INTRODUCTION

TO THE STUDY OF
LAW
PR A.WAHID
DOCTORAL IN LAW FSJES CASABLANCA
 PLAN
 CHAPTER1
 INTRODUCTION :
 Theoretical basis of law
 Why societies need law
 The objectives of law
 Relation rights and law

 CHAPTER2
 DEFINITION OF LAW:
 Variety of the point of view
 Legal rule
 Characteristics of legal rule and typology
 Sources of law
 PLAN
 CHAPTER 3
 SECTIONS OF LAW
 Classification criterea
 Territoriality
 Source
 Target persons

 CHAPTER 4
 Branches of Law
 Public law
 Private law
 Public and private divsion
 Non classified branches
 PLAN
 CHAPTER 5
 LAW APPLICATION:
 Enforcement
 Interpretation
 Law hierarchy
 Law conflicts
 Why we need law?
 Let have a look in the human being history
 How the ancient man lived very far back in
time ?
 He lives hunting and gathering (needs)
 In total freedom and natural equality(means)
 This style of life is called the state of nature
 What is the state of nature ?
 Why we need law?
State of nature
 Is a philosophical concept adopted by the theorists of contract
 It designates :
 The opposite of civil state
 The situation in which the humanity was before the civiliszation rises
 Before Its organization as a society
 The main characteristics of the state of nature are:
Freedom
Equality
preservation
 Why we need law?
State of nature
Freedom :
 Man was free to do what he wants, as he wants , where and
when he wants to satisfy his needs
 But as the resources are very limited this freedom become a
cause of conflicts
 Man is free to use as good he seems all resources to survive
without any considération for the others
 This behavior lead to aperpetual war « all against all »
 Why we need law?
State of nature
Equality :

 man recognize an other man as his equal thus equality become a

cause of rivalry
 It means that each individual has a natural right to everything
 Equality generates competition that generates unfairness
 Unfairness leads to domination and desire for glory
 Human beings are naturaly vainglorious and seek to dominate
othes and have vtheir respect
 Why we need law?
State of nature
Preservation :
 in the state of nature Human beings as there is a rivalry and competition
for resources
 And to acces to those resources each one must exterminate the other
 They are under threats
 Human beings seek all time to prtect themeselves to not be killed
 They use every means that they deem necessary to protect themselves
against any attack from others
 This preservartion leads to the distrust
 How interaction took place
 The main characteristics of the state of nature conducts
to three kinds of interactions between men
 DISTRUST:
 Because of threats every man exterminate the
others before to be exterminated
« Man for man is a wolf » T. Hobbes
 There
is no guarrantees to not be a prey of an
animal or another man
 Interactions are based on mistrust
 How interaction took place
 Competition :
 Because of the anarchy there is wild competition for resources
 The only way to have resources is to eliminate other rivals
 The state of nature doesnot recognize fairness
 The interaction is based on the strongest is the first served
 Desire for Glory :
 Shuman beings seek to dominate each other
 To be recognized by the others and have their respect
 One way to achieve this vainglorious is strenght
 the interaction is based on hegemony (jungle law)
 The living together

 To be always under fear and threats prevents any

production to make resources more available
 What to do to get out of this state ?
 how to build trust
 how to achieve peace
 how to meet the demands of living together
 The living together

 Getting out of this state involves :

Give up a part of freedom
Define the equality
Give up preservation by its self
 But the problème is the concern for security
 The living together
 The idea that is basis on the fact to give up a part of
freedom, to review the concept of equality, and
preservation
 Is founded on the demands of living together
 The answer of the demands of living together is called:
social contract
This idea raises some questions
 The alternative

 For whom freedom is gift up?

 What would be the transaction?

 How transaction is executed?

 The alternative
for whom (parties)
 For whom depens on political organization
 The main political system are:
Monarchy
 Constitutional monarchy: Morocco

The powers are given by constitution

One person is the ruler
 Parliamentary monarchy; UK
 Decisions are debated by parliament
 The alternative

 Presidentaial system
 USA: indirect elections
 The president is the head of the governement

 Semi presidential system: frensh

 Direct elections
 The president appoints a head of governement
 The alternative

 What ever the nature of the political system

 Social contract is a mutual committment
 A mutual obligation
 rules to be repected mutually
 The contract is the law of the parties
 RULES, LAW
 The alternative
transaction
 What would be the transaction?
 Give up some of freedom
 Review the concept of equality
 give up the preservation
in return
 More security freedom review , resources allocation
 Equity instead of equality
 Protection without private revenge THIRD PARTY
 The alternative
transaction excution
 The third is a part of the contract that is given the power and the
authority to orgnize the relations betwen the other parts ( citizens)
 The third is choosen in many ways (election, allegiance,consensus,
…)
 Once he is choosen he has the power to enforce the rules
 To enforce the rules he has the monopoly of coercion
 The monopoly to use force
 The monopoly of legitimate violence
 What is Law?

 What is law?
 The term law has been derived from Latin term « legum » which
means body of rules
 Law is a set of rules which is enforceable and made by legislature to
control and regulate the conduct of people
 Law is a command from a person who has the power, to members of
society
 Law is defined by many philosopher, jurist schools from differents
angels
 What is Law?

 According to Austin: « law is the command of

sovereign, backed by sanction »

 Accordingto Salmond: « law is a body of pricipales

recognized and applid by the state

 Accordingto Hobbes: « law is the command of him and

themthat have coercive power »
 What is Law
 All those definitions emphasize three key words that are :

 Command: an order , rule, respectable, enforceable

 Authority ; sovereign, government, person who has the power

 Sanction: a penalty, punishment, the way to respect, to enforce

law
 Legal rule

 Isa principale of governance in which all persons, institutions ,

public and private including thr state it self are accountable
 Itis an address directed and binding to the general members of
society
 Itis a norm addressed to the general people, that is equaly enforced,
independently adjuducated, publicly published and consistent with
international human rights principales
 Characteristics of the law rule
 1- it is a social rule : it exists when the society exists in order to orgnize the living
together
 2- it is a rule of conduct: it interfers what is apparent, with external life , it doesn’t
matter with conscience or intentions
 3- the legal rule is general and abstract:
 General: it directed to general public, its content indicates the description without
self determination, because it is not directed to a identified person
 Abstract: there is no descrimination in applying law
 It is neither varies from person to person noor is relative as to circumstance
 Characteristics of the law rule
 Examples:
 « the age of legal capacité is 18 years »
« a student who cheats in exam will be expelled from the
faculty »
« an empoyee at the age of sixty shall be refered to
retirement »
 The rule of generalisation and abstraction remains valid even
if:
 it indicates a specific group of people( trader)
 It matters for a certain period (emergency, carfew)
 It comes to a specific region (compensation)
Characteristics of the law rule
 4- the legal rule is binding:
It is not limited to guidance only but it is mandatory, it reaches
obligation and any one who violates the legal rule falls under its
coercive power
The coercive power of the legal rule is reflected by the penalty that it
inflicts on every one who violates it
The penalty is a kind of material damage inflicted by state through the
courts on those who break the legal rule (offense)
Three kinds of offense according to the seriousness of the act comitted
or omitted
contravention, misdemeanor,crime
 Characteristics of the law rule
 Penalty can be :
 Civil
sanction like, property reservation, financial
compensation,nullity(void ), cancelation(canceled)

 Disciplinary sanction: warning, rebuke or temporary suspension

from work

 Criminal sanction: affects person’s body or financial liability

(death sentence, imprisonment, life imprisonment, hard labour, …
 Characteristics of the law rule
 The legal rule is enforceable:
It means that the the legal rule is obligatory implemented what ever is the
time and the location
The obedience and compliance with the legal rule is an obligation,
desobedience and non compliance are punished
But to be enforceable the legal rule must be:
o Publicaly promulgated (official bulletin)
o Independently adjuducated
o Fairely applied
o Consistent with international human rights principales
 Distinguish between the legal rule and
the other collective rules
 Ther are other rules of human conducts like:
 Moral or ethics rules: set of principales, ideas,and standards that deal
with what is considred right and worong by society, community or group

 Religion rules ; set of rulings prescribed by divine law

 Customs rules : what people used to do that become standars of life over
time

 All of them can have similarities and differencies with legal rules
Distinguish between the legal rule and
the other collective rules

 All
these rules play an important role in the
organization and the regulation of the human
being conducts(similarity)
 The differencies will be classified according to two
criteria:
 Sources
 Penaltis
 Distinguish between the legal rule and the
other collective rules
 Sources:
 Moral rule become from a mindset , a way of thinking to consider what is good
and what is wrong according to the community conscience
 Legal rule come from legislation which is a process of studing , debating and
adopting rules to make the source more clear and believable
 Penalties:
 Moral rule , the penalty is not tangible, it is reflected by consciencs crisis,
remorse, self reprimand
 Legal rule, the penalty is tangible affect the violator in his body or in his
property
 Distinguish between the legal rule and
the other collective rules
 Sources:
 Religion rule :
comes from divine revelation through messengers( prophet)
 Legal rule:
The source is the legislation created by humans
Penalties:
Religion rule:
The punishment is in this world and hereafter
Legal rule: the punishment is earty, in this world (mundan) by a qualified authority.
 Distinguish between the legal rule and
the other collective rules
 Sources:
 Customs ; the people habit, what people used to do
 Legal rule legislation
 Penalties
 Customs ; blam and reproch of peers
 Legalrules : sanction tangible that affects body or
property
 Types of legal rules;
Imperative rule
 In terms of the strength of commitment there are :
 Imperatve (Mandatory) rules
It is a binding rule
It is not permissible to contrary
People have only to obey it or bear a sanction
Its content matter with tje supreme interest of the state
 Suppletive or complementory
 Examples


« any agreement, whether individual or collective,
that aims to reduce the wage to bellow the
minimumlevel shall be null and void by the force of
law »

« The juridical capacity age is 18 years «

 Suppletive rule

 Suppletive or complementory rule:

 Called explained rule
It can be agreed to opposit it
People can replace it as they see fit
Its field of application is civil law and commercial law
 Suppletive rule

 Itallows to complete the shortcomings not clearly

forseen by the legislator
 The payment deadline is 60 days except an
otherwise agreed
 The share in the capital may be in cash or moral rights
 The criteria of distinction

 There are two criteria

 1- formal or verbal criteria:
o It means the words and expressions used in the formulation of the
legal rule
o Example of expression used in imperative rule:
it is not permessible,
it is invalid
it must
 The criteria of distinction

 2- the subject of the legal rule

o Public order :

criminal law rules

the legal capacity
children labor prohibition
o
social conducts
public modesty
neighborhood disturbance
 Sources of law

 Official sources :
o Legislation
o Customs
o Islamic religion
o Principales of justice and fairness
o International conventions and treaties
 Sources of law
 Non official sources:
o Jurisprudence
o Doctrine
 In reel:
1- legislation
2- customs
3- islamic religion
4- jurisprudence
5- doctrine
6- principale of justice and fairness
 Legislation

Types of legislation: kelson pyramide

The stage of legislation:

law project : when the initiative comes from

the government ( head or members)
law proposal : when the initiative comes
from the members of parliament
 The stages

 1- presentation ( proposal) to the parliament to accept or

not
o 2- general secretary of the government: examinationof
expression according to the juridical form,
technics,and expressions
Compliance with the constitution
Presentation to the governing council
And to the parliament
 The stages

 3- presentation to the governing council: validation

 4- presentation to the parliament: dicussion,and vote
 5- Approval and promulgation : Dahir
 6- publication in the official bulettin
 Branches of law

 Public law: it regulates the relations in which the

sovreign state is a part
 Relation with individuals and other states
 Private law : it regulates the relations in which the state
is not as the sovreign, and relations between
individuals
 Branches of law

 Public law:
national public law: constitutional law,
adminstrative law, financial law
international law : relation between states and
international organizations based on conventions an
treaties or customs
 Branches of law

 Private law:
Civil law ,
commercial law,
social law,
family law,
air law,
maritime law,
 Branches of law

 Thereare sone branches that are not classified

because of there mixed nature
 As: private international law: regulates relations
in which ther is a foreign part( marriage between a
moraccan and a foreigner)
 Criminal law ( public ministry)