role in establishing and

describing general preconditions for liability (no liability without act). This is in respect of
the individual autonomy.

Offenses of commission
Action = willed bodily movements
This definition does not include the many other actions that lead to liability. It also leads
to philosophical complications. Many systems have therefore started to move away from
the definition of action and nowadays adhere to a social theory of action in which action is
interpreted in the social context in which it occurs.

Criminal omission: liability in the absence of action

The definition of action becomes very important in the context of omission liability.
Liability for omissions always presupposes that the perpetrator in question violated a
duty of care (towards the victim). Two forms of omission liability:
- Offenses of failing to act: failure to take steps (without endangering oneself) to
save someone else from death is punishable. This is controverted by some saying it
intrudes too far in the individual autonomy.
- Commission by omission: Some duties of care can arise according to interpretation
(ex: special relationship, undertaken duties, duties based on specific qualities of
the offender, on ownership, on creation of dangerous situations)

6. Mens rea or the subjective element

There can be various types of subjective elements to a crime. The degree of fault can have
an influence on the severity of the punishment for the crime. In civil law, we distinguish
intention and negligence and in common law, we can add recklessness to the scale.

Intention
Intention is made of knowing and wanting to commit a crime (or benefit from its
consequences). It can be direct (dominating will) or indirect (dominating knowledge). The
intention is not related to the motive.

Conditional intent v recklessness

This is situated between indirect intent and negligence. It can be defined as conscious
acceptance of a possible risk (knowledge of the risk and will to take it). Recklessness is
the conscious taking of an unjustified risk. It does not need the acceptance of the risk
however. The difference is that Civil law considers attitude while Common law looks at
awareness.
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Negligence
It is a violation of a duty of care that leads to a criminal act or omission. Negligence can be
conscious (awareness but thinking it won’t happen -- optimistic) or unconscious
(unawareness of a risk). Common law only understands negligence as unawareness of the
risk.
1. INTENTION
- direct intention
- indirect intention
- conditional intention
2. NEGLIGENCE  Recklessness
- Conscious negligence
- Unconscious negligence

7. Justifications and excuses

Justification and excuses can alleviate or suppress liability for an offense. A justification
negates wrongfulness and an excuse negates blameworthiness. There are a variety of
those but the following are the most prominent.

Self-defense
Self-defense is only valid in case of an imminent and unlawful attack and must pertain to a
legitimate interest (one can also defend another person – necessary defense). The defense
must be necessary and proportional.

Insanity
The main rationale of the insanity defence is that it guarantees that those who are not
responsible for their actions are not punishable. They can then be sent for an indefinite
time to a mental institution. The offense should be attributable to the mental disorder of
the offender. Another defence could be diminished capacity, where the insanity is not
complete.

8. Criminal attempts

Criminal law will also, under certain conditions, impose punishment for attempts to
commit a crime. For an attempt to be held liable, we must also look at the criminal intent
but this then goes in the field of punishment of thoughts, which is not desirable. There are
several conditions that have to be met before punishing criminal attempt:
- Aim for protected legal interests
- Border between mere preparation and criminal attempt
- Criminal intent

9. Criminal substantive law and criminal procedural law

Substantive = scope of criminal liability, punishable conducts, punishment

Before convicting someone for a crime, guilt must be carefully assessed. Procedural rules
identify the steps for accurately establishing if criminal law was breached and if an
individual can be deemed culpable for the breach and consequently punished. Criminal
and civil procedure are similar but convicting a criminal has greater consequences for him
and for the society. A criminal case always involves the state as a party. To investigate, the
state is given more powers and the need to balance them becomes even stronger

20
(protection of rights or crime control). The prosecution has intrusive investigation means
but the use of these can be countered, if crime is proven, once in court.

10. The basic structure of the criminal process

There is a common skeleton amongst legislation with the criminal process going in two
phases: investigations and trial.

Investigations
Once there is a suspicion of crime, the police are charged with finding out all relevant
details. If the state authorities believe a crime has been committed, a formal allegation is
drafted and the case is taken to trial.

Trial
An impartial court decides if the defendant is guilty of alleged crimes. A trial is almost
always public, to prevent abuses and control the criminal process. The trial also remedies
the imbalance of the investigation. The accused can challenge the prosecution with
equality of arms.

11. Adversarial or inquisitorial?

In general, the system of criminal justice is very different under each legislation. The
Common law usually prefers the adversarial system and the Civil law prefers the
inquisitorial system. The first one is a dispute between the parties and decided by the
judge, while the other one it’s an impartial judge who leads the proceedings.

Historical patterns
CoL: battle of investigation, evidence and testimony between the accuser and the
defendant to convince a jury. The jury would then give a verdict.
CiL: investigating judge would gather evidence and hand it to a panel of judges. Parties
would bring additional info at trial (minimal influence). The trial court then gave a verdict
and reasons behind it.

Quest for truth

Both models are based on discovering the truth and acting upon that discovery. Winning
is less important than actually finding out what happened and applying the consequences
to that.

Hybrid contemporary systems

The historical differences have mostly disappeared now to leave a generally less
differentiated system. Juries still exist but to a rare extent.

Progressive convergence
The two models now form both ends of a spectrum in which most countries are quite
centred. Identical problems can explain this growing convergence. Supranational law is
also a great push towards uniformity (ECtHR and ICJ).

12. Basic principles of criminal justice systems, the presumption of

innocence

Tension between security and liberty

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The ideal solution would be to protect the rights of individuals and the accuracy of the
fact-finding process adequately without sacrificing the efficiency and the effectiveness of
the repression of crimes. This is the dilemma and an answer can be found in the general
principle of presumption of innocence.

Presumption of innocence
An individual is innocent (and must be treated as such) until proven guilty. This is
however, not a prediction of the outcome of the trial. Instead, it is a purely normative
command. This also restores the imbalance of the investigations. A defendant can be
judged guilty only when this is beyond reasonable doubt. Even in respect of the
individual’s liberty, pretrial detention is allowed to conduct the investigation. This must
stay an exception.

13. Fair trial and proportionality

- Fair trial (public trial, impartial court, right to defense)

- Lawyer’s assistance
- Right to silence
- Cross-examination
- Fair investigations
- Proportionality ( legality)

Chapter 8 : Constitutional law

1. State power established

Introduction
The law and the state are strongly connected, as the state creates most laws but is still
itself regulated by law. A tightly organized state is more effective in imposing laws upon
its citizens and thus achieving peace. Constitutional law is the branch of law that regulates
the state: its organizations, the division of powers, the protection of fundamental rights.

Most states have a constitution where the most important rules have been laid down.
However, in some states, rules are not codified or not even written down (ex. The UK).
Constitutionally relevant rules are often found in ordinary laws, in case laws or in
customs. Constitutions that have been written down are often more rigid and harder to
change.

Constitutional law can be structured in 3 themes : State power established (state and its
source of sovereignty), State power constrained (the ways to curb the state’s power) and
State power democratized (the connection of the state to the people).

Sovereignty
A state is an organization that is able to control a certain territory and the people living in
it, both in the sense of defending it against the outside world and in the sense of
exercising powers and maintaining law and order inside its own borders.

Internal sovereignty is a matter of constitution, as officials from the state get their powers
from the law that is enacted by an ultimate superior : the sovereign. Absolute rulers may
argue that their power derives from god. Currently, most states accept the idea that the
ultimate source of authority lies with the people they’re at the origin of the constitution).
A major problem arises when parts of a state want to secede and become an independent
22
state. The approach to take then varies depending on the extent and proportionality of the
power used by the seceding part, the legitimacy of the movement and other arguments of
international politics, regarding recognition of said state. Some states do not manage to
exercise proper control on their territory : failed states.

External sovereignty means that a state is independent of other states and that those are
not allowed to intervene in internal businesses. Statehood is not an absolute thing, it has
several degrees (to the lowest, anarchy and civil war can happen). A criteria for statehood
can also be international recognition (ex. Part of the UN).

Nation states
Some people share a long common history and common features (languages, physical
characteristics,…), they are a nation. If a state is inhabited only by a nation, it is a nation-
state. States that do not have a united history can try to create unity with shared symbols
(flag, anthem,…). The European Union shares some of these features (common currency,
internal sovereignty,…), however it is not considered a state (and even less a nation).

Globalization and international integration

Sovereign rights might become a fiction as they could formally exist but not be exercised
anymore. Globalization and the ever increasing international cooperation make it harder
to determine from where the power of a state emanates. People and economies are so
interconnected that decisions made somewhere have influences everywhere, under other
jurisdictions.
- Food safety : exportation of food with different quality standards can have an
influence on consumers from different states.
- Crisis : the financial and economic crisis shows that all our markets are
interdependent.
- Environment : global warming is, by nature, a cross-border problem.
- Human rights : they are perceived as universal and therefore call for an
international approach.
- Voluntarism : to make it work, no state has to be forced into a decision it did not
agree on.
- Treaties : a national constitution can allow a state to enter an agreement with
other states (provided the national parliament agrees). They can freely and
unanimously conclude a treaty but the application then overrules their
sovereignty.
- Power differences : some big states are “more sovereign” than others as they can
greatly impact international politics.

2. State power constrained

The state must be the only one who can use coercion against individuals so as to preserve
the monopoly on violence. But the state itself must also be regulated and abide by the
rules. Democracies can impose law but are also bound by law, which is not the case of
absolutisms (eg. Dictatorships). Expectations towards the obligations of the state have
grown over the last century, increasing the need of taxes. It is then a matter of policies
how the existing powers are being used. Constitutional law subjects the state itself to
constraints, limitations on state power.
Territorial division of state power
One way to curb state power is to divide it across smaller units (regional and local units)
that can each have their own governing body. The difference between states then lies with
the question whether they are unitary states or federations.

23
In a unitary state, one central government ultimately holds all the power. They can grant
competences to regions but they can be taken back or overruled easily.
In a federation, state powers are divided between the central organs and the organs of the
subunits and this division is constitutional. The regions have to voluntarily give back their
competences, the state can not simply restrict their powers. Regions can then make laws
of their own. They are also often involved in the federal decision-making process (eg.
With a second chamber representing the regions).
In a confederal structure, the states remain mostly sovereign, except for specific issues
they all agree upon.
All of those are not strict and one state can actually change from one form to another. As
such, statehood is a scale.

Functional division of state power

The state has three main functions (legislature, executive and judiciary) and in order to
not give too much power to one organ, the three functions have to be kept apart. This is
the idea of Trias Politica (three organs for three functions). In Western democracies, the
legislature is often assigned to the parliamentary body.

Independent courts
In general, courts are the most independent body, as the government should not interfere
with the administration of justice, nor put pressure on the judges. Some states elect
judges by popular vote so that they have to answer to the community. This technique has
met various opinions. Judges can also be appointed (for life or for a certain period) so that
they do not have to cater to all interests of the current government. Judges must in all
cases be objectively (not related to the case) and subjectively (open-minded) impartial.

Parliaments and governments

The legislative and executive as not as clearly separable from each other as is the
judiciary. The parliament generally follows the policy agenda of the government, creating
laws where they are asked to. The administration is far more powerful than the Trias
Politica created it to be. The parliament often only validates the administration and the
government’s new draft laws.

Three main forms of government :

- Parliamentary system : The head of the executive relies on the confidence or
tolerance of Parliament to enter, or stay in, office. The government is accountable
to the parliament and in return the parliament’s majority supports the head of the
executive.
- Presidential system : The head of the executive (//president) is elected
independently from Parliament. There is more separation and less accountability
to be held on both sides.
- Semi-presidential system : A directly elected head of state and a prime minister
who is accountable to parliament share executive power.

Checks and balances

Forced cooperation between various organs allows them to keep in each other in check
and interfere so that there is no abuse of state powers. They also have to collaborate to
achieve common goals. This is the idea of checks and balances. Judicial review is one
example of check, whereby courts check the legality of acts and legislation of the
parliament and the government.

The rule of law

24
The rule of law is a quite subjective and undefined principle about fairness, transparency,
… in the legal system. It also means that the state rules through law and is itself ruled by
law. State actions require a legal basis (principle of legality) and can only be exercised
where the law allows it and with the purpose for which they have been allowed (to avoid
abuse).

Fundamental rights
Curbing the state’s power can be done when committing the state to respect fundamental
human rights.

Several important documents trace back the codification of the fundamental rights :
- Magna Carta (1215- UK)
- Bill of rights (1689- UK)
- Declaration of the rights of Man and the citizen (1789- France)
- Bill of rights (1791- US)
- Universal Declaration of Human Rights (1948- UN)
- European Convention on Human Rights (1950- Europe)
The human rights are often very broad so as to be interpreted in each case accordingly.
The scope of the rights can indeed cause the arising of problems. Courts are also subject to
possible reversals of recognized fundamental rights. Even if a case is clear, balancing the
human rights against the public interest is still difficult. Even though they are
complicated, Human Rights are more and more invoked and as such gain more power and
importance.

Judicial review
Judicial review means that judges overrule the will of the lawmaker and impose policy
choices on society through their own interpretation of what the constitution means (no
proper legislative power & no democratic legitimacy). This is where the problematic
nature of the procedure shows.

Judicial review is still a useful institution for several reasons :

- Checks and balances : the judiciary checks on the legislature.
- Will of the people : it protects the supremacy of the constitution.
- Protection of minorities : courts are at a distance of politics and therefore are more
inclined to protect minorities.

In a decentralized system, every court must check the validity of the law they apply, as it
may be in conflict with the constitution. As such, judicial review is not an extraordinary
procedure.
In a centralized system, there is a specific constitutional court, which has the sole power
to annul the unlawful laws. This system allows for more expertise and a more specific
reply.
A constitutional review may be concrete (arising from actual conflicts) or abstract (no
case attached). Abstract review is more controversial as it is truly a check on the
lawmakers.
Judicial review in the European Union is exercised by the CJEU (centralized system) who
can express a binding ruling in solving conflicts. EU law is supranational law.

Here are some features of the constitutional judicial review by specialized courts :
- Ruling on question about the unconstitutionality of a statute in a case.
- MP checking on statute even after adoption (abstract).
- Individuals against a state organ.
25
 - Other important issues (ex: elections, political parties,…).
As judicial review is potentially very powerful and often rules on controversial matters,
the scope of powers of the Constitutional court are a topic of debate.

3. State power democratized

Nowadays, democracy is considered a very positive principle. It means that the people
have themselves installed a government because it is in their interest and that said
government pursues the interest of the people and not its own. Most states are
democratic or argue so when they’re not. Democracy helps maximizing the well being of
the most possible people and serves the general interest. Regular elections ensure that
the government remains accountable to the people, that it doesn’t abuse it’s power and
that the power transition is bloodless. In theory, a democratic government is also less
prone to start a war.

Direct and indirect democracies

Direct democracy = power lies with the people

In older times, democracy was usually direct as the amount of people made it easy to
discuss and make decisions. However, in our modern society, decisions are often more
complex and require a full grasp of all consequences they imply, which means ordinary
citizen are not always qualified to decide on those matters. The logistics in a larger society
are also problematic as everyone would participate to the discussion and there has to be
an administration behind all that.

Representative democracy = power emanates from the people

This type of government includes several challenges : the electoral procedure, the
distribution of powers, the prevention of power abuse. Control against the government
includes means such as recalls (to vote out of office) and referenda. Referenda can be used
instead of relying on the ordinary legislative procedure. An argument for referenda
suggest that it provides a democratic legitimation for a decision, however, some say that
populations tend to not like change, making new but necessary regulations harder to
enforce. Main forms of referendum :
- Mandatory referendum
- Optional referendum
- Binding referendum
- Consultative referendum

Authoritarian government
A society doesn’t need a democracy to work (ex : absolute monarchies and republican
dictatorships). There can be found several advantages to authoritarianism, especially in
crisis times when a decision must be quick or to be more efficient in any decision-making
process (growth, economic crisis, globalization,…). There are also some drawbacks :
- Transition of power: power struggles may arise and can be bloody
- Suppression of dissent: violence can be used to shut down the protest
- Heteronomy: living under the rules of others (>< autonomy)

Election systems
Representative democracy is not the only valid form of democracy but it is the one chosen
by France and America after the revolutions.

26
Who has the right to vote ? Franchise was in principle universal from the beginning but
certain types of people were excluded, notably women, slaves or people that did not pay
enough taxes (now included). Some people still do not have the right to vote such as
minors, foreigners, prisoners and nationals living abroad.

How do votes translate into assembly seats ? Two models (and hybrids)
Majoritarian system : If only one parliamentary candidate can be elected per district, he
must receive a defined majority of votes (plurality = most votes, absolute majority = more
than half). A benefit of this is the tighter bond between the elected and the electors. It also
clears up the bigger parties, to enable effective governing.
Proportional representation : the percentage of votes translate into the percentage of
seats each party gets. The whole population can be depicted that way. But the formation
of a stable government coalition is rendered more difficult.
The choice lies between certainty, clarity and effectiveness or true representation and
negotiations.
Final comment
Constitutional law and politics are very much tied together.

Chapter 9 : Administrative law

1. What is administrative law ?

From police state to welfare state

When it was created, the public authorities (also referred to as administrative body or
executive) had as task to maintain public order and defend the country. Their tasks then
evolved to provision of public goods and services during the 20 th century. They now have
various powers that can even interfere with your private rights and therefore must be
handled with care. Administrative law is mainly about:
- Administrative authorities and their civil servants
- How administrative authorities get public powers
- Procedural rules for the use of public powers
- Substantive requirements administrative authorities have to take into account
when using their powers
- Objection procedures and judicial protection against administrative action.

Multilayer governance
Administration is not only a matter of national authorities. Power can be divided amongst
sub regions, municipalities… Those differ greatly from country to country, with
differences in the state organization and the different traditions. There is also now a
European level of governance that gathers some competences. Hence we use the phrase of
the multilayer governance.

Various instruments and powers to protect the general interest

To put policies into effect, the administration has several tools, such as juridical and
factual acts, to bring about legal consequences for the citizen. They also have competences
to perform some acts. Administrative authorities have competences under both public
law (ex: raise taxes) and private law (ex: conclude a contract).

The administration within the Trias Politica

The trias politica exists to avoid a concentration of power. The legislature is chosen by the
people and the administration (or executive) receives its power from the legislature. It is

27
then controlled by independent courts, that can check whether it has acted in the confines
of its competences and of the law.

Questions
Administrative law mainly deals with two types of issues : one concerning the
instrumental function of ad. law (the power they need to fulfil their tasks) and the other
concerning the safeguarding function of ad. law. (protection of the rights and interests of
the citizens and organisations). Those two topics have two sets of questions that will be
discussed further on.

LEGISLATIVE POWER
Attributes power to Attributes power to

Executive power Judicial power

Reviews acts of

2. Public powers: rule of law and legality principle

All states in Europe respect the principle of the rule of law, which, amongst others, means
that the state bound by the law. The powers are distributed according to the law and the
state must refrain from breaking the law.
A requirement of the rule of law is the legality principle, which says that there must be a
legal basis to any action of the administrative. The legislature confers powers to the
administrative and imposes limitations on those powers. The powers must be used to
serve the purpose they were created for. This prohibition of détournement de pouvoir
And the legality principle bind the administration to the legislature (as representants of
the people).

3. Procedural rules and substantive requirements for the use of public

power: the general principles of administrative law

Rationale of the general principles: preventing abuse of discretionary power

Administrative powers have grown over time and they now enjoy more powers to
regulate various policy areas and more freedom in doing so.

Tax law doesn’t have much discretionary power, as everything is already planned and
exactly prescribed.
On the contrary, land-use plans have few concrete directives, leaving a lot to each
administration. The rights and duties of each citizen in those cases are not regulated
concretely in the legislation.
In each decision, the administrative must take into account the applicable general rules
but it also has to respect the fundamental rights of the citizens affected and the general
principles of ad. law. Those general principles exist to prevent the abuse of highly
discretionary powers. This also shows a switch of power from the legislator to the
judiciary that can review the administrative.

The most important general principles of administrative law

Originating from case law, the general principles are more and more codified. The 8
principles that are common to most European legal systems are:
- The impartiality principle
- The right to be heard
- The principle to state reasons
- The prohibition of détournement de pouvoir
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 - The equality principle
- The principle of legal certainty
- The principle that legitimate expectations raised by the administration should be
honoured
- The proportionality principle
There are several sub principles that can be found. Those exist to protect individuals
against abuse of public powers, especially against an overemphasis on general interest.

The general principles of ad. law are either more procedural or more substantive. The
first three principles are procedural as they have an influence on the decision-making
process. The last five principles are more substantive, as they impose a requirement on
the administration with regards to the content of the decision.

4. Judicial review of administrative action

The executive is bound by the rule of law and has to respect the general principles of
administrative law. If, however, they act in an unlawful manner, what happens ? and who
can do something about it ?

The power of the judiciary to review administrative acts

The division of power amongst the Trias Politica varies according to each country and
each legal tradition. Often the legislation only gives very loose directions and therefore
grants a broad discretionary power to the administration. The administration sets
standards and norms after weighing all interests.
As the legislature and the executive work on a political level, administrative courts do not
mix with that. They just have to check whether the administrative remained in its
framework set by the legislation and limit their administrative competences (according to
the principle of legality. However the balance between each power is still a matter of
debate in a lot of democratic countries.

The function of administrative justice

This function differs between national legal orders.

UK: Administrative law was very much unknown and not distinguished from common
private law. However this has started to change recently as there is an emergence of
separate courts for administrative matters.

Continental Europe (France): It is based on the notion of recours objectif, where judicial
review serves the general interest. The claimant is an instrument to allow the judiciary to
check the legality of the administrative.

Continental Europe (Germany): The aim of the judicial protection is to defend the
individuals. In the recours subjectif method, the plaintive comes before the check on the
administrative.

5. Organization of judicial review in administrative dispute

All national legal systems have a way to control the actions of the executive, however
again, this varies from country to country.

Preliminary objection
Some countries have a system of preliminary objection where the claim can be heard by
administrative authorities before going to court (compulsory in Germany, possible in
29
France). This can seem more efficient and the executive can change the measure this way,
solving the problem. However as it is the administration judging its own actions, the
likelihood of it changing its mind is low.

Specialized administrative courts

To settle the disputes, there exists either a separate specialized court or a specialized
branch within the general courts. There are also specific administrative courts for certain
areas (migration, environment…). The UK uses a system of tribunals, a hybrid between
courts and preliminary objection, still part of the administrative that are highly
specialized in one field.

What is an “administrative dispute”? The public/private divide

Some are very clear but some are not at all. In the case of contracts concluded between an
administrative body and a company, is it a private law case or a public law one ?
The UK focuses on the agent so, if an administrative body is involved, it can lead to an
administrative dispute. Other systems focus on the type of action to determine whether it
falls under public or private law.

6. Standing

Before being able to plead their case before the appropriate court, potential applicants
have to show that they have standing, that there is a link between the applicant and the
subject matter of the action. The applicant can be the addressee of a measure or can be
concerned by it but, in the latter, the standing becomes more blurred. Legal systems
adhering to the conception of recours objectif will have more liberal standing rules,
notably, the concept of interest is a sufficient link. Legal systems based on the recours
subjectif will only grant standing to an individual if his rights are affected by the
administrative action.

7. Remedies

All claims to a court are usually met with remedies. The range of remedies varies on the
system in the country. The recours objectif system will only grant powers to restore
legality whereas the recours subjectif system will provide more extensive powers to
protect the individual rights.

Annulment
Annulment (=avoidance in private law) is the typical remedy to contest a measure. It can
also annul a decision, not making the contrary happen though.

Performance
Individuals can also ask the court to force an administrative body to perform a certain
activity. The courts are granted injunctive powers (recours subjectif), with which they can
issue detailed binding orders to the executive (controversial for the trias politica). In all
other cases, courts are allowed to order the administration to act but not to direct the
content of the action.

Chapter 10: The law of Europe

1. Introduction

30
The European Union has an idea genuinely started after WWII, to prevent other wars and
help rebuild the continent (Marshall Plan).
- 1944 : Benelux, a customs union
- 1948 : Organisation for European Economic Cooperation (Marshall Plan)
- 1949 : NATO, defence organization (+USA and Canada)
- 1949 : Council of Europe (ECHR-1950)
- 1950 : Schuman declaration
- 1952 : European Coal and Steel Community (effective)
- 1957 : Euratom
- 1958 : European Economic Community
All those function on the principle of giving part of the national sovereignty to a
supranational organisation (later the EU). The EU has been created by the idea of spill-
over where one action automatically leads to another in order to function. Whether or
not these actions take over the integrality of the national sovereignty is the ongoing
debate in the EU. Spill-over resulting in full integration is the idea known as “functional
method of integration”.

2. From ECSC to EU

The ECSC
The ECSC was founded in 1951 by France, Italy, the Netherlands, Belgium, Luxemburg and
the German Federal Republic (West) and had 4 institutions :
- The High Authority (exec)  Commission of the EU
- The Council of the MS  Council of the EU
- The Assembly  European Parliament
- The Court of Justice
The ECSC was a supranational and intergovernmental organisation that tried to maintain
peace through economic integration. The Member States had given up part of their
sovereignty to the ECSC for the general interest. To keep the national interests relevant,
the council of MS was created (intergovernmental aspect).

The EEC
In 1957, the 6MS take it a step further and create the EEC (real predecessor of the EU).
The MS (France) put a limit to the possible integration so that only economics would be
affected. The EEC was still economic like the ECSC but also had a much broader range of
functions. In 1967, the Merger Treaty unified the institutions of the 3 pillars. And in 1992,
with the Maastricht Treaty (TEU), the 3 pillars were united as one supranational entity
with 2 other intergovernmental bodies. Those were then connected with the Treaty of
Lisbon in 2007.

The European Union

The Treaty on European Union (1992) with 12MS represented a major step towards
European integration. Since 1 july 2013, the EU consists of 28MS.

3. Sources of EU law

The primary EU law consists of the treaties concluded by all MS, notably the treaties of
Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007).

Secondary EU law
The EU can create 3 types of binding legal effects :
- Regulations: similar to ordinary legislation, binding and directly applicable to all
MS.
31
 - Directives: binding but have to be implemented in each MS (conforming the
national legislation)  principle of subsidiarity
- Decisions: meant for specific cases (but similar to regulations)
It can also offer nonbinding recommendations and opinions. Together with the case law of
the CJEU, they are the secondary EU law.

The ordinary legislative procedure

To create new legislation, the EP, the EC and the Council must cooperate in the decision-
making process. The EC submits a proposal to the EP and the Council (right of initiative).
The EP adopts its position and communicates it to the Council. If the Council approves the
EP’s position, the act concerned is adopted in the wording that corresponds to the
position of the EP. If they disagree, the proposition can be amended several times
between all 3 institutions, so both the Council and the EP can agree in the end.

A decision in the Council must be taken

unanimously. However, the procedure can
change if no agreement is reached and
become a Qualified Majority Voting. This
means a much larger transfer of power to
the EU. The MS can protect their national
interests only in the Council, hence the
veto right. QMV: at least 55% of MS (15
countries) + at least 65% of population.

4. Main institutions of the EU

The European Commission

The commission is seated in Brussels and is currently led by Jean-Claude Juncker. In the
triangle of the EU, the commission protects the interest of the European Union as a whole.
It has the sole right of initiative in the legislative procedure. The EC is composed of 28
commissioners (one from each MS) that take care of 28 different areas of policy. The EC
must ensure the EU laws are applied (executive).

The European Parliament

The EP is seated in Brussels and Strasbourg and is currently led by Martin Schulz. It has 3
main functions: involvement in the legislative process, approval of the annual EU budgets
and supervision of the EU executive (EC and the 2 councils). The EP is composed of 751
MEPs, directly elected by EU citizens. They protect the interest of the citizens of the EU.

The Council of Ministers (= Council of the EU)

It is made up of 28 ministers of each MS, changing according to the topic debated.
Luxemburg currently leads them. They take policy and legislation decision and protect the
interests of each MS.

The European Council

It is made up of the heads of state/government of each MS, the current president Donald
Tusk and the chair of the EC. It is mainly there for guidance and policy directions. They
meet at least 4 times a year during Euro summits.

The Court of Justice of the European Union

32
The CJEU is seated in Luxemburg. It consists of 3 courts: the ECJ, the General court and the
EU Civil Service Tribunal (internal matters). Both the ECJ and the GC consist of 28 judges
appointed by their government. The two most important tasks are : give preliminary
ruling on EU primary and secondary law, review the legality of the actions of the executive
(Council, EC, ECB, EP and European Council).

5. The internal market

The EU started as an economic cooperation but now has a much broader range of
competences. One of the main competences of the EU is the creation and maintenance of
the Internal Single Market.

Advantages of free trade

- Mutual benefits
- Preservation of peace
- 4 freedoms: free movement of goods, persons, services and capital
 Free movement of goods: No quantitative restrictions, no taxes (customs union).
 ex: Van Gend & Loos case, no other measures (different quality standards)  ex:
Cassis de Dijon case
 Free movement of persons: = also of services/establishment  ex: Kempf case
= also of a whole family and with sufficient money
 Free movement of services  Van Binsbergen case + Luisi and Carbone case
 Free movement of capital  ex: Albore case, introduction of the euro and the
EMU

6. Limitation of sovereignty

Introduction
The different currencies were an obstacle for the internal market. Thus, it created a spill
over effect about monetary integration and a common currency. Participation in the euro
could cause problems about not being in control of your own currency anymore (ex: UK
and Greece).

The crisis
2008-2013: huge financial crises (world and EU). It started in the US with the banks
nearly collapsing. Governments started supporting their banks by transferring money to
them, but that revealed unstable government finances in several countries: PIIGS. After
bad financial strategies, their debts were increasing. To solve that, they borrowed money
from the EU, paying with a part of their sovereignty on their finances, so that other MS
would be able to check if anything was going wrong again.

Sovereignty and direct effect

After the Middle Ages, states started to become internally and externally sovereign
(Westphalian Duo). This leads to the creation of national law and international public law,
to deal with the citizens of a state and the other states. To create proper international law,
states have to give up their sovereignty, which is happening but is quite controversial.

How does EU law (and int law) tie into that Duo? What are the direct effects of
international and EU law (Human Rights)? Law of an international origin can be
“transformed” into national law or can just enter the national legislation.

33
Another philosophy shows that we only have one Global legal system with local
variations. Conflict rules then decide which law is applicable. However, most states
adhere to the Westphalian Duo.

Van Gend & Loos and Costa/ENEL

The CJEU decided about the status of European law with the case of Van Gend & Loos.

When VG&L confronted a Dutch court about tax rulings that were in opposition with
European law, the court consulted the CJEU to obtain a preliminary ruling. Nationals of
MS derive rights from the EU treaties and national courts of MS must protect these right.
As the EEC institutions were given sovereign rights, their law prevails on those fields. In
this regard, the treaties concluded between the MS also concern the national citizens as
the community constitutes a new legal order. The transfer of sovereignty doesn’t have to
be explicit (spill over). EU law is lex superior over national law.

The Costa/ENEL case defined that new national law did not overrule old EU law as EU law
became an integral part of the legal systems of the MS. States cannot overrule the law of
the treaty by means of new national legislation.

Subsidiarity and the requirements of legal basis

The CJEU pushed to give the EU a supranational status. The EU’s powers prevail in limited
fields. Limiting the powers of the EU by the MS was done in the treaties : powers can only
be exercised within the limits of the conferred competences and is governed by the
principles of legality, subsidiarity and proportionality.

The principle of loyalty

The MS are very deeply involved in the EU and should therefore refrain of acting totally
against the European integration in a will of sincere cooperation. MS are also bound to
apply all the legally binding Union acts. Membership means a loss of power in national
legislature and administration and an obligation to enforce the supranational legislation.
The judiciary is also forced to comply with EU law.

Euroskepticism
Everyone does not support the European integration. The MS tried to create a Treaty
establishing a Constitution for Europe, but it was met with so much protest, it was
dropped. A group of euroskeptics was formed in the EP and it accurately reflects a
growing trend in the whole Union. Some wish the EU would function differently, others
wish to simply step out of the EU or dissolve it.

Sovereignty and the debt crisis

The European Council has a major power on any big decision in the EU (such as the
election of the president of the EC). The debt crisis is a perfect example of spill over where
a problem requires a solution resulting in more integration and less sovereignty for the
MS. This will continue this way unless the EU breaks up.

Chapter 11 : International law

1. Introduction

34
States are not free anymore of adopting any legislation they wish as a lot of it is created by
international and supranational organisations (UN, ECHR and EU).  ex: Kadi case
International does not merely address states but also individual citizens.

The topics of international law

- War and peace: defining the laws of war and resolving conflicts (with the Security
Council)
- The sea: shipping and the use and exploitation of the sea
- The environment: regulating global warming and climate change
- Economic and financial relations: governed by the WTO, IMF and World Bank
- Crime: combating transnational crime (ex: drugs, slavery, terrorism…)
- Human rights: protecting individuals against abuse (from states) is a universally
accepted concept.

2. Participants in the international legal system

Globalization, driven by technology and policy choices, has a major impact on the status of
the participants in the international legal system and on the contents of international law.
Non-state actors (NGOs, MNOs, IGOs and individuals) get more powerful at the expense of
the state, who used to be the sole actor of international law.

States
International is usually dated back to the peace of Westphalia (1648) where nation-states
were recognized independent and internally and externally sovereign. International law
only applied within Europe and not in the colonies, as they were not “civilized”. With the
Charter of the UN, states had to be “peace-loving”, truly meaning all states, as no one has
ever been expelled for not being “peace-loving” anymore.

Statehood is defined by three criteria: a defined territory, a permanent population and

government exercising effective powers. They can then be recognized internationally by
becoming a member of organisations, concluding treaties with other states and having a
respected sovereignty. They also have the duty to protect its citizens and respect the
human rights. In international law, each state is equally sovereign. Non-state actors derive
their status from the states.

International organizations
They derive their powers from the founding charter, which says what the states have
agreed upon giving them. The ICJ found that IGOs also had implied powers, when they are
necessary to achieve the IGO’s objective.

Are those IGOs bound by international treaties? Some can be (even if the states agree
reluctantly). The UN is bound by its own treaties.

The United Nations

Formed in 1945 to prevent another WW, it is constituted of the General Assembly, the
Security Council, the Trusteeship Council, the Economic and Social Council, the UN
secretariat, the ICJ, and several other specialized committees and agencies. It is
constituted of 193 states (almost the whole world).

The GA consists of 193 members and several organisms that have observer status
(Vatican City, Palestine, the Red Cross, Interpol, UNESCO, EU, African Union…). The
resolutions issued by the GA are only nonbinding recommendations or treaties, which
become binding once they are signed.
35
The UN supervises some specialized agencies such as the ILO, the WHO, the FAO, UNESCO,
IMF, WIPO, WMO and the World Bank. They also have several committees that make
reports and serve as fora of discussion.

The UN Security Council is there to preserve peace, prevent conflicts and try to settle
them if they arise. It is composed of 15 members, with 5 being permanent and having a
veto right: the UK, the USA, Russia, France, and China. Its decisions are binding upon the
members of the UN.

The ICJ settles disputes between states (that have recognized its jurisdiction) in
accordance to international law.

The UN Secretariat deals with the internal affairs of the UN. The Secretary-General (Ban
Ki-moon) heads the Secretariat and is the chief administrator of the UN and provides
quite some discretionary power and influence over the states.

Multinational Enterprises
Aka companies implanted in several countries so they can fully benefit of globalization.
This creates a race to the bottom, as states want to attract them but lower certain
standards to that effect. MNOs are currently only bound by the national domestic law of
the countries their implanted in.

Non-governmental organizations
NGOs are only bound by domestic law but can have a consultative status. Even without
any status, they can have a serious impact on international decision-making as they often
fight for “a better world”.

Individuals
Since the adoption of the Universal Declaration of Human Rights by the UN GA in 1948,
individuals enjoy rights under international law and states cannot infringe those rights.
An individual can file a lawsuit in an international court against a state. They also have
duties not to commit international crimes.

3. Sources of international law

Treaties
Treaties (or International Conventions) are one of the 2 most important sources of
international law as they follow a basic principle stating that states are only bound by
rules they have specifically consented to. This is called voluntarism and is based off the
idea of sovereignty.

Ius Cogens
These are the highest norms, peremptory on any state and cannot be overruled, even by
treaties. Examples are prohibition of genocide and aggression.

4. Jurisdiction

Jurisdiction refers to a state’s competence to make and enforce rules in respect of

persons, property, or events. Each branch of the Trias Politica can exercise that
competence. States exercise exclusive jurisdiction on their own territories, but this gets in
opposition with the idea of globalization. Extraterritorial enforcement action is prohibited
36
unless agreed upon by the concerned state. With regards to persons or events,
intervention is often required. This follows the active and passive nationality principle as
well as the protective principle, the universality principle, and the effects principle.

5. Characteristics of international law

Institutional framework
The international legal system still lacks the centralized institutions that are the norm in
national legal systems. They in general have a much less broad power. International
courts do not have a hierarchy between them.

Enforcement
International law fully relies on states for the executive part as it has no means to do so
itself.

6. Trends in the development of international law

From prohibition of interference in internal affairs to responsibility to protect

The increasing involvement of individuals in international law creates change in the laws.
Here the law evolved from a prohibition in order to respect national sovereignty to a duty
to respect and to protect your own citizens and state. This is a duty you have towards the
other states, which allows them to interfere in case of violation.

The responsibility to protect (as laid down by the UN GA in 2005) engages states to
protect the human rights of their citizens but also permits other states to intervene in
case you breach international law, especially in international crimes (genocide, war
crimes…).

From immunity to universal jurisdiction

A foreign court could not punish the highest representatives of a state, as it would equal
sovereignty. However, now, courts are obliged to prosecute criminals under international
law (genocide, torture…). A loophole in this is that those representatives may only not be
prosecuted when they are in office. International criminal courts, unlike national courts,
do not have this immunity problem as they can try anyone regardless of their status.

From nationality as a favour to a right to citizenship

The UDHR provides that everyone is entitled to a nationality even though states can
decide on the criteria they impose for nationality as well as on the individuals. Citizenship
might change from a favour to an enforceable right in the future.

Chapter 12: Human Rights

1. Introduction

The law used to be seen as a collection of rules laid down by a competent authority that
tell us what we should and what we shouldn’t do. However, recently, another view has
emerged and it focuses more on the interests of the human beings that the law should aim
to protect. These are the Human Rights and they are often very unspecific so as to shape
the law and orient human and institutional behaviour rather than giving conduct rules.
Human Rights can be defined as rights that a person has by virtue of merely existing and
that aim to secure for such a person certain benefits that are of fundamental importance
to any human being.
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 2. Historical development of the idea of Human Rights

Roots
HR can be traced back to natural law, as there was always a “higher law” above positive
law. Intellectuals of the enlightenment interpreted those very similarly to us. They
influenced the policy behind the creation of the French Declaration of the Rights of Man
and of the Citizen (1789) and the American Bill of Rights (1791).

Decline under the influence of a “scientific” worldview

Natural rights lost their influence with the arise of scientific development as they were
deemed unjustifiable. “Scientific” trends that were opposed to natural law began: legal
positivism, codification, utilitarianism, and Marxism.

Revival after WWII

Good scientific values had been pushed too far during the war (totalitarianism in
Germany) and led to a revival of natural law. WWII also sparked the internationalization
of HR because before, HR were only a domestic affair (because of the sovereignty of each
state). Human dignity became a universal concern and was linked with peace. The first
global HR declaration was made: the 1948 UN Universal Declaration of Human Rights
(UDHR).

Human Rights treaties

The UDHR was not binding but was followed by several treaties that were: International
Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic,
Social, and Cultural Rights (ICESCR) both entered into force in 1976. Three other regional
systems also came into force: the European System of HR Protection, the Inter-American
System of HR and the African System of HR. Asia and the Arab region rely more on the UN
system.

Constitutional Human Rights

Led by Germany in 1949, HR have gradually been implemented in national constitutions
(at least in Western countries). Constitutions often speak of civil rights, basic rights,
fundamental rights, and those changes reflect a local and slightly different conception of
HR. They are sufficiently similar to work together.

3. The uses of Human Rights

HR as positive law
HR exist after having been created by law. They can usually be found in national
constitutions and ratified international treaties, however this view does not specify that in
reality all human beings have HR.

Rights as moral ideals

HR are not enacted by law but merely recognized by it. Even if they’re not legal, they
remain moral ideals. In fact, the morality of the HR allows us to criticize the (inexistent)
legal dimension. At the same time, ideology and morality is fairly controversial and
debatable while an official list of rights is much clearer and certain for everyone.
Furthermore, it is nearly impossible to fully separate the legal and the moral dimension of
HR.

Rights as standards

38
HR are standards for measurement to check on certain values/principles in a country. You
can, for example, use UDHR to measure the freedom level in China.

Rights as a political language

Using the HR as a political language is deemed more effective and clearer.

4. The right holders

What counts as human?

- At what point does life start and end? Are unborn or deceased people still right
holders?
- Do legal persons (i.e. corporations) have HR?
- Can HR be collective rights? If so, are they more important than individual rights?
- As our current decisions impact them, do future generations have rights?

Universality and relativism

Universality refers to the fact that every human being has the same HR morally speaking,
however, in the legal system, this is a little bit different. Some people think that HR should
show some cultural relativism as a set of values can’t be adequate for everyone. Even if
HR are a Western concept, other regions can still benefit from them.

5. Duties

Who are the duty bearers?

Traditionally, HR only create duties for the state, as they are a powerful entity. But,
recently globalization makes it impossible to give all responsibility to the state, as MNOs,
IGOs and criminal organisations are more responsible about certain breaches. Scholars
also think that every individual has a duty towards its fellow human beings to respect
those rights he himself holds.
Three legal constructions can apply to a non state agent: the duty to protect, the doctrine
of vicarious liability and the doctrine of “irradiation effect”.

Types of duties
Negative (“liberty”) and positive (“welfare”) rights are often conflicted. The former need
the state to stay away while the latter need the implication of the state. One HR can create
many duties (negative and positive), notably: the duty to respect(-), to protect and to fulfil
(+). The state cannot be held responsible at the same degree for failing to one or the other
duty.

The focus on rights

HR are deliberately vague and general, so as to allow the judiciary a greater scope of
interpretation of justice. The rights are also more important than the duties, because
those can adapt. They also hold more powerful notions of human dignity.

6. The content of the rights

The importance of human rights

The object of HR cannot be frivolous, they are the essentials of human needs, the
protection of basic dignity. Some rights are aspirational, though, in contrast with core
rights.

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Rights to integrity of the person
They are the right to life and the right to be free from torture and inhumane or degrading
treatment. The right to life is also a necessary precondition to enjoy all other rights. The
definition of torture is quite clear in the UDHR to clarify whether some cases involve
torture. “Torture” is a concept that has acquired a lot of power in political debates
(because of the objective it pursues and the severity of the treatment) and as such, is
heavily punished in international crimes. Most international crimes (genocide, crimes
against humanity, war crimes, or torture) involve violations of integrity right.

Freedom rights
Mostly negative rights that create autonomy for individuals. Limitations can occur when
the public good is at stake. The right to property is a special freedom right created by law
itself. It has to be protected and can be transferred. The state can get that property right
through expropriation (in exchange of equally valuable goods).

Political rights
Property rights, freedom rights and political rights form bourgeois rights. Political rights
include the right to vote in free elections and to be elected into office. They are often
however, limited to national citizens.

Socioeconomic rights
Those include the right to an adequate standard of living, food, water, access to health
services, education, housing, social security, and work.

Equality and non-discrimination provision

They are made up of formal equality, material equality (change some rules for people in
different conditions) and specific provisions for weaker individuals.

Fair trial and administration of justice

Those rights control what the state can do to a citizen, the functioning and authority of
judges to be fair and effective. These are lengthy various and often in the form of duties.
They also include the rights of protection.

The interdependence and indivisibility of rights

Complying with one set of rights often involves the other ones. This also a method to
avoid states favouring one set of rights.

7. The boundaries of Human Rights

Rights as Trumps?
HR are meant to be above normal law as they aim to limit the power of the government.
But, in reality, they are often on the same level as any other legislation be it the
constitution or international law. A legal dispute involving HR can be settled with 4
mechanisms as follow.

Conflict of rights
Invoking a HR can be countered by another HR.
- Interpretation is always needed first
- Hierarchy of the HR can solve this (uncertain and not valid if similar HR invoked)
- Balancing HR in a particular scenario is more acceptable but less predictable
- An alternative to both of these is categorical balancing, where balancing creates a
hierarchy in the future.
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Limitations
HR can go too far and be harmful to society in which case one might decide to dishonour
the right in order to protect the common good. A limitation on a right can only be valid if it
has a legitimate aim, a legal basis, is proportional and necessary in a democratic society.
Absolut rights and the core content of any right cannot be limited.

Exceptions
There are exceptions to certain HR that are constitutionally accepted.

Derogations in time of emergency

Some rights can be proportionally suspended in case of a legitimate emergency, if there is
a purpose to it. It can only last for a certain duration of time.

8. Protection of Human Rights

Protection by courts
It can be divided in 2 parts: “constitutional” courts that focus more on whether legislation
and state policies violate HR and courts for individual justice (international courts). A
court process has 3 steps:
- Admissibility: should the case be tried there?
- Merits: violation of a right?
- Remedies: what is the solution?

Protection by political bodies

Politicians may be relied upon to protect HR both domestically and internationally.
Transitional justice deals with trying to reach the good balance between justice and peace
in the societies that are emerging from conflicts. Basic HR would pursue justice even
though that is not always the better option.

Protection by experts
They are a category in between politicians and courts. They can have some official
recognition, have a high moral standard, have expertise, or all and that gives them a
power to interpret the law in an authoritative way (“soft law”). Experts can be a suitable
medium to resolve lesser claims and be quicker. They are also more likely to take a
progressive stand on HR.

Chapter 13: Elements of procedural law

1. Introduction

In any social system with legal rules, you need some institution to resolve legal disputes
by applying the law, instead of making a choice between the interests of the parties.

Alternative dispute resolution

This is a system where parties can solve their problems without intervention of a court,
via mediums like arbitration, mediation, and binding advice from experts. Similarly, there
exists preventive law and collaborative law. This is the first step before going to court (if
needed).

The judiciary, courts

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Most jurisdictions agree that some decisions should not be left to citizens at all, especially
public policy matters. This, the administration of justice where everyone has to respect
the law, including the state, is the judiciary. The judiciary has to respect some general
principles to be trustworthy and limited enough.

2. Institutional principles

They are the characteristics of the court system itself and are essential for the proper
administration of justice under the rule of law.

Judicial independence
Judiciary power must be separated from and not influenced by the two other branches of
the Trias Politica in order to function properly. This independence is realized in several
ways:
- Appointment of judges for life
- Judicial budget is organised by the judiciary
- Contempt of court (no one is allowed to comment on a pending procedure)

Judicial impartiality
Judges have to be impartial and thus cannot favour one of the parties in any way. This is
taken care of by:
- Recruitment: judges are tested and placed in simulations before being appointed
- Remuneration: they are paid well to avoid bribe acceptance
- Exemption: judges can withdraw from judging a case if they’re not impartial
enough
- Challenge: parties can challenge a potentially partial judge (then tested by other
judges)
- Private life: can influence their judgement and should be aware of a potential loss
of impartiality/credibility.

3. Procedural principles

These principles focus on the proceedings before the courts and serve as guidelines for
the courts and the parties when handling a case. They are as follows;

Access to justice
A judiciary system is useless if citizens cannot access it. This is implied in the right to a
fair trial in the ECHR.
- The scope of this right is usually defined to matters related to the determination of
criminal charges and of civil rights and obligations. If private interests of a legal
character are at stake, there is access to court if the dispute cannot be solved
without it. A right to a certain judicial review can also be linked to this.
- Access to justice is expensive and poorer people should still have this right. State-
sponsored legal aid can be a solution to this.
- Another solution is the “no cure no pay” system, where clients only pay their
lawyers if they win.
- Procedural law, by nature, imposes restrictions on access to court under the
principles of reasonable aim, proportionality and no impairment to the core right.
Failure to comply with these is “excessive formalism”.
- All legal remedies have a time limit. Legal certainty is more valued than fairness
and equal chances.

Fair hearing: fair trial

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This right to fairness applies to all parties equally and all stages of proceedings. Fair trial
and hearing are to be taken in the broader sense and include six parts:
- Audiatur et altera pars: both parties have the right to be heard and considered. All
proceedings should come to an end at some point, though (lites finiri oportet).
- Right to equality of arms: implies that parties should have equal opportunities in
presenting their case (i.e. witnesses). As society is quite unequal, legal aid and class
action can supply to protect the weaker party.
- Right to be present at trial: very few exceptions
- Right to an oral hearing: parties can be heard in court as that can influence the
decision. The underlying ideas here are the principle of orality and of immediacy.
- Right to produce evidence: the claims and presented facts can be supported by
evidence.
- Right to a reasoned judgement: Court decisions should be verifiable and
acceptable. According to several factors, only the opinion of the majority is
published, keeping the secret of the deliberations. Dissenting opinions can or
cannot be published.

Public hearing and public pronouncement of the judgement

To be fair, trials have to be open to public, who can control the administration of justice.
This can be avoided under certain conditions where public hearing would be prejudicial.
All judgements are available to public as this beneficial to everyone (legal scholars, other
courts...).

Judgement within a reasonable time

Any case should be just and fast, however, depending on several circumstances, a
reasonable delay can be expected. If the delay is too long between steps, the procedure or
judgement can be dismissed.

Right to enforcement
Once a judgement has been issued, it should be enforced with a rapid result.

Chapter 14: Philosophy of law

1. What is philosophy of law?

Philosophy of law is branch of philosophy (and not of law) that deals with legal
philosophical questions. This chapter focuses on the question “What is the nature of law?”
with views of four different legal philosophers. This question can be asked in a normative
sense (what is to be done in a specific case) or a conceptual sense (theoretical and general
approach).

2. Hart: law as system

Introduction
Law consists, as a matter of fact, of those rules that have been made or enforced by the
state.
Hart discusses the concept of law and not its content. He approaches law as a social
phenomenon.
In his view, law is made up of primary rules, which guide behaviour, and secondary rules,
that organise the legal system. The category of secondary rules that indicates which other
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rules count as law is the most important to Hart. In his theory, law empowers people and
institutions to create law and legitimises rules.
This theory can be seen as fallible but Hart is only interested in characterising law, and
not the normative outcome this includes.
This chain of rules theory brings to the conclusion that every legal rule finds its
foundation in the domestic constitution.

Social practice as foundation of law

This chain of validity has a loophole as it ends with the first constitution. Why is the first
constitution valid law then? According to Hart, it is the recognition of the constitution that
empowers it.
Recognition doesn’t to come from all ordinary people but can be only from ”officials” of
the legal system. And they can play this role because they are recognized as having this
role in social life. Which brings back the question of sociologic study.
In the case of EU law, what are the practical implications of the view that social practice
determines what law is? The CtJEU and the German Constitutional Court have a different
view on the application of EU law to citizens and that might cause a problem if Germany
declares an EU law invalid because of its own constitution. It is then practice that will
decide on the issue.
Another problem is customary law, as it was specifically not created, which contradicts
Hart’s theory. However, it is not Hart’s theory but social practice that determines what is
law, according to himself. They fall into the category of recognized legal rules.

Hart as a legal positivist

Positive law is law that exists as a social phenomenon. In its narrower sense, positive law
is law that has been created, laid down as the decision of a competent legislator (. In its
broader sense, it includes law that exists merely because it is recognized as such
(customary law, case law, and soft law).
Legal positivism is the view that law coincides with positive law: all positive laws are
valid law, and there is no valid law outside positive law. Apart from these two variants of
positive law, there is no law according to Hart, because law is by definition founded on
social reality. This makes him a legal positivist.
Whether a rule is a legal rule is not determined by morality and reason, even though they
might influence the creation of the rule. Legal positivists see a clear separation between
law and morality, and they only preoccupy themselves with the former.

3. Dworkin’s criticism

Hart wanted to characterise what law really was but Dworkin attempted to show that
Hart’s theory about law’s nature was wrong.

An example
 Riggs v Palmer case (murder of the grandpa to inherit)
When making a legal judgment on a case, the judge always has to provide a legal
justification that consists of the existing rules and the way they apply to the facts of the
case. The court also has to justify the use of the rule (why can’t Elmer inherit?).

Hard cases, gaps and discretion

Hart says law is a social phenomenon that consists of rules. Those rules attach legal
consequences to cases, which are perfectly objective. But sometimes there are gaps in the
legal rules, cases can lack an applicable legal rule. When there is no law for a case it is a
hard case and judges can then decide “however they want”. This position gives
discretionary power to the court.
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The donut theory of law
All the above is part of Dworkin’s donut theory of law. The donut is the law but the hole in
the middle is the discretionary power of the judiciary where judicial decision-making is
confined by law but not determined by it. This illustrates how legal positivism is wrong.
Legal positivism is wrong because a case has on unique right answer that can be argued
with more than positive law.
Legal decision makers use other legal material in deciding thus there is more law than
positive law. For Dworkin, social reality contains legal principles that are law because of
their right content.

4. Fact and norm

Law can be seen as normative (determining the best thing to do) or as factual
(establishing legal facts).
One view: Facts are objective but don’t tell us what to do, only if they are given the
meaning of reasons for behaviour. So, reasons are arbitrary.
Other view: Facts concerning law can provide us with reasons for acting. Reasons are not
arbitrary because, as humans, we know that some things are objectively good and bad.

5. Thomas Aquinas; Positive law and natural law

Thomas Aquinas lived in the Middle Ages where law consisted mostly of customary law.
He formulated a theory about law’s nature where law is an ordinance of reason for the
common good, made and promulgated by the person in charge of the community.

Common good
Law concerns the common good but also touches on the interests of individual persons.

Law and reason

Law is also an ordinance of reason (=rationalist law) on human nature and on the
organisation of the human society.
For a long time, people believed there was a natural law, a law that governs a society
based on human nature. There can be two alternatives: custom and will.
Customary law is in a sense arbitrary the rules could have different in another setting or
time period while natural law is mostly universal (even if there are big differences around
the world).
The law also can correspond to the will of the sovereign, which makes it arbitrary. But
that will must be rational to not be an evil. Will tells us what our goal is, reason tells us
how to achieve it.
Reason is a tool and is also a standard to evaluate goals with (if the goals are irrational for
example).

Positive law
The person who has the power to make laws is the one who has the care for the
community as a whole and vice-versa. A society needs a leader that can promote common
good through positive law.
Positive law should supplement natural law to be sufficiently concrete and complete. The
duty to comply with this positive law follows from the fact that human beings need to live
together in a society and that such a society can only exist if it has positive law.
Positive law and natural law can conflict, however, and a solution would be that “positive
law that conflicts with natural law is no law at all”. But this solution might bring

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disagreement, a threat of chaos and thus “positive law that is a little wrong” should still be
followed.

Rationalist law
Law is a matter of reason, rules that tell us what kind of actions serve the common good.
Once prudent rules have been adopted, one should not constantly re-evaluate them as it
takes time that is often not available and rather follow them.
Not everyone thinks the same rules are the best, yet it is essential that everyone follows
one set of rules to coordinate behaviour.
Between the philosophies of natural law and positive law, the practical difference is quite
small but the fundamental difference is huge.

6. Hobbes: normative legal positivism

Hobbes thinks that law determines how we should act, is a manifestation of reason, and
offers certainty on the effective organisation of the state. He was very pessismistic about
human nature.

The state of nature according to Hobbes

Hobbes imagines the state of nature of mankind where everyone would live together in an
unorganised society. This gives an approximate equality to everyone but also results in
chaos and a war of everybody against everybody.

The laws of nature

A man aspires to peace and his reason tells him under which conditions this can be
achieved. These are the laws of nature. Everyone should strive for peace but should be
prepared to give up all his rights on the condition that the other persons are prepared to
do the same.

The state
In the state of nature, contracts are problematic as the performance of the second party is
uncertain. In an effective state, the government can act as guarantee to enforce
performance. Enforceability is thus essential for law. It is in everybody’s interest if
everybody is forced to obey the law.
Law in general imposes duties and obligations and superior entity has to force humans to
comply with them (aka the state).
Positive law and natural law have a single purpose in common but originate from a very
different source. Natural law plays a role but only as the foundation for positive law. As
soon as an effective state exists, the only law is positive law, created and enforced by the
state.
Hobbes and Aquinas’ view differ on mankind as the former thinks everyone pursues their
own interest and the latter thinks that everyone strives for what is good.

Legal positivism Legal rationalism/

naturalism
Conceptual/descriptive Hart Dworkin
view
Normative view Hobbes Aquinas

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