Principles of Law

MASTER OF ARTS IN GENERAL MANAGEMENT I course: LLM02

Prof. Dres. h.c. Rainer Arnold I date: 29.08.2016
I. What is law and which functions has law?
1. Law as a body of written or unwritten norms with obliging character
2. Law is an instrument for establishing a society order and for realizing values

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II. State law, supranational organisation law, regional and
universal international law
1. State law: constitutional law, legislation, law inferior to legislation - law at different
levels in differentiated State systems (federal and regional States) - customary law and
general principles of law
2. Supranational organisation law: the primary and secondary law of the European Union
3. International law: regional international law (example: European Convention of Human
Rights, ECHR) and universal international law (examples: UN Charter, Human Rights
treaties; bilateral and multilateral international treaties)

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III. Law producing processes
1. Constitution-making by the people (peoples sovereignty; basic democratic act)
2. Legislation made by Parliaments or directly by people (Parliament members as
trustees of the people adopt legislation which must be conform to the Constitution;
specific democratic acts) or, in a number of countries, legislative referenda.
3. Supranational legislation (in form of regulations, directives, etc.) is adopted by the EU
institutions, in particular by the European Parliament and the EU Council. EU primary
law (mainly: the Treaty on the European Union, TEU, the Treaty on the Functioning of
the European Union (TFEU) and the EU Fundamental Rights Charter) is treaty law
made by the member States of the European Union
4. International law: principal sources are treaty law and customary law, either on the
regional or on the universal level. Conclusion of treaties between States or
international organisations, as expression of a system of coordination. The main
principle is the principle of mutual trust of the treaty partners (pacta sunt servanda)

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IV. Branches of law
1. Public law and private law: traditionally distinct branches, however closely
interconnected in modern areas (environmental protection, consumer protection,
protection of personality rights, etc.)
2. Criminal law - procedure law - economy and business law labour law social law

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V. Internationalisation of law
1. Globalisation and transnational cooperation as motors of law internationalization
2. Approximation of laws in all branches by integration processes such as in particular
within the EU - unification tendencies - transnational codification attempts - universal
codifications (example: CISG)
3. The internationalisation of the protection of the individual by fundamental rights
(important example: the influence and impact of the ECHR on the member States of
the Council of Europe)
4. The emerging of common universal concepts for the international community: =the
prohibition of military force between the States (in the framework of the UN system,
article 2 nr. 4 UN Charter) = the worldwide economic concept of WTO/GATT
liberalisation instead of protection = struggling for common solutions of worldwide
importance (climate protection, security against aggression and attacks, migration
problems)

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VI. The principles of law in the various legal orders
1. Principles in national law: Constitutional law principles such as rule of law, democracy,
fundamental rights protection of the individual, proportionality, social orientation, open
State, etc. Civil law principles: private autonomy, good faith, direct or indirect impact of
constitutional law, balancing of interests
2. Principles in supranational law: conferral of competences, subsidiarity, proportionality,
nondiscrimination, mutual loyalty, primacy of supranational law over national law,
principal of effet utile, respect of national identity
3. Principles in international law: respect of sovereignty, principle of mutual trust (pacta
sunt servanda), prohibition of military force, peaceful cooperation, commercial
liberalization, respect of human rights

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VII. Dispute settlement by judges
1. Disputes in civil law before the civil law courts
2. Controversies in public law before the courts (special administrative courts or ordinary
courts)
3. Constitutional disputes before constitutional courts (Austrian-European model) or
before (supreme) ordinary courts (American model)
4. Court of Justice of the European Union (and first instance) on the supranational level
5. International Court of Justice, International Criminal Court (universal international
courts), European Court of Human Rights, Inter-American Court of Human Rights, etc.
(regional international courts).

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THANK YOU VERY MUCH FOR YOUR
ATTENTION!