LESSON 1: INTRODUCTION
LLM. Nguyen Mai Anh
OUTLINE
Overview
Introduction to customary law
Introduction to precedent
1. Overview
1.1. Origin, nature and features of law
What is law?
Why do we need law?
1. Overview
1.1. Origin, nature and features of law
The State promulgates laws
- Express the will and policies of the
rulling class.
- Orient human behaviours in accordance
with the will of the state.
Examples of this expression?
The appearance of laws comes with the establishment of the state.
Making law is a way of the state to control and manage the society.
1. Overview
1.1. Origin, nature and features of law
Class essence Social essence
- Orient social relations as - Despite being passed by the state,
guided by the policies of the laws have to contained common
rulling class. values of the society in order to be
accepted and obeyed by people.
- Protect and strengthen the
- The laws transfer the interests of
position of the rulling class.
the majority in society into legal
- Express the will of the norms.
rulling class in a centralized - A legal norm is both a measure of
and unified way, enforced human behavior and a testing tool
by state power. for social processes.
1. Overview
1.1. Origin, nature and features of law
What is law?
Many ways to define “law”:
• The law is the body of principles recognised and applied by the state
in the administration of justice.
• The law consists of the rules recognised and acted on in courts of
justice.
Law is a system of rules of conduct promulgated (or recognized) and
guaranteed by the State for implementation, expressing the will of the
ruling class, regulating social relations in order to create order and
stability of the society.
1. Overview
1.1. Origin, nature and features of law
Strict determination in
Common normativity
terms of form
FEATURES
State enforcement
1. Overview
1.2. Relations between law and other phenomena
The
The politics
economy
Social
The State
norms
1. Overview
1.2. Relations between law and other phenomena
Law and economy
- The contents of law depend on the economic condition of each
nation: the structure of the legal system, the nature of the legal
system, the methods adopted in legal provisions…
- The law affects the economy in many ways: decide the
organization and operation of the economy, the structure of the
economy.
- The law contributes to the development of the economy.
1. Overview
1.2. Relations between law and other phenomena
Law and politics
- Law is a measure and tool of the ruling class to express and
imply political policy - a form of political expression.
- Politics is linked to economic interests and economic
development.
- The law promulgated by the state is in compliance with the
political policy of the ruling class.
1. Overview
1.2. Relations between law and other phenomena
Law and state
- Law and state are expressions of the political powers and have
close interrelation.
- The appearance of the state is the foundation for the creation of
law and the efficacy of the state depends on the enforcement of
law:
• State powers must be exercised according to law and limited
by law èThe Rule of law theory.
• The State manages social relations by implementing laws
èLaw is a tool of the State to perform its functions.
1. Overview
1.2. Relations between law and other phenomena
Law and social norms
- Social norms (ethnic, customs, religious beliefs…) influence
the contents of law.
- Some popular, widely-accepted norms are recognized by the
State and transferred into law through the law-making process
èsocial norm is one source of law.
1. Overview
1.3. Sources of law
What is “source of law”?
1. Overview
1.3. Sources of law
Source of law can be understood as an authority from
which laws obtain their legitimacy, validity, or force
Some popular sources of law that you know?
1. Overview
1.3. Sources of law
Legislation Customary law Precedent
1. Decisions in 3. Widely –
cases given by 2. All provisions accepted conducts
judges that have enacted by the in society which
legal binding State (mainly by are recognized
effect on other the legislature). and enforced by
similar cases. State power.
2. Introduction to customary law
Customary law is usual practice or a common way of
acting, as well as a behavior essentially derived from
religious doctrine and/or cultural tradition, but these habits
and practices have been established by the community in
which these behavior patterns and rights are negotiated,
expressed and enforced within a social group.
3. Introduction to precedents
Precedent is a decided case that furnishes a basis for determining
subsequent cases involving similar facts or issues.
Judicial precedents can be referred to as the process whereby
judges follow previously decided cases.
Grounds for the application:
• Res Judicata pro veritate accipitur: a matter once decided is decided
once for all èthe legal presumption of the correctness of judicial
decisions.
• Expedit reipuhlicae ut sit finis litium: When a question has once been
judicially considered and answered, it must be answered in the same
way in all subsequent cases in which the same question again arises
èEnsure the consistency of judicial decision.
