Copyrighted material – 9783319572512

Jaap Hage · Antonia Waltermann

Bram Akkermans Editors

Introduction
to Law
Second Edition
 Copyrighted material – 9783319572512

Jaap Hage
Antonia Waltermann
Bram Akkermans
Editors

Introduction
to Law
Second Edition
 Copyrighted material – 9783319572512

Editors
Jaap Hage Antonia Waltermann
Foundations and Methods of Law Maastricht University
Maastricht University Faculty of Law Maastricht, The Netherlands
Maastricht, The Netherlands
Bram Akkermans
Private Law
Maastricht University Faculty of Law
Maastricht, The Netherlands

ISBN 978-3-319-57251-2    ISBN 978-3-319-57252-9 (eBook)

DOI 10.1007/978-3-319-57252-9

Library of Congress Control Number: 2017949293

© Springer International Publishing Switzerland 2014, 2017

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole
or part of the material is concerned, specifically the rights of translation, reprinting, reuse of
illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical
way, and transmission or information storage and retrieval, electronic adaptation, computer
software, or by similar or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in
this publication does not imply, even in the absence of a specific statement, that such names
are exempt from the relevant protective laws and regulations and therefore free for general
use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the pub-
lisher nor the authors or the editors give a warranty, express or implied, with respect to the
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The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
 Copyrighted material – 9783319572512 V

Preface

The Introduction to Law that you are now holding in your hands is special in the
sense that it introduces students to law in general and not to the law of one
specific jurisdiction. It has been written with two goals in mind. First, this book
is meant to be used in the course Introduction to Law of the Maastricht Euro-
pean Law School. This course aims to provide law students with the global
knowledge of the basic legal concepts, elementary philosophy of law, and main
fields of law. Since the European Law School does not exclusively focus on the
law of one particular European jurisdiction, there is a need for an introductory
course that also abstracts from the law of specific jurisdictions.

Second, and perhaps more importantly, this book reflects a special way of look-
ing at legal education. We believe that it is of crucial importance for lawyers to
be aware of the different ways in which societal problems can be solved and to
be able to argue about the advantages and disadvantages of different legal solu-
tions. Being a lawyer involves, on this view, being able to reason like a lawyer,
even more than having detailed knowledge of particular sets of rules. The pres-
ent Introduction to Law reflects this view by paying explicit attention to the
functions of rules and to ways of reasoning about the qualities of different legal
solutions. Where «positive» law is discussed, the emphasis is on the legal ques-
tions that must be addressed by a field of law and on the different kinds of
solutions that have been adopted by—for instance—the common law and the
civil law tradition. The law of specific jurisdictions is mainly discussed by way
of illustration of a possible answer to, for instance, the question when the exis-
tence of a valid contract is assumed.

This is the second edition of the book. The list of persons who deserve grati-
tude for their contributions to the present and earlier editions has become too
long to mention in full. Therefore we will confine ourselves to those whose role
has been particularly important for this second edition. The chapter on tort law
is based on an original text written by Gerrit van Maanen, and its present ver-
sion has benefited from extensive comments by Cees van Dam. Sjoerd Claes-
sens improved the chapter on the law of Europe. Daniel Hannappel has taken
care of the format of the text, and Rebecca Kumi has improved the quality of
the English. Last but not least, thanks go to all the students and tutors who used
this book in our Maastricht Introduction to Law course and reported on their
findings.
 Copyrighted material – 9783319572512
VI Preface

The editors of Introduction to Law are interested in your opinion of this book.
We therefore invite you to send comments, suggestions, and questions to
[email protected].

Jaap Hage
Antonia Waltermann
Bram Akkermans
Maastricht, The Netherlands
February 2017
 Copyrighted material – 9783319572512 VII

Contents

1 Sources of Law����������������������������������������������������������������������������������������������������� 1
Jaap Hage

2 Legal Reasoning����������������������������������������������������������������������������������������������� 21
Jaap Hage

3 Basic Concepts of Law������������������������������������������������������������������������������������ 33

Jaap Hage

4 The Law of Contract���������������������������������������������������������������������������������������� 53

Jan Smits

5 Property Law������������������������������������������������������������������������������������������������������ 79
Bram Akkermans

6 Tort Law������������������������������������������������������������������������������������������������������������� 109

Jaap Hage

7 Criminal Law���������������������������������������������������������������������������������������������������� 129

Johannes Keiler, Michele Panzavolta, and David Roef

8 Constitutional Law��������������������������������������������������������������������������������������� 165

Aalt Willem Heringa

9 Administrative Law�������������������������������������������������������������������������������������� 201

Chris Backes and Mariolina Eliantonio

10 The Law of Europe���������������������������������������������������������������������������������������� 229

Jaap Hage

11 Tax Law�������������������������������������������������������������������������������������������������������������� 251

Marcel Schaper

12 International Law������������������������������������������������������������������������������������������ 277

Menno T. Kamminga

13 Human Rights������������������������������������������������������������������������������������������������� 303

Gustavo Arosemena
 Copyrighted material – 9783319572512
VIII Contents

14 Elements of Procedural Law��������������������������������������������������������������������� 331

Fokke Fernhout and Remco van Rhee

15 Philosophy of Law����������������������������������������������������������������������������������������� 359

Jaap Hage

Supplementary Information
Index����������������������������������������������������������������������������������������������������������������������������������� 385
 Copyrighted material – 9783319572512 IX

Contributors

Bram Akkermans Menno T. Kamminga

Maastricht European Private Law Maastricht Centre for Human Rights
Institute (M-EPLI), Maastricht University
Maastricht University Maastricht, The ­Netherlands
Maastricht, The Netherlands [email protected]
[email protected]
Johannes Keiler
Gustavo Arosemena Maastricht University
Maastricht University Maastricht, The Netherlands
Maastricht, The Netherlands [email protected]
[email protected]
Michele Panzavolta
Chris Backes Katholieke Universiteit Leuven
Utrecht University Leuven, Belgium
Utrecht, The Netherlands [email protected]
[email protected]
David Roef
Mariolina Eliantonio Maastricht University
Maastricht University Maastricht, The Netherlands
Maastricht, The Netherlands [email protected]
[email protected]

Marcel Schaper
Fokke Fernhout
Maastricht University
Maastricht University
Maastricht, The Netherlands
Maastricht, The Netherlands
[email protected]
[email protected]

Jaap Hage Jan Smits

Maastricht University Maastricht European Private Law
Maastricht, The Netherlands Institute (M-EPLI)
[email protected] Maastricht University
Maastricht, The Netherlands
Aalt Willem Heringa [email protected]
Maastricht Montesquieu Institute
Maastricht University Remco van Rhee
Maastricht, The Netherlands Maastricht European Private Law
[email protected] Institute (M-EPLI)
Maastricht University
Maastricht, The Netherlands
[email protected]
 Copyrighted material – 9783319572512 1 1

Sources of Law
Jaap Hage

1 What Is Law? – 2
2 Roman Law – 4
2.1 Tribal Customary Law – 4
2.2 Codification – 6
2.3 Praetor and Iudex – 7
2.4 The Corpus Iuris Civilis – 7

3 Common Law – 8
3.1 Royal Justices – 8
3.2 Precedent – 9
3.3 Equity – 11

4 Ius Commune – 12

5 National States and Codification – 14

5.1 Codification – 15
5.2 Legal Families – 16
5.3 Transnational Law – 17

6 Conclusion – 20

Recommended Literature – 20

© Springer International Publishing Switzerland 2017

J. Hage et al. (eds.), Introduction to Law, DOI 10.1007/978-3-319-57252-9_1
 Copyrighted material – 9783319572512
2 J. Hage

1 What Is Law?
1
The main question that any introduction to law must answer
deals with the nature of law. Although the need for the char-
acterization of the nature of law is obvious, it is a need that is
not easily satisfied. The law is multifaceted, and arguably has
been in flux over the centuries. In this current age of global-
ization and Europeanization, it is changing at such a high
speed that it is impossible to give a short definition of law
from the outset. What is possible, however, is to mention a
few characteristics of law. The majority of legal phenomena
share most of these characteristics, but not all legal phenom-
ena share all of them.
Rules A substantial part of law exists in the form of rules. These
rules do not only specify how people should behave («Do not
steal», «Everybody with an income must pay income tax»),
but they also contain definitions of terms, create competen-
cies, and much more.
An example of a rule that gives a definition of a term can
be found in Article 1 of the International Convention on the
Elimination of All Forms of Racial Discrimination, which
defines racial discrimination as

«… any distinction, exclusion, restriction or preference based on

race, color, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural
or any other field of public life».

Article 37, Section 1 of the International Covenant on Civil

and Political Rights provides an example of a rule that creates
a competency for the Secretary-­ General of the United
Nations. It states, in connection with the Human Rights
Committee:

«The Secretary-General of the United Nations shall convene the

initial meeting of the Committee at the Headquarters of the
United Nations».

Society is governed not only by legal rules but also by other

types of rules. In the next section, we will have a closer look at
the law’s most important relative – morality and moral rules –
but there are also other types of rules, such as the rules that
belong to:
Sources of Law
Copyrighted material – 9783319572512 3 1
55 A religion (e.g., the Ten Commandments)
55 Etiquette (e.g., «Eat with a knife and fork»)
55 Special organizations such as student associations (e.g.,
«Every member must perform bar service twice a
month»)

Legal rules are normally enforced by collective means and Collective enforcement
in particular by organs of the State, while other rules typi-
cally are not. Moreover, legal rules have very specific sanc-
tions, such as incarceration, fines, compensation of damage,
etc., while the sanctions of non-legal rules are less specific.
For instance, someone who has committed a crime and bro-
ken a legal rule is liable to be punished by State organs such
as the police and the prosecution service. However, from a
moral point of view it is wrong to lie. While liars may be
liable to informal and private sanctions such as reproach
and avoidance, they will seldom be sanctioned by collective
means.
At present, most laws are explicitly created by means of Positive law
legislation or judicial decisions. These laws are called «posi-
tive law». The word «positive» in this connection is derived
from the Latin positus, which literally means «laid down». The
idea that law is explicitly created seems so obvious that the
expression «positive law» has almost become synonymous
with «the law that is valid here and now». However, the
increasing importance of non-State rules is a reason to ques-
tion this obviousness.
It is often easy to establish the contents of positive law. The Legal certainty
rules only need to be looked up in legislation or in judicial
decisions. This may take some time, but in the end, it is often
possible to establish the contents of the law beyond a reason-
able doubt: positive law offers legal certainty. Therefore, it is
usually unnecessary to invoke an authority such as a judge to
settle a legal dispute. The parties can predict what the judge’s
decision would be, and in that way save both them and society
at large, time and money.
If the issue at stake is not what the positive law is, but
rather what is «really» right, it may be much harder to reach
an agreement. People often disagree about what is right or
wrong. This predicament creates less favorable conditions for
a smooth functioning society than the certainty of positive
law. Often it is better to have no conflicts or fast solutions for
conflicts, than to have a laboriously reached «right» solution.
Therefore, law often prefers the certainty of a clear result over
the uncertainty of the «best» solution for a problem.
 Copyrighted material – 9783319572512
4 J. Hage

Positive law also offers legal certainty in a different man-

1 ner, namely by providing collective support for the enforce-
ment of legal duties. If people are left to their own devices
when it comes to enforcing their rights, this decreases the
certainty that the rights will be respected.
A third aspect of legal certainty is that similar cases are
treated in a similar fashion or – in other words – that the law
will be applied consistently. For instance, if one citizen is
granted a building permit, legal certainty requires that another
citizen in exactly the same position should also be granted a
building permit.
So legal certainty has at least three aspects:
1. Certainty about the content of the law
2. Certainty that the law will be enforced
3. Certainty that the law will be applied consistently

2 Roman Law

Our present-day law did not fall out of the blue sky; it is rather
the outcome of a historical development in which the sources
of law play an important role. As the easiest way to obtain an
understanding of legal sources is through history, we will
sketch the development of the law in Europe through time. In
this examination, Roman law and common law play a central
role.
Historical descriptions of the development of law in
Europe often start with the impressive legal system built by
the Romans in the period ranging from the eighth century
BCE (Before Common Era) until the sixth century CE
(Common Era). Impressive as the Roman system may have
become over the course of these centuries, it started out in a
simple form: tribal customary law.

2.1 Tribal Customary Law

Nowadays, we are very much accustomed to the idea of law as

being the law of a particular country, such as German law or
English law. More recently, we have seen the emergence of
European law existing concurrently with national laws in the
countries that make up the European Union. Moreover, for a
number of centuries, a body of law has existed that governs
the relations between States. This body is called «public inter-
national law».
Sources of Law
Copyrighted material – 9783319572512 5 1
However, the law of the Romans was not the law of a coun-
try or a State, but the law of a people, namely the Roman peo-
ple. Since they were comprised of a tribal group whose
members were connected mostly by family ties, the early law
of the Romans was tribal law.

It is also possible to have law that is not connected to a particular terri-

tory or a particular people, but to a particular religion. Examples are
Talmudic law, attached to the Jewish religion, and Shari’a law, attached
to the Islam.

As a people grows larger, the main ties between its members

can no longer be family ties, or at least not close family ties.
The binding factor will then be a shared culture, for instance
based on a common religion or language. We call such a peo-
ple with a shared culture a «nation».
As are most tribal laws, early Roman law was customary Customary law
law. Customary law consists of guidelines for behavior that
have grown spontaneously in a society, such as a tribe, in the
form of mutual expectations. After some time, these expecta-
tions are accepted as binding.

An example would be that the head of the tribe gets the first
pick when an animal is caught in a hunt. For the first few times,
this may be merely a kind gesture by the hunters towards the
tribal leader. However, if it is repeated over a period of time,
members of the tribe will count on its reoccurrence and there
will be reproaches if the chief does not get the first pick. In the
end, these reproaches may become so serious that the hunt-
ers will be punished if they do not offer the chief the first pick.

These guidelines are transmitted from generation to genera-

tion and are considered to be «natural» and rational. As such,
their origin is frequently attributed to a historical, often
divine, legislator.

An example would be the Ten Commandments and other rules

that were, according to the Torah, given to the Jewish people
by God on Mount Sinai, through the intermediary of Moses.

This ascription to a historical legislator explains another char-

acteristic of customary law, namely that it is taken to be
immutable. The law was such since time immemorial and will
never change. However, as customary law starts as unwritten
law, there may be gradual changes that go unnoticed because
there are no texts that facilitate the comparison of recent law
 Copyrighted material – 9783319572512
6 J. Hage

with that of older generations. As a consequence, customary

1 law may change slowly over the course of time, adapting itself
to circumstances, while its image of being natural and
­immutable may remain intact.
Although customary law is often retrospectively ascribed
to a legislator, it is typically not the result of legislation. It con-
sists of rules that are actually used in a society to govern the
relations between the members of this society and are usually
not easily distinguishable from religious and moral precepts.
It is only at a later stage of the development of a legal system
that the distinction between legal, moral, and religious pre-
cepts can be made.

Arguably, such a sharp distinction presupposes a separation between

church and State, a separation that has gradually grown in the Western
world since the late Middle Ages. It should be noted that this separation
has not been accepted in a number of non-Western countries, particu-
larly those that aim to follow some form of Islamic law.

2.2 Codification

Customary law starts as unwritten law, but this does not pre-
clude it being written down at some stage. Part of Roman law,
for instance, was written down in 451 BCE on what is now
called the «Twelve Tables». The reason for this was that if
there was any doubt, customary law could be interpreted by
the pontiffs, officials who came from the cast of patricians, the
societal upper class. The plebeians, the lower social class,
objected to this practice of interpretation, because they
feared that the pontiffs might use their power to interpret the
law to the advantage of the patricians. If customary law were
written down and published, its contents could be inspected
by anyone who could read. This is another example of why
the certainty of law is important: it makes it more difficult for
rules that govern society to be manipulated to the advantage
of a few.
If customary law is written down, the law is then described
as having been codified. All codified laws are written law, and
in this sense resemble law that was created by means of legis-
lation. Still, there is a difference: law that was codified already
existed before the codification, while law that was created
through legislation did not exist before it was written down.

The terminology concerning codification is not always consistent, how-

ever. Sometimes the expression «codified law» is used in general for law
contained in legislation.
Sources of Law
Copyrighted material – 9783319572512 7 1
2.3 Praetor and Iudex

If two parties have a dispute about a particular case, the legal

solution will depend on two factors: the facts of the case and
the contents of the law. In Roman law, these two factors were
linked with two roles in the legal procedure, namely the role
of the praetor and the role of the iudex (judge).
If one party wanted to sue another, he had to first approach
a praetor and explain his case. If the praetor was of the opinion
that the case might be successful, he would formulate a kind
of legal instruction (the formula) for the iudex, in which this
judge would be told to grant the suing party a legal remedy if
he believed that the factual conditions had been fulfilled. It
was then up to the judge to determine what the facts of the
case actually were and whether these facts, in light of the for-
mula provided by the praetor, justified the remedy. This divi-
sion of roles made the praetor responsible for establishing the
precise content of the law and the iudex responsible for the
determination of the case facts. As the role of the iudex did
not require any special legal knowledge, it was fulfilled by lay-
men.

In modern times, we find a role similar to that of the iudex in juries, con-
sisting of laymen who must decide about the facts of the case. In crimi-
nal cases, the finding of the juries will be «guilty» or «not guilty». If a jury
fulfills the function of the iudex, the function of the judge will resemble
that of the praetor.

Because the praetor had the task of interpreting the law, he Jurists
had a considerable influence on the content of the law.
However, the function of the praetor was first and foremost a
political one, a stepping-stone to becoming a consul. The
praetor was therefore not necessarily a trained lawyer, and
perhaps to remedy this deficiency, was advised by jurists, who
also advised the process parties. As a consequence, jurists
had, through their advice, a great degree of influence on the
development of Roman law.

2.4 The Corpus Iuris Civilis

In the year 395 BCE, the Roman Empire, which had come to
encompass large parts of Europe, North Africa, and parts of
the Middle East, was split into Western and Eastern halves.
Not long thereafter, the Western Empire succumbed to an
invasion by the Germanic tribes, precipitating the fall and
plunder of Rome in 455 CE.
 Copyrighted material – 9783319572512
8 J. Hage

The Eastern Empire survived until the fall of its capital

1 Constantinople (now Istanbul), in a war against the Turkish
Ottoman Empire in 1453. However, long before that, the
Eastern Empire reached a cultural summit with the Corpus
Iuris Civilis. This Corpus was an attempt to codify the existing
Roman law and was published in several parts on the order of
Emperor Justinianus from 529 to 534. The first part, the
Codex, contained imperial legislation spanning several centu-
ries. The second part consisted of the Digest, a collection of
excerpts from writings of jurists from the period of about 100
BCE until 300 CE. The third part, the Institutions, was a stu-
dent textbook.

3 Common Law

After the fall of the Western Roman Empire, the law of

Western Europe to a large extent returned to customary tribal
law, namely to the law of the Germanic tribes that had taken
possession of the area. In the High Middle Ages (the eleventh
century until the fifteenth century), several developments
took place that had an enduring influence on the evolution of
law in Europe. One of them was the rediscovery of Roman
law, starting from the eleventh century. This rediscovery and
subsequent «reception» of Roman law turned out to be very
influential on the development of private law on the European
continent. In England however, Roman law had much less
influence, due to another important development, specifically
the rise of common law.

3.1 Royal Justices

The development of common law as a separate legal system

dates back to 1066 when the Norman King William I (the
Conqueror) invaded and conquered England. This initiated a
movement towards the unification of the English legal system,
which until then mostly consisted of local customary law.
The unification was brought about by means of a system of
royal representatives who traveled through the country to
administer the law. The task of these royal justices was to
apply everywhere the same law, the law which would eventu-
ally become the Common Law of England. The emergence of
central courts of justice in the thirteenth century further con-
tributed to the promulgation of common law as they f­ acilitated
Sources of Law
Copyrighted material – 9783319572512 9 1
uniform application of the law all over the country. For law to
be uniform, it is not only essential that the rules are the same
everywhere, but also that these rules are applied in the same
way. The law consists as much of its rules, as it does in the way
these rules are applied.
The existence of a uniform legal system in England is one
of the reasons why the rediscovery of Roman law, while hav-
ing tremendous influence on the development of continental
European law, left English law largely unaffected. As a conse-
quence, the English legal system and the legal systems of the
continent developed more or less independently of one
another. One of the most conspicuous differences resulting
from this separate development is that continental legal rea-
soning focuses on the creation and the application of mostly
statutory rules, while the emphasis in the common law tradi-
tion has been on reasoning by way of analogy to previous
cases. This is a consequence of the doctrine of stare decisis, to
which we will now turn.

3.2 Precedent

Customary rules come into being if they are actually used by

judges and other legal decision makers, among others. An
example would be the following: A peasant sells a cow to
another peasant. The cow turns out to be sick and dies within
a few weeks. The second peasant wants his money back. The
seller refuses to return the money and says that the buyer
should have paid more attention to his purchase. If he had
done so, he might have known that the cow was sick. The case
comes before a judge, who agrees with the seller: the buyer
should have been more attentive, since the illness of the cow
would have been detected had there been a more careful
inspection of the animal. In future cases, there is no longer a
need to go to a judge about the sale of an unhealthy animal, if
the animal’s bad condition might have been discovered
through careful inspection. In such cases, no money will be
returned from the seller to the buyer. The decision of the
judge will function as a precedent for future cases. Moreover,
after some time, the rule that previously discoverable illnesses
in cows does not constitute a reason to request the return of
the sale price will be considered customary law.
Judicial decisions can and often will function as prece-
dents. There are two ways to interpret this. The first interpre-
tation is that the decision of the judge is evidence of the law
 Copyrighted material – 9783319572512
10 J. Hage

already existing before the judge gave his decision. If the rule
1 already existed, it is clear that the same rule should be applied
in future cases and by other judges. A second interpretation is
that the judge, in giving his decision, created a new rule that
did not yet exist, but will exist from that moment onwards. It
is also understandable that in this interpretation, other judges
will have to apply the rule in future cases. It is this second
interpretation, namely that courts’ decisions create the law
rather than merely state it, that has become prevalent in the
twentieth century.

In earlier centuries, the view that judicial decisions were merely evidence
of pre-existing law was the fashionable one. Blackstone, a famous
English lawyer from the eighteenth century, wrote that: «[…] the deci-
sions of courts of justice are the evidence of what is common law».
(Emphasis added.)

Stare decisis The second interpretation is confirmed in the doctrine of stare

decisis (Latin for «stand by your decisions»). According to this
doctrine, if a court has decided a case in a particular way, then
the same court and the courts that are inferior to it, must give
the same decision in similar future cases.

In 1966 the highest English court, the House of Lords (since 2009: the
Supreme Court, and to be distinguished from the political «House of
Lords»), announced that it would not consider itself bound by its own
previous decisions anymore. By this announcement, it created for itself
an exception to the stare decisis rule.

Case-based reasoning The custom to decide cases by analogy to previous cases com-
bined with the doctrine of stare decisis means that common
law has developed on the basis of precedents and case law.
English legal reasoning has therefore become a form of case-
based reasoning, comparing and contrasting new cases with
old cases that have already been decided. Although legislation
also plays a role in English law, the emphasis has traditionally
been on common law, which consists of a large body of cases.
It may be argued, however, that this focus on cases instead of
legislation has lost importance with the United Kingdom’s
membership in the European Union, as the laws of the
European Member States are converging.
Common Law tradition The English legal tradition has been exported to the mem-
bers of the British Commonwealth. Consequently, it is not
only England using common law, but also Ireland, Wales,
most States in the USA, Canada, Australia, and many of
Britain’s former colonies. While the common laws of these
countries have their basis in old precedents stemming from
the time the British Empire, they have grown apart since
Sources of Law
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becoming independent. Nevertheless, precedents set in one
common law country may often still play a role in another
common law country. In this way, common law is a major
legal tradition, standing side by side with the civil law tradi-
tion of continental Europe.

3.3 Equity

This picture of the common law tradition would be one-sided

if it did not pay some attention to the phenomenon of equity.
Just like case law and legislation, equity forms part of the law
in common law countries. Following the tradition of common
law, equity is also a kind of judge-made law. However, there
are some important differences.
Equity originated in the fourteenth century in England,
when those who were unhappy about the outcome of com-
mon law procedures petitioned the King to intervene on their
behalf. If the outcome of the common law for a particular
case was found to be very inequitable, the King, or rather his
secretariat, the Chancery, might ask the common law courts
to reconsider the case. In time, the Chancery began to deal
with such cases itself, and petitions came to be directed
immediately to the Chancellor (the King’s secretary) rather
than to the King. A subsequent Court of Chancery eventually
developed over centuries, creating a separate branch of law:
equity.
Equity consists of a body of rules and principles that were Fairness
developed to mitigate the harsh results that may, in some
cases, arise from the application of common law. As the term
“equity” suggests, this part of the law is particularly focused
on obtaining fair results.
Originally, equity may have been merely a correction to
common law. However, in the course of time, some branches
of law were only developed in equity, the law of trusts being
the most prominent example.

The following example illustrates how equity differs from the

common law. Angela is an unmarried woman of means who
has a 2-year-old son Michael. Angela wants to give £50.000 to
Michael, in the unexpected case that she might die. However,
Michael is too young to deal with this sum of money. Therefore,
Angela trusts the money to her friend Jane, who will act as a
safe keeper for Michaels’ money. Under the regime of the com-
mon law, Jane would be the sole owner of the money and it
would depend on her benevolence whether she keeps the
 Copyrighted material – 9783319572512
12 J. Hage

money for Michael. Michael would have no legal remedy if

1 Jane abused her position. That is unfair, since the money was
meant for Michael, and Jane was entrusted with it for Michael.
In equity, it is possible to provide Michael with a more robust
legal position. Jane will be the legal owner of the money (in
common law), but acts as a «trustee». Michael will be the
«beneficiary owner» (owner in equity) of the same money, and
has a legal remedy against Jane if she does not keep the
money for him.

Although nowadays it may be correct to state that equity is

part of the common law tradition, originally equity was
meant as an exception to the law. This difference is still
reflected in English terminology, where the distinction is
made between what holds at law (the common law) and in
equity.
The historic roots of equity, namely that equity was applied
by the Court of Chancery as a correction to «ordinary» com-
mon law courts, explains that equity was originally applied by
separate courts. Reforms in the court structure of England in
the nineteenth and twentieth centuries have meant that a
single court can now apply both common law and the princi-
ples of equity to resolve disputes.

It is a matter of on-going debate whether this fusion of courts has also

led to the fusion of common law and equity, or that – as metaphor would
have it – «the two streams of jurisdiction, though they run in the same
channel, run side by side and do not mix their waters».

4 Ius Commune

For most of the Middle Ages (roughly the fifth to fifteenth

centuries), Western Europe was divided into a variety of
smaller and larger territories, inhabited by different peoples.
These territories had their own local customary law, and as a
consequence the law in Europe was diverse. As far as legal
science was concerned, this situation gradually changed after
the rediscovery in Northern Italy of the Digest, around 1100.
The Digest became an object of study at the newly founded
University of Bologna.
Canon law Alongside the Digest becoming the renewed object of sci-
entific study, so did the law of the Roman Catholic Church,
Canon law. Canon law dealt with the internal organization of
the church, but also with civil affairs such as marriage, con-
tracts, and wills.
Sources of Law
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There were a lot of diverse texts which discussed this Canon law and
they were not always consistent. In 1140, the Decretum Gratiani was
compiled: a collection of existing texts that were relevant for Canon law.
This document was an attempt to make these diverse texts consistent.

Roman law and Canon law were usually studied together. This
is still reflected in the titles «Bachelor of Laws» and «Master of
Laws» (plural). In the abbreviation «LLM», which stands for
«Master of Laws» the two L’s represent these two branches of
law.
The law schools in an increasing number of universities Reception of Roman
(such as Bologna and Orléans) became quite popular and law
attracted students from all over Europe. When the students
returned home, they took knowledge of Roman and Canon
laws with them. In this way, the same body of legal knowledge
was spread over Europe.
At first, the practical relevance of this European «com-
mon law», which is known under the Latin name ius com-
mune, was not very substantial because local customary law
was still the standard. Gradually however, local customary
law was found to be inadequate, either because of its less
sophisticated contents, or because it was difficult to access
given its unwritten character, and the ius commune became
more influential. This process, in which Roman law in a sense
«conquered» legal science in Europe from the twelfth to the
seventeenth century, has become known as the «Reception»
of Roman law.
One of the reasons why Roman law gained acceptance is Natural law
that it was considered to be rational; well-informed people
would readily see that it contained good, if not the best pos-
sible, rules. Roman law was seen as ratio scripta, «reason writ-
ten down».
Being rational has always been one of the modes of exis-
tence of the law: rules were considered to be legal rules
because they were rational. We can find evidence of this in the
definition of law given to us in the thirteenth century by the
Christian theologian and philosopher Thomas Aquinas.

According to his definition, the law is «a rational ordering of things

which concern the common good, promulgated by whoever is charged
with the care of the community». This definition was, by the way, not
intended as a characterization of Roman law.

During the seventeenth and eighteenth centuries, there was a

strong movement among learned legal writers emphasizing
the rational nature of the law, and many authors attempted to
 Copyrighted material – 9783319572512
14 J. Hage

establish the contents of law purely by means of reasoning.

1 Law that was established by means of reason was usually dis-
cussed under the heading of «natural law».

Hugo Grotius (1583–1645) developed in his book De iure belli ac pacis

(On the Law of War and Peace) the outlines of international law and pri-
vate law on a rational basis.

Samuel von Pufendorf (1632–1694) in his book De officio hominis et civis

juxta legem naturalem libri duo (On The Duty of Man and Citizen
According to the Natural Law) developed large parts of private law, also
on the basis of reasoning alone.

Christian Wolff (1679–1754) undertook a similar enterprise in his Jus

naturae methodo scientifica pertractatum (Natural Law Dealt With by the
Method of Science).

5 National States and Codification

Peace of Westphalia England was already, to a large extent, united by the eleventh
century. On the European continent however, the unification,
in which small territorial units combined into bigger ones,
was a longer process. Although the unification of Italy and of
Germany took place only during the nineteenth century, it is
often assumed that the process of State formation on the con-
tinent reached a provisional end point in 1648, when a num-
ber of wars were ended with the peace treaties of Westphalia.
In this series of treaties, Europe was divided into individual
Nation-States (each corresponding to a nation), which were
assumed to be sovereign, meaning that each State would have
exclusive power over its own territory.
National law One of the consequences of this development was that law
was to become primarily national law. Originally, the law was
the law of a people or tribe rather than that of a territory.
Later, when the different peoples who had flooded Europe in
the period of mass migrations (fourth to sixth centuries CE)
had settled down and began to mix, the law became local law
and attached to territories of varying sizes. Only when the
national States had formed could the law become the law of a
Nation State.
Westphalian duo Alongside this national law, there was law that dealt with
mutual relations between the national States. This law is called
International Public Law. National State law and international
public law were taken to exhaust the forms that the law could
take. These two became known as the «Westphalian duo». See
. Fig. 1.1.
Sources of Law
Copyrighted material – 9783319572512 15 1

State State

x x
x x

x x

Citizens
x
x

x
State

..      Fig. 1.1 The Westphalian duo

5.1 Codification

With the arrival of national States, law could become national

law, but it still took several centuries before this process of
nationalization was finished. A major step was taken with the
French Revolution (1789–1799), in which the line of French
kings was replaced, first by revolutionary agents and later by
an emperor, Napoleon Bonaparte. It was Napoleon’s reign that
led to the codification of French law.
Shortly after the French Revolution, French law was codi-
fied in the form of a number of «Codes». They included the
Code civil (private law), the Code de commerce (commerce
law), the Code de procédure civile (law of civil procedure), the
Code pénal (substantive criminal law), and the Code
d’instruction criminelle (procedural criminal law). This codifi-
cation, like others, served several purposes:
55 It brought about legal unity in France, where the law, at
least in part, had differed from region to region.
55 It created legal certainty as the law was written down and
could, at least in theory, be inspected by anyone.
55 It emphasized the legal power of the central lawmaking
agencies as opposed to the local judges.
 Copyrighted material – 9783319572512
16 J. Hage

55 It guaranteed the influence of the people on the contents

1 of the law because democratic organs have influence on
the legislative process. (This last purpose only became
relevant later, when democracy became more important).

Partly under the influence of the Napoleonic conquest of large

parts of Europe, codifications were introduced at the begin-
ning of the nineteenth century in several European countries,
including Belgium and the Netherlands.
Historical School Germany notably lagged behind because a strong resis-
tance movement rose against codification. This is remarkable
since some codifications in Germanic countries such as
Bavaria and Prussia actually preceded French codification.
However, on the whole, codification for the full German
empire was (temporarily) postponed.
Under the leadership of Von Savigny (1779–1861), a
famous law professor in Berlin, it was argued that the law of a
nation reflected the «spirit» of that nation (the Volksgeist).
Codification would fossilize the law, meaning that the crucial
connection between the law and the spirit of the people would
be lost. Respectively, codification should be preceded by his-
torical research on the origins of law and the reasoning behind
the law. The perspective of this movement, of which Von
Savigny was one of the most important representatives, gave
the «Historical School» its name.
In practice, this alleged relationship between the spirit of
the people and the development of law was maintained by
legal scholars. They wrote comments on the Digest and, in
doing so, gradually adapted the law to the needs of society.
The development of law in Germany was as a consequence
driven by legal scholars. By the end of the nineteenth century,
the resistance against codification lost its battle. In 1900, a
codified German civil code, the Bürgerliches Gesetzbuch,
entered into force.

5.2 Legal Families

Common law family Developments in the law of Europe during the second millen-
nium divided the national legal systems in Europe into two
«legal families». The common law family, which includes
England, Wales, and Ireland, were not as influenced by the
reception of Roman law as were their counterparts on the
continent. This is because common law development of was
driven by the judiciary, as judges made new law through their
decisions. It must be said that more recently, legislation has
Sources of Law
Copyrighted material – 9783319572512 17 1
become an important source of the law in common law coun-
tries as well.

Scottish law was influenced by both the common law and the civil law
tradition. It is a «mixed legal system».

The great counterpart of the common law family in Europe is Civil law family
the civil law family. The law of most countries on the European
continent has been greatly influenced by the combination of
Roman and Canon laws. However, it is also possible to detect
a further subdivision within this civil law tradition. On the
one hand, there are countries that have been strongly influ-
enced by the French codification movement. This movement
emphasized the role of parliament and democratic input in
making the codification. The creation of law is, from this
viewpoint, firstly a political process. Countries that belong to
this French family include France, Belgium, Spain, and
Portugal. On the other hand, there are countries that belong
to the German family, in which the development of law was
driven by legal scholars. Countries that belong to this tradi-
tion include Germany, Austria, and Switzerland.

The Nordic countries do not fall neatly in this twofold division, and many
European countries, including Italy, the Netherlands, and Poland, have
been influenced by both the French and the German tradition.

5.3 Transnational Law

The period of codification initiated a development towards

the use of more and more positive law, although until the
twentieth century, codifications still largely reflected preexist-
ing law. However, during the twentieth century, and especially
after World War II, legislation was increasingly used to create
new law. This development took place both on the European
continent and in Great Britain. In particular, it was the large
increase in administrative law, which regulates relations
between a government and its citizens, that caused a growth
in the overall amount of law. This law was mostly positive,
State-made, national law.
However, after World War II, there were also several
developments that challenged the Westphalian duo. This led
to the claim that national State law and public international
law exhaust the kinds of law, to appear obsolete. These devel-
opments included the rise of human rights, the creation and
development of the European Union, and the revival of the
Lex Mercatoria.
 Copyrighted material – 9783319572512
18 J. Hage

Human rights Traditionally, human rights were conceived as rights of

1 individuals against their governments. They were part of the
national law of States and were safeguarded in national consti-
tutions. The scope of these human rights was determined by
national judges, who decided in concrete cases whether a
State had violated a human right.
After World War II, human rights came to be protected
under treaties. Some of the most important ones have been
created under the aegis of the United Nations.

Examples of treaties with a global scope are the International

Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights (both 1966).
The Universal Declaration of Human Rights, which was
adopted by the General Assembly of the United Nations in
1948, is very important. It is not a treaty properly speaking, as
it was not created by an agreement between States. In Europe,
the European Convention on Human Rights (1953) has also
been an influential source of human rights.

When human rights were proclaimed and protected by inter-

national treaties, they were no longer the exclusive domain of
national law. Although States can theoretically withdraw from
treaties, in practice this is often not a viable option. States that
have committed themselves to the protection of human rights
have undertaken commitments towards their citizens, com-
mitments which are, to a large extent, outside of their control.
This phenomenon is enforced even if the application and
interpretation of the treaties are assigned to judicial bodies
that are beyond the power of national States.

An example of such a body is the European Court of Human Rights,

which can deliver rulings that interpret the application of the
European Convention on Human Rights, and is binding on States.

As such, while States can still determine to which human

rights they bind themselves by means of treaties, it is indepen-
dent courts that determined the scope. In this way, States have
lost control over part of the law that is binding on their terri-
tories and which also binds them.
European Union law In the treaties that created the European Union (EU), the
institutions of the European Union have been given powers to
make new and independent European legal rules. In two
famous decisions – Van Gend & Loos (CJEU Case C-26/62)
and Costa/ENEL (CJEU Case C-6/64) – the Court of Justice of
Sources of Law
Copyrighted material – 9783319572512 19 1
the European Union decided that these European legal rules
belong to a separate and autonomous legal system.
The rules that stem from the EU do not only bind the
Member States but also their legal subjects. Moreover, these
European legal rules have precedence over the States’ domes-
tic legal rules. As a consequence, the Member States of the EU
and their legal subjects are bound by a legal system that is
neither the system of a Nation State nor a system that regu-
lates the mutual relations between Nation-States. In other
words, the existence of EU law does not fit in the Westphalian
picture that takes national States as its starting point.
The Lex Mercatoria is a set of rules created by merchants Lex Mercatoria
to regulate their mutual commerce. In principle, commercial
relations are already governed by the rules of private law, the
law that deals with mutual relations between private actors.
However, the existing rules of private law were not always
suitable for the particular needs of trade relations. Therefore
as early as in the Middle Ages, a separate and independent
body of rules emerged. For the same reason, separate courts
originated, which had more expertise in commercial matters
and which operated more swiftly.
Today, there still exists a body of rules that govern interna-
tional commercial relations. This body consists of treaties
such as the Vienna Convention on the International Sale of
Goods (1980), and conventions that are not officially binding,
but nevertheless exercise influence on the behavior of com-
mercial partners (soft law). A typical example is the Unidroit
Principles of International Commercial Contracts.
Because much of the Lex Mercatoria operates outside the
traditional framework of national States and their relations
towards each other and towards their legal subjects, it also
provides counterevidence to the exhaustive nature of the
Westphalian duo.
What is illustrated by the emergence of human rights, Transnational law
European Union law, and the revival of Lex Mercatoria is that
there are many important legal phenomena that do not fit into
the description of law created by the Treaties of Westphalia.
These types of law have been categorized under the name of
transnational law. Transnational law might be characterized
as law that is neither made nor enforced by national States.
This is a negative characterization: but simply put, transna-
tional law is law that does not belong to the Westphalian duo.
The increasing importance of this branch of law marks an
important development in the long history of the law, which
gives rise to new questions about the nature of the law.
 Copyrighted material – 9783319572512
20 J. Hage

6 Conclusion
1
In this chapter, we have seen how the law has taken different
shapes over the course of time. Originally all law was custom-
ary law, but the oldest legislation that is presently known
appeared around 2100 BCE (the Codex Urnammu), from the
area that is now known as Iraq. The oldest legislation from the
Roman tradition consists of the Twelve Tables. After the
French Revolution, much of the existing law on the European
continent was also codified, using the five aforementioned
French Codes as examples.
Although it is likely that decisions made by judges had
been a source of law long before the era of codification, case
law as an official source of law in the common law tradition
started with the conquest of England by William the
Conqueror in the eleventh century. On the European conti-
nent, precedents also play an important role; however, they
are seen as not officially binding.
Treaties and conventions are kinds of contracts between
States. In theory, contracts only create obligations between
States. Recently, however, some treaties such as ones pertain-
ing to human rights or the treaties of the European Union,
also assign rights to individuals as legal subjects. These legal
subjects can in turn invoke their rights in court. As a conse-
quence, the function of these treaties has started to resemble
that of legislation.
The Peace of Westphalia (1648) established a kind of State
system in Europe, and with it the idea that this system includes
two kinds of law (the Westphalian duo). The first, National
Law, concerns the citizens of a State, their mutual relations,
and their relation to their own State. The other, International
Public Law deals with the mutual relations between States.
These two kinds of law were considered mutually exclusive
and together exhaustive of all law. This idea of only two kinds
of law was already incorrect for the time preceding the
Westphalian Peace Treaties, and has become more incorrect
over the last few decades with the rise of transnational law.

Recommended Literature
Merryman JH (2007) The civil law tradition, 3rd revised edn. Stanford
University Press, Redwood City
Stein P (1999) Roman law in European History. Cambridge University
Press, Cambridge