Transcript Legal system - University of Wrocław

Legal system
Joanna Helios
Wioletta Jedlecka
LLB
The notion of legal system
• A „system” is referred to a set of
internally organized elements
which are related to each other.
According to the legal doctrine
the components of legal system
are legal norms.
Concrete legal system
• Concrete legal system is a set of
norms valid in a clearly indicated
time- spatial circumstances for
example Polish law, French law,
Germany law.
Legal system as a type
• Legal system as a „type” is referred to a
theoretical construct distinguished to
characteristic traits of some group of concrete
legal systems. Among those types of legal system
we differentiate for example:
• Civil law – characteristic for states where legal
system has arisen from Roman law; also called
„statutory law system” (Poland);
• Common law – characteristic for Anglo – Saxon
states.
Principles of the law
• Principles of the law are the principles within
the specific system of the law (including the
principles of international law and EU law in
the 28 member states) that are recognized as
being particularly important, because they
express the values that constitute the
axiological bases (material and formal) of the
law in general and its individual divisions or
branches.
Divisions, typologies, cross sections
• The fundamental classification of the
law by type of regulated social
relations that dates back to the
earliest times is the classification of
the law into civil, criminal and
administrative law.
Civil law
• Civil law socially standardizes the
important relations between equal
subjects of the law. This law provides
autonomous subjects of the law with
„tools” they can use to organize their
affairs as they wish and their own
responsibility.
Criminal law
• Criminal law defines acts that are
recognized as crimes, i.e.,
culpable acts prohibited under
threat of penalty, and
standardises the principles of
criminal liability.
Administrative law
• Administrative law
regulates the governing
administrative process in
the state.
Public law vs. Private law
• The dichotomous division of the
whole law into public and private law
is also among the oldest one in
European tradition, which dates back
to ancient Rome.
Public vs. private
• The categories public and private have long
been fundamental to liberal democratic
understanding of social life. Yet however
elementary the distinction between public
and private may be in modern constitutional
democracies, it is a distinction that invites
confusion and ambivalence with respect to
both its abstract meaning and its practical
applications.
Private law
• Private law includes all the
principles that regulate the
autonomous and free activity of
society in the social and
economic sphere.
Private law
• The law is formed in such a way as to ensure
that the solutions proposed to the parties
provide for reasonable terms of cooperation,
coordination and compromise. The parties are
equal to each other and before the law. None
of the entities has formal governing
competencies with respect to others and,
therefore, it cannot modify their legal
situation.
Private law
• The real, specific legal relationship
between subjects of the law (for
example borrowing the book,
donation of a work of art.)
materializes and is only modified by
the will of the parties themselves.
Private law
• If the legislator regulates some area of
life in such a way, it is said that he has
applied the civil law method of
regulation (the position of the parties in
the legal relations is equal, neither of the
parties can unilaterally, authoritatively,
change the legal situation of the other
party).
Private law
• Private law provisions are
base mainly on relatively
valid norms (ius
dispositivum).
Private law
• The authorities responsible for legal
protection operate in private matters,
but they do not act ex officio. The law
doesn’t ensure the achievement of the
legal effect unless the interested party
actively pursues its right.
Private law
• The principle ignorance of the
law harms is particularly
important in private law – if the
subjects of law do not know their
rights, they will obviously not
exercise them.
Private law
• Private law includes civil substantive law,
including commercial law, understood as civil
(private) law on commercial activities, the
family and custodianship law, as well as
international private law.
• A significant portion of the regulations of
labour law, maritime law, environmental law
and agricultural law is also of such a nature.
Privacy
• Privacy is an essential part of the complex social
practice by means of which the social group
recognizes – and communicates to the individual
– that his existence is his own. And this is a
precondition of personhood. To be a person, an
individual must recognize not just his actual
capacity to shape his destiny by his choices. And
this in turn presupposes that he believes that the
concrete reality which he is, and through which
his destiny is realized, belong to him in a moral
sense.
Public law
• Public law is another area of regulation. Public
law includes constitutional law, administrative
law, criminal law, financial law, public law on
commercial activities, criminal, civil and
administrative procedures law and
international public law. In addition to private
law regulations, labour law, maritime law,
environmental law and agricultural law also
include public law regulations.
Public law
• Public law regulates the system
of public authorities and
relations between the state
and society.
Public law
• Public authorities and other subjects of the
law are parties to public law relations. Public
law creates subordination relations between
entities (competence subordination relations).
The competence subordination relationship is
expressed by one of the entities having a
superior position to the other entity and being
eble to form its legal position by its decisions.
Public law
• The subordinated entity is obliged to submit
to the decision of the superior entity. This
characteristic applies to administrative law
relations, for example voivod – citizen
relation, relations arising from procedural law,
for example public prosecutor – suspect, and
from financial law (tax authority- taxpayer).
Public law
• The method that uses this inequality of
parties in the regulation is referred to as
the administrative law method.
• Model structure of the norm: Entity A is
obligated to / prohibited from C if entity
P commits the conventional act K.
Public law
• Subordination relations are also regulated
using the penal method. In this case, the fact
that the states threatens the use of direct
coercion (for example imprisonment or a fine)
in the event of a violation of legal obligations
is of decisive importance to the formation of
relations between entities.
Public law
• Public law provisions are
based on absolutely valid
norms (ius cogens).
Public law
• In the event of identifying ius cogens,
state authorities generally operate ex
officio.
• Authorities undertake obligatory
activities even if citizens are unaware
of the wording of the law.
Substantive law, political law,
procedural law
• All norms in the system of the law
are traditionally and universally
divided into norms of
substantive, political and
procedural law.
Substantive law
• Substantive law is composed of norms that
directly regulate the respective social relations
that are addressed to all of us (for example do
not kill other people, do not steal, pay taxes).
The norms of substantive law define who
should behave how in what circumstances and
specify the consequences of a lack of
compliance with the law. Consequently, we
have substantive civil law, substantive criminal
law, substantive administrative law, etc.
Political law
• Political law includes norms that
define the organization of public
authorities, their competences and
the legal forms for exercising these
competencies (for example political
administrative law, political financial
law).
Procedural law
• Procedural law covers the norms that
regulate all elements related to the mode
of proceedings before public authorities,
in situations of filing for claims, exercising
competencies, enforcement of
obligations and applying sanctions
imposed by substantive law.
Procedural law
• There are civil, criminal and administrative
procedural law regarding proceedings before
courts (the so – called recourse to the law) and
clearly different procedural law for proceeding
before administrative authorities (the so –
called administrative course of claiming
rights).
The law applied in law courts
• Political law and procedural law
are referred to as the formal law.
Procedural law regarding the
activities of courts is referred to
as the law applied in law courts.
Branches of the law
• Separation of the law is also a part of
tradition. The „branch of the law” is
understood as a „sub – system” of the internal
system of the law of a specific state that can
be distinguished (and which can be named) on
a basis of clearly identifiable sphere of social
relations (for example family relations – family
and custodianship law, labour relations –
labour law, socially dangerous prohibited acts
– criminal law).
Legal dogmatics
• Individual branches of the law (sub –
systems of norms) have traditionally
been dealt with by legal dogmatic
sciences. Legal dogmatics is concerned
with explanation, interpretation,
structuring and justification of the
wording of the legal provisions from the
individual branches of the law.
De lege lata postulates and the lege
ferenda postulates
• De lege lata postulates – referring to the
interpretation of the applicable law.
• De lege ferenda postulates – referring to
the interpretation of the future law.
Formal relations in legal system
• Formal relation is a relation of
competence between two norms
and is the most visible in hierarchy of
norms. The content of norm situated
higher in the hierarchy gives
justification and basis of validity of
the second one.
Material relation in legal system
• Material relation deals with content of norm.
The content of the norm situated higher in the
hierarchy determines the content of the
inferior one. This kind of relations between
two norms (superior N1 and inferior N2 which
is inferred from N1) may have a strong
interpretation (N2 is valid because it is an
inferential consequence of N1) or a weak
interpretation (N2 is valid because it is not in
contradiction to N1).
Material relation
• Material relation deals with
vertical (hierarchy of norms)
and horizontal (the division
into branches of law)
systematization of the legal
system.
Postulates of the legal system
• Postulate of completeness –
no lacunas (loopholes) in the
system.
• Postulate of coherence – no
collisions between norms.
Loopholes in the law
•Loopholes can be
divided into axiological
and constructional.
Axiological lacuna
• Axiological lacuna is considered
to be rather subjective: it is an
outcome of comparing existing
legal system with the ideal one. It
might be divided into:
Extra legem
• The lack of the norm that
should exist in the legal system
(according to our opinion) is
judged negatively.
Contra legem
• The existence of a norm is judged
negatively; we assume that the
norm covers a subject that
shouldn’t be regulated or simply
does it wrongly according to our
point of view.
Praeter legem
•The existing
regulation is judged
negatively as too
general.
Constructional lacuna
• Constructional lacuna is more
objective and is an outcome of
analyzing internal relations
between the norms within the
system by itself.
Specific lacuna – constructional
lacuna
• Specific lacuna – law – making
process was unfinished, what
results in situation when there
lacks a regulation that should be
laid down according to another
norm.
Technical lacuna – constructional
lacuna
• Technical lacuna – despite
fact the law making
process has been finished,
the regulation is
incomplete.
Collisions in the law
• Collision in the law is a situation
when two norms cannot be both
applied. Collisions are divided
into logical (contrariety and
contradiction), praxeological and
axiological.
Logical collision
• Can appear on the level of language
wording (meaning) of norms. They
are outcomes of legislator’s mistakes.
Logical collisions are also called
„virtual” or „formal”.
Contrariety
• Contrariety norms have partially equal
hypothesis but different disposition. One can
break both of them. For example: Someone is
obliged to be in two different places in the
same moment: on the Introduction to law and
Constitutional law lecture. It is impossible to
observe both norms, but on the other hand it
is possible to break both of them.
Contradiction
• Contradiction – while breaking
the first norm, one acts with
compliance with the second one.
For example: one norm obliges
and the second one prohibits to
be on this lecture.
Praxeological collision
• Praxeological collision is related to the level of
implementing the norms in practice. Norms serve
contrary goals. By this kind of collision an
implementation of both norms might be
sometimes possible but problematic:
implementing of one norm may make the
implementation of another one much more
difficult or implementing of the second norm
eliminates the effects of implementation of the
first one. For example: „Open the door” / „Close
the door”.
Axiological collision
• Appears on the level of values
that norms serve and refers to a
collision between two values. In
this case both norms can be
implied but only to some extent.
Collision rules
• We use collision rules in the
case of collision between two
valid norms. By using collision
rules we are able to solve this
kind of problem.
First order collision rules
• Lex superior derogat legi inferiori – superior norm
suppresses inferior norm (hierarchical rule);
• Lex specialis derogat legi generali – particular
norm suppresses general norm – whereby the
detailed norm „replaces” the general norm only
to to the extent to which it constitutes the
exception to the latter, on condition, that the
detailed norm is not lower in the hierarchy than
the general norm. The general norm is not
derogated (it is just not applied in this particular
case) (substantive rule).
First order collision rules
• Lex posterior derogat legi
priori – the norm that was laid
down later suppresses the norm
that was laid down earlier
(chronological rule).
Second order collision rules
• Lex inferior posterior non derogat legi
superiori priori - later inferior norm doesn’t
suppress earlier superior norm;
• Lex inferior specialis non derogat legi superior
generali – inferior particular norm doesn;t
suppress superior general norm;
• Lex posterior generalis norm derogat legi
priori speciali – later general norm doesn’t
suppress earlier particular norm.