Introduction to Law

2nd lecture

Functional public law and private autonomy in Europe

- Benjamin Constant: The Liberty of the Ancients compared with that of the Moderns
(direct democracy sacrificed private autonomy in Ancient Greece, how that would
lead to the tyranny of the majority in modern nation states)
- Seeking balance between public power and private autonomy as a process leading to
the separation of public and private law in Europe (10th-11th centuries: private law
as a glue of the feudal societies, 17th-18th century absolutism as period of
overwhelming public law + periods of balance)
- comparison of public and private law and their connection to various branches of law
- procedural law and the blurred borderline between public and private law
- Berlin funnel
Basic concepts
- legal norm: the smallest logical unit of law which prescribes a comprehensible and
applicable rule of conduct
- clause: the grammatical unit of law (chapter, article, section, subsection)
- act: legislative unit of law, the clauses enacted by the legislative power with a single
document
- differences between an act and a legal norm
- sources of law: material, formal, internal and external
- hierarchy of the sources of law
Legislation
- the concept and forms of legislation through jurisdiction: customary law, case law
and unwritten law
- the attitude of the state towards legislation through jurisdiction: permitted (Anglo-
Saxon legal system), tolerated in exceptional cases (Swiss civil code), banned (almost
just a theoretical possibility)
- primary and secondary legislation
- characterization of primary legislation (relying on legal theory, influenced by politics,
time-consuming, preceded by open debate, it regulates the most important social
fields that are least prone to changes)
- characterization of secondary legislation (less general, particular interests might
influence it, lack of openness, less time-consuming)
- governing exclusively by primary legislation vs. governing exclusively by secondary
legislation