Session 4

Styles, Forms and Functions of Laws

 Session Objectives
• Explain styles, forms and functions of laws
• Differentiate different styles, forms and
functions of laws
• Compare and contrast:
– Customary law, statutory law, and case law
 Exercise: Look at national laws!
Criteria Types USA CAN UK FRA DEU RUS JPN CHN VNM AUS NZL

Slave
possession
style
Feudal
Styles style
of laws
Capitalist
style
Socialist
style
Customar
y law
Forms
Statutory
of law law
Case law
 Styles of Laws
• What?
– Denoting a group of laws of the same essence
• How many?
–4
• Slave possession style of law
• Feudal style of law
• Capitalist style of law
• Socialist style of law
• E.g.
• What link between state styles and law styles?
– The style of a state informs the style of its law
– A state of a certain style has its law of the
corresponding style
 I/ Origin of States and law
1. Origin of Laws: Marxism and Leninism
Socialist Period
Primitive Slave Feudal Capitalist Transitional
community Possession Period Period Period

1. WHEN?
2. WHO?
States X ✓
Slave
possession
states
Style 1
✓
Feudal
states
✓
Capitalist
states
✓
Socialist
states X
Style 2

Style 3

Style 4
3. LAW
ESSENCE
Will of the Will of slave Will of land Will of Will of
ruling class owners owners bougeoisie proletariat
determine determine determine determine

determined by
material Material Material Material
Material
conditions
conditions of conditions conditions conditions
of slave of feudal of capitalist of
the society
possession society socialist 5
society
society society
 Forms of Law
• What?
– Answering the question of “Where to find to
the law?”
– So-called “sources of law”
• How many?
– Customary law
– Statutory law
– Case law
 Sources
of Law Customary Statutory Case Law
Criteria Law Law
≡
≠
What?

Other general
names
E.g.

Who makes?

How to make?
 Sources
of Law Customary Statutory Case Law
Criteria Law Law
≡ Sources of law (Where to find the law?) → Law
≠
What? - Law originating in Law made by the Law made by judges
customs legislature as result of the doctrine
of judicial precedent/
- Customs stare decisis
recognized as law
Other general Statute law, statutes, Judge-made law;
names legislations Common law
E.g. - Constitutions Vietnamese case law
- Statutes/Acts/Laws
Who makes? State Legislature Court/Judges

How to make? - Customs set by Legislative procedure Following precedents/

community/society at legislature stare decisis
- Recognition by
state as law
 Customary Law
Customary
Law
+ Recognition

???
+ Generality
+ Consistency

Practice
+ Repetition

???
 Customary Law
Customary
Law
+ Recognition

Customs
+ Generality
+ Consistency

Practice
+ Repetition

Conducts
 UK Legislative Procedure
comments
??? ??? The public

introduce pass
A bill ???
+ ???

Act/Statute
Commencement
date

???

11
 UK Lawmaking Process

comments
Government/MP A proposal The public

introduce pass
A bill Parliament
+ Royal Assent

Act/Statute
Commencement
date

Effective Legislation
12
 ???
UK LEGISLATIVE
PROGRESS

Bill
Passed by two houses
+ Royal assent

???
Publication in Gov. Gazette
+ Commencement date

???
 Proposal
UK LEGISLATIVE
PROGRESS

Bill
Passed by two houses
+ Royal assent

Act/Statute
Publication in Gov. Gazette
+ Commencement date

Effective Legislation
VNM Legislative Procedure
1. introduce
??? ???

??? 2. planning Legislative 3. pass

program
??? ???
5.
4. introduce comments 6. pass
??? ???

7. ???
A Law promulgate
Commencement
date

??? 15
 VNM
President/
Legislative Procedure
NA (Standing) Committee/
NA Member/ 1. introduce
A proposal
Gov./
Supreme People’s
Court/Prosecution, etc.

NA Standing 2. planning Legislative 3. pass

Committee program
Stakeholders NA
Gov./ Ministry/ 5.
Supreme People’s 4. introduce comments 6. pass
A bill
Court/Prosecution, etc.

7. President
A Law promulgate
Commencement
date

Effective Law 16
 Lawmaking Process
Relevant
Draft Committee
comments parties
proposes
A bill
Approval
assessment

Ministry of Justice
National Assembly
Government

supervise 2 sessions/approved

Standing President
Committee

17
 Case Law
• Judicial precedent
– Principles of consistency
• What?
– Similar cases should be decided similarly/in the same
way
• Why needed?
– Consistency = important feature of a good decision-
making process
» A court’s decision is expected to be consistent (or at
least not unjustifiably inconsistent) with previous
decisions
» To provide opinion which parties and other can use
to direct their future relations
» To decide cases in accordance with existing rules
• Exceptions
– When? Solutions offered by a precedent not just due to
» Passage of time
» Changing circumstances
 Case Law

• Stare decisis
– What?
• “to stand by a decision”/ “let a decision stand”
– Click here for video on case law
 How to make case-law?
By JUDICIAL
induction PRECEDENT
By analogy
Adequate and reliable Legal LAW
reports of earlier decisions principle

A How to
Court’s Court’s Court’s Court’s proposition decide?
Decision Decision Decision Decision of law ???
1 2 3 … Form part of t
ratio decidendi
Earlier Earlier Earlier Earlier Later
case case case case Set of same case
1 2 3 … material facts N
(Same
material
Different sets of facts fact)
 Functions of Law
• Why is law needed?
– Regulation
– Prediction
– Stabilization
 Homework
1. Create your own
mind-map for
today’s session!
(It works for you in
exams! :D)

2. Prepare for the

next session: Read
Coursebook,
pp. 5-11