2017_Book_IntroductionToLaw.pdf - Jaap Hage � Antonia Waltermann Bram Akkermans Editors Introduction to Law Second Edition Introduction to Law Jaap Hage

2017_Book_IntroductionToLaw.pdf - Jaap Hage � Antonia...

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Unformatted text preview: Jaap Hage · Antonia Waltermann Bram Akkermans Editors Introduction to Law Second Edition Introduction to Law Jaap Hage Antonia Waltermann Bram Akkermans Editors Introduction to Law Second Edition Editors Jaap Hage Foundations and Methods of Law Maastricht University Faculty of Law Maastricht, The Netherlands Antonia Waltermann Maastricht University Maastricht, The Netherlands Bram Akkermans Private Law Maastricht University Faculty of Law Maastricht, The Netherlands ISBN 978-3-319-57251-2 ISBN 978-3-319-57252-9 DOI 10.1007/978-3-319-57252-9 (eBook) Library of Congress Control Number: 2017949293 © Springer International Publishing Switzerland 2014, 2017 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland V Preface The Introduction to Law that you are now holding in your hands is special in the sense that it introduces students to law in general and not to the law of one specific jurisdiction. It has been written with two goals in mind. First, this book is meant to be used in the course Introduction to Law of the Maastricht European Law School. This course aims to provide law students with the global knowledge of the basic legal concepts, elementary philosophy of law, and main fields of law. Since the European Law School does not exclusively focus on the law of one particular European jurisdiction, there is a need for an introductory course that also abstracts from the law of specific jurisdictions. Second, and perhaps more importantly, this book reflects a special way of looking at legal education. We believe that it is of crucial importance for lawyers to be aware of the different ways in which societal problems can be solved and to be able to argue about the advantages and disadvantages of different legal solutions. Being a lawyer involves, on this view, being able to reason like a lawyer, even more than having detailed knowledge of particular sets of rules. The present Introduction to Law reflects this view by paying explicit attention to the functions of rules and to ways of reasoning about the qualities of different legal solutions. Where «positive» law is discussed, the emphasis is on the legal questions that must be addressed by a field of law and on the different kinds of solutions that have been adopted by—for instance—the common law and the civil law tradition. The law of specific jurisdictions is mainly discussed by way of illustration of a possible answer to, for instance, the question when the existence of a valid contract is assumed. This is the second edition of the book. The list of persons who deserve gratitude for their contributions to the present and earlier editions has become too long to mention in full. Therefore we will confine ourselves to those whose role has been particularly important for this second edition. The chapter on tort law is based on an original text written by Gerrit van Maanen, and its present version has benefited from extensive comments by Cees van Dam. Sjoerd Claessens improved the chapter on the law of Europe. Daniel Hannappel has taken care of the format of the text, and Rebecca Kumi has improved the quality of the English. Last but not least, thanks go to all the students and tutors who used this book in our Maastricht Introduction to Law course and reported on their findings. VI Preface The editors of Introduction to Law are interested in your opinion of this book. We therefore invite you to send comments, suggestions, and questions to [email protected] Jaap Hage Antonia Waltermann Bram Akkermans Maastricht, The Netherlands February 2017 VII Contents 1 Sources of Law ..................................................................................................... 1 Jaap Hage 2 Legal Reasoning ............................................................................................... 21 Jaap Hage 3 Basic Concepts of Law .................................................................................... 33 Jaap Hage 4 The Law of Contract ........................................................................................ 53 Jan Smits 5 Property Law ...................................................................................................... 79 Bram Akkermans 6 Tort Law ............................................................................................................. 109 Jaap Hage 7 Criminal Law .................................................................................................... 129 Johannes Keiler, Michele Panzavolta, and David Roef 8 Constitutional Law ....................................................................................... 165 Aalt Willem Heringa 9 Administrative Law ...................................................................................... 201 Chris Backes and Mariolina Eliantonio 10 The Law of Europe ........................................................................................ 229 Jaap Hage 11 Tax Law .............................................................................................................. 251 Marcel Schaper 12 International Law .......................................................................................... 277 Menno T. Kamminga 13 Human Rights ................................................................................................. 303 Gustavo Arosemena VIII Contents 14 Elements of Procedural Law ..................................................................... 331 Fokke Fernhout and Remco van Rhee 15 Philosophy of Law ......................................................................................... 359 Jaap Hage Supplementary Information Index ................................................................................................................................... 385 IX Contributors Bram Akkermans Menno T. Kamminga Maastricht European Private Law Institute (M-EPLI), Maastricht University Maastricht, The Netherlands b.akkermans[email protected] Maastricht Centre for Human Rights Maastricht University Maastricht, The Netherlands [email protected] Johannes Keiler Gustavo Arosemena Maastricht University Maastricht, The Netherlands [email protected] Maastricht University Maastricht, The Netherlands [email protected] Michele Panzavolta Chris Backes Utrecht University Utrecht, The Netherlands [email protected] Katholieke Universiteit Leuven Leuven, Belgium [email protected] David Roef Mariolina Eliantonio Maastricht University Maastricht, The Netherlands [email protected] Fokke Fernhout Maastricht University Maastricht, The Netherlands [email protected] Maastricht University Maastricht, The Netherlands [email protected] Marcel Schaper Maastricht University Maastricht, The Netherlands [email protected] Jaap Hage Jan Smits Maastricht University Maastricht, The Netherlands [email protected] Maastricht European Private Law Institute (M-EPLI) Maastricht University Maastricht, The Netherlands [email protected] Aalt Willem Heringa Maastricht Montesquieu Institute Maastricht University Maastricht, The Netherlands [email protected] Remco van Rhee Maastricht European Private Law Institute (M-EPLI) Maastricht University Maastricht, The Netherlands [email protected] 1 Sources of Law Jaap Hage 1 What Is Law? – 2 2 Roman Law – 4 2.1 2.2 2.3 2.4 Tribal Customary Law – 4 Codification – 6 Praetor and Iudex – 7 The Corpus Iuris Civilis – 7 3 3.1 3.2 3.3 Common Law – 8 Royal Justices – 8 Precedent – 9 Equity – 11 4 Ius Commune – 12 5 5.1 5.2 5.3 National States and Codification – 14 Codification – 15 Legal Families – 16 Transnational Law – 17 6 Conclusion – 20 Recommended Literature – 20 © Springer International Publishing Switzerland 2017 J. Hage et al. (eds.), Introduction to Law, DOI 10.1007/978-3-319-57252-9_1 1 2 J. Hage 1 1 Rules What Is Law? The main question that any introduction to law must answer deals with the nature of law. Although the need for the characterization of the nature of law is obvious, it is a need that is not easily satisfied. The law is multifaceted, and arguably has been in flux over the centuries. In this current age of globalization and Europeanization, it is changing at such a high speed that it is impossible to give a short definition of law from the outset. What is possible, however, is to mention a few characteristics of law. The majority of legal phenomena share most of these characteristics, but not all legal phenomena share all of them. A substantial part of law exists in the form of rules. These rules do not only specify how people should behave («Do not steal», «Everybody with an income must pay income tax»), but they also contain definitions of terms, create competencies, and much more. An example of a rule that gives a definition of a term can be found in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, which defines racial discrimination as «… any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life». Article 37, Section 1 of the International Covenant on Civil and Political Rights provides an example of a rule that creates a competency for the Secretary-General of the United Nations. It states, in connection with the Human Rights Committee: «The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations». Society is governed not only by legal rules but also by other types of rules. In the next section, we will have a closer look at the law’s most important relative – morality and moral rules – but there are also other types of rules, such as the rules that belong to: 3 Sources of Law 1 5 A religion (e.g., the Ten Commandments) 5 Etiquette (e.g., «Eat with a knife and fork») 5 Special organizations such as student associations (e.g., «Every member must perform bar service twice a month») Legal rules are normally enforced by collective means and in particular by organs of the State, while other rules typically are not. Moreover, legal rules have very specific sanctions, such as incarceration, fines, compensation of damage, etc., while the sanctions of non-legal rules are less specific. For instance, someone who has committed a crime and broken a legal rule is liable to be punished by State organs such as the police and the prosecution service. However, from a moral point of view it is wrong to lie. While liars may be liable to informal and private sanctions such as reproach and avoidance, they will seldom be sanctioned by collective means. At present, most laws are explicitly created by means of legislation or judicial decisions. These laws are called «positive law». The word «positive» in this connection is derived from the Latin positus, which literally means «laid down». The idea that law is explicitly created seems so obvious that the expression «positive law» has almost become synonymous with «the law that is valid here and now». However, the increasing importance of non-State rules is a reason to question this obviousness. It is often easy to establish the contents of positive law. The rules only need to be looked up in legislation or in judicial decisions. This may take some time, but in the end, it is often possible to establish the contents of the law beyond a reasonable doubt: positive law offers legal certainty. Therefore, it is usually unnecessary to invoke an authority such as a judge to settle a legal dispute. The parties can predict what the judge’s decision would be, and in that way save both them and society at large, time and money. If the issue at stake is not what the positive law is, but rather what is «really» right, it may be much harder to reach an agreement. People often disagree about what is right or wrong. This predicament creates less favorable conditions for a smooth functioning society than the certainty of positive law. Often it is better to have no conflicts or fast solutions for conflicts, than to have a laboriously reached «right» solution. Therefore, law often prefers the certainty of a clear result over the uncertainty of the «best» solution for a problem. Collective enforcement Positive law Legal certainty 4 1 J. Hage Positive law also offers legal certainty in a different manner, namely by providing collective support for the enforcement of legal duties. If people are left to their own devices when it comes to enforcing their rights, this decreases the certainty that the rights will be respected. A third aspect of legal certainty is that similar cases are treated in a similar fashion or – in other words – that the law will be applied consistently. For instance, if one citizen is granted a building permit, legal certainty requires that another citizen in exactly the same position should also be granted a building permit. So legal certainty has at least three aspects: 1. Certainty about the content of the law 2. Certainty that the law will be enforced 3. Certainty that the law will be applied consistently 2 Roman Law Our present-day law did not fall out of the blue sky; it is rather the outcome of a historical development in which the sources of law play an important role. As the easiest way to obtain an understanding of legal sources is through history, we will sketch the development of the law in Europe through time. In this examination, Roman law and common law play a central role. Historical descriptions of the development of law in Europe often start with the impressive legal system built by the Romans in the period ranging from the eighth century BCE (Before Common Era) until the sixth century CE (Common Era). Impressive as the Roman system may have become over the course of these centuries, it started out in a simple form: tribal customary law. 2.1 Tribal Customary Law Nowadays, we are very much accustomed to the idea of law as being the law of a particular country, such as German law or English law. More recently, we have seen the emergence of European law existing concurrently with national laws in the countries that make up the European Union. Moreover, for a number of centuries, a body of law has existed that governs the relations between States. This body is called «public international law». 5 Sources of Law However, the law of the Romans was not the law of a country or a State, but the law of a people, namely the Roman people. Since they were comprised of a tribal group whose members were connected mostly by family ties, the early law of the Romans was tribal law. It is also possible to have law that is not connected to a particular territory or a particular people, but to a particular religion. Examples are Talmudic law, attached to the Jewish religion, and Shari’a law, attached to the Islam. As a people grows larger, the main ties between its members can no longer be family ties, or at least not close family ties. The binding factor will then be a shared culture, for instance based on a common religion or language. We call such a people with a shared culture a «nation». As are most tribal laws, early Roman law was customary law. Customary law consists of guidelines for behavior that have grown spontaneously in a society, such as a tribe, in the form of mutual expectations. After some time, these expectations are accepted as binding. An example would be that the head of the tribe gets the first pick when an animal is caught in a hunt. For the first few times, this may be merely a kind gesture by the hunters towards the tribal leader. However, if it is repeated over a period of time, members of the tribe will count on its reoccurrence and there will be reproaches if the chief does not get the first pick. In the end, these reproaches may become so serious that the hunters will be punished if they do not offer the chief the first pick. These guidelines are transmitted from generation to generation and are considered to be «natural» and rational. As such, their origin is frequently attributed to a historical, often divine, legislator. An example would be the Ten Commandments and other rules that were, according to the Torah, given to the Jewish people by God on Mount Sinai, through the intermediary of Moses. This ascription to a historical legislator explains another characteristic of customary law, namely that it is taken to be immutable. The law was such since time immemorial and will never change. However, as customary law starts as unwritten law, there may be gradual changes that go unnoticed because there are no texts that facilitate the comparison of recent law Customary law 1 6 1 J. Hage with that of older generations. As a consequence, customary law may change slowly over the course of time, adapting itself to circumstances, while its image of being natural and immutable may remain intact. Although customary law is often retrospectively ascribed to a legislator, it is typically not the result of legislation. It consists of rules that are actually used in a society to govern the relations between the members of this society and are usually not easily distinguishable from religious and moral precepts. It is only at a later stage of the development of a legal system that the distinction between legal, moral, and religious precepts can be made. Arguably, such a sharp distinction presupposes a separation between church and State, a separation that has gradually grown in the Western world since the late Middle Ages. It should be noted that this separation has not been accepted in a number of non-Western countries, particularly those that aim to follow some form of Islamic law. 2.2 Codification Customary law starts as unwritten law, but this does not preclude it being written down at some stage. Part of Roman law, for instance, was written down in 451 BCE on what is now called the «Twelve Tables». The reason for this was that if there was any doubt, customary law could be interpreted by the pontiffs, officials who came from the cast of patricians, the societal upper class. The plebeians, the lower social class, objected to this practice of interpretation, because they feared that the pontiffs might use their power to interpret the law to ...
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