Basic notions and sources of law

Public and private law

Public law - is the area of law governing the relationship between individuals (citizens, companies) and the state – constitutional, administrative, criminal, financial law

Private law - is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government – civil, commercial, family, labor law

Substantive and procedural law

Substantive law - is the area of law that governs rights and obligations of those who are subject to it. Substantive law defines the legal relationship of people with other people or between them and the state.

Procedural law - comprises the rule by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process to all cases that come before a court.

International and domestic law

Public international law - governs the relationship between states and international organizations

Private international law or conflict of laws - concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied

Domestic law - internal law of a sovereign state - not only law at the national level, but law at the provincial, territorial, regional or local levels

Sources of law

Material sources – social events, historical events, economic events

Formal sources – normative acts, normative agreements, precedents, customs, legal science

Written and unwritten sources

Normative acts (legal enactments)

They are created by competent authorities of the state

They represent general rules for the particular branch of law

They are applied by courts and administrative authorities – individual decisions

Competent authorities in Czech republic

Parliament Government Ministries (departments) Czech central bank Authorities of territorial self-governing units

(municipalities and regions) Constitutional court

Primary normative acts

Constitutional laws (acts of parliament) (Ordinary) laws (acts of parliament) Codes Legislative measures of Senate (Chamber of

Deputies is dissolved) Decisions of Constitutional Court (the nullification of

laws or their individual provisions if they are in contradiction with a constitutional law)

Secondary normative acts

Governmental decrees (for the execution of a law and within its limits)

Regulations of ministries (on the basis and within the limits of law, if authorized so by law)

Decrees and regulations of municipalities and regions

Normative agreements I.

Art. 10: „Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, shall constitute a part of the legal order; should an international agreement make provision contrary to a law, the international agreement shall be applied.“

Treaties must be self-executing – they provide adequate rules by which given rights may be enjoyed or imposed duties may be enforced.

Normative agreements II.

Collective agreement - agreement between an employer and employees' representatives (labor unions) covering terms and conditions of employment

Administrative agreement - agreement between administrative authorities covering specific questions

Precedent I.

It is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts

Precedent that must be applied or followed is known as binding precedent

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent

Ratio decidendi is the point in a case which determines the judgment or the principle which the case establishes

Obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision

Precedent II.

In Czech legal system it is officially not a source of law

Decision of a higher court is binding only in individual case

Leading decisions of Supreme (Supreme administrative, Constitutional) court should be followed by lower courts generally

Customary law

Custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting

Customary law exists where:– a certain legal practice is observed – the relevant actors consider it to be law – customary rule is enforced

The oldest source of law

Legal science (literature)

Today it is not a source of law In ancient Rome and medieval England

works of the most respected lawyers were considered binding

In Czech legal system it can influence the decision of judges