Law and Management

Law and management
SESSION 1:
general introduction to Law

A State is a legal person which has total sovereignty on its territory. It means that a State, by its def, decides which rules will apply to its territory.  The judicial power is part of sovereignty.

Def: Law. The enforceable body of rules that governs any society. What is allowed, what is prohibited. Law is a set of legal rules. Legal rules are part of law, they are general, not personal and compulsory. Legal rules can be compulsory in diff ways: We can sometime choose the law that will apply to our case. Sometimes we’ve got the choice of the rule. If not, a rule will automatically apply to our case. Sometimes we don’t have a choice.

• West. 2 diff legal systems. The Civil Law Tradition, System, Family (=Continental Law) / Common Law System, Family.      Significant differences.[pic 1]

Civil law system. A legal system based on Roman Law. High level legal certainty. The rule preexists and is published by the State. In those countries all the Constitutions are always written. The judge is there to implement the legal rules. The judge is never creating a rule. It is sometimes necessary to interpret the legal rules.
The right interpretation of the legal rule by the judge = jurisprudence.
Dogmatic system. Written in a way that it is not so precise in order to fit with the different cases.      Countries belonging to civil law trad: Continental Europe, southern America, northern Africa. The European law belongs to the Continental law.
[pic 2][pic 3][pic 4][pic 5]

Common law system. A legal system based on the English legal system. The legal rules don’t preexist all the time. The judge is allowed to create legal rules. US, UK, Ireland belong to the Common law tradition.
1st hypothesis: there is an act and statute dealing with the specific legal pb.
2nd hypothesis, there is no such act and statute. The judge is allowed to create a legal rule.  
Case law means the legal rule which has been elaborated by the judge in a previous judgment. This previous judgment which contents a legal rule is called a “Precedent”.
When we are dealing with cases not in Act or Statute, lawyers have to find previous cases that will be in favor of my interests. More pragmatic than the Civil law trad. When there is something new, the judge can react quickly. But the level of legal certainty is lower. [pic 6]

Diff Case law // Jurisprudence.

Ex, UK. When we have got a precedent from the House of Lords, it will be compulsory for the judges of the High Court, they will have to follow this rule.

Diversity of contemporary law families. The Civil law family, the family of Muslim laws, Indian law, African law, The Common Law family, the family of socialist laws, Far East laws.

Law is not universal in time and space. Culture is shaped by geography, religion traditions, language, legislation, technology.

• Distinction Private // Public law

Private law. Company law, property law, family law, labor law, intellectual property law.

Public law is connecting to the State organization. Constitutional law is public law. Public finances, administrative law.

Lawyers are specialized in one or the other. Classification found in all civil law tradition. [pic 7][pic 8]

Jurisprudence of Cour de Cassation and Conseil d’Etat will prevail above the other.

Diff in the Common law. There is not this division.

Public order. Set of rules which are strictly biding co-contractors. Rules dealing with the competition.

SESSION 2:

The rule of law. If the State violates one of the fundamental rights, the State can be penalized. His liability will be recognized. The State itself is subject to the legal rules. It is the basis of any democracy. We cannot have democracy if there is not the rule of law.  

The EU is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved democratically by its members. The Council of Europe controls this.
EU law is divided into “primary” and “secondary” legislation.
Primary legislation: the treaties. Are the basis, the ground rules for all EU action.
Secondary legislation: regulations, directives, recommendations: are derived from the principles and objectives set out in the treaties.

EU law is a system of law that is specific to the 28 members of the EU. This system overrules the national law of each member country if there is a conflict betw the national law and the EU law.

T.F.E.U: Treaty on the Functioning of the EU.

Definition: EU Directive.
An EU Directive is a form of legislation that is directed at the Member States. It sets out the objective of policy which needs to be attained but states can decide how to reach the objectives.
Ex: EU consumer right directive, which strengthens rights for consumers across the EU. Ex: product liability, commercial agency.
Directives are made to harmonize le legislation all over the EU territory. Bc directives are tool for harmonizing, they are never directly applicable. The domestic legislator will have to adapt the legislation of that state to the objective described. They don’t have a general application (a directive can be compulsory and addressed to one, two, several or all member states, it depends on the situation, to the states that will have to improve their legislation to reach the objectives).  A directive can give the states different time limits.
Ex. Concerning commercial agency, it gives the UK more time to adapt than for France. Bc the UK had to create all, and France had to adapt their legislation. Need to give time to prepare the economic operators to the changes, to adapt themselves to the new legislation.
By the time limit, if nothing has been done by the state, the European Commission can ask that member state to go to Brussels to explain why it didn’t do anything. It will be given a new time limit.

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