10 November 2021

Roeland Audenaerde

INTRODUCTION TO LAW
Lecture 2: Rights. The four main legal traditions
 Program for today

• Rights & duties

• Four main legal traditions

Lecture 2
 Rights and duties
• Agita owns a bike. Luis also owns a bike, a very expensive new one.
• Agita drives her bike against the bike of Luis, so they collide, causing
considerable damage to the bike of Luis.
• Stemming from his ownership of his bike, what rights does Luis have in law
against Agita? And what duties has Agita infringed in respect of Luis?
• We are talking here about rights and duties
• But what are rights? And what are duties?
• Luis might consider himself to have a moral right to compensation for the
damage to his bike. But does this necessarily mean he also has a legally
protected right to it?
• And if he has a legal right, does that necessarily mean he will be able to
enforce it?
Lecture 2
 Views of the concept of ‘legal rights’

• Salmond: “Rights are connected to interests”

− “Luis has an interest in his bike remaining untouched”
• Another view: “Rights exist only when legal remedy is available
(when one can bring legal action)”
− “Luis has a right only when he can go to court”
• Salmond: “To every right corresponds a duty”
− “Agita’s duty to compensate corresponds to Luis’ right to
compensation”
• Austin: “Duties correspond to a certain type of rights only”
− When prosecuting an offender, whose right is being protected?

Lecture 2
 Views of the concept of ‘legal rights’ (cont.)

• Hohfeld: “The concepts of right and duty are too general, they need to
be replaced by other concepts” (see Harris, p. 104, fig. 4.1)
• H.L.A. Hart: “Concepts like ‘rights’ and ‘duties’ take different meanings
depending on the context (circumstances) in which they are used”
• Harris: “Yes, we need to look at the context, but at the broader
context: also look at the social, political and economic circumstances
in which the concepts of ‘rights’ and ‘duties’ are used”.
• Example: the right of property cannot be properly understood without
referring to societies in which commerce and capital play a big role,
and where social inequality exists

Lecture 2
 Dynamic view of rights

• Harris: “Circumstances do not always stay the same, they change. Hence
we need to see a right as a process. This process involves three steps:
1. Claiming your right: you bring your claim before a court or before
parliament.
2. Legal recognition (by the court) of the right you claimed
3. The court protects your right by providing you with a legal remedy, for
example with a compensation or with an injunction (order) to do
something.
• NB: Sometimes, you get 1 but not 2 and 3. Sometimes you obtain 1 and 2,
but not 3.

Lecture 2
 Who have rights?

• To this question, you might answer: Human beings

− But what is a human being?
− When does a human being start to exist? Do we owe anything to
someone who is not born yet?
− When does someone end being a human being? Do we owe
anything to someone who is brain dead?
• What rights you have, does not so much depend on your being a
human being, but on the roles you play in society: being an employee,
a mother, a voter, a consumer, student, drug addict, etc.
• As a mother, you have other rights and duties than as a student.

Lecture 2
 Property rights

• The concept of rights is dynamic, it changes over time, depending on

social circumstances. And so does the concept of property rights.
• In purely agricultural societies, property meant ownership of land.
• When trade started to play a role, property started to include also
‘choses in possession’: objects of personal property that can be seen
and carried away.
• Still later, with the advent of money and knowledge-based economies,
property started to include also ‘choses in action’: things that exist on
paper only (or, today, in the digital universe only), such as cheques,
shares, intellectual property (copyrights, patents), data, information.

Lecture 2
 Let’s have a break! (5 minutes)

Copyright?
Lecture 2
 Legal traditions

• Every country in the world has its own legal system (its own set of legal institutions,
procedures and rules).
• In this course, we will not discuss in detail the legal system of each country
• What we will do instead, is look at groups of countries that have similar legal
systems
• A group of countries whose legal systems are broadly similar is called a ‘legal
tradition’
• Countries sharing a legal tradition share a common set of attitudes regarding the
nature of law, the role of law in society, the proper organization of the legal system,
and the way law is or should be made, applied, studied, perfected and taught.

Lecture 2
 Four main legal traditions

• In the world, there are four main legal traditions:

1. Civil law
2. Common law
3. Islamic law
4. Customary law

Lecture 2
 Where are they to be found?

• Civil law: in 75% of all countries in the world: continental Europe, and countries that
used to be colonies of continental European powers (France, Spain, Portugal,
Belgium, Netherlands)
• Common law: in 80 countries that used to be British colonies
• Islamic law: in 15 Islamic countries (the other 35 Islamic countries mostly use civil
law instead)
• Customary law: in 40 countries in Europe, Asia, Africa and the Pacific

• NB: Half of all countries combine two or more of these legal traditions
• This combining is called ‘legal pluralism’
• Legal pluralism is normal rather than exceptional.

Lecture 2
 Legal families within the civil law world

• The 150 countries using civil law can be subdivided into 5 families:
1. Countries using Dutch Roman law (the law of the Romans as it was interpreted by the Dutch in the 17 th
century): 11 former Dutch colonies plus Scotland
2. 50 countries using the Napoleontic code (the civil law book of French emperor Napoleon, enacted in
1804; employed by France and former French colonies and territories; until 1992, the Netherlands also
used this code)
3. 17 countries using the German civil code (much of Central and Eastern Europe, but also Japan, Taiwan,
South Korea, Mongolia)
4. Nordic law, in the five Scandinavian countries (S, N, F, DK, Iceland)
5. Socialist law, in the world’s five remaining communist countries (China, Vietnam, Laos, North Korea,
Cuba)

• Quite some countries combine or mix one type with another.

Lecture 2
 Recap

• Rights and duties

• Different views of legal rights
• Who is having rights?
• Property rights
• Four legal traditions: civil law, common law, customary law,
Islamic law
• Where to be found?
• Within the civil law tradition, five subfamilies

Lecture 2
 MAIN CAMPUS
Johanna Westerdijkplein 75
2521 EN The Hague

CAMPUS DELFT
Rotterdamseweg 137
2628 AL Delft

ZUIDERPARK SPORTS CAMPUS

Meester P. Droogleever Fortuynweg 22
2533 SR The Hague

CAMPUS ZOETERMEER
Bleiswijkseweg 37
2712 BP Zoetermeer