Legal Language

LEGAL PRINCIPLES

Preliminary remarks

Various terms:

Rule, norm, provision, regulation

Polish Criminal CodeArt. 148. § 1. Whoever kills a human beingshall be subject to the penalty of the deprivation of liberty for a

minimum term of 8 years, the penalty of deprivation of liberty for 25 years or the penalty of deprivation of liberty for life.

Structure of a norm

Three necessary components:

adressee – scope of application – scope of regulation

adressee: the subject to whom the norm is addressed physical person (private individual)legal person (corporate body)organization unit that lacks legal personality

(eg. private partnership)

Structure of a norm

s. of application – scope of circumstances (situations) in which the norm shall be applied

A difference between validity and application of a norm

s. of regulation – scope of conducts which are

ordered, prohibited or allowed by the norm

Structure of a norm

adressee – scope of application – scope of regulation

HYPOTHESIS DISPOSITION

H D

Structure of a norm

Polish Civil Code:

Art. 415. Any person who through his fault has caused an injury to another person shall be liable to make it good.

Art. 355. The debtor shall exercise the care generally pertinent to the given relations (proper care).

The problem of sanction

Sanction: some (negative) consequence of breaking a norm

Three types of sanction:punishmentexecutionnullity

Individual and general

According to the way of describing (denoting) an adressee.

Individual: as a particular entity, using some personal (and conventional) label - like name, ID number, PESEL etc.

General: with some general attributes, usually as a group of subjects of some sort - like profession (teacher, soldier), social role (mother), type of relation (debtor, creditor) etc.

Abstract and concrete

According to the way of describing an obligation(obligation = some kind of behaviour).

Concrete: as a real, particular course of action of somebody.In specific situation, with clear time-spatial boundaries.

Abstract: as a type of conduct which is described in non-contextual and repeatable way.

Characteristic of legal norms

Legal norms are abtract and general.

Creditor may claim performance from the debtor while the debtor is obliged to effect the performance [art. 353 § 1 PCC]

Individual and concrete norms are typical of law applying.(eg. administrative decisions, court verdicts)

Maciej P. shall pay 100 złoty back that he owes Bartosz G.

Rules and principles

Principle – an ambiguous term

1. Principles in a normative sense

2. Principles in a descriptive sense

3. In a non-positivistic sense

Principle in a normative sense

Legal norm explicitly formulated in a legal text, of special relevance for:

the whole legal system; the branch of a legal system (e.g. civil law, criminal law); particular lawmaking instrument; particular legal institution.

Principle in a descriptive sense

Reconstructed from a set of particular rules(procedure of induction).

Models for shaping legal institutions.

Eg.: the equality of parties in civil lawprotection of a welfare of child in family law General principles of EU law (proportionality, subsidiarity,

fundamental rights etc.)

Principles – Dworkin's concept

'NORMAL' RULES Valid due to formal

criteria Precise scope of

application „All or nothing”

fashion of appl. Abstract and

derogative mode of solving collisions

PRINCIPLES• Material weight and

'institutional acceptance'• Imprecise scope of

application• „Less or more” fashion

of application• Solving collisions in

each particular case; both principles valid

Principles – Dworkin's conception

Dworkin's thesis: Principles are inconclusive, still they can be

efficient legal ground for decision.

Alexy's thesis: Principles have optimalizing character and give

directives for interpretation of typical rules.

"Respect for fundamental rights form an integral part of the general principles of law protected by the Court of Justice [of European Union]. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community.

International Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide

[1970] ECR 1125 Case 11/70

those who act in good faith on the basis of law as it is or seems to be should not be frustrated in their expectations

any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty

The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

Van Gend en Loos (1963) Case 26/62