ITL, chapter 1

1) law is a guideline for behaviour by telling what is authorised and what is prohibited

Morality sets standards through which we can evaluate our behaviour as good, not so good, or bad.

2) morality is important for the well functioning of the society

3) laws have state enforcement

Positive law is the law at have been laid down and imposed by organs of the state at all time, while positive morality  is the moral precepts and standards that are broadly accepted at a particular time and place.

-Tribal law (the law of a tribe, of the people

-Customary law 

-Historical legislator, transmitted from generations to generations

-Immutability, the law have been such and since time immemorial and will never change

-ius civile and gentium

-codification, the law written down

-Praetor and Iudex

-The Corpus Iuris Civilis

Consists of guideline for behaviour that have grown spontaneously in a society in the form of mutual expectations, which after some time are accepted as binding.

Ius Civile : mutual relations between members of the tribe

Ius Gentium : mutual relations between tribe members and foreigners or between foreigners among them

It was an attempt to codify the existing Roman law, for the Eastern Empire. 

it consisted of 3 parts : 

-the Codex :contained imperial legislation of several centuries

-the Digest : a collection of excerpts from writing of jurists 

-the Institutions : a student textbook

Common law was used in the British Empire and Civil law was used in continental Europe.

Royal representatives who traveled through England to administer the law, the common law of England.

1) If the rule already existed, it is clear that the same rule should be applied in future cases and also by other judges. 

2) If a judge, by giving his decision, creates a new rule that did not exist yet but would exist from the moment that the decision was given. Other judges will have to apply the rule in future cases. (Stare Decisis)

From Latin, stand by your decision

If a court has decided a case in a particular way, then the same court and the courts that are inferior to it must give the same decision in future cases that are similar.

In common law, looking for similarities and differences between new cases and old cases that have already been decided.

A separate branch of law made of a body of rules and principles that were developed to mitigate harsh results that might result from the application of common law.

Latin name for common law. The Roman Law and the Canon Law.

Law on rational basis and not as a matter of social fact

The process of state formation reached a provisional end point in 1648 Shan a number of wars were ended by the peace treaties of Westphalia. This treaty was codified, so written down. It state that Europe was divided into a number of nation state which were assumed to be sovereign. The law become national law.

Made of national law and international public law

Under the leadership of Von Savigny, a law professor in Berlin, it was said that the national law reflected the spirit of that nation. So codification would fossilize the law, and the connection between the law and the spirit of the people would be lost.

1) The Literal Rule or Grammatical Interpretation (rules should be interpreted literally)

2) The Mischief Rule or Legislative Intent (if a legal decision maker gives the rule an interpretation that makes it suit the intention of the legislator)

3) The Golden Rule; Purposive or Teological Interpretation (determine the purpose of the rule himself)

4) The Lawyer's Toolbox (makes his own value judgement and bases his interpretation of the rule on this value judgement)

1) common law family (England, Wales, Ireland)

2) civil law family 

-French family (France, Belgium, Spain, Portugal )

-German family (Germany, Austria, Switzerland )

-both (Italy, the Netherlands, Poland)

3) both ( Scotland )

1) Human Rights (because they are protected by international treaties) Ius Cogens, a set of peremptory norms of international law

2) European Union Law (the member states of the EU and their legal subject are bound by a legal system that is neither the system of a nation state or a system that regulates the mutual relations between nation states)

3) Lex Mercatoria (a set of rules created by merchants to regulate their mutual dealings)

A law that is not made or not enforced by national states or that is not meant for the regulation of behaviour of legal subjects within nation states to the mutual relations between nation states.