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