Legal Definitions and Key Concepts

Foundations
Collective
Enforcement of legal rules by state organs
Enforcement

Positive Law The law that has been laid down “positus”

Positive Morality The moral standards and precepts that are broadly accepted

The moral rules and standards that should rationally be accepted

Critical Morality
regardless of what positive morality says.
Positive law brings about legal certainty. As a result it is usually
Legal Certainty
unnecessary to invoke authorities saving time and money

Roman Law The legal system built by the romans which much of civil law is based on.
Guidelines for behaviour that have grown spontaneously in a society, such
Customary Law as a tribe, in the form of mutual expectations, which after some time are
accepted as binding
The writing down of customary law making it into jurisdiction
Codification

A court decision that is cited as an example or analogy to resolve similar

Precedent
questions of law in later cases.
Doctrine of stare decisis (stand by your decisions). The policy of courts to
Stare Decisis
abide by or adhere to principles established by decisions in earlier cases.
The set of rules that traditionally supplemented the common law where the
Equity
application of the common law would have operated too harshly.

Natural Law Law that is established by means of reason.

National law and international law were completely different. National

Westphalian Duo
deals with people international deals with states.

Lex Mercatoria The set of rules created by merchants to regulate their mutual dealings.
 Sources of Law
Used to distinguish legal rules from other rules
Sources of Origin
Sources include: customary law, rationalist law and created law.

Sources of Validity Rules created by people with the competence to do so and are laid down.

A rule that tends to be followed by members within a group, violation of

Social Rules
these rules will result in (self-) criticism.

Institutional Rules Rules created by an institution with competence to do so are valid.

A way in which to create new rule and to modify or derogate existing

Legislation
rules.
The sharing of power to avoid overly high concentration of power in the
Trias Politica hands of few individuals. Usually split in administration, adjudication and
legislation.
Soft Law Influential rules which are not binding. Guidelines.

Lex Superior In case of conflicts, the superior rule proceeds over the inferior rule.

In case of conflicts, the more specific rule prevails over the more general
Lex Specialis
rule.

Lex Posterior In case of conflicts, the newer rule prevails over the older one
Treaties nowadays can also be sources of legislation and rights. Difference
Treaties between treaties and legislation is that legislation is limited by territory
while treaties deal with international relations
Case Law Case law can be seen as a source of validity.

Rationality (Case If a case has been decided in a certain way then rationally a similar case
law – Civil) should result with the same outcome.
Legal Certainty
Law should be applied in the same way in similar cases
(Case law – Civil)
Ratio Decidendi
(Case law – The grounds by which a court has come to a decision are legally binding
Common)
Distinguishing
Finding facts that make this case different from previous ones
(Common)
Broadening
When a court treats cases as similar when their similarity was not obvious
(Common)
Restatement
Restatement of the law are summaries, not legally binding
(Common)

Legal Doctrine Rules proposed in a legal doctrine may become legislation

Reason Reasonable rules are more likely to be used in the law

Basic Concepts of Law

Public Law The part of the law in which the government as such plays a role

The part of the law in which the government as such does not play a role.
Private Law
Private law deals with the mutual relations between citizens.
EU law originates from treaties and is a form of constitutional law; it is a
EU Law
kind of international public law.
 Contract Law
A set of rules and principles that govern transactions among parties,
Contract Law
thereby setting the rights and obligations if these parties
One of the core of a typical contract; one party gives something to another
Exchange
party and receive something in return.
Freedom of Parties are free to decide whether they want to contract at all and with
Contract whom and they can also determine the contents of the contract
Standardised rules which allow parties from having to draft contract
General Conditions
conditions for every new contract it wants to conclude.
Default (or facilitative) rules that are automatically applicable if the parties
Default Rules
have not made any other arrangements.
Rules which make a contract void if the conditions are immoral or against
Mandatory Rules
the law.
At the national level, the legislature and the courts primarily produce the
National Rules
official contract law.
In the last two decades the European legislature has promulgated almost
European Rules
20 directives with relevance to contract law.
The most important international conventions in this field is the 1980
United Nations Convention on Contracts for the International Sale of
Supranational Rules
Goods. This contains rules that apply to commercial cross-border
transactions.
In contract law soft law comes in the form of model rules, which are
intended the setting of norms or deciding of cases by the formal
Soft Law
institutions, or can be a source of inspiration for parties have to draft a
contract.
Binding Contract A contract is binding if it can be enforced.

Intention to be All modern jurisdictions accept the main criterion for the enforceability of
Legally Bound a promise is the intention of the parties to enter in a legal relationship.
A gratuitous promise, such as a promise to make a gift, is usually viewed
Gratuitous Promise with so much suspicion that most civil law jurisdictions require the
promise to be put in a notarial deed.
Consideration requires that there is a quid pro quo: the promise must be
given for a counter-performance by the other party. This is lacking in a
Consideration
gratuitous promise, thus English law requires the donative promise to be
put in a deed.
A promise needs not be purely gratuitous fir it to raise suspicion about the
Unequal
earnestness of the intention. There is also a question about the intention to
Obligations
be enforced.
Offer and Consent of the parties is a necessary requirement for a binding contract.
Acceptance Consent can be split up into offer and acceptance.
A proposal amounts to an offer if:
1) It is intended to result in a contract if the other party accepts it, and
2) It contains sufficiently definite terms to offer a contract.
Offer
If a proposal can be qualified as an offer, it means that a binding contract
comes into being upon the mere acceptance of the offer by the offered.
Some jurisdictions see an offer as a mere invitation into negotiations.
Once it is established that the proposal amounts to an offer should the
Revocation
offeror revoke its offer before acceptance?
The moment parties are bound to a contract; all kinds of rights and
Acceptance
obligations follow.
Formalities and
When contracts are not clearly binding or are disadvantageous for one
Protection of the
party then there are formalities which are used to protect the weaker.
Weaker Party
In most cases in which formalities exist, it is to protect a party who is
 A contract is synallagmatic if each of the parties assumes an obligation
Synallagmatic
towards the other in order to acquire the performance to which the other
Contract
party commits himself (consideration in common law)
 Property Law
Relative Rights (Personal rights) are against a particular person.
Rights that are not against a particular person. They always pertain to the
Absolute Rights object of the right, known as property rights. Objects can be either tangible
or intangible
“Against everyone”
Erga Omnes
Rights that pertain to an object have the effect erga omnes
“Right to follow”
Droit de Suite
The right follows the object
Freedom of Every individual is free to quire and dispose of ownership. This facilitates
Ownership the circulation of goods
This theory observes what can go wrong with herders sharing a common
parcel of land, on which they are each entitled to let their sheep graze on.
Tragedy of the
Giving property rights to an individual will encourage him to take care of
Commons
the piece of land. Real life examples are overfishing and pollution of the
environment, which are combated with fishing and pollution rights.
The property right that a person has in respect to an object.
Ownership
The most comprehensive property right.

Possession The factual relation between a person and an object.

Detentorship The factual control of over a good on the behalf of someone else.
In this system a Lord (such as a king) grants feudal rights, known as a fee,
to a vassal. A vassal might grant a further fee from his own fee to a
subvassal, thereby creating a pyramid of landholding.
Feudal System
In such system property rights and personal rights/duties were closely
interwoven. These rights on the land were accompanied by duties of the
vassal towards his lord.
Unitary System A unitary system means that that property rights apply to land and goods
(Civil) alike.

Vindication The right to reclaim possession of the object of his right.

One Right of
There can only be one right of ownership in respect to an object.
Ownership (Civil)
Co-ownership
When several persons hold a single right of ownership together.
(Civil)
Fragmented System There are two kinds of property law, one for immovable objects (land) and
(Common) movable objects (chattels or goods).
Land Law The Kind is owner of all the land; all others hold land from the King in
(Common) tenure. (Feudal system)
Fee Simple The entitlement of the holder to exclusive possession for an unlimited
(Common) time. (Freehold)
Term of Years The entitlement of the holder to exclusive possession for a limited time.
(Common) (Leasehold)
Short for entitlement.
Title (Common)
Most exclusive right to a chattel.

Chattel (Common) Moveable object.

It is possible that more than one person is entitled to the same chattel. If
Relativity of Title
this is the case the person with the stronger entitlement will receive
(Common)
possession.
The second subsystem of law which was developed to avoid strict and
Equity
unfair results that would result from common law.
 Tort Law
A civil wrong which unfairly causes someone else to suffer loss or harm
Tort Law resulting in legal liability for the person who commits to tortious act (the
tortfeasor).
Main Principle Everyone must in principle bear his own damage.
Tort deals with situations where there is no pre-existing contractual
relationship.
Tort v Contract +
Unlike criminal law, tort law does not aim in punishing wrongful
Penal
behaviour, but seeks for ways to compensate the damage that is often
caused by wrongful acts.
A tort that is assumed if someone breached a legal duty to take care
Negligence towards other persons and their interests and this breach resulted in
damage to someone towards whom care was due.
Common law has developed rules for several kinds of torts. For this
Law of Torts reason, the rules about the different situations were originally called the
law of torts.
In the civil law tradition, there are not as many kinds of torts as far as
legislation is concerned. However, the application of the relatively few
Civil Law rules has been differentiation between different kinds of wrongful acts by
means of judicial decisions in which the relatively uniform tort law has
been interpreted.
- The realization of compensatory justice.
- The realization of a distribution of damage over society that is both fair
Functions of Tort and efficient.
Law - The granting of compensation to people for damage caused by someone
else.
- The prevention of damage.
If one person does something wrong thereby causes damage to another
person, compensatory justice (retributive justice) requires that the
Fault Liability wrongdoer compensate the damage. This kind of compensation makes
sense only when the person who caused the damage was at fault, and
therefore this kind of liability is called “fault liability”.
When a victim suffers damage without anyone deserving blame for it,
normally he would have to bear damages for it himself. However
sometimes there are reasons to shift the damage from the victim to
someone else. The latter person will be liable for the damage even though
Strict Liability he could not help it. This is a case of strict liability.
- More protection for the injured party (consumer protection)
- An incentive for improving safety
- Better options for insurance
- Fewer problems in determining liability, saves procedural costs
Fairness One reason to shift the damage has to do with fairness.
Another reason to impose strict liability has to do with economic
Economic
efficiency. One way to distribute damage over society may lead to fewer
Efficiency
costs for society as a whole than another way of distributing the damage.
A third function is to allow victims, who suffered damage caused by the
behaviour f someone else or because of an event for which the victims
Possibility to were not responsible themselves, to recover damage. This function
Recover explains both strict liabilities and liabilities for faults of other persons,
including the liability of employers and parents for faults of, respectively,
their employees and their children.
A fourth function of tort law is to prevent the occurrence of damage-
Prevention of causing events. By making persons other than those who actually suffered
Damage the damage liable to compensate for this damage, tort law promotes that
these other people be more careful to avoid damage.
1) Cases in which tortfeasor acted wrongfully and has to compensate for
 Criminal Law
Citizens demand security from their governments, and criminal law seems
Criminal Law
one suitable tool for the task of providing it.
Criminal law deals with so-called public wrongs as opposed to private
wrongs. Crimes are socially prescribed wrongs that concern the
community as a whole. This fundamental principle also shows itself if one
Crimes as Public
compares criminal with civil law cases. A criminal case is between the
Wrongs
whole political community, the state or the people, and the defendant. It
expresses a hierarchical relationship between the state and the individual
who is called to answer for his wrongful and blameworthy behaviour.
A violation of the rules of criminal law commonly triggers the imposition
of public censure and (severe) punishment. However, the imposition of
Punishment and criminal punishment constitutes a severe encroachment on an individual’s
Censure freedom and autonomy and should therefore not to be imposed lightly and
only as a last resort (ultima ratio). Criminal law does this by limiting and
protecting freedoms at the same time.
Criminal law has two functions. On one hand, it is a tool to maintain
public order and control deviant social behaviour; on the other hand, its
function is to canalize and circumscribe the application of coercive
Between Sword and measures and punishment is legally determined channels that respect basic
Shield human rights.
Criminal law lays down rules under which the state can exercise its
powers and thereby protects the citizens from arbitrary and
disproportionate state measures.
The consequence of violating criminal norms are so onerous and severe
Criminalization for citizens that the decision to criminalize conduct should never be taken
Debate lightly and should always require the careful consideration of a variety of
competing interests and factors.
Criminal law should only be used as a last resort. Morality, peer pressure
The Minimalist and also civil law and administrative law are other (informal) techniques
Principle of control, and in many instances it seems preferable to leave enforcement
of certain forms of behaviour to those forces.
The Principle of
Citizens should be free from undue state powers in making their own
Individual
choices and should be masters of their own fate.
Autonomy
Certain collective goals and interests such as environmental protection,
economic and financial stability, and food and product safety, are pivotal
The Principle of
in a society and therefore also warrant protection under criminal law. The
Welfare
principle of welfare and autonomy are not opposites, instead connected
and mutually interdependent.
A conduct that may be immoral (such as adultery) but that is not harmful
The Harm Principle to others should not be the concern of criminal law. The issue with this is
that harm can be seen as an objective term.
What is immoral is wrong and thus must be a crime. However the reliance
Legal Moralism on morality is inherently problematic because of changing morals, which
are subjective.
The doctrine that actions are right if they are useful or for the benefit of a
Utilitarian Theories majority. Punishment can only be justified if the harm that it prevents
outweighs the harm it creates through punishing the offender.
The state should therefore only inflict as much punishment as is needed to
Consequentialism
prevent future crimes
Individual (Specific deterrence) punishes an offender in order to prevent the same
Deterrence person from reoffending.
General deterrence uses threat or example of punishment to discourage
other people from committing crimes. High incarceration rates would
General Deterrence
indicate that this is not very effective. Offences while influenced by drugs
also does not allow for rationality.
The object of rehabilitation is to prevent future crime by giving offenders
 The term normally implies an intentional termination of life by another at
Euthanasia the explicit request of the person who wishes to die.
The carrying out of a death sentence.
Execution
One human causing the death of another human being.
Homicide There are both intentional homicide and unintentional homicide.
Includes murder, manslaughter, euthanasia and execution.
Involuntary The unlawful killing without malice aforethought.
manslaughter
Legal term for the killing of a human being, in a manner considered by
Manslaughter law as less culpable than murder.
Two Categories, voluntary manslaughter and involuntary manslaughter
The killing of another without justification or valid excuse, includes the
Murder killing with malice aforethought (premeditation and predetermination)
Conduct that falls below the standards of behaviour established by law for
the protection of others against unreasonable risk of harm. A person has
Negligence
acted negligently if he or she has departed from the conduct expected of a
reasonably prudent person acting under similar circumstances.
When the defendant kills with malice aforethought, but there are
Voluntary
circumstances which reduce culpability, or when the defendant kills with
manslaughter
only an intent to cause serious bodily harm.
 Constitutional Law
Constitutional law contains the rules on the organisation of as sate, on the powers that its organs
possess, and on the relations between these organs (institutional law), and the it provides
fundamental rights that protect the legal position of the individual against the state (human rights,
judicial review and administrative law).

8.1 State Power Established

The state creates most of the law and the law regulates the state itself. This
began when the state separated criminal law from private law, making the
Law and State
prosecution of crimes effective and thus reducing crime rates and allowing
the society to grow.
Sources of Constitutional Law
In most states, the most important constitutional laws are written down in
a central document. Some states like the UK do not have an official
Constitution
written constitution, however the laws are present with ordinary laws,
customs and case law.
Case law becomes important in cases with a constitutional focus or when
courts are called upon to interpret the meaning of the constitution or
Case Law
establish fundamental rules and principles with constitutional significance
in practical cases.
Customary law plays an important role in the internal proceedings of
parliaments such as in the composition of parliamentary committees or the
Customs
panel of parliamentary chairmen. Also important in the process of
government formation.
The fact that constitutional documents usually can only be amended
through difficult, special procedures, often involving special majorities.
Entrenchment An entrenched constitution is called rigid. As a result, a constitution will
reflect the majority and be more protective of minorities and their
interests.
Sovereignty
A state is an organization that is able to control a certain territory and the people living in it, both
in the sense if defending it against the outside world and in the sense of exercising powers and
maintaining law and order within its own border.

Internal Sovereignty is the ultimate source of authority within a particular territory,

Sovereignty and where the power originates.
In modern times, the ultimate source of authority within a state lies with
the people. As a result, in systems based on popular sovereignty the people
The People
are bound by the law that is made on the basis of a constitution that was
enacted in the name of the people.
Given the demand of internal sovereignty, a state must exercise internal
domestic control and possess the power to stop civil unrest and prevent
Secession secession. This demand is not fulfilled when there is secession and power
belongs to the secession territory, the people in the movement and the
international community recognition.
States that do not manage to exercise effective internal control and the
Failed States monopoly of force do not meet the criteria for statehood and are called
failed states.
The external sovereignty relates to the mutual relations between states. A
External
sovereign state is independent of other states and that other states are not
Sovereignty
authorised to meddle into internal affairs of a sovereign state.
Statehood is not a case of all or nothing. Some states are internally weak
Degrees of
and the authority is being challenged. Some states offer little to internal
Statehood
security to their citizens.
 Administrative Law
Administrative law is the body of law that governs the activities of
administrative agencies of government. Government agency action can
Administrative Law
include rulemaking, adjudication, or the enforcement of a specific
regulatory agenda.
An administration that is only responsible for defence and maintenance of
Police State
public order.
An administration that is also responsible for the providence of public
Welfare Sate
goods and protecting the general interest.
- Administrative authorities and their civil servants
- How administrative authorities get public powers
- Procedural rules for the use of public powers
Topics of
- Substantive requirements administrative authorities have to take into
Administrative Law
account when using their powers
- Objection procedures and judicial protection against administrative
action.
In any state, there are several levels of administrative decision-making.
The organisation and structure of such authorities, their competences, and
Multilayer their dependence or independence from national authorities differ
Governance considerably between countries. Nowadays, many administrative tasks are
performed jointly by the European agencies, meaning that administration
is no longer just a national matter.
In order to so serve the general interest, the administration has various
Instruments and
instruments (juridical and factual acts) at its disposal to put its policies
Powers to Protect
into effect and bring about legal consequences.
Public law competences are those that are exercised exclusively by public
Competences authorities. E.g. raise taxes or the right to issue residence permits to
foreigners.
In an ideal model of the democratic Trias Politica, the legislator is chosen
by and is responsible to the people. The administration receives its powers
only from the legislature. It executes these powers and is controlled b
independent courts.
In a system with a thorough distribution of powers, the competences of
the judiciary are limited. Mainly, courts may control whether the
Trias Politica
administrative body has acted within the confines of the competences
attributed to it and the rules imposed by the legislature. In any event, the
courts are bound by the law and may not deviate decisions of the
legislature. The executive us hence situated between the legislature, from
whose acts it derives all its competences, and the judiciary, which controls
whether the executive has remained within the confines of law.
Instrumental The powers that the administrative authorities need in order to fulfil their
Function tasks and the conditions attached to such powers.
Safeguarding The protection of rights and interests of citizens and of private
Function organisations against the use of administrative powers.
The law at all times binds the state. The law regulates the allocation and
The Rule of Law execution of powers, and the state must refrain from violating the law,
including the basic rights of individuals.
This principle requires that the administration’s competence to act must
Legality Principle have a basis for legislation. Competences to provide for society and
limitations so it can’t abuse its power.
Détournement de
Is using powers in a way in which they are not meant to be.
Pouvoir
As a consequence to the growth of administrative responsibilities, the
Preventing Abuse
administration has greater power to interfere with the rights and
of Discretionary
obligations of individuals. To regulate this there is tax law, land-use
Power
plans, fundamental rights and supervision by the judiciary.
1) Impartiality principle
 EU Law
European Union law is a body of treaties and legislation, such as Regulations and Directives,
which have direct effect or indirect effect on the laws of European Union member states.

10.1 Introduction

Early History and Overview

EU originated with the European Coal and Steel Community (ECSC), the
European Economic Community (ECC), and Euratom. Also as a result
from WWII, cooperation as a means to reduce of chance of another war.
There were previous organisations: Bernelux customs unions,
Initiatives for EU Organisation for the European Economic Cooperation (OEEC) for the
Cooperation Marshall Plan and the Soviet Union-led Council for Mutual Economic
Assistaance (Comecon), North Atlantic Treaty Organisation (NATO)
defence organisation and the Warsaw Pact.
In 1949 the treaty establishing the European Council was signed, this
included the European Convention on Human Rights.
In 1950, the French Foreign Minister proposed: Franco-German
production of steel as a whole be placed under a common High Authority,
within the framework of an organisation open to the participation of other
countries of Europe.
Was meant to improve Franco-German relations post war, as coal and
Schuman Initiative
steel are necessary for warfare this would war less likely. This created the
ECSC in 1952. In 1958 the EEC was founded. Then Euroatom and finally
EU.
The gaol of these supranational organisations was for member states to
give up some of their sovereignty. He wanted a European Federation
Spillover means that the full realisation of one thing requires the
Spillover
realisation of another thing.
Spillover in the realisation of the ECSC would need full cooperation in
coal and steel production, such as transportation, which then would need
cooperation in road construction and maintenance and etc. Cooperation in
one field would result in spillover in another field.
Functional Method Some believe that spillover would result in cooperation in all important
state functions and would require political cooperation or even
federalisation. Others believe that cooperation can be decided on a case-
by-case situation. Full cooperation for integration through spillover is
called the “functional method of integration”
10.2 From ECSC to EU

The ECSC
The ECSC was founded in 1951 by six states: West Germany, France, Italy, the Netherlands,
Belgium and Luxembourg.

The High Authority had the executive power with the task of
implementing the aims of the ECSC. It had 9 independent members from
the six participating states. The HA represented technocratic,
supranational, non-political aspects of the ECSC. This has developed into
the Commission of the EU.
Institutions
The political and intergovernmental aspect of ECSC were represented by
the Council, composed of representative of the Member State.
The was the Assembly, made up of delegates from the national
parliaments of the Member States.
The Court of Justice was final institution.
To comply with the aims of the ECSC, it might have been the case that
national interest of the members had to be sacrificed in behalf of general
 International Law
(Or domestic law) which deals with legal relations within the territory of a
National Law single state and with the organisations of that state itself.

International Law (public international law) deals with legal relations between states.

11.1 Introduction
The Kadi case is a good example of the interplay of rules and measures
stemming from the institutions at different levels. It shows the interplay
between the United Nations Charter (under which financial sanctions
Kadi Case were imposed on Mr. Kadi), domestic law (under which the sanctions
were implemented), EU law (under which the sanctions were transformed
and then nullified) and the law of the European Convention on Human
Rights.
The Topics of International Law
One of the most traditional topics of international law has been the laws
of war and negotiating peace between states. Nowadays, the UN takes a
War and Peace
central role in safeguarding international peace and security, especially
through the security council.
Shipping and the use and exploitation off the sea are traditional topics of
The Sea international law. It includes restrictions on shipping, seabed exploitation,
fishing rights and etc.
Environmental issues such as climate change, greenhouse gas emissions,
water and atmospheric pollutions are cross-border issues and are therefore
The Environment deal in international law. There are treaties such as the Kyoto Protocol on
climate change and global warming, the POP Air Pollution Protocol and
the MARPOL conventions on maritime pollution from ships.
Nowadays, finance and trade can no longer be dealt with at the national
Economic and
level. There are transnational organisations such as the WTO, the World
Financial Relations
Bank, and the IMF.
Crime is also no longer confined to borders, criminals may cross borders
Crime to avoid being arrested. There are various UN conventions and
organisations such as INTERPOL.
Human rights exist regardless of state and thus are part of international
Human Rights
law. The 1948 Universal Declaration of Human Rights.

11.2 Participants in the International Legal System

Globalisation is driven, on the one hand, by technological innovation (which reduces overall
costs of transfer) and, on the other hand, by policy decision to reduce barriers to international
economic transfers. It could be slowed down if political preferences change, but cannot be
stopped because technological innovation will never end.

These organisations benefit from globalisation because states increasingly

International
transfer competences to international institutions in response to problem
Organisations
which can only be adequately dealt with at a global level.
Benefit from globalisation because the liberalisation of the international
Multinational
trade and foreign direct investment enables them to conduct their
Enterprises
activities and serve markets wherever this is most profitable.
Benefit from globalisation because the Internet and social media help to
Non-governmental undermine the traditional government monopoly of information. At the
Organisations same time, these media make it easier to mobilise people and campaign
against abuse.
The lucky ones benefit from globalisation because traveling and studying
abroad have become much easier and cheaper. As a matter of cat,
Individuals
individuals who are less off, such as small farmers that have to compete
with the world market will probably not benefit.
 Human Rights
Human rights are: rights that every persona has by virtue of merely existing and that aim to
secure such as person certain benefits that are fundamental importance to any human being.
Many human rights are protected by means of intentional treaties, and the judicial interpretation
of these treaties has created a body if case law to support them. Human rights law is not
primarily based on explicit rules that guide individual conduct but on interests that should shape
the law and orient human and institutional behaviour.

12.2 The Historical Development of the Idea of Human Right

Revival After WWII

The natural rights movement was revived after the horrors of WWII. Until then the protection of
human rights was seen as an exclusively domestic affair due to the emphasis on sovereignty.
However WWII brought about the concept of making human dignity a universal concern and the
1948 Universal Declaration of Human Rights came as a result.

Human Rights Treaties

After the UDHR many other treaties appeared such as:
- The 1966 International Covenant on Civil and Political Right (ICCPR
- The 1966 International Covenant on Economic, Social and Cultural Rights (ICECR)
- The European System of Human Rights Protection
- The Inter-American System of Human Rights
- The African System of Human Rights Protection

Constitutional Human Rights

The Basic Law of the Federal Republic of Germany of 1949 began a wave of right entrenching
constitutionalism across the world, with the second wave taking place after the fall of the USSR
in the early 1990’s
Nowadays most states have constitutions that include enforceable bill or rights.

12.3 The Uses of Human Rights

Human Rights as Positive Law

Human Rights are created by law, and to know what right we have, we have to look in the
relevant sources of law that are currently in force. This view cannot be the whole story as it
leaves little room for the notion of universal human rights by merely existing.

Rights as Moral Ideals

Human rights as positive law and as moral ideas need not to be contradictory. In a legal sense,
human rights exist when they are officially incorporated in the legal system through treaties,
statutes or the constitution. Yet this remains independent of their existence as moral ideals.
The Interplay The moral dimension of rights allows us to criticise the legal dimension

Added Value of The legal dimension provides stability and clarity to human rights.
Legal Rights Disagreements are more prevalent in morality and political ideology.
The scope of legal human rights is relatively undefined, and eventually
must be made to moral reasoning in order to give content to these rights.
Impossibility To In addition, the sources of international law seem to be open to moral
Separate principle, in particular the notion of ius cogens makes reverence to
principles that are not codified through treaty law nor embodied in custom
but which are to be identified through reason.
 Procedural Law
Procedural law or adjective law comprises the rules by which a court hears and determines what
happens in civil lawsuit, criminal or administrative proceedings.

Alternative (Primary) Dispute Resolution

Most societies primarily leave it to the parties to find a solution of their own. State institutions
that are provided are only there to solve matters people cannot solve themselves.

The Judiciary, Courts

Most jurisdictions agree that some decisions should not be left to citizens, such as in the case of
public policy matters. The power on the decision on the contents of the law and its application is
up to the judiciary.

Institutional Principles
Institutional principle relate to the characteristics of the court system itself and are generally
considered essential for proper administration of justice.

Judicial Independence

This is a reflection of the trias politica. Independence is equal to the absence of influence, thus
allowing courts to decide freely on the content of the law and its just application.
Appointment for life may be one of such mechanisms to ensure that the
Appointment for
government cannot put pressure on the judges to decide one way or
Life
another or otherwise interfere with the administration of justice.
An institution like a Council for the Judiciary could be positioned
Judicial Budget between central government and the judiciary, with the task to allocate the
budgets and to supervise the quality of the court’s output.
Media, or the public are not allowed to comment on a procedure pending
Contempt of Court before the court beyond a certain point since they could influence the
court.
Judicial Impartiality
If courts are to decide according to the contents of the law, they cannot have an interest in the
result of a case.

Judges should be carefully selected and schooled. A psychological test

could be part of the procedure, as well as interviews and simulation of
Recruitment
court sessions with actors. In addition every candidate should be screened,
should be able to present recommendations and should pass a test.
Judge salaries should at least be as high as what a private lawyer would
Remuneration
gain, and preferably slightly higher so to avoid interest in bribes.
Judges who feel like their impartiality might be questioned in a certain
case should exempt themselves, either by following a formal procedure
Exemption
provided by national law or by arranging informally that he will not
decide the case.
If parties have a good reason to suppose a judge who is trying their case is
prejudiced, national law should provide a procedure to challenge this. To
guarantee neutrality, challenge chambers can be recruited from other
Challenge
courts.
After a challenge, impartiality is assessed using a double test. The
subjective test seeks to find out if a judge is biased on a personal bias.
Judges may not be part of political parties or pressure groups as this could
Private Life
lead to suspicion on their neutrality.
 Philosophy of Law
This subject asks philosophical questions about the law, such as the nature of law
Question about the law when it comes to decision-making. When a judge
Normative Question is making a decision on a case, he should not use moral rules, but legal
ones instead.
Conceptual
Enquiries of the law in a more theoretical context.
Question

The Concept of Law – Herbert Hart

Hart approaches law as a social phenomenon in order to identify the general characteristic of this
phenomenon.

Primary Rules Rules that aim to guide behaviour, such as not to kill.
Rules which are meant to organize the legal system in itself, such as
Secondary Rules competences or which rule has priority. In this category are the rules
which are legal and valid rules.
This characterization is a purely factual statement, which is in principle
amendable to falsification. However Hart did not claim that completely
created rules deserve to count as legal rules to be obeyed. He claimed that
A Fallible Theory
modern legal systems identify legal rules were created by someone with
the competence to create them. Hart’s purpose is not if rules ought to be
obeyed, but the proper characterization thereof.
The second issue is that valid rules are identified at the hand of powers
A Chain of Rules that were themselves conferred by valid legal rules. This results in a loop
which is not ideal
So we have the above issues, which Hart explains that the chain ends with
the constitution. The constitution was created by a legislative body,
The Chain of including the judiciary, which derived its power to change the constitution
Validity from the previous constitution. Hart claims that the validity of the first
constitution is based on the recognition of it and al the law that follows
from it.
According to Hart the first constitution is valid if officials but not the
The Role of citizens recognize it. This explains why Hart describes law as a social
Officials practice, with the citizens who recognize the officials and the officials
who recognize the first constitution and what follows from valid law.
EU Law
According to Hart customary law cannot be valid law, as it was not
Customary Law created. However in practice this is not the case, as in social practice some
rules that were not explicitly created are still accepted as valid law.
Positive law exists in two forms, the narrow and wider sense. In the
narrow sense positive law is the one which has been created and laid
Positive Law down by the decision of a competent lawyer. In the wider sense positive
law includes law that exists merely because it is recognized as such, such
as customary, soft and case law.
All positive laws are valid laws, and there is no valid law outside of
Legal Positivism positive law. According to Hart a competent legislator or those that are
recognized in society either lay down legal rules.
If law is a social phenomenon, then its content is solely dependent on
social reality. According to Hart, morality and reason will only influence
Law v. Morality the content of the law in legislation and in case law. Whether a rule is a
legal one or not does not depend on how moral it is, but if it was created
by legislation.
Dworkin’s Criticism