Legal Language LEGAL SYSTEM Maciej Pichlak University of Wrocław Faculty of Law, Administration and Economics Department of Legal Theory and Philosophy of Law
Part one Legal system
The concept of legal system collection of elements internally organized Legal system is a system of binding legal norms, which are organized according to formal and material relations between them. Legal system and system of sources of law
MUNICIPAL LAW DOMESTIC or NATIONAL LAW LOCAL LAW
International law
International law - Public international law relations between sovereign states - Supranational law states and private individuals; limitation of state’s sovereignity by supranational jurisdiction (EU; ICC) - Quasi-legal systems of private organizations (FIFA) - Private international law (conflict of laws)
Concrete system and system as a type Civil law system Common law system Other systems (eg. bijuridical, religious) European Union law and public international law?
Laws in legal system PUBLIC – PRIVATE – CRIMINAL SUBSTANTIVE – PROCEDURAL – CONSTITUTIVE
PUBLIC INTERNATIONAL LAW Branches of law PUBLIC LAW PRIVATE LAW CRIMINAL LAW substantive Constitutional law Administrative law Civil law Family law Criminal law Fiscal law Law of commerce [Tort law] Tax crime law Labour law procedural Law of administrative proceeding Law of civil proceeding Law of criminal proceeding PUBLIC INTERNATIONAL LAW SUPRANATIONAL LAW
Branches of law Distinguished part of the system. - subject (sphere of social relations) - entities - mode of regulation - historical convention Consequences of belonging of the norm to the specific branch of law.
Types of relation Formal relation (competence) Material relation (content) Formal + material H I E R A C Y material BRANCHES
Hierarchy Formal relation of competence Material relation of content in a strong sense in a weak sense Consequences: lex superior derogat legi inferiori
Legal family Criteria for distinguishing: Historical background; Method of thought; Institutions; Sources of law; Dominant ideology.
PART TWO SOURCES OF LAW
The concept of source of law SOURCES OF LAW Fontes iuris oriundi Fontes iuris cognoscendi material formal official unofficial
Basic forms of law creating 1. Law-making governing, formalised, conventional act of public authorities Unilateral Multilateral (agreement, treaty) 2. Practice Customary law Case law
Poland: sources of universally binding law Constitution Laws (statutes) Ratified international treaties Executive orders (regulations, ordinals) Local laws (in the territory of the organ issuing such enactments) The principle of the closed system of sources of law
Poland: Internal law Resolutions and orders Article 93 of Polish constitution: Shall bind only those units organizationally subordinate to the organ which issues such act; shall not serve as the ground for decisions taken in respect of citizens, legal persons and other subjects; shall be subject to scrutiny regarding their compliance with universally binding law.
Law-creating practice Customary law Perpetuated and steady practice General conviction on a binding character (opinio iuris) Authentication by state authorities Public international law, commercial law, IT law Case law Precedent de iure (binding) or de facto (persuasive) Binding for future cases (stare decisis principle) Independent and sufficient ground for decision
European Union law Primary law (treaties – Treaty of Lisbon 2007) Secondary law Regulations Directives Decisions, opinions and recommendations Supplementary law Case law of CJEU General principles An autonomous system, at the same time forming a part of the state law of the member states.
European Union law Its position in the state law of the member states Direct effect (van Gend en Loos 1963) Supremacy/ Priority (Costa v. ENEL 1964) What about the hierarchy? German Constitutional Court: Solange I (1974) and Solange II (1986).
Branches of EU Law Constitutional law Competition law Law of internal market
Public international law Treaties Customary law Ius cogens Law created by international organization