Most people would agree that the law governs human behaviour by rules. It forbids certain ways of behaving and prescribes others. Legal rules are also called norms. For example: Law forbids stealing, killing or exceeding speed limits and prescribes taxes or driving on the right lane.The law does not stop at setting up rules. It also secures compliance with them by threatening persons who disregard a rule with some disadvantage. This consequence is called a sanction.
For example: Due to law people may be imprisoned or have to pay fines.
The task of the state is to put the sanction into effect which means to put the offender into prison or to take the money from him. We say: the sanction is enforced by the state.
Is and Ought
Legal rules do not describe facts: they do not tell us anything about reality. Instead they specify facts and describe what should happen if they are fulfilled. It says what ought to happen in certain situations and what consequences should follow if this does not happen.
For example: A newspaper reports facts by saying: “Elfriede Blauensteiner was sentenced to jail for life for killing her husband.” What happened was that she treated him an overdosis of medicaments. The relevant legal provision (º 75 StGB û Austrian Penal Code) specifies facts and their consequences by saying: “Whoever kills another person will be sentenced to jail for life or to be imprisoned between 10 and 20 years”.
Thus if reality resembles the legally specified fact, legal consequences will follow if the event is brought to the attention of the state administration.
The legal rule has several effects: Firstly, it prohibits murder; secondly, specifying that a murder has been committed, it describes what should happen to the perpetrator.
Right and Wrong
Many people think that the law not only prescribes or forbids certain acts but also indicates what is right and what is wrong. But how do we know whether the rules set up by the law are fundamentally right? How can we be sure that they are just?
The Doctrine of Natural Law tries to answer this question by referring to meta-legal authority. According to its adherents law is correct if it conforms to the human nature (Plato), to divine revelation (Augustinus, St.Thomas Aquinas, John Duns Scotus, William Ockham) or to reason (Cicero, Grotius, Hobbes, Locke, Rousseau, Kant).
The Positivist Doctrine accepts that we have no means of deriving law from ahigher authority. It points out that the law is made up of social norms which are generally accepted and adhered to (Jellinek) or are formally enacted (Radbruch) or are regularly enforced (Austin, Holmes, Llewllyn).
For example: Abortion is still very restricted in some e.g. African countries and even individual states of the USA on basis of religious belief, whereas it is regulated very liberally e.g. in western European countries or China as its practise is accepted in society.
A lawyer’s description
Law books usually describe the law as a system of rules enforceable by public authority requiring the members of a community to meet certain standards of conduct. The law makes sure that societies remain stable as their members are able to pursue their interests and disputes are settled efficiently. To this purpose the law should conform to public morality, without, however turning all moral norms into legal rules.
2. Generality – Why study law?Law addresses itself to all members of a community or all persons living within the state. A state has power to regulate any set of facts with the exception of an exempt sphere guaranteed by Human Rights. The legislator is free to make rules for specific groups of the community
e.g. entrepreneurs and for specific fields of activity.Every member of the society is supposed to know the law. Not to know the law is no excuse for liability. In business, like in ordinary life, managers and their companies may become liable to damages or penalties if they do not conform with the legal requirements of their business. Knowing the law improves one’s understanding of the courses of action available.
3. The Legal SystemGiven generality it is necessary to arrange legal provisions in certain ways to make them operable. There are three main sets of classifications:
Public Law – Private Law
Public law governs the relations between the state and the subjects e.g. people as well as between the different state powers and authorities. Private law is concerned with the rights and duties among individuals.
Areas of Public Law include:
Procedural Law (Civil, Criminal and Administrative Procedures as e.g. the law making process in Parliament)Areas of Private Law are:Civil Law (Contract, Torts, Real Property, [Trusts], Family, Inheritance) òBusiness Law (Commercial L., Company L., Negotiable Instruments, Insurance, Banking, Transport, Unfair Competition, Intellectual Property)Labour Law
Substantial Law – Adjective Law
Substantial law is about the material rights and duties, adjective law are the rules of the procedure to establish and enforce rights and duties.
Mandatory – non-mandatory/permissive rules
Some rules in the codes are only intended to be applied if the parties to acontract do not make any provision for the issue covered by the rule, whereas other rules prevail over agreements made by the parties.
For example: º 21 of the Austrian Commercial Agent Act prescribes the minimum period of notification of dismissal of a commercial agent with six months. Thus if the contract of a company with its commercial agent does not contain a clause regarding the dismissal period, the legal rule will apply. As it is a mandatory provision it also prevails if the company and its agent agree on a shorter dismissal period and either one later regrets this agreement and sues. A permissive rule would be however for the parties to agree on a dismissal period which amount e.g. to eight months.
4. Historical Development of Private LawRoman Law
After the enactment of the Twelve Tables (450 B.C.), a code that concentrated on the most important problems that had arisen under the customary law, a body of specialists called jurists emerged who studied the law systematically and practiced it by giving legal advice and by teaching. Case by case they developed the fundamental legal concepts e.g. obligation, property, pledge, contract, possession etc. and the methods of formal and substantial reasoning.
Formal reasoning works with the meaning of the words, parties’ intent, legislative purpose, analogy, and logical conclusions.
Substantial reasoning involves arguments based on values such as good faith, fairness (equity), public policy or practicability. It is important to notice that the jurists were no judges and their work was not concerned with the facts of the case; to ascertain the facts and to decide the cases was left to the judges; the jurists only gave legal opinions on which the judgment could be based.
By the end of the classical period of Roman Law in the 3rd century A.D. hundreds of law books and commentaries produced by the jurists had becometotally unmanageable. Around 530 A.D. the east-roman emperor Justinian compiled the material into four books: the Digests, the Institutes, the Constitutions, and the Novels, which where later labelled as Corpus Iuris Civilis, a monumental work of about 1 Million words.