LAW

WHAT IS LAW ?
¢ What is rule?
¢ What is law?
WHAT IS LAW ?
¢ What is rule?
— Rule is something that tells people what
they can do, what they can not do and what
they must do
¢ What is law?
— Law is set of rules that everyone in a
community, state, or nation must follaw
ORIGIN OF LAW

Primitive community:
— customs and usage
è Class society è State è Law
LAW IN CLASSICAL MARXIST THEORY

Law is an element of social “superstructure” the form and use

of which, at any given time will be reflection of the condition of
the economic based.

An instrument of class domination used by ruling class to maintain

and advance its interests.
WHAT IS LAW ?
JURISPRUDENCE

¢ Legal Positivism: “Law is what the sovereign says it

is”. Decisions stand, regardless of morality.
¢ Natural Law: “An unjust law is no law at all and need
not be obeyed”. Laws must have a good moral basis.
¢ Legal Realism: “Enforcement of the law is more
important than the law itself”. Enforcers determine if the
law is applied in a fair and consistent way.
 THE NATURAL LAW SCHOOL

¢Assumes law, rights and ethics are

based on universal moral principals
inherent in nature discoverable through
human reason.
¢The oldest view of jurisprudence dating
back to Aristotle.
— The Declaration assumes natural law, or
what Jefferson called “the Laws of Nature.”

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NATURAL LAW:
REV. MARTIN LUTHER KING, JR.

Letter from the Birmingham Jail, April

16, 1963. “[T]here are two types of laws:
just and unjust laws. . . . A just law is a
man-made code that squares with the
moral law . . . . An unjust law is a code
that is out of harmony with the moral
law. . . . An unjust law is a human law
that is not rooted in eternal and natural
law.”
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THE POSITIVIST SCHOOL

¢ Law is the supreme will of the State that applies only

to the citizens of that nation at that time.
¢ Law, and therefore rights and ethics, are not
universal. The morality of a law, or whether the law is
“bad or good,” is irrelevant.

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LEGAL REALISM
¢ Jurisprudence that holds law is not simply a result of
the written law, but a product of the views of judicial
decision makers, as well as social, economic, and
contextual influences.

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WHAT IS LAW ?

¢ Laws are legally enforceable rules made by authorities

within a society.

¢ => essence: Law are wills of ruling classes determined by

material conditions of a society.
STATE AND LAW RELATIONSHIP

STATE LAW
LAW DEFINITION

¢ Set of rules
¢ Enacted and enforced by the state
RULES AND LAWS

RULES LAWS
Household rules acceptable modes of behaviour
School rules procedures
Social rules enforceability
Friendship rules consequence
Couple relationship rules
RULES AND LAWS
è The doctrine of The rule of law ensures that a
person should only be regulated by the settled law,
and that they should only be punished according to
the law, and that everyone, no matter who they
are, is subject to the law.
 LEGAL RULE AND NON-LEGAL RULE

¢ Legal rules are known as laws and apply to all

individuals in society
¢ Non-legal rules determine what behaviour is
unacceptable in particular groups or institutions.
 LEGAL RULE AND NON-LEGAL RULE

Legal rule Non-legal rules

• To be obeyed by the whole of society • to be obeyed by specific individuals
or groups

• made by a law-making body • made by individuals or groups

• enforced through the courts • enforced by leaders of a group

or individuals

• consequence of breaching is a • consequence of breaching is at

prescribed sanction imposed by the the discretion of the leader of a group
courts
LAW AND MORALITY

Actions may be legal, but immoral to some people

Actions may be required by both moral

LAW standards and the law

Actions my be moral, but not required by law

MORALITY
 LEGAL NORMS

+ Stated in the legislation: A mandatory rule

of social behavior established by the state.
+ Include:
● Assumption (hypothesis) : who? when? How?
● Regulation (disposition): Must do something? Not do
sth? Allow to do sth?
● Sanction: consequense
 II. EXAMPLES ARTICLE 173 THE CRIMINAL CODE OF
VIET NAM
1. A person who steals another person's property which is assessed
at from VND 2,000,000 to under VND 50,000,000 or property
assessed at under VND 2,000,000 in any of the following cases
shall face a penalty of up to 03 years' community sentence or 06 -
36 months' imprisonment:
a) The offender previously incurred a civil penalty for
appropriation of property;
b) The offender has a previous conviction for theft or any of the
criminal offences specified in Article 168, 169, 170, 171, 172, 174,
175 and 290 hereof which has not been expunged;
c) The offence has a negative impact on social safety, order, and
security;
d) The property stolen is the primary means of livelihood of the
victim and the victim's family; the property taken is a souvenir,
memento, or religious item that has a spiritual value to the victim.
EXAMPLES ARTICLE ARTILE 484 CIVIL
CODE

¢ Where a lessor is late in delivering property, the

lessee may extend the time for the delivery of
the property or may cancel the contract and
demand compensation for damage. If the leased
property is not of the quality agreed, the lessee
has the right to demand the lessor to repair the
property or reduce the rent, or to cancel the
contract and demand compensation for damage.
 LEGAL RELATIONS

Legal relations = Social relations+ legal noms

 LEGAL RELATIONS

Legal relations = Social relations+ legal noms

o Elements of legal relations:

+ parties (capacity)
+ content
+ Object (conducts, non-conduct, things)

o Legal event: conduct – transform

¢ Grounds to raise, modify or terminate legal

relations?
 SOURCES OF AMERICAN LAW (1)

¢ Constitutional Law
¢ Statutory Law
— Ordinances
— Uniform Laws (NCCUSL)
— Uniform Commercial Code

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SOURCES OF AMERICAN LAW (2)

¢ Administrative Law
— Federal Agencies
— State and Local Agencies

¢ Case Law and Common Law Doctrines

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§3: THE COMMON LAW TRADITION
¢ American law is based largely on English
Common Law which was based largely on
traditions, social customs, rules, and cases dating
back to 1066 A.D.

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THE COMMON LAW TRADITION
¢ At common law, there were two separate court
systems with two different types of remedies:
— COURTS OF LAW (monetary relief), and
— COURTS OF EQUITY (non-monetary relief) based on
“notions of justice and fair dealing.” à

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COURTS OF LAW
¢ Also called “king’s courts”: judges were appointed
by the king.
¢ Remedies limited to those provided at law, i.e.,
land, chattel, money.
¢ Judges resolved disputes by application of rules
of law to the facts of the case before the court.

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COURTS OF EQUITY
¢ Equity is branch of law founded on what is fair and just.
¢ Courts of equity were administered by chancellors
appointed by the king.
¢ Equitable remedies include: specific performance,
injunctions, rescissions.

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EQUITABLE MAXIMS

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LEGAL AND EQUITABLE REMEDIES TODAY
¢ Federal and state courts have consolidated remedies at
law and equity.
¢ Generally, the same court can fashion a remedy that
includes both damages and equitable or injunctive
relief.

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STARE DECISIS

¢ Stare Decisis (“to stand on decided cases”) is judge-made

law.
¢ Case Precedents and Reporters.
— Each decision and interpretation becomes a legal precedent.
— Cases are now published in national and regional “Reporters”
(discussed later in Chapter 1).

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STARE DECISIS

¢Stare Decisis and the Common Law

Tradition.
— Courts are obliged to follow
precedents within their jurisdictions.
— Courts should not overturn their own
precedents without compelling
reasons.
¢Stare Decisis and Legal Stability.

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STARE DECISIS
¢ Departures from Precedent.
— In cases of “first impression” where there is no precedent,
the court may refer to positive law, public policy, and
widely held social values in order to craft the best new
precedent.
¢ When There is No Precedent.

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THE COMMON LAW TODAY
¢ Common law governs transactions not covered by
statutory law.
— Courts interpret statutes.
¢ Restatements of the Law.
— Summarize the common law of most states.
— American Law Institute.

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STARE DECISIS AND LEGAL REASONING

¢ Basic Steps (IRAC format):

— Key Facts and Issues (What are the questions to be
answered?)
— Rules (What laws governs this matter?)
— Application (How do the rules of law apply to these facts?)
— Conclusion (Decision or Verdict)

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§5: CLASSIFICATIONS OF LAW
¢ Every type of law will be either:

— Civilor Criminal. à
— Substantive or Procedural. à
— Public or Private.

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CIVIL VS. CRIMINAL
¢ Civil law defines the rights between individuals or
individuals and governments.
¢ Criminal law defines an individual’s obligations to
society as a whole.

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Criminal law Civil law

- A crime is an offence against the s Civil law sets out the rights and duties of per
sons as between themselves. An action is broug
tate. The state prosecutes a person
ht by one person (the claimant) against another (the
who is accused of a crime. The ob defendant). The object is to show liability..
ject is to prove guilt.

Burden of proof – Burden of proof –

guilt must be shown beyond liability must be shown on the balance of
reasonable doubt probabilities

Object – to regulate society by - Object: Ussually

the threat of punishment
financial compensation to put the claimant in th
e position he would have been in had the wrong
not occurred.
SUBSTANTIVE VS. PROCEDURAL

¢Substantive law defines or creates

the rights and obligations of
persons and governments.
¢Procedural law provides the steps
one must follow in order to avail
oneself of one’s legal rights or
enforce another’s legal obligations.

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CYBERLAW
¢ Not really a new type of law.
¢ Traditional legal rules applied to online transactions.

¢ Applies to advertising, contracting, banking, filing

documents with courts, employment relations and
other transactions.

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