Introduction to the Legal System: Law, State, and Legal Theories

UNIT 1: LAW AND THE STATE

Definition of Law

• Introduction to the Legal System (Module 1) • o First Partial o Luca Penouel - BIEM 16 - AY 2024-2025 • •30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16

• Ethymology: The word "law" comes from the Latin term "directum," meaning straight or just. Various languages have adapted this word (e.g., French "droit," Italian "diritto").

. Concepts: "lus" in Latin translates to law, leading to words like justice, jurisdiction, and jurist. There's debate whether law is "what has been commanded" (ius quia iussum) or "what is just" (ius quia iustum).

. 2 Different Views of Law: o Legal Naturalism: Ancient view where law is seen as a natural order where everything has a rational place and purpose, possibly divinely influenced. o Legal Positivism: Modern view where laws are seen as established by a legal authority. This view dominates contemporary legal discourse and was notably developed by Hans Kelsen.

. In the beginning of the 18th century, the formation of national states, marked by the political decisions of sovereign entities like absolute monarchs or democratic parliaments, shaped the development of private law.

. The "Westphalian paradigm" refers to a system of political organization that came into general acceptance after the Peace of Westphalia in 1648. This event marked the end of the Thirty Years' War in Europe. The key ideas of this paradigm are:30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16 o State Sovereignty: Each country (or state) has the authority to govern itself without outside interference. This means that a country can make its own laws and enforce them within its borders. o Domestic Law: Under this paradigm, the government of each country has the power to create laws that everyone in the country must follow. This is about how countries handle their own internal affairs. o International Law: Even though countries can govern themselves, they can also make agreements with other countries. These agreements must be followed just like laws within a country. But these agreements are made voluntarily, which means a country agrees to limit some of its own powers to cooperate with other countries.

Comparative Law

. Comparative law is a discipline that studies the differences and similarities between laws of different nations. It helps understand how laws function in different national concepts and helps in the construction of both national and international laws.

. Comparative law is NOT foreign law: foreign law refers to the legal system of a country other than one's own, it is used in legal cases involving foreign elements.

· Aims of comparative law are: o Aid to legislature: it serves as a tool to help lawmakers understand different legal systems which can be useful in crafting new national or international laws. o Academic Discipline: comparative law is studied in universities to deepen understanding of global law systems o Uniform Law Development: studying comparative law can push efforts to standardize law across countries, making legal interactions easier and smoother.30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16

. History: the historical birth of comparative law is the International Congress of Comparative Law which was held in 1900. Ernst Rabel is considered one of the fathers of it, he was a German scholar who defined the scope and methods of comparative law.

· Methods: The Historical Comparatist Approach: this method focuses on the historical and cultural roots of legal systems. It seeks to understand how legal traditions developed over time and how they influence current laws. o The Functionalist Approach: this method looks at laws in terms of their functions and how they solve specific problems, without looking at the historical background. o The Theory of Dissociation of Legal Formants: it helps understand the complexities within different legal systems, by acknowledging that 1) Legislation, 2) Judicial decisions and 3) Scholar's opinions might diverge within the same legal system. This theory allows comparative law scholars to analyze and compare these discrepancies across different jurisdictions. o Micro-Comparison: this method of comparing legal systems relies on operational solutions to address real-world problems and practical cases. o Macro-Comparison: in contrast with micro, macro looks at broader legal frameworks. It compares national laws by considering their constitutional and institutional characteristics, as well as the overall legal culture in each system.

International Private Law

. Legal families: they are groups of legal systems in different nations that share common features and historical roots. o Rene David's Classification: Rene classified legal systems around the world into families based on shared concepts and characteristics. o Two Main Families: within the western legal tradition the two30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16 most important legal families are common law and civil law.

. Legal Traditions: it is NOT like legal families, legal traditions focuses on the cultural practices that influence legal reasoning in different nations.

. Mixed Legal Systems: Some countries like Scotland, South Africa or Quebec have legal systems which combine elements from multiple legal traditions and legal families, having a blend of civil law, common law and other indigenous legal practices.

· International private Law: also known as conflict of laws, it addresses situations where the legal issues involve more than one country and it determines which legal system and which laws are applicable. o Ex: There is a contract between a French and a German party in Italy, international private law is used to determine which laws to apply. o EU Regulation: For EU member states many aspects pf international private law are unified under EU regulations, which help standardize the rules across member states.

Uniform Law

. Definition: Uniform Law aims at making laws and regulations consistent across different countries, to simplify and harmonize legal interactions from different places.

. How? With Legal Transplants and Conventions: Legal transplants involve transferring a law from one country to another with minimal modifications. Conventions are formal agreements or treaties between countries that agree to adopt the same legal standards. o Problem With Legal Transplants: There is potential for a30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16 "rejection crisis" which occurs when the legal system of a country receiving the foreign law struggles to integrate it because of ingrained legal traditions. Such discrepancies can cause the new law to be misinterpreted, improperly applied, or also rejected . . Rabel's Perspective: Rabel thinks that true uniformity in law is achieved only when uniform legislation is interpreted using comparative law, considering all the legal systems involved. Otherwise, local courts might interpret uniform legislation based on domestic criteria leading to problems.

. History of International conventions and Model Rules: Both international conventions for B to B sales like the CISG (UN convention on international sale of goods) and model rules like the UCC (Uniform commercial code) serve crucial roles in global commerce and legal interactions internationally in sales from a company to another (B To B).30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16

UNIT 2: CIVIL LAW AND COMMON LAW JURISDICTION

Roman Law

. Corpus Iuris Civilis: is a collection of Roman Law. It was compiled under the direction of the Byzantine emperor Justinian I in the 6th century, and it systemized centuries of Roman jurisprudence into a comprehensive legal code which had a strong influence on the development of legal systems. It has 4 main components: o Codex Justinianus o Digesta o Institutiones o Novellae Constitutiones

IUS Civile

. Renaissance of roman law: the tradition of studying roman law had a revival between the end of the 11th century and the end of the 12th, these studies deeply influenced the development of western legal traditions.

. Role of Irnerius: Irnerius was a scholar from Bologna who rediscovered the Corpus Iuris Civilis and began to comment and teach them. The re discovery of roman law contributed to the foundation of the first university of the western world: the Alma Mater Studiorum of Bologna.

Civil Law

. Civil Law Characteristics: The Civil Law systems is characterized by a division of state powers: 1) Legislature 2) Executive 3) Judiciary. It has a preference for organizing laws into comprehensive code that provides clear and accessible legal guidelines to promote justice and equality. o Example in Italy: Codice civile o Example in France: Code Civil

. Role of Montesquieu: He was a French philosopher famous for articulating the theory of the separation of powers, for example he described judges as only "the mouth that pronounces the words of the law".

Common Law

. Common Law Characteristics:30428 | AY 2024-2025 | Bocconi University | Luca Penouel | BIEM16 o Judge Made Law: Common law is based on rulings made by judges which become precedent that future judges have to follow. o Organic Development: Unlike civil law systems that are based on comprehensive codes, common law develops organically through the decisions made in individual cases by judges. o Equity: it is a separate body of law which focuses on addressing shortcomings of the rigidity of the common law system. It allows judges to rule decisions based more on fairness rather than following precedents which would be unjust.

. Historical Development: The historical development of common law started with the Norman Conquest of England in 1066, establishing a legal system that evolved through judicial decisions rather than statutes. It was shaped significantly during the English Civil War and the Glorious Revolution, which emphasized the role of judges and the importance of judicial independence. Over the centuries, common law developed a body of precedents (stare decisis), further formalized by the Judicatures Acts of 1873-1875, integrating common law with equity.