INTRODUCTION TO

LAW
Ass Prof. Dr. Vesna Trajanovska
APPLİCATİON OF LEGAL RULES
oProvisions of law are general and abstract norms

oThe law provisions must be applied in all cases within the

letter or the spirit of provisions.

oApplication of the law requires the resolution of a actual

conflict in regards the abstract norms

oThis is mental process done by the judges with certain

techniques and procedures.
o Two activities go hand in hand in the resolution of a
legal conflict.
a. Determining the applicable legal rules,
b. Determining the relevant facts and eliminating
the irrelevant ones.

 All legal cases must be based on certain facts.

To bring evidence of facts for a particular case is duty

of plaintiff in civil cases, or duty of prosecution in
criminal cases.
 A judge, when deciding a case, must determine which
legal rules are applicable to that case.

 Where there is no written provision, he will decide

according to existing customary law.

 When there is no customary law, he must decide

according to the rules that he would lay down, if he had
to act as legislator.
 EVİDENCE
o The parties base their claims and arguments through
the evidences.

o Evidence may take various forms such as testimony

(statements made by the witnesses in court), written
materials, documents or material objects offered as
proof for existence or non existence of the fact

o The court is required to select the relevant facts and

eliminate irrelevant ones.
 EVİDENCE
 Evidence, broadly construed, is anything presented in support
of an assertion.
 This support may be strong or weak.

 The strongest type of evidence is that which provides direct

proof of the truth of an assertion.
 In law, rules of evidence govern the types of evidence that are
admissible in a legal proceeding.
 Types of legal evidence include

- testimony,

- documentary evidence,

- and physical evidence.

- The parts of a legal case which are not in controversy are

known, in general, as the "facts of the case."
 Beyond any facts that are undisputed, a judge or jury is
usually tasked with being a trier of fact for the other
issues of a case.
 Evidence and rules are used to decide questions of fact
that are disputed, some of which may be determined by
the legal burden of proof relevant to the case.
 Evidence in certain cases (e.g. capital crimes) must be
more compelling than in other situations (e.g. minor civil
disputes), which drastically affects the quality and
quantity of evidence necessary to decide a case.
 DECİSİON OF THE COURT

o Decision of the court is the legal conclusion, derived

from the application of relevant provisions of law, to
the proven facts.

o A court decision is expected to be based on reasoning

that discusses arguments and counter-arguments made
by the parties, in light of relevant facts and legal rules.
 In law, a judgment is a decision of a court regarding the
rights and liabilities of parties in a legal action or
proceeding.

 Judgments also generally provide the court's explanation

of why it has chosen to make a particular court order.

 The phrase "reasons for judgment" is often used

interchangeably with "judgment," although the former
refers to the court's justification of its judgment while the
latter refers to the final court order regarding the rights
and liabilities of the parties.
METHODS OF REASONİNG

1. Syllogism
2. Argumentum a Contrario
3. Analogy
 Syllogism:

- The analyses and resolution of a legal problem is usually

based on the logical reasoning called syllogism.

Classical model of syllogism is formulated as follows;

a. All men are mortal (major premise)
b. Aristotle is a man (minor premise)
c. Therefore Aristotle is mortal (conclusion)
Application of legal rules involves similar process.
a. A principle of law-legal rule (major
premise)
b. A certain fact (minor premise)
c. Judgement (conclusion)

 Example
a. Majority is attained by reaching of 18 years old. (legal
rule)
b. A has completed his 18th year. (the fact)
c. A has attained majority. (judgement)
 Argumentum a Contrario:
It derives from the opposite meaning of a legal rule.

• Example:
1. The adopter must be at least 30 years old. (legal rule)
2. Persons younger than 30 can not adopt a child. (legal
rule derived through argumentum a contrario)
3. Mr. B is younger than 30 years (fact)
4. Mr. B can not adopt a child. (judgement)
Analogy;

A gap in the law is filled through the application of a rule

used in similar cases.

• Example:

- Legal rule prohibiting ridiculous surnames applies to

the first names by analogy
 The inference that two or more things that are similar to each
other in some respects are also similar in other respects.
 An analogy denotes that similarity exists in some characteristics
of things that are otherwise not alike.
 In a legal argument, an analogy may be used when there is no
precedent (prior case law close in facts and legal principles) in
point.
 Reasoning by analogy involves referring to a case that concerns
unrelated subject matter but is governed by the same general
principles and applying those principles to the case at hand.
 2. To reason analogically, is to draw conclusions
based on this similitude of relations, on the resemblance,
or the connexion which is perceived between the objects
compared.

 3. Analogy has been declared to be an argument or

guide in forming legal judgments, and is very commonly
a ground of such judgments.
In the continental European systems;
The judge knows the law and applies it ex officio, on its
own motion.
In principle, the parties need to present only the facts of
their case, without citing, proving and arguing the
applicable law.
However, the parties and especially attorneys, usually
elaborate on the rules of law on their claims or
counterclaims in practice.
The court is not bound by the parties’ selection of rules.
 Analogy is strictly forbidden in criminal cases. No
crime, no punishment without a written law.
• Burden of proof is to prove the facts on which the case
is based.
• When two parties are in a discussion and one makes a
claim that the other disputes, the one who makes the
claim typically has a burden of proof to justify or
substantiate that claim especially when it challenges a
perceived status quo.
- It belongs to the plaintiff.
- But the defendant may have a burden of proof if
he/she raises an affirmative defense.
 Affirmative defense;
- The defendant does not deny the existence of the facts put
forward by the plaintiff, but asserts new facts which refute
them.
- An affirmative defense to a civil lawsuit or criminal charge is
a fact or set of facts other than those alleged by the plaintiff
or prosecutor which, if proven by the defendant, defeats or
mitigates the legal consequences of the defendant's otherwise
unlawful conduct.
- In civil lawsuits, affirmative defenses include the statute of
limitations, the statute of frauds, waiver, and other
affirmative defenses
- In criminal prosecutions, examples of affirmative defenses
are self defense, insanity, and the statute of limitations.
 In criminal cases;
All the elements of crime must be proven by the
prosecution.

Universal Declaration of Human Rights; Art. 6(2)

“Everyone charged with a penal offense has the right to
be presumed innocent until proven guilty.”

• Burden of proof may shift from one party to the other.

- Claims and counterclaims may go back and forth,
between parties like a ping-pong ball.
 In civil cases;
• In the absence of special provision to the contrary, each
party is bound to prove the existence of the facts of his
claim.
- Simply, whoever starts the legal action has the initial
burden of proof.
• Under this general rule, plaintiff is required first to
prove the facts on which his case is based.
- Defendant is in the same position, when he/she raises
counter allegations as defense.
• In some complex cases, the determination of who must
first prove their allegations is left to the discretion of the
judge.
• As a general rule, the burden of proof belongs to the
party who bases his claim on an exceptional or unusual
fact

- Thus, the judge should decide which claim is based

on an exceptional or unusual fact.

- Usually that is the one that claims the existence of a

fact which is contrary to the normal course of events,
has the burden of proof)
• A presumption is defined as the assumption
(acceptance) of the truth of a fact without direct proof.

• In certain instances;
- The law does not require the parties to prove all their
factual allegations. (Common knowledge)
- On the other hand, in exceptional cases, the court will
be content with relative proof, i.e. proving facts which
raise a “presumption” of the existence of facts relevant
to the case.
• Statutory presumptions are established by the law.
- For example, the husband is presumed to be the father of
a child born during the marriage.
“Where a child is born during marriage or within 300
days after the dissolution of marriage, the husband is
presumed to be the father.”

• A party can base his claim on entry in the public register

and can benefit from the legal presumption.
• The party challenging the accuracy of the information
contained in the public register, must prove the contrary.
• Rebuttable presumptions are the presumptions whose
inaccuracy may be proven.

• Presumption of innocence: A person accused of a crime

is innocent until he/she is proven guilty.

“One of the most fundamental principles of modern

criminal law, recognized by the international human
rights instruments and modern national constitutions”
• Presumption of good faith;

- Good faith means that the parties, when dealing with

each other, acted honestly and did not engage in any
deceptive acts

- Thus, the party alleging bad faith by the other party

has the burden of proving that the presumption of good
faith is wrong.
• Irrebutable presumption is a fact that the law does not
allow to be rebutted.

• By the Criminal Code;

- A person who engages in sexual intercourse with a
child younger than 15 years old (or 14 in Macedonia) is
guilty, even if there was no violence, threat or
deception.
(The law establishes an irrebuttable presumption that
there was no consent to the sexual act)
INTERPRETATİON OF LEGAL RULES
 The correct application of legal rules;
- requires the knowledge of their real meaning and
purpose.

 In determining the meaning of a provision;

- the letter of the law should first be taken into
consideration. (actual terms of wording used in its
formulation)
- The judge applies the rule almost automatically, if
there is no doubt for its meaning and purpose
 But, in some cases;
- There may be some particular facts to be taken into
account.

Example:
Law forbids driving over 120 km per hour.
- Ambulances or police cars on duty may be exempted
from the speed limit.
 In many cases;
- potentially applicable rules are ambigious or uncertain.

 If the drafters can not agree;

- written rules can be ambigious or meaningless.
- indeed, the drafters intentionally may have left gaps in
the written text.
 In many instances;
- If parties representing conflicting interests attribute
quite different meanings to the same provision of law,
the judge has the task of determining the proper or
correct meaning of the rule in question.

- This is inevitable to some extent, as the legislature

usually makes rules to regulate all cases in a certain
category.
 The actual realities of life;
- are so numerous and variable,

 The law;
- can only lay down general rules to regulate a certain
type of legal relation, and intentionally leave the rest to
the judge,

- because he/she faces with particularities of the

specific, concrete case.
 Determination of the proper or correct meaning
- is a complicated process,
- involving a number of techniques, based on
interpretation.

 Interpretation;
- is the mental process,
- whereby the meaning and purpose of a legal rule is
ascertained.
 The law;
- must be applied to all cases that come not only within
its letter, but also spirit.

 This means that;

- when the legal provision in question does not directly
and clearly apply to the case in hand,
- the judge will construct it in light of the general
purpose and principles underliying the law as a whole.
 Interpretation

- is the process of discovering and ascertaining the

meaning of a written text,
- such as a provision of a statute, international treaty,
will (testament), contract or any document,
- for the purpose of applying it to an actual case.
 The interpretation of legal rules;
- is primary task of the courts,
- as well as lawyers, administrators and scholars.
- but only the courts have the final say on what a certain
legal rule means.
1. Textual (literal) interpretation,
2. Historical interpretation (legislative history)
3. Logical interpretation
4. Teleological interpretation
5. Free or unrestricted interpretation
 Textual interpretation;
- is sufficient,
- when the meaning of the words are clear enough to be
directly applied by the judge.

 The most extreme method of grammatical

interpretation;
- is the strict approach,
- which gives words their narrowest meaning
 But, this method will not be sufficient

- Because, the words are not always clear, especially in

the analyses of older texts.
- In the course of time, both the literal meaning of the
words as well as the socio-economic conditions of the
times may change.
 Historical Interpretation
- involves researching the period of time between the
preparation of the draft and its enactment.
 All draft laws;
- go through various stages before becoming law.First,
a proposal is developed at the governmental level or
within Parliament. It will usually be submitted for
debate before the relevant public institutions.Then, the
proposed law is submitted to legislative body, where
the relevant committes will examine and debate it.
- At the last step, the draft law will be debated by the
General Assembly and if adopted, becomes law.
 Method of historical interpretation;
- studies and analyzes the material relating to the
debates in the Parliament,
- with the purpose of ascertaining the grammatical or
literal meanings of the words,
- as they were understood by the members of
parliament.

 Spirit of the law or the purpose of the law;

- may also be taken into account.
 Logical interpretation;
- is employed where the law is ambigious, silent,
- or there are two or more inconsistent provisions
equally applicable to the same case.

 In such circumstances;
- The judge will analyze the law in logical manner,
- correcting obvious grammatical errors,
- and taking into consideration the spirit of the law
 Teleological interpretation;
- is determining the purpose of the law in question,
- by analyzing its legislative history,
- within the context of cultural, social and economic
values,
- as well as the balance of interests, that existed at the
time that the law was enacted.

 There should be a distinction;

- between legislative intent and the purpose of law.The
concepts and the values dominating legislative body
can not determine the future application of the law in
individual cases. (objective theory)
FREE OR UNRESTRİCTED
İNTERPRETATİON

 This method;
- interprets the law, according to actual event and
needs, created by the conditions existing at that time.
- Free method argue against any reliance on the written
words of the law.

 Free interpratation method;

- has the risk of upsetting legal stability and reliability,
- and could also lead to arbitrary applications of law.
SOURCES OF LAW
• The first source of law is the written rules or judicial
decisions.
1. The Constitution,
2. Statutes,
3. International treaties,
4. Decrees with the effect of law,
5. Regulations,
6. By-laws,
7. Judicial decisions.

• If the legal issue is new and if there is no existing law,

lawyers, judges and scholars must find other sources to
provide guidance and answers. Other sources include
customary law and the writings of legal scholars.
• Customary Law is unwritten law,
 In the history, traditional practices served more than the
written law, as the foundation of law.

 It is universally recognized source of law, and

recognized by the Statute of the International Court of
Justice.

 Customary law consists of a long practice, which has

been recognized as obligatory and binding by the
people.
LEGAL SYSTEMS OF THE WORLD
• Fundamental legal concepts of civilian countries are
based on Roman law or revived the Roman law.

• Islamic law is applied in some Islamic countries.

• Socialist system of law continue to exist even after the

collapse of the Soviet Union, in countries like Cuba and
North Korea.
 Civilian countries include continental Europe and many
Latin American countries and Turkey.

 Common Law countries comprise English speaking

countries world and territories. The US is the best
example.
 The common law and civil law are neighbors but
strangers

 Six particular areas of differences

 Analysis of the university professors and practitioners

 To understand that question we need to understand that:

 Each country has own national system of law/ codified

or not codified

 Each country has own customs

COMMON LAW SYSTEMS
 Precedents

 Rarely ignoring precedents for the sake of justice

 Several interruption but the substance of common law

saved

 The importance of judges is very strong

 Only one law develop in centuries (created with
adaptation)

 Last legal memory – the date of coronation of King

Richard I, 3 September 1189 (in UK)

 No codification of law!
CIVIL LAW COUNTRIES
 France break with the past and French Revolution

 Old law is not good anymore need to be abolished

 Enlightenment
Public and private Law

Separation between the public and private law

The continental law distinguish a public and private law,
the English law is not separating them

The common law applies to the individuals as well as to

the government
The Important role of judges

In England and in Common Law systems the judges are

enjoying high prestige!
 On the Continent the courts are faceless, and the judges
are fungibles, replaceable, unlike the England where the
judges are very important, notable persons

 in common law the judges are playing a high personal

role, their names are know in public, they appear in the
media, their separate opinions are published since in the
future (if they become majoritarian views) can become a
law