Legal system

Joanna Helios Wioletta Jedlecka

LLB

The notion of legal system

• A „system” is referred to a set of internally organized elements which are related to each other. According to the legal doctrine the components of legal system are legal norms.

Concrete legal system

• Concrete legal system is a set of norms valid in a clearly indicated time- spatial circumstances for example Polish law, French law, Germany law.

Legal system as a type

• Legal system as a „type” is referred to a theoretical construct distinguished to characteristic traits of some group of concrete legal systems. Among those types of legal system we differentiate for example:

• Civil law – characteristic for states where legal system has arisen from Roman law; also called „statutory law system” (Poland);

• Common law – characteristic for Anglo – Saxon states.

Principles of the law

• Principles of the law are the principles within the specific system of the law (including the principles of international law and EU law in the 28 member states) that are recognized as being particularly important, because they express the values that constitute the axiological bases (material and formal) of the law in general and its individual divisions or branches.

Divisions, typologies, cross sections

• The fundamental classification of the law by type of regulated social relations that dates back to the earliest times is the classification of the law into civil, criminal and administrative law.

Civil law

• Civil law socially standardizes the important relations between equal subjects of the law. This law provides autonomous subjects of the law with „tools” they can use to organize their affairs as they wish and their own responsibility.

Criminal law

• Criminal law defines acts that are recognized as crimes, i.e., culpable acts prohibited under threat of penalty, and standardises the principles of criminal liability.

Administrative law

•Administrative law regulates the governing administrative process in the state.

Public law vs. Private law

• The dichotomous division of the whole law into public and private law is also among the oldest one in European tradition, which dates back to ancient Rome.

Public vs. private

• The categories public and private have long been fundamental to liberal democratic understanding of social life. Yet however elementary the distinction between public and private may be in modern constitutional democracies, it is a distinction that invites confusion and ambivalence with respect to both its abstract meaning and its practical applications.

Private law

• Private law includes all the principles that regulate the autonomous and free activity of society in the social and economic sphere.

Private law

• The law is formed in such a way as to ensure that the solutions proposed to the parties provide for reasonable terms of cooperation, coordination and compromise. The parties are equal to each other and before the law. None of the entities has formal governing competencies with respect to others and, therefore, it cannot modify their legal situation.

Private law

• The real, specific legal relationship between subjects of the law (for example borrowing the book, donation of a work of art.) materializes and is only modified by the will of the parties themselves.

Private law

• If the legislator regulates some area of life in such a way, it is said that he has applied the civil law method of regulation (the position of the parties in the legal relations is equal, neither of the parties can unilaterally, authoritatively, change the legal situation of the other party).

Private law

•Private law provisions are base mainly on relatively valid norms (ius dispositivum).

Private law

• The authorities responsible for legal protection operate in private matters, but they do not act ex officio. The law doesn’t ensure the achievement of the legal effect unless the interested party actively pursues its right.

Private law

• The principle ignorance of the law harms is particularly important in private law – if the subjects of law do not know their rights, they will obviously not exercise them.

Private law

• Private law includes civil substantive law, including commercial law, understood as civil (private) law on commercial activities, the family and custodianship law, as well as international private law.

• A significant portion of the regulations of labour law, maritime law, environmental law and agricultural law is also of such a nature.

Privacy

• Privacy is an essential part of the complex social practice by means of which the social group recognizes – and communicates to the individual – that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. And this in turn presupposes that he believes that the concrete reality which he is, and through which his destiny is realized, belong to him in a moral sense.

Public law

• Public law is another area of regulation. Public law includes constitutional law, administrative law, criminal law, financial law, public law on commercial activities, criminal, civil and administrative procedures law and international public law. In addition to private law regulations, labour law, maritime law, environmental law and agricultural law also include public law regulations.

Public law

• Public law regulates the system of public authorities and relations between the state and society.

Public law

• Public authorities and other subjects of the law are parties to public law relations. Public law creates subordination relations between entities (competence subordination relations). The competence subordination relationship is expressed by one of the entities having a superior position to the other entity and being eble to form its legal position by its decisions.

Public law

• The subordinated entity is obliged to submit to the decision of the superior entity. This characteristic applies to administrative law relations, for example voivod – citizen relation, relations arising from procedural law, for example public prosecutor – suspect, and from financial law (tax authority- taxpayer).

Public law

• The method that uses this inequality of parties in the regulation is referred to as the administrative law method.

• Model structure of the norm: Entity A is obligated to / prohibited from C if entity P commits the conventional act K.

Public law

• Subordination relations are also regulated using the penal method. In this case, the fact that the states threatens the use of direct coercion (for example imprisonment or a fine) in the event of a violation of legal obligations is of decisive importance to the formation of relations between entities.

Public law

•Public law provisions are based on absolutely valid norms (ius cogens).

Public law

• In the event of identifying ius cogens, state authorities generally operate ex officio.• Authorities undertake obligatory

activities even if citizens are unaware of the wording of the law.

Substantive law, political law, procedural law

• All norms in the system of the law are traditionally and universally divided into norms of substantive, political and procedural law.

Substantive law

• Substantive law is composed of norms that directly regulate the respective social relations that are addressed to all of us (for example do not kill other people, do not steal, pay taxes). The norms of substantive law define who should behave how in what circumstances and specify the consequences of a lack of compliance with the law. Consequently, we have substantive civil law, substantive criminal law, substantive administrative law, etc.

Political law

• Political law includes norms that define the organization of public authorities, their competences and the legal forms for exercising these competencies (for example political administrative law, political financial law).

Procedural law

• Procedural law covers the norms that regulate all elements related to the mode of proceedings before public authorities, in situations of filing for claims, exercising competencies, enforcement of obligations and applying sanctions imposed by substantive law.

Procedural law

• There are civil, criminal and administrative procedural law regarding proceedings before courts (the so – called recourse to the law) and clearly different procedural law for proceeding before administrative authorities (the so – called administrative course of claiming rights).

The law applied in law courts

• Political law and procedural law are referred to as the formal law. Procedural law regarding the activities of courts is referred to as the law applied in law courts.

Branches of the law

• Separation of the law is also a part of tradition. The „branch of the law” is understood as a „sub – system” of the internal system of the law of a specific state that can be distinguished (and which can be named) on a basis of clearly identifiable sphere of social relations (for example family relations – family and custodianship law, labour relations – labour law, socially dangerous prohibited acts – criminal law).

Legal dogmatics

• Individual branches of the law (sub – systems of norms) have traditionally been dealt with by legal dogmatic sciences. Legal dogmatics is concerned with explanation, interpretation, structuring and justification of the wording of the legal provisions from the individual branches of the law.

De lege lata postulates and the lege ferenda postulates

• De lege lata postulates – referring to the interpretation of the applicable law.

• De lege ferenda postulates – referring to the interpretation of the future law.

Formal relations in legal system

• Formal relation is a relation of competence between two norms and is the most visible in hierarchy of norms. The content of norm situated higher in the hierarchy gives justification and basis of validity of the second one.

Material relation in legal system

• Material relation deals with content of norm. The content of the norm situated higher in the hierarchy determines the content of the inferior one. This kind of relations between two norms (superior N1 and inferior N2 which is inferred from N1) may have a strong interpretation (N2 is valid because it is an inferential consequence of N1) or a weak interpretation (N2 is valid because it is not in contradiction to N1).

Material relation

•Material relation deals with vertical (hierarchy of norms) and horizontal (the division into branches of law) systematization of the legal system.

Postulates of the legal system

• Postulate of completeness – no lacunas (loopholes) in the system.• Postulate of coherence – no

collisions between norms.

Loopholes in the law

•Loopholes can be divided into axiological and constructional.

Axiological lacuna

• Axiological lacuna is considered to be rather subjective: it is an outcome of comparing existing legal system with the ideal one. It might be divided into:

Extra legem

• The lack of the norm that should exist in the legal system (according to our opinion) is judged negatively.

Contra legem

• The existence of a norm is judged negatively; we assume that the norm covers a subject that shouldn’t be regulated or simply does it wrongly according to our point of view.

Praeter legem

•The existing regulation is judged negatively as too general.

Constructional lacuna

• Constructional lacuna is more objective and is an outcome of analyzing internal relations between the norms within the system by itself.

Specific lacuna – constructional lacuna

• Specific lacuna – law – making process was unfinished, what results in situation when there lacks a regulation that should be laid down according to another norm.

Technical lacuna – constructional lacuna

• Technical lacuna – despite fact the law making process has been finished, the regulation is incomplete.

Collisions in the law

• Collision in the law is a situation when two norms cannot be both applied. Collisions are divided into logical (contrariety and contradiction), praxeological and axiological.

Logical collision

• Can appear on the level of language wording (meaning) of norms. They are outcomes of legislator’s mistakes. Logical collisions are also called „virtual” or „formal”.

Contrariety

• Contrariety norms have partially equal hypothesis but different disposition. One can break both of them. For example: Someone is obliged to be in two different places in the same moment: on the Introduction to law and Constitutional law lecture. It is impossible to observe both norms, but on the other hand it is possible to break both of them.

Contradiction

• Contradiction – while breaking the first norm, one acts with compliance with the second one. For example: one norm obliges and the second one prohibits to be on this lecture.

Praxeological collision

• Praxeological collision is related to the level of implementing the norms in practice. Norms serve contrary goals. By this kind of collision an implementation of both norms might be sometimes possible but problematic: implementing of one norm may make the implementation of another one much more difficult or implementing of the second norm eliminates the effects of implementation of the first one. For example: „Open the door” / „Close the door”.

Axiological collision

• Appears on the level of values that norms serve and refers to a collision between two values. In this case both norms can be implied but only to some extent.

Collision rules

•We use collision rules in the case of collision between two valid norms. By using collision rules we are able to solve this kind of problem.

First order collision rules

• Lex superior derogat legi inferiori – superior norm suppresses inferior norm (hierarchical rule);

• Lex specialis derogat legi generali – particular norm suppresses general norm – whereby the detailed norm „replaces” the general norm only to to the extent to which it constitutes the exception to the latter, on condition, that the detailed norm is not lower in the hierarchy than the general norm. The general norm is not derogated (it is just not applied in this particular case) (substantive rule).

First order collision rules

• Lex posterior derogat legi priori – the norm that was laid down later suppresses the norm that was laid down earlier (chronological rule).

Second order collision rules

• Lex inferior posterior non derogat legi superiori priori - later inferior norm doesn’t suppress earlier superior norm;

• Lex inferior specialis non derogat legi superior generali – inferior particular norm doesn;t suppress superior general norm;

• Lex posterior generalis norm derogat legi priori speciali – later general norm doesn’t suppress earlier particular norm.