Running head: INTRODUCTION OF LAW
1
INTRODUCTION OF LAW
A Complete Summary
Name
Institution
Course
Tutor
Date
,INTRODUCTION OF LAW 2
INTRODUCTION TO LAW
CHAPTER 1- WHAT IS LAW?
RULES- a substantial part of law which: contains how people should behave, definitions of terms,
creates competencies and etc.
Different kinds of rules:
1. Legal Rules
2. Moral Rules
3. Religion
4. Etiquette
5. Special Organization
LEGAL RULES- unlike the others, these are normally enforced by collective means (state)
- contains very specific sanctions (incarceration, fines, compensation of damage) which
are more specific than the non-legal ones
POSITIVE LAW - laws explicitly created by means of legislation or judicial decisions
- “positive”- positus - Latin for laid down- a law that is valid here and now
- Due to the increasing importance of non- state rules, it leads us to question this
obviousness
- It offers legal certainty- only needs to be looked up in legislations or judicial
decisions
The “really right” predicament creates less favorable conditions for a functioning society. Often it is
better to have no conflicts or fast solutions for the conflicts, than to have a laboriously reached
,INTRODUCTION OF LAW 3
‘RIGHT’ solution. Thus, law often prefers the certainty of a clear result over the uncertainty of the
“BEST” solution for a problem.
COLLECTIVE SUPPORT FOR THE ENFORCMENT 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.
THE LAW WILL BE APPLIED CONSISTENTLY- similar cases will be treated in a similar
fashion
ASPECTS OF LEGAL CERTAINTY:
1. Certainty about the content of law
2. Certainty that the law will be enforced
3. Certainty that the law will applied consistently
ROMAN LAW
PUBLIC INTERNATIONAL LAW- a body of law that governs the relationship between states
TRIBAL LAW- the law of the people connected by family ties, as seen among the Romans
NATION- as the number of people grows larger, the main ties between its members can no longer be
the close family ties. Therefore, the binding factor will then be a shared culture, that is for instance
based on common language or religion. The shared culture is therefore noted as nation.
CUSTOMARY LAW- the law that consists of guidelines for behavior that have grown
spontaneously in a society, such as a tribe, in the form of mutual expectations which after a while are
accepted as binding.
These guidelines are transmitted from generation to generation and are considered to be natural and
rational. Their origin is usually attributed to a historical, often divine legislator (Ten commandments).
Furthermore, they were also seen as 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
, INTRODUCTION OF LAW 4
go unnoticed because there are no texts that facilitates the comparison of recent law with that of older
generations. Thus, 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.
Customary law 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 a specific society and are usually not easily
distinguishable from religious and moral precepts.
CODIFICATION
TWELVE TABLES- part of a written Roman law (451 BCE)
PONTIFFS- officials that came from the cast of patricians (societal upper class) which in case of any
doubt would interpret the customary law
PLEBIANS- a lower social class is objected to the practice of interpretation due to fear that the
pontiffs might use it to their advantage.
If customary law is written down and published, its contents could be inspected by anyone who could
read. This shows the importance of certainty of law because it makes it more difficult for rules that
govern society to be manipulated to the advantage of a few.
CODIFIED- a process of writing down a customary law. It resembles laws that were created by
means of legislation.
THE DIFFERENCE: a law that codified already existed before the codification, while law that was
created through legislation did not exist before it was written down.
PRAETOR AND IUDEX
The legal solution in a two-party dispute will depend on:
1
INTRODUCTION OF LAW
A Complete Summary
Name
Institution
Course
Tutor
Date
,INTRODUCTION OF LAW 2
INTRODUCTION TO LAW
CHAPTER 1- WHAT IS LAW?
RULES- a substantial part of law which: contains how people should behave, definitions of terms,
creates competencies and etc.
Different kinds of rules:
1. Legal Rules
2. Moral Rules
3. Religion
4. Etiquette
5. Special Organization
LEGAL RULES- unlike the others, these are normally enforced by collective means (state)
- contains very specific sanctions (incarceration, fines, compensation of damage) which
are more specific than the non-legal ones
POSITIVE LAW - laws explicitly created by means of legislation or judicial decisions
- “positive”- positus - Latin for laid down- a law that is valid here and now
- Due to the increasing importance of non- state rules, it leads us to question this
obviousness
- It offers legal certainty- only needs to be looked up in legislations or judicial
decisions
The “really right” predicament creates less favorable conditions for a functioning society. Often it is
better to have no conflicts or fast solutions for the conflicts, than to have a laboriously reached
,INTRODUCTION OF LAW 3
‘RIGHT’ solution. Thus, law often prefers the certainty of a clear result over the uncertainty of the
“BEST” solution for a problem.
COLLECTIVE SUPPORT FOR THE ENFORCMENT 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.
THE LAW WILL BE APPLIED CONSISTENTLY- similar cases will be treated in a similar
fashion
ASPECTS OF LEGAL CERTAINTY:
1. Certainty about the content of law
2. Certainty that the law will be enforced
3. Certainty that the law will applied consistently
ROMAN LAW
PUBLIC INTERNATIONAL LAW- a body of law that governs the relationship between states
TRIBAL LAW- the law of the people connected by family ties, as seen among the Romans
NATION- as the number of people grows larger, the main ties between its members can no longer be
the close family ties. Therefore, the binding factor will then be a shared culture, that is for instance
based on common language or religion. The shared culture is therefore noted as nation.
CUSTOMARY LAW- the law that consists of guidelines for behavior that have grown
spontaneously in a society, such as a tribe, in the form of mutual expectations which after a while are
accepted as binding.
These guidelines are transmitted from generation to generation and are considered to be natural and
rational. Their origin is usually attributed to a historical, often divine legislator (Ten commandments).
Furthermore, they were also seen as 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
, INTRODUCTION OF LAW 4
go unnoticed because there are no texts that facilitates the comparison of recent law with that of older
generations. Thus, 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.
Customary law 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 a specific society and are usually not easily
distinguishable from religious and moral precepts.
CODIFICATION
TWELVE TABLES- part of a written Roman law (451 BCE)
PONTIFFS- officials that came from the cast of patricians (societal upper class) which in case of any
doubt would interpret the customary law
PLEBIANS- a lower social class is objected to the practice of interpretation due to fear that the
pontiffs might use it to their advantage.
If customary law is written down and published, its contents could be inspected by anyone who could
read. This shows the importance of certainty of law because it makes it more difficult for rules that
govern society to be manipulated to the advantage of a few.
CODIFIED- a process of writing down a customary law. It resembles laws that were created by
means of legislation.
THE DIFFERENCE: a law that codified already existed before the codification, while law that was
created through legislation did not exist before it was written down.
PRAETOR AND IUDEX
The legal solution in a two-party dispute will depend on:
