Lesson 7 - Law in General

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LAW IN GENERAL

Get ready
What is Law ?
• The law is a set of legal rules that governs the way
members of a society act towards one another.
• Law is “ that portion of the established habit and
thought of mankind which has gained distinct and
formal recognition in the shape of uniform rules backed
by the authority and power of the Government”. Woodrow
Wilson

• Laws are required in society to regulate the behaviour


of the individual, to correspond with what is acceptable
to the majority of individuals.
•  Law pervades our lives
–  Law is a body of rules enacted by public officials
in a legitimate manner and backed by the force of
the state.
•  Law regulates the public and private institutions that
are a central part of our lives
•  Law is a word of many meanings— it is difficult to
define.
1. Concept

Law is a body of rules promulgated, recognized and


maintained by the state to regulate the human
behavior and conduct in a society; and to express
the ruling class’s will.
2. Origin of Law

-  The origin of law is as the origin of the state


+ In primitive commune society, customs and
religious dogmas were rules of society.
+ The development of society and economy lead to
changes social relations => a need for law.
3. Nature of Law

–  Class nature:

+ Law expresses the ruling class’ will

+ The purpose of law is to regulate social relations as


the ruling class wishes.
-  Social nature:
+ Law also expresses other classes’ will
+ Law is a tool that persons can apply to establish
social transactions
+ Law is a tool that persons can apply to regulate
their behaviours

Ex: Establish social transactions
Article 122 (Civil Code 2005): Conditions for civil
transactions to become effective
1. A civil transaction shall be effective when it meets all the
following conditions:
a/ The persons participating in the transaction have the civil
act capacity;
b/ The purpose and contents of the transaction do not violate
prohibitory provisions of law and are not contrary to social
ethics;
c/ The persons participating in the civil transaction act
completely voluntarily.
EX: Regulate persons’ behaviours

(Criminal Code): Refusal to rescue people from life-


threatening situation

1. Those who knows other persons are in life-


threatening danger but refuse to rescue them despite
having the ability to do so, thus contributing to the
latter’s death shall be subject to warning or non-
custodial reform for up to two years or a prison term
between three months and two years.
4. The relationships between law and other social
phenomena

1)  Law and economy

- Law is depended on economy

- Law effects economy on both sides: positively and


negatively
2) Law and politics
- The relationship between substance and form
- Law effects politics on both sides: positively and
negatively.
3) Law and State

–  Law is promulgated by state.

–  State’s operation must be based on the law



4) Law and other social norms
–  Law legalizes many social norms to become
law.
–  Social norms effect law on both sides:
positively and negatively.
5. Features of Law

•  Normative and common


•  Formative
•  Coercive
1) Normative and common

•  Normative:

-  Standard and pattern of conduct; it regulates the


human conduct.

-  It is a set of rules.

•  Common: impact on subjects (persons, organizations,


entities…) within a temporal and spatial domain.

-  Repeated actions.
2) Formative

A law is a written order - a set of instructions that


provides directions for human behavior. The entire
written content of a law is the "letter of the law," and
it is nothing more or less than the fixed arrangement
of its words and punctuation. The letter of the law
conveys the spirit of the law.
- It is the expression of the will of the people and is
generally written down to give it definiteness.

- It has certain amount of stability, fixity and


uniformity.
3) Coercive

Laws are the forcible means by which a government


achieves its goals; they are coercions, restrictions,
prohibitions, or commands for action that attempt to
regulate or change the behavior or status of those
individuals and institutions that are subject to the
law.
- It is created and maintained by the state.
- It is backed by coercive authority.
- Its violation leads to punishment.
To encourage individuals and institutions to comply
with the law, each law has a mechanism of
enforcement, or authorized sanction (the "carrot or
stick"), that is applied to accomplish the intent of the
law. Subsidies, fines, and imprisonment are examples
of mechanisms that may be used as the forcible
sanction of a law.
6. Functions of law

-  Regulating function: the law is a guidepost for


persons’ behavior.

-  Educating function:

- Protecting function:
7. Sources of law

•  Customary law
•  Precedents
•  Legal normative documents
1) Customary law

Customary laws are compulsory regulations that apply


to every member in a certain community.
•  Hal was married to Ruth for sixty-six years before he
passed away. According to Hal, every Sunday for
those sixty six years, Hal would prepare a brunch for
Ruth (provided they weren’t travelling away from
home). By any measure of consistency (“every
Sunday”) and duration (sixty-six years), this was an
established usage and practice of a particular
community—the Berman household. But, (…) is this
a binding custom? What if, Hal mused, one Sunday
morning he just didn’t feel like making brunch, or (in
a fit of pique) he was angry with Ruth and wanted to
withhold a meal? Could Ruth sue him for specific
performance? Had an informal usage ripened into a
legally-binding custom?
Characteristics of customary law

•  Customary law reflects norms and values of a


society.

•  Customary law mirrors social order and its


development.
•  Customary law are recognised and followed
voluntarily by all members of community (being
enforceable).

•  Customary law comprises not only the indispensable


rules of the community, but also is ‘the only
genuinely democratic mode of law making.
•  Customary law was related to rituals, social order and
hierarchy and other issues such as village security,
development and occupation reservation.

•  Having local features: customary law was considered


as local law.
Mode of recognition

- Recognition by legislation

The recognition of customary law may be expressed


in a nation’s constitution and other legal documents
(such as Acts and decrees), providing a legal status
for customary law at a national level.
- Recognition by the judiciary

For most countries that follow a Common Law


system (such as the United Kingdom, USA, Australia
and several states in Africa), the process of
recognition is basically accorded by judicial
decisions. Custom is qualified as law only after it is
applied by a judge to settle a dispute.
..\Legal reasoning\Case - Cay cha 19 tieng.doc

Note: Village Conventions

•  “Huong uoc” (village rule) of the Viet is the product


of an ethnicity which has developed to the level of
State organization. It is the record of rules concerning
the social organization as well as social life in a
village, the regulations gradually formulated in
history, readjusted and supplemented when
necessary.
•  “Huong uoc” is of the Viet (Kinh) majority people
and the product of village culture. It was written in
Han (Chinese), Nom (Demotic or ancient
Vietnamese) or Vietnamese scripts, and passed down
from generation to generation. It is likely that at first,
“huong uoc” was also made in verses and, like the
customary law, orally transmitted among villagers,
then later recorded in documents, in “huong uoc”.
2) Precedents

Concept:

- The making of law by court in recognizing and


applying new rules while administering justice

- A decided case that furnishes a basis for


determining later cases involving similar facts or
issues.
The doctrine of precedent or stare decisis has been
considered as ‘one of the most distinctive features’
of the English legal system where ‘every court is
bound to follow any case decided by a court above it
in the hierarchy, and appellate courts are bound by
their previous decisions’.
Components of precedents

Ratio decidendi

- Ratio decidendi’ is a Latin term which ostensibly


means ‘the reason for the decision’ or ‘reason for
deciding’.

..\Legal reasoning\Case examples\Brief Fact Summary -


Rylands v Fletcher.docx
Facts
Plaintiff owned and operated a mine adjacent
to which Defendant constructed an artificial
pond. The latter caused a mineshaft collapse,
which resulted in a flood, and damaged
Plaintiff’s operation. The plaintiff sued, the
matter was brought before an arbitrator to
independently establish facts. The trial court
found for Plaintiff; the appellate court
affirmed; Defendant appealed to the House of
Lords, which also affirmed.
Assumptions

1. Plaintiff owned and operated a mine adjacent to


which Defendant constructed an artificial pond.

2. Carelessness of workers.

3. Caused a mineshaft collapse, which resulted in a


flood, and damaged Plaintiff’s operation.
Obiter dictum

- Obiter dictum (or dictum) is a Latin phrase that


means what is said’ (dictum thing being said) ‘by the
way’, ‘incidentally’, or ‘in passing’ (obiter).
Roles of judicial precedents
•  Filling gaps in the legal system
Judges will decide in cases where legislation is silent,
judges have to make law (precedents) if there is a gap
in the legal system.
•  Functioning as statutory interpretation
•  ..\Legal reasoning\Case examples\Case presentation - Memorandum and Oral argument -
Donoghue v Stevenson.pptx
•  ...\Video for lessons\1. Donoghue v. Stevenson- The History of Law Reporting.webm
3) Legal normative documents system

The system of normative legal documents is the


whole body of normative legal documents
promulgated by the state or the authorities, such
documents complying with a compulsory form,
recognised procedure, and also containing the rules of
conduct in order to regulate social relations.

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