Introduction to law

Ass Prof. Dr. Vesna Trajanovska

State organization

• State organization is the organization of the

political authority that performs function of
political organization and legal regulation of
the society

• We usually use the term “state mechanism”

• The main organization principles are hierarchy

and subordination
 Separation of Powers

• Separation of Powers is a system of governance in which

the executive, judicial, and legislative functions are divided,
with each acting as a check on the other.
• Doing so balances the distribution of power in a governing
body, thereby preventing tyrannical rule (in theory).
• Furthermore, some powers are shared amongst the three
branches.
• By sharing powers, it creates a system of checks and
balances that limit the ability of any one branch to act
unilaterally.
• The Founders were wary of any one individual or group of
people having too much power.
• History had shown them that the concentration of
power in the hands of a few led to a government
that failed to account for the welfare of all.
• By dividing the powers of government amongst the
three branches, The Founders theorized that each
branch would act as a “check” on the other two,
and would allow for the interests of all to be heard.
• Specifically, Separation of Powers and Checks and
Balances protects the rights and interests of the
minority, prevents tyrannical rule, and encourages
compromise and collaboration between the three
branches.
• State is a legal entity
• State organization is as a system of state organs that are
performing political authority and have the managerial role
of the state in the society

• The state organs have own authority

• They are performing certain functions in the name of the
state
• They have certain structure
• They are part of the legal order
• The are performing their functions in some territory
• It can issue legal acts and apply power for their enforcement
• According to the principle of division of power the
state organs can be:

Organs of the legislation (the ones that are carrying a

legislative power)

Organs of the executive (the ones that are carrying a

executive power)

Organs of the judiciary (the ones that are carrying a

judiciary power)
 Organs of the legislation

- The Parliament is a highest organ of the legislative

power.
- The legislative power is the most important power in the
state.
- It brings the laws and Constitution as highest legal act in
the state.
- All the other state organs are established by the
Parliament
- A legislature is a deliberative assembly with the
authority to make laws for a political entity such as a
country or city.
 Organs of the legislation

- Legislatures form important parts of most governments;

in the separation of powers model, they are often
contrasted with the executive and judicial branches of
government.

- The members of a legislature are called legislators.

- In a democracy, legislators are most commonly

popularly elected, although indirect election and
appointment by the executive are also used, particularly
for bicameral legislatures featuring an upper chamber.
 Organs of the executive
The executive organs together with the state administration
are performing daily operative work for the interest of the
society.
The executive organs are the chief of the state and the
government
• The executive is the branch of government that is
responsible for the day-to-day management of the state.
• Under the doctrine of the separation of powers, the
executive is not supposed to make laws (role of the
legislature), nor to interpret them (role of the judiciary).
• The executive is supposed to put the laws into action.
 Organs of the executive
• The executive is led by the head of Government.
• The Head of Government is assisted by a number of ministers,
who usually have responsibilities for particular areas (e.g.
health, education, foreign affairs), and by many government
employees or civil servants.
• In a presidential system, this person (the President) may also
be the head of State, but in a parliamentary system, he or she
is usually the leader of the largest party in the legislature and
is most commonly termed the Prime Minister
• executive power is shared between the President and the
Prime Minister
 Organs of the judiciary

The judiciary is the system of courts that interprets

and applies the law in the name of the state.

The judiciary can also be thought of as the

mechanism for the resolution of disputes.

Under the doctrine of the separation of powers, the

judiciary generally does not make statutory law
(which is the responsibility of the legislature) or
enforce law (which is the responsibility of the
executive), but rather interprets law and applies it
to the facts of each case.

However, in some countries the judiciary does make

common law.
Organs of the judiciary

In many jurisdictions the judicial branch has the

power to change laws through the process of
judicial review.
Courts with judicial review power may annul the laws
and rules of the state when it finds them
incompatible with a higher norm, such as primary
legislation, the provisions of the constitution,
treaties or international law.
Judges constitute a critical force for interpretation
and implementation of a constitution, thus de facto
in common law countries creating the body of
constitutional law.
Organs of the judiciary

The judiciary controls all the other branches of power if

they are performing their authority in the frames of law
and Constitution applying the principle of checks and
balances.
It is independent power.
The other powers should not interfere in the judiciary!
The highest court (usually Constitutional court) gives an
interpretation of the Constitution
Organs of the judiciary

It operates according the following principles:

- legality – the decision are brought only according to

law and the Constitution
- Equality of the parties in front of the court of law
- Presumption of innocence
- Publicity
- Immunity of the judges
- Use of the native language in front of the court… etc.
summarize
 Separation of Powers
Checks and Balances
How do these principles
of democracy protect the
people?
Separation of Powers
•Dividing different powers
among three branches of
government
•Prevents one branch from
gaining too much power
•Legislative, Judicial, and
Executive branches have their
own unique powers
 Analysis
•Why is it important to separate
the powers of the government?
Think about the other
principles of democracy…
 Checks and Balances
•Powers each branch has that allows
them to check up on the other branches
•Prevents branches from abusing their
powers
•Preserves the separation of powers
•Requires cooperation between the
branches of government
•Checks and balances, principle of
government under which separate
branches are empowered to
prevent actions by other branches
and are induced to share power. 
•Checks and balances are applied
primarily in constitutional
governments.
 Legislative Branch
(House and Senate)
•Can override a presidential veto
•Can impeach and remove the president
•Ratifies presidential appointments
•Authorizes/appropriates funds for
legislation
•Checks on the judiciary
•Can impeach and remove judges
•Confirms federal judges
 Executive Branch
(President and Cabinet)
•Proposes legislation (laws)
•Vetoes legislation (laws)
•Makes treaties w/ foreign
countries
•Checks on the judiciary
•Appoints federal judges
•Enforces court decisions
 Judicial Branch
(Supreme Court and Lower Courts)
•Reviews executive decisions
•Checks on Congress
•Reviews congressional laws
•Judicial Review (executive and
legislative)
•Supreme Court Justices
appointed for life
Social Order
• The norm is the rule that regulates the behavior of
the people in their mutual relationships

• The norms can be – legal, moral, religious, custom…

etc

• The society can not exist without the norms

• The society norms are not given once for all. They
can be changed
• There is difference between society norms and natural laws
• The society norms are human product
• The society norms has obvious purpose
• Every society norm has sanction as a repressive and
preventive element
• The society norms can be
 Norms that are created and applied by the non organized
society
 Norms that created and applied by the non state
organization
 Laws
 Custom

- It is a rule created with repainting that becomes

habit. It is based on equality of the rights and duties in
the community, not very precise regulation, based on
religious prejudice or understanding, consist of sanction
that is public boycott, revolting, humiliation .. for the
person not following them.
- traditional and widely accepted way of behaving or
doing something that is specific to a particular society,
place, or time.
 Moral
- Based on the own perception for “good” and “bad”.
- relating to the standards of good or bad character and
behavior, fairness, honesty, and fair dealing, or showing
high standards of this type , etc. that each person
believes in, rather than to laws
- behaving in ways considered by most people to be
correct and honest
- a message about how people should or should not
behave, contained in a story, event, or experience
- There is not a long repeating of the behavior such as
custom but personal standing and views.
- There is personal as well as public moral
 Legal Order and Social Order

• Social order is not only composed of legal rules,

but also other orders, such as the moral order and
the religious order.

• Legal order constitutes only one part of the

“patterns of social conduct”.

- It has certain characteristics distinguishing them

from other rules of social conduct.
 Moral Order
• Moral rules are principles or standards in regards the
right or wrong conduct (behavior)

• Moral implies that a person’s conduct or character is in

conformity with the generally accepted standards of
goodness or rightness , as ideal standards

• Moral rules are not enforced by the government

• The acceptance of moral values is left to public or

organized groups.

• Ethics define the principles, standards and ideals upon

which we access someone behavior .
 Relations between - Moral and Legal Rules
• Actions, such as murder and teft are prohibited by
both moral and law.
(Example: Rescue a person is a moral obligation)
• In some cases, the law makes direct reference to
morals, as it is written in law.
• Good faith is a general moral category that requires
that every person act truthfully to the others.
Good faith is also a fundamental principle of the Civil
Code.
Immorality is not always a crime
 Public and Private Morality

- Private and public moral may be the same, or may

diverge
There may be a conflict between private moral values
and those of the community.
(Example: Drinking alcohol)
- If something is against good morals meaning it is
against general standards of morality.
- The subjective moral values of the persons involved are
not taken into account.
- The private morality of a particular group should not be
recognized as an absolute
(Example: Killing a wife for adultry)
 Law and Justice

• Justice is a fair and correct outcome of a legal

dispute and it is a center of the law.

• Aristotle made a distinction between distributive

and corrective justice.

1. Distributive justice try to distribute the law equally

amongst equals. Everyone is equal before the law.
“The eyes of justice are blind.”

2. Corrective justice try to remedy any inequality. After

centuries of conflict in legal systems, equality apply
to women and to people of all color and ethnic
• Legal positivists are taking their views of the law
from positive science and the law is studied on
objective and emprical basis

The question is not what the law ought to be, but

rather, what the law actually is?

“Only laws on the statute books and other written

forms can be considered as law, since they have
emprical form.”

The function of a judge is mechanical. It is simply to

apply the objective law.
“Judges speak the law, they do not create the law.”(?)
 Natural law
• Natural law has a moral dimension.

- It defines the law, in line with the morally correct

behaviour. (not simply as it is, but how it ought to be)

- According to this view, there is always a set of moral

norms dictating human behaviour.

- Thus, if positive law contradicts with natural law, the

latter should serve the basis to resolve the conflict.
 Examples:
- Rosa Park?
-Euthanasia and legal-moral question? (Quality and
protection)
 Rules of Manners (Etiquette)
• Etiquette or rules of manners are the rules of good behaviour
and good manners.
- Membership of a social group entails an obligation to accept the
code of conduct of the group.
- Rules of manners require conformity to accepted standards of
proper and correct behaviour.

• In principle, the rules of good manners are not legal rules, and
not enforced by law, but sometimes may be part of legal system.

(Example: Saluting a superior officer, not disturbing neighbours,

diplomatic protocol)
 Exercise
Is it moral? Is it legal? Is it manners? Is it justice?

1. Ms.A and Mr.B are not married but live together. Their
neighbours want them out of the neighborhood.

2. A and B are two students who take the same course of

Introduction to Law. A does quite well in examination; B gets
very poor grades. Faced with the threat of expulsion from
school, B asks A to cheat and help him during the written
examination. A promises to help but does not keep his
promise. B fails the examination.
3. A doctor shortens the life of incurably ill patient at the patient’s
request.

4. A person borrowed a knife from a friend. Then, he refused to

return it on request. Because he had good reason to suspect that
his friend would use it to commit a violent assault against another
person.

5. The owner of a restaurant refuses to give meals to a starving

person because he is unable to pay.
 Religious Order
• Religion and political power fought for control over the minds
and lives of people for centuries.

• Religion is a belief in a divine or superhuman power, to be

obeyed and worshipped as the creator and ruler of the
universe.
- From sociological point of view, it is a social institution
which regulate human relations.
- Some religious rules limit and regulate relations among
people in society.
 The Nature of Religious Rules
In ancient times
- Religious rules included both moral and legal rules.
- Religious obligations and prohibitions were reflected in legal
rules.
- Law was integrated to religion.
- Law, morality and religion were interrelated.
- Politic head of the city was also its religious leader.
- Any action against the rules established by the religion was
considered to be a violation of the law.
• Integration of law and religion leads to theocratic state

• The religious norms are not easy to change

• The law must be a flexible instrument of social order

depending on the political values and the changing needs of
society.

• Legal rules must be modified from time to time, in order to

meet the new needs coming from the development of
human relations (industrialization, urbanization, new
inventions …).

• In modern times, the law is separated from religion and

takes a neutral position towards to it. This is called
secularism.
Characteristics of Legal Rules
 Characteristics of legal rules

• Legal rules are the rules of conduct.

• Its violation requires appropriate state action against the

violators. In other words, legal rules are mandatory to obey.

• If they are not obeyed voluntarily, the necessary mesures

including are applied by the state.

• The power of the law is based directly on the authority of the

state.
• Compliance with legal norms is not a matter of choice.
- Legal norms are compulsory.
(Contrast to the moral and religious rules)

• A rule of social conduct becomes a legal rule, if the state is

prepared to enforce obedience to this rule, by using force.

• Legal rules are the rules of conduct supported by sanctions

applied by the state.

• Sanctions are the measures taken by the state, to make persons

comply with legal norms.
 SANCTIONS

• - is the measures taken by the State to make

persons comply with legal norms
• -certain sanctions, are peculiar to the branch of
law such as limiting diplomatic relations or
imposing an embargo upon trade with a particular
state etc.
• If a person fails to obey or violates a legal rule, a
sanction may happen.
• Sanctions
- can be criminal which requires punishment,
- can be civil which requires compensation,
- or can be administrative which requires revocation
of license.
• Punishment is the most common example of a sanction. It
is any fine or imprisonment

• The law defines certain types of violations of the social

order as crimes, and provides for the punishment of the
offenders by the state. As a general principle, the law
must clearly specify a sanction, for every act that is
considered as a crime.
 Monetary compensation

• If a person causes a damage upon other person or property,

he/she is legally liable, need to compensate the wrongful act and
to pay to the injured party an amount of money determined by
the court.

• The execution is the act of making a court decision effective,

meaning the party need to pay or to do what the court ordered.
If a party fails to pay a judgement, his goods are seized and sold.

• Execution are carried out by the competent organs of the state.

 Wrongdoing

A wrong is an act that is illegal or immoral.

Legal wrongs are usually quite clearly defined in the law of a state and/or

jurisdiction.

Moral wrong is an underlying concept for legal wrong.

Some moral wrongs are punishable by law, for example, rape or murder.

 Other moral wrongs have nothing to do with law.

On the other hand, some legal wrongs, such as parking offences, could

hardly be classified as moral wrongs.

Legal wrong
• In law, a wrong can be a legal injury, which is any damage
resulting from a violation of a legal right.
• A legal wrong can also imply the state of being contrary to the
principles of justice or law. It means that something is
contrary to conscience or morality and results in treating
others unjustly.
• If the loss caused by a wrong is minor enough, there is no
compensation, which principle is known as de minimis non
curat lex. Otherwise, damages apply.
• The law of England recognised the concept of a "wrong"
before it recognised the distinction between civil
wrongs (governed by civil law) and crimes (defined by criminal
law), which distinction was developed during the thirteenth
century.
 Legal wrongs
• Legal wrongs are criminal and civil wrongs.

• Through criminal prosecutions, state punishes the people who are

responsible for causing harm or act in a way forbidden by law.
Criminal cases are dealt with in criminal courts.

• Through civil law actions, injured party starts a private suit for
damages. Civil cases are dealt in civil courts.

• It’s possible for a person to commit both a criminal and civil wrong
by the same act. In this case, he/she will be punished criminally in
addition to pay monetary compensation.

• Example;
- A intentionally destroy B’s car
 NULLİTY
When an act performed in violation of the law, it is ineffective or has
no legal effect.

• Two distinctive categories of nullity;

1. Absolute nullity: If an act is contrary to a certain statutory
provision, it is absolutely ineffective from the beginning.

Ex. Certain transactions must be made according to spesific

procedures (formalities) laid down by the law. If such a transaction
fails to comply with these formalities, it will be void from the
beginning. (Marriage will be non existed if it is not concluded by the
authorized person)
2. Relative nullity: They are not automatically inoperative and
voidable acts.
 Voidability
• In the case of voidability, parties may decide,
whether or not they wish to nullify the effect of legal
act.

• Example:
- If one of the parties to an agreement has been
induced by error, fraud or threat, the aggrieved party
may void such a contract by a unilateral declaration.
- He/she does not need to bring an action in nullity.
- If he/she chooses not to annul the act, it will remain
valid and binding in the eyes of the law.
• Thank you!