Law refers to the totality of general rules of conduct that are guaranteed by the community . Such norms of behavior arise either as customary law , in which rules that are accepted as binding by the community are continuously followed, or as established (“positive”) law that is created by state or supranational legislative organs or statutory bodies . The law thus includes all rules for conflict prevention and resolution, so that an orderly and peaceful coexistence is possible, because they should be observed by all members of a society.
These general rules are called objective law . It is to be distinguished from the concrete right of the individual to do something, to omit or to demand of another ( subjective right ). The subjective right can either result directly from the general objective law or have its (authorization) basis in it. Such subjective rights include, in particular, individual freedoms that result from the general guarantees of fundamental rights (e.g. the right to choose one's occupation), as well as authorizations to take legally effective actions (e.g. a right of termination that terminates a rental agreement can) and finally claims to demand something from another. The legal guarantee for such “ability to demand” lies in the fact that the person entitled can sue in court and thereby oblige the latter to help him enforce his right (ubi actio ibi ius). An essential component of a subjective right is a legally guaranteed enforcement initiative. Objective law and subjective law are considered "two different sides of the same coin".
The concept of law
The word "right" is derived from the Indo-European root * h₃reĝ -, "straighten up, straighten up" and thus has moral connotations from an etymological point of view . The etymological background of the German word is the same as in many European languages ( Dutch right , French droit , Spanish derecho , Italian diritto , English right ); Correspondences can also be found in non-European languages.
In terms of content, the German term is strongly influenced by the meaning of the Latin ius , which originally denoted the human order compared to the supernatural order ( fas ). This order, denoted by ius , was concretized by leges , which initially represented rites, but were later transferred to the form of state laws. With this change in the lex from rite to state law, the concept of the Latin ius and, through late scholastic philosophy and the reception of Roman law, also changed the meaning of the German word “law”.
In this etymological triad of moral claim, conventional ritual order of life and state legislation, there are already three essential cornerstones of the (modern) discourse on the concept of law, which can be supplemented by the historical conditionality of law.
The discourse on the legal concept
Against the background of this term, which is multilayered in terms of linguistic history, the question of what law is, i.e. how “law” is to be differentiated from the totality of social norms, is answered differently. In contrast to other normative systems such as morality , custom and custom, state institutionalized law is codified and is subject to its own rules of decision, amendment and recognition. Essentialist approaches try to answer this question in a generally binding manner and thus claim the “true” concept of law. In contrast, nominalistic approaches only attempt to establish a practicable definition that appropriately captures the legal term for the respective area of investigation, while it "may be delimited quite differently for other purposes". It is controversial whether the law can be freely set in terms of content. With advocates of legal positivism , who only recognize established law as law, it is often unclear to what extent the authors intend an essentialist or nominalist definition.
The concept of law in individual legal disciplines
Probably the most common understanding of the legal term in legal dogmatics is based on a close connection between law and the state. According to this, state-enacted legal provisions ( laws , ordinances, international treaties , judicial law , etc.) as well as state-recognized legal provisions (church law, customary commercial law, to a limited extent also natural law) belong to the law . Such a definition avoids, in particular, problems of demarcation from moral and moral norms; these can become legal norms through state acts.
In legal ethnology (or: legal anthropology), especially in the early days of ethnological research, it was discussed whether conflict resolution mechanisms of non-state societies could be called law. The question of whether non-state societies have law (and not just morals and custom) is now answered in the affirmative by a majority.
Of all disciplines, legal philosophy encompasses the largest range of differently understood legal terms. While legal positivism is based solely on state norms, theories of natural law see state laws - if at all - as part of the law. The historical school of jurisprudence occupies an intermediate position, which regards positive law as a historically grown expression of natural law.
The sociology of law knows three ways of grasping the law as a social sub-area: firstly, by establishing norms that are considered binding in the coexistence of the group and on which the norm addressees orientate themselves in their behavior; Second, by identifying behavioral patterns that actually lead to group life; and thirdly, by identifying behavioral patterns according to which the legal staff reacts in certain social situations.
The right is defined as a spiritual power working internally in a person, which drives him to do or refrain from doing certain things, but which must be supported by an external power in order to achieve a prosperous coexistence of people. All ancient peoples attribute a supernatural origin to law.
Law and order
In modern societies, the law forms a legal system . The basic building blocks of this legal system are legal provisions, i. H. Rules of conduct that oblige a certain act or omission, and norms of the emergence of law, d. H. Rules about who can establish general regulations and specific obligations and how. In the early days of law, norms of the emergence of law were mainly rules about the emergence of customary law. Today it is above all legal authorizations that determine who can issue general regulations or establish specific legal obligations in what way (the latter, for example, through a state order or "privately autonomous", in particular through the conclusion of a contract).
Law, Morals and Customs
Depending on the social order and political view, law, morality and custom overlap to different degrees. Law can arise from moral judgments. For example, bigamy in Germany is prohibited and punishable under German Civil Code. However, there are also morally neutral legal clauses, for example the law of driving on the left or right in road traffic. So law and morality often coincide, but not always.
Law primarily relates to the external behavior of people, while morality relates to people's attitudes . The law also differs from morality in the way in which it demands validity and is enforced in a standardized procedure by organs authorized by the community (judiciary, security authorities). Moral behavior can only be enforced by state organs insofar as it is required by law.
A custom such as a dress code may or may not be legally binding. Judges and lawyers are often required by law to wear a robe. Women from countries of the Islamic legal community are legally obliged to wear a headscarf in their home countries, but sometimes have to do without it in Europe for the same reasons.
Functions of law
The law fulfills several functions: It should regulate social interaction, resolve conflicts in an orderly and binding manner, and protect individuals from attacks by other people or the state. The state helps to shape society through the law. The function of law as a conflict decision is the starting point for legal methodology .
The following functions of law are legally recognized:
- Regulatory function: In this area of action , also known as the guarantee or legal security function, the law ensures the expectations of individuals by regulating certain situations in a predictable manner and thus providing a reliable basis for social relationships. For this it is partly not the content of the regulations that matters, but only the existence of a regulation itself; an example of such a case is the right-hand or left-hand drive requirement.
- The peace function, also called conflict resolution or pacification function, describes the effect of law on social peace ; This is established on the one hand by channeling disputes through ( just ) substantive and procedural regulations in the law, on the other hand by ending the dispute between the parties through binding decisions, be it by a court or by agreement of the parties.
- Value function: In addition, law also serves to maintain the values that individuals in a society of legal peers base their actions on. In this respect, law also has the function of maintaining existing orientations. This function is usually excluded from a legal sociological perspective; because the recognition of this function harbors the danger of determining the values in a next step and thus abandoning the descriptive-analytical path.
- The freedom function guarantees the individual freedom that protects him from access by third parties and, in more recent stages of history, from the exercise of state power. This protection can be conveyed through claims against third parties as well as defense or status rights.
- Integration function: The law also serves to integrate societies. At the same time, legal unity creates a political unity, not least because the law can create a common legal awareness and coherent legal convictions.
- Legitimation function: This function describes that political rule uses the law as a legitimizing instrument. (The legal historian Uwe Wesel therefore calls it the “rule function”.) This can be done in two ways - both with regard to the legitimation of the specific structure of rule as a whole and with regard to the legitimation of individual aspects or decisions: in a positive way, by exercising The rule is satisfied with legal claims, in the negative, in that the legal form of rule gives the appearance of lack of interest and thus obscures the view of the actual motives for exercising rule.
- Control and structuring function: This function describes the possibility of regulating the behavior of social actors through legal norms. Political programs are implemented with the help of the law and everyday life is shaped and controlled through it; thus the law contributes indirectly to promoting social change .
- The control function of the law enables the exercise of power to be checked retrospectively and thereby limits power . It is the youngest of the functions of law. The control can be initiated by outsiders or political competitors.
The functional analysis is mostly carried out from a legal sociological perspective. Uwe Wesel also differentiates from a historical perspective between pre-state and state law, whereby he ascribes the pre-state law solely a function of order and justice, while he sees state law additionally characterized by a power and (historically later developed) power control function. The legal scholar Bernd Rüthers makes a similar distinction between political, i.e. H. functions of law tied to domination and social functions to which he adds functions for the individual.
The system of law
The legal system as a whole
The modern legal system (also known as the “legal system”) consists of the totality of norms , which are divided into legal systems and globally applicable international law according to their national or international scope . The jurisprudence , especially the legal theory , divided those laws of objective law again in relation to matters that great for methodological point of view in the three areas of public law , private law and criminal law , according to objective or content point in methods across areas of law such as the Traffic Law , the Commercial Law or Building law . For these standard systems, an authorization is obtained for the addressees in individual cases ( subjective right ), such as the right of freedom of expression (e.g., in Germany. , The paragraph 1, sentence 1 GG.) Property , a fairly claim (for example a seller on the purchase price) or the right to withdraw from a contract .
The structure of the individual standards
In terms of the legal system, the original apodictic law of the Ten Commandments (you should / shouldn't ... ) is differentiated from the conditional law (if - then) that characterizes modern legislation.
Standard commands ( legal norms ) are formulated in advance, before the time of their application. It must therefore also be regulated in which case they apply. This creates the structure of a modern legal norm: “If the requirements A, B and C are met, then the legal consequence R should occur.” The totality of the necessary requirements is called a fact , the individual required requirement is called a factual feature . Norms thus consist of facts and legal consequences.
The legal consequence is the creation of rights and obligations . There are also norms which, as a negative legal consequence, stipulate that rights and obligations do not arise (for example: a legal transaction is void due to a violation of common decency).
The enforceability of applicable law in Germany
The courts are responsible for enforcing the law . As a rule, individuals must seek their rights in the state courts and not through self-help. As far as rights are reinforced by criminal law, the injured citizen is also prohibited from punishing the perpetrator in vigilante justice. In order to realize this, there is a state criminal claim, which the criminal justice system, namely public prosecutors and criminal courts, should ensure. What court decisions order can be enforced - again with state help - by enforcement organs (in the execution of sentences) or compulsory execution (in order to enforce judgments of the civil courts) or enforcement (in order to enforce the titles of the tax authorities and tax courts as well as the general and special administrative courts).
If a judge does not adhere to the law when granting justice, German law provides for penal sanctions against him (e.g. his removal from service) (e.g. his removal from service) in the event of evasion of the law ( StGB ), and otherwise under service law ( e.g. his removal from service) (cf. and 78 of the German Judges Act).
A compulsion aimed at the correct judicial decision is not provided, because the judge should judge independently of instructions (with judicial independence ) to the best of his knowledge and belief.
Partial aspects of applicable law
Applicable law can be divided into different legal circles according to its (ideological) historical origin. The largest legal systems are the continental European, the Anglo-Saxon, the Chinese and the Islamic legal system. Legal circles differ in the setting of norms (statutory law, customary and judicial law, divine law), but also in the application of the law, e.g. B. as regards the role of the judge.
The term legal source can be understood in a broad and a narrow sense.
In a broad sense, it concerns all factors that shape objective law or from which law can be determined. According to this term, it includes, for example, jurisprudential teaching, administrative practice and the legal perception of citizens and users of the law. Actually the most important source of objective law today is the law . Even the prejudice from the case law ( judicial law ) of the Anglo-American legal system is increasingly being replaced there by the formal statutory law . Customary law , which is also applicable in international law , is an unwritten source of law and fills gaps in legal regulations. Whether there are other sources of law beyond this positive law is controversial in jurisprudence . The natural law teaching provides the positive law one over positive law against, an eternally valid, revoked the human impact right that its validity from the nature of man or of a higher power (reason, nature or God) is derived and not legitimate by state law to be changed can.
According to the narrower concept of the source of law, everything is law that creates binding legal clauses for the user of the law. The question of the sources of law is particularly relevant against the background of the principle of separation of powers , because then it is decided who is allowed to create binding legal clauses. Particularly important as a source of law is therefore the written law created in a constitutional process , as well as the constitution itself. In addition, there is also customary law as a source of law , which still plays a major role in the area of international law.
The following individual sources of law fall under the categories mentioned:
The legal sources of international law are listed in Article 38 (1) of the Statute of the International Court of Justice ( ICJ Statute ). This provision specifies which sources the International Court of Justice (ICJ) has to base its decisions on. These are in detail:
- international agreements ( international treaties );
- Customary international law ;
- general legal principles recognized by the civilized peoples.
Only sources of legal knowledge (tools for establishing legal norms, Art. 38 Paragraph 1 Letter d ICJ Statute) are judicial decisions ( judge law ) and the recognized doctrines of science.
European Union law
The legal sources of European law can be divided as follows:
- Primary law (treaties: EU treaty , AEU treaty , Euratom treaty and related annexes and protocols)
- Secondary law ( acts adopted by EU institutions )
- Case law of the European Court of Justice (ECJ) and the General Court of the European Union (ECJ)
- Constitution (not necessarily always present in a formal sense, e.g. United Kingdom)
- Parliament law (law in the formal sense)
- Subordinate law set by the executive (e.g. ordinance )
- Judicial law , which is particularly important as a source of law in England and the USA
- common law
- Administrative regulation or administrative guideline (this is not a legal source in the actual sense, but an internal binding of administrative discretion .) Or the binding to an interpretation of legal provisions given by the superior authority.
In addition to the law set by public law-making bodies, sources of law for individual rights and obligations are also:
- unilateral legal transaction (e.g. will )
- private law statutes ( association , stock corporation )
- Individual act ( administrative act , cf. § 35 VwVfG )
The national law can be further subdivided according to the legislative body. In a federal state like Germany there is federal law and state law . Below the state level, there are regional authorities under public law ( municipalities , districts ) and professional corporations under public law (example: Bar Association ) that can also legislate for their area.
The law works out of a state of the area. It consists of norms that regulate the rights and obligations of subjects of international law. These are primarily states, but also international organizations such as the United Nations . International law arises through international treaties between two or more states or through custom . There are also general principles of international law.
Law and rights can be divided according to different aspects.
Formal law and substantive law
The legal norms , the rights and obligations govern are called substantive law , the regulations, such as the criminal law in Germany, when a murder is present and how it is to punish, or that due to a culpable breach of duty in a contract relationship of creditor damages may demand.
As a formal right contrast, those provisions are referred to, serve the process of finding and enforcement of the substantive law, ie in particular the process and process systems of the individual court branches . They regulate the jurisdiction of the court , the judicial procedure and the form of the judicial decision , mostly differentiated according to the legal areas . A distinction is usually made between a procedure in which the fundamental determinations are made (which usually end with a judgment ), and an enforcement procedure , which serves to enforce the court decision.
Public law and private law
Public law regulates the affairs of the general public. On the one hand, there are the legal relationships in which the sovereign and the individual (those affected by sovereignty) are in a superior and subordinate relationship. On the other hand, there are the legal relationships between the sovereigns. Sovereigns are the legal persons under public law (corporations, institutions, foundations under public law) and the entrusted (natural and legal persons under private law to whom narrowly limited public tasks and sovereign powers have been assigned by law). Corporations under public law are primarily the federal and state regional authorities and the non-state regional authorities, especially rural districts and municipalities or European Union law (EU), but also (staff) bodies such as universities or professional chambers (medical association, bar association , Chamber of Crafts, Chamber of Commerce, etc.).
Private law, on the other hand, regulates the legal relationships in which the participants face each other on the level of equality. These are, on the one hand, the legal relationships of natural persons, legal entities under private law (corporations and foundations under private law) and associations of private law with partial legal capacity, such as the legal partnership (Section 124 (1) HGB), the society under civil law (Section 705 BGB) or the apartment owners association. On the other hand, there are legal relationships in which legal persons under public law are not involved as sovereigns, but as subjects of private law in terms of administrative private law (fulfillment of public tasks in private law forms of action) or fiscally (e.g. as property owners).
Public law includes international law , European law (Union law), state law (federal, state), administrative law , criminal law (administrative offense law, criminal criminal law), church law (state church law, internal church law of the churches with the status of a public corporation) , public organization law (legal entities under public law, entrusted persons; organization of authorities, court constitution) as well as procedural and procedural law (also: civil procedural law, law of voluntary jurisdiction, labor court procedural and procedural law).
The civil law is divided into the general private law (civil law) and in the special private rights. The special private rights include above all commercial law , company law , securities law, competition law , private insurance law and - with a high proportion of public law regulations - labor law . The civil law ( general part , law of obligations , property law , family law and inheritance law ) is mainly regulated in Germany in the civil code , in Austria mainly in the general civil code .
Right of subordination and right of coordination
Similar to the categories of private law, the right of subordination and the right of coordination differ in that the legal subjects in a relationship of subordination are in a superordinate relationship to one another, while the right of coordination results from a legal relationship in which the legal subjects are legally equal.
The right of subordination corresponds to the concept of public law; In addition to private law, coordination law also includes international law.
Absolute rights and relative rights
Absolute rights denote rights that are absolutely applicable and that must therefore be observed by everyone. They can in turn be subdivided into sovereign rights , such as property or copyright, and personal rights , such as the right to physical integrity or general personal rights . Ownership of a thing gives the owner the power to deal with the thing at will and to exclude others from any influence. One therefore also speaks of a “right to rule”, a right in rem or a right “to a thing”. In addition to property as a fundamentally comprehensive right of domination, there are limited real rights that allow use only in certain relationships, such as usufruct . That too is an absolute right.
Relative rights are rights that are directed against specific people. Of central importance among the relative rights is the claim , i.e. the right to be able to demand an act or omission from another (see Civil Code ). These typically include the rights under contracts , such as the purchase contract the buyer's claim to over ownership and conversely the seller for payment of the purchase price, but also many others, such as the compensation claim in tort because of the injury to the body or things of others. A special type of subjective rights are structuring rights that give the authority to establish, change or revoke subjective rights - typically such as declarations of termination , contesting declarations of intent or withdrawing from the contract.
Individual areas of law
From the above it follows that the complexity of human coexistence is reflected in the legal system. The resulting abundance of material in turn means that the law can be subdivided into several sub-areas, which is particularly indispensable in the context of legal training .
The traditional division of the material in law taught at universities primarily refers to the division into private law on the one hand and public law on the other. In addition, there are criminal law and procedural law . Strictly speaking, both are part of public law, as they also regulate the relationship between state and citizens. The specific peculiarities of both areas of law make their separate treatment seem appropriate in practice.
Private law can be further subdivided into the individual civil legal areas, i.e. the law of obligations , property law , family law and inheritance law , in commercial law as a special private law of merchants, company law and the like. a.
Public law is further divided into the large areas of administrative law , constitutional law and state church law . The tax law , which is conceptually only a subsection of the special administrative law is also because of its importance and its size as because of its strong links with the business law conceived today regularly as a separate sub-field of public law.
The article Federal German Law offers a schematic overview of the structure of the subject matter of German law .
General information on the historicity of law
“All law develops.” This changeability of positive law was first articulated by Montesquieu and is now undisputed. For long periods of history, however, it does not seem to have been anchored in social consciousness that positive law has an evolutionary character and can therefore be changed. This explains, for example, that large codifications mostly refer to older, existing law or that some legal changes in the Middle Ages were made by forging documents that simulated an already existing law.
The historicity of law does not contradict theories that use certain functions of law to determine the structure of norms as law. Because these functions are not inherent in the law, but are assigned to it for better analysis.
The historical origin of law
Legal ethnology deals with the historical origin of law; But it also plays a role in reinforcing legal philosophical and sociological hypotheses.
The Codex Ur-Nammu and the Codex Hammurapi are the first written codifications of law . As with all early written sources (e.g. also with the Twelve Tables Act ) the content of these codices was not genuine legislation , but - at least in part - a collection and summary of existing, unwritten legal norms.
There is no certainty about the origin of this prehistoric unwritten law as a social subsystem; According to the predominant view, however, law, religion and morality were indistinguishable parts of a comprehensive morality in prehistoric societies, which only became differentiated as independent subsystems in a later phase of social development.
According to another hypothesis, law is a product of religion. In this sense, legal norms should be rules for action converted from religious norms. In fact, some legal systems still refer to their emergence from divine revelation, such as Jewish law , Sharia law and, to some extent, canon law . Due to several arguments, however, this hypothesis is no longer expressly supported today: Wesel countered it that in the societies of hunter-gatherers the prohibitions on adultery, manslaughter and theft never had religious significance. In addition, Malinowski points out that the religious precepts of archaic societies “are absolutely fixed, strictly to be followed and comprehensive”, while their legal rules are “essentially elastic and adaptable” and - in apparent contradiction - they are nevertheless “undoubtedly rules of binding law “Can act. Of course, these arguments say nothing about the religious legitimacy of law in later stages of social development; only this concerns a (later) development step of law, but not its historical origin.
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