PUBLIC LAW SUMMARY

Introduction to Law

Part 1 – General Introduction to the Western legal system
 Introduction to the legal system
o Not the law or a legal system (e.g. Belgian, French, English, US law…)
o System instead of rules
o Relativity of the law
 Abstract introduction, but irrespective of background?
o Secular law in the Western tradition
o Not religious systems of law
 Islamic Law
 Hindu Law
 Jewish Law
 Canon Law (Christian)
o Christianity has deeply influenced Western Law
 Law is not about religious beliefs and duties
 It is about how society should be organised & how people should treat one
another, regardless of their beliefs

Chapter 1 – Law in objective & subjective sense
What is law?
 Has an etymological origin
o Has a link to the authorities and establishments
 Ambiguous notion
o Law (Objective)
o Right (Subjective)

Distinction between law (objective) & right (subjective)
 Objective: Law as a societal phenomenon
o Set of general (un)written rules for outward behaviour (not thoughts) of people living
in a social context (not animals)
o Observance of these rules is enforced by government (Tenant and the broken window
– Objective Rule)
 Subjective: Law from an individual point of view
o Claim that a person derives formal legal rule
 Obligation to do / to give / to abstain from

Link between law in objective & subjective sense
 Two sides of the same medal
o I have a subjective right because my claim is protected by the law (grounded in the
law in objective sense)
 I can claim my property  the law protects the right of personal property
 Rules in property (acquisition, loss…) = law in objective sense
 But on that legal basis, I can claim personal property

 Behavioural rules (law) do NOT exist to the detriment of the recipient but for the benefit of
others
o Ownership
o Ban on tortious act (art. 1382 to 1286 of the Civil Code)

What lawyers do: An example of analytic approach
Article 1382 Civil Code
“Any act whatever of man, which causes damage to another, obliges the one by whose fault it
occurred, to compensate it.”

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,  What is Fault? (Tortious act)
 Loss (detriment)
 Causality

Claimant has to prove ALL 3 components in order to be entitled to compensation:
1. Fault/ tortious act
 Objective component = the act
o Breach of a specific rule
o Breach of the general duty of care
 Criterion = Bonus pater familias-rule
 Subjective component = tortious nature of the act
o Mental capacity (mentally disturbed persons legally accountable - Art. 1386bis C.C)
o Age (power of discernment)

2. Loss/detriment
 Both material and moral detriment
 Loss has to be appraisable in money
 Breach of a right is not necessary, nor sufficient
o Court of Cassation: rejection of the right-based theory in 1939
 Prejudice to someone’s interests that causes a loss that is appraisable in money

3. Causality
 Would there be a loss, without a tortious act?
 What about predestination?
 What about tortious acts of other people?
 (Theory of the equivalent causes vs. Theory of the adequate cause)

Essence of art. 1382 C.C
Provision contains TWO objective rules:
1. Ban on causing loss to others through tortious acts
2. Duty to compensate for the loss
 Subjective right to compensation/damages

Link between Objective & Subjective sense
 Two sides of the same medal
 Two types of litigation
o Subjective vs. objective litigation
o Legal dispute concerning a subjective right (claim rounded in law) versus challenge
the law (i.e. an objective rule)

The law (objective sense) – definition and decisive features
 Working definition
“Objectively law is the set of mandatory rules for the outward behaviour of the persons that
are enforced by the authorities”

 Decisive features
1. Law is about mandatory rules (obligations & prohibitions)
o Law is about behaviour that CAN deviate, but shouldn’t deviate
o What does the law oblige to?
 Rules oblige to achieve a certain result or impose a duty of care
 Strict liability
 Duty of care - Criterion: abstract bonus pater familias
 How to distinct both?!


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, Distinction between duty of care and strict liability
 Case law clarified the notion:
o Uncertain nature of the result
 Will diligence automatically lead to the result?
o Is the creditor actively involved?
o Did the creditor accept any risk?
 Importance of the distinction?
o Burden of proof
 Assumed fault of debtor if result has not been achieved (strict liability)
 Creditor needs to proof negligence (duty of care)

2. Legal rules concern outward human behaviour
o Not animals/objects
o Not the unexpressed thoughts/wishes/ideas etc.…

3. Legal rules are general and impersonal
o Characteristics of legal rules
o Why does a rule have to be general and impersonal?
 Legal certainty (in order to ban arbitrariness)

o Unlimited scope of the legal rule
 Individual decisions versus rules
 Unlimited number of applications

4. Legal rules are enforced by the authorities
o Enforcement (sanctions) are typical of any kind of rule
 Moral rule  moral dilemma
 Religious rule  in hereafter
 Social conventions  social rejections
o Legal rules are enforced by the government authorities
 Court system
 Bailiff
 Police
 Prison

Various forms of enforcement
1. Do I have a subjective right?
 Work of the courts (courts acknowledge your claim)
2. Is your subjective right enforceable and how?
 Prime sanction = enforcement in kind (specific performance)
 The rule in Belgium
 Duty AND right of the debtor
 Not every obligation can be enforced in kind
3. Qualify the nature of the obligation
 Obligation to pay
 Obligation to do (incl. give)
 Obligation to refrain from doing something

 Obligation to pay money
o Seizure
 After final court decision
 Before final court decision (sequestration)
o Public sale (auction)
o Interest

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