Introduction to Law - Chapter 2

At the core of the most legal systems are the fundamental disciplines that hark
back to the roots of law: the law of contract, tort law, criminal law and the
law of property.

To the core must be added also other important disciplines of law as

constitutional law, administrative law, family law, public and private
international law, commercial law, company law , labor law, intellectual
property law, human rights law etc.

The main branches of law

The division of law between public and private law

- The main division of law is in public law and in private law. This division made in
classical jurisprudence continued even during the boom of the period of capitalism and
liberalization.
- It was first done by Roman jurists. Ulpian divided the right into public and private on the
basis of interests protected by legal norms.

The difference between private law and public law

"Public law is what concerns the state of the Roman state, private law is what concerns the
interests of particular persons as there is public interest and private interest."
The period of capitalism has accepted the division into public and private law.
🠶 Public law includes the branches of law that regulate
relations between state bodies and citizens and between state bodies themselves.
🠶 Private law includes the branches of law that regulate relations between citizens.
Different perspectives on public and private law

Puhta, the representative of the Historical Law School - The right was divided into these two
groups according to the quality of human rights, as a separate person or as a member of society.

Savinji divided the right into public and private for the purpose of the right.
(Other private and public law differences)
In public law wholeness is the goal, while man occupies a second place;
In private law man is the goal, the state (wholeness) is the means to achieve that
Goal.

The German lawyer, Berling, divided the right according to the characteristics of the
participants of the legal relationship -> Public law includes relations between the state and
citizens; the private law refers to legal relations between citizens themselves.

Formal theory
- The right is divided not by the interest protected by the right but the rights are protected
by the legal norms.
- If the right is protected by state bodies on their own initiative, due to their
duties or functions, this is a public right.
- If the right is protected at the initiative of the individual who has infringed
this right, it is a private right.

Problems
- There are criminal cases initiated by the injured party despite the fact that criminal law is
part of public law.
- A prosecutor in the capacity of a state representative can sue for the
interests of a minor child, although civil law is a private matter.
The view of socialist law
Separation into public and private law is unacceptable because there is no private property in the
socialist state.

Definition and content of public law

Public law can be defined as the set of legal norms pertaining to the status (position) of the state
and the government as well as the norms regulating the relationship between the governors and
the citizens.
This definition refers only to the domestic law of the state. If the definition also encompasses
public international law, it must be extended to include relations between states, as well
as between international organizations.
This definition of public law is justified by the Constitution:
🠶 Article 5: “The Republic of Albania applies international law that is binding upon it.”
🠶 Article 122 par 1: “Any ratified international agreement constitutes part of the internal legal
system after it is published in the Official Journal of the Republic of Albania.”
🠶 Article 122 par 2: “An international agreement ratified by law has priority over the laws of the
country that are incompatible with it.”

The science of public law

- It studies state and legal phenomena in close relation to each other.
- It studies the development of state and law,
- It studies the specific properties, characteristics and features of the state and law, as well
as their interrelation and influence.
- It elaborates a number of their fundamental issues, such as origin, social content,
historical types of states, systems of law, their importance in the life of society, etc.
- It is the origin and the improvement of state and the right.
Theoretical concepts are given through the analysis of different views, such as:
● the content of the state and law,
● the characteristics of the modern state,
● state functions and forms,
● issues of state sovereignty,
● dependence on economic form in production etc.
Public law serves as an access to other legal subjects.
Features of public law norms
- Public law norms are general norms that apply to an abstractly defined category of
citizen. These norms are addressed to an indefinite number of people and formulated on
the basis of a public interest.
- Secondly, these norms have binding force on citizens and fall into the group of binding
norms.(Norma urdheruese) Citizens are not required to consent to their application,
unlike private law norms that are generally characterized as permissive norms. (in
Albanian =norma lejuese).

More about the public law and the private law differences
The distinction between Public and Private law is fundamental, especially to the Civil Law
systems of Continental Europe.
There is no precise line to be drawn between public law that governs the relationship between
citizen and state, while private law concerns the relationship between individuals or groups in
society.
Constitutional and Administrative law are an example of public law , while contract law is a part
of private law . Criminal law belongs to public law, since it involves prosecutions of the state
against offenders.
The main branches of public law
Constitutional law
Defn: Is the set of norms that determine basic principles of the political organization of society
and the state.
- Constitutional legal norms deal with the higher state bodies, the way they are organized,
function, the powers of these bodies, and the relationships between them.
- But the constitutional law also deals with the relations that state bodies have with
citizens. In our country, besides the Constitution, as the fundamental law of the state,
with particular importance there are the Constitutional Court's decisions regarding the
interpretation of the Constitution.
- Constitutional Law analyses the extent to which the functions of the government are
distributed between legislative, executive and judicial branches of government:
separation of powers.
A constitution is the fundamental law of a country and specifies the composition and functions of
the organs of the government; it regulates the relationship between individuals and the
state.
Many constitutions incorporate a bill of rights that constrains the exercise of the power of
government by conferring individual rights and freedoms of citizens as: freedom of speech,
religion, the right of peaceful assembly, the right of privacy, the right to life, the right of
being protected by laws, the rights of persons convicted or charged of a criminal offence.

Administrative law
Defn: Consists of norms that regulate administrative activity. It
governs the exercise of the powers and duties by public officials.
- It concerns the control of such powers by the courts which in
many country engage in reviewing the exercise of legislation and administrative
action.
- It concerns also the review of decisions made by so-called “ quasi-judicial” bodies.

Financial law
Defn: It is the set of legal norms that govern the financial activity of the state and other public
entities and the administration of public funds.
- This area includes fiscal law and it is related to government spendings, income,
debt or taxes.

Criminal law and criminal procedure law

Criminal law relates to the set of legal norms that prescribe criminal offenses (criminal offenses
and offenses=vepra dhe kundravajtje penale), the penalties and
principles of criminal responsibility of the persons who commit these offenses.
Criminal proceedings relate to the set of legal norms that prescribe rules and procedures for
investigating and adjudicating criminal cases.
Criminal responsibility entails the presence of a guilty act ( actus reus) as well as a
guilty mind ( mens rea). But these prerequisites will not ineluctably condemn the
accused , for he may have one of several defenses to excuse his otherwise criminal
behavior.( e.g. self defense – I used a reasonable force to defend myself).

Other defenses include:

- duress (e.g. to be forced at the point of a gun to commit a crime),
- mistake (e.g. to take the umbrella of another person believing that it is yours),
- incapacity (e.g. the defendant is a child , too young to form the requisite “mens rea”,
- provocation
- insanity.

Society cannot tolerate attacks upon its own survival: treason, terrorism and public
disorders are therefore generally criminalized; the prosecution must prove that that the defendant
did actually commit the offense with which he has been charged.

One of the primary functions of criminal law is to authorize the punishment of

convicted offenders.
The state by assuming responsibility for chastising the criminal reduces the risk of
victims of crime ” taking the law into their own hands”- the offender is locked up
being removed from society, thereby protecting the rest of us.
In case of minor offences, the criminal may be required to make amends through
“community service”. This form of punishment is justified as a form of “restorative
justice”.

Domestic public law and international law

The first deals with the activity of each state within its framework.
The second deals with the relations between different states and the relations of states in the
community with larger or smaller ones.

Contract law
Defn: A contract is a legally binding agreement between parties to make mutual obligations
that businesses and individuals use to protect their interests. They outline the
specific terms of engagement for a transaction and can also dictate legal consequences
if a party tries to break the agreement.
- Contracts can be written or verbal. Most businesses tend to use written contracts
because they are easier to reference later. Written agreements are also less ambiguous,
so they are more straightforward to enforce.
Contract law, meanwhile, is the subset of laws specifically regulating how contracts
are created and enforced. These laws cover things like:
● how contracts are formed
● what a document must contain to be considered a contract
 ● who is eligible to enter a contract
● what consequences are present for violating contracts
● what a contract can require of signatories
- The concept of “ contract” is based on the Latin phase “pacta sunt servanda
( agreements must be kept).
1) In order to constitute a binding contract, the law normally requires that the
parties to the agreement actually intend to create legal relations.
Breaking a promise is almost always regarded as immoral and it may results in
legal consequences only when certain requirements are satisfied. But in some of the
civil law countries (Germany,Netherlands, France etc) a person may be held
liable –even before his offer is accepted-for failing to negotiate in good faith.
2) The parties must have the capacity to enter into a contract. Though they differ in
detail, all legal systems control the extent to which their members have the
competence to enter into contractual relations.
This is particularly for the young (minors) and the persons affected by mental or other
impairments of their rational faculties, who are generally regarded as incapable of binding
themselves contractually.
3) The concept of freedom of a contract is not unlimited.
The law will not countenance agreements that seek to use law to achieve immoral or
unlawful objectives . They are likely to be struck down by courts as void.
4) Mistake, misrepresentation , or duress may render the contract voidable.
Under some circumstances, the law may allow the parties to avoid a contract where there has
been a mistake or misrepresentation.
5) The courts may award damages for a breach of a contract.
If a party fails to fulfill the obligations according to the contract, the other party may sue it and
recover compensation.
6) When a party’s breach is out of its control –natural disasters-the party may be
released from its obligations.

Property law
The law in which ownership is the exclusive right in the near central part of social organization.
The law of property determines 1) what counts as “ property”, 2) when a person acquires an
exclusive right to a thing, 3) the manner in which it protects this right.

● What counts as property

- In general, property includes lands, buildings and goods.
- Common law distinguishes between real property – a right in rem (land as a distinct from
personal or movable possessions) and personal property - a right in personam,(movable
property as computers , cars, jewelry, stocks and shares etc.)
 - Civil law systems distinguish between movable and immovable property.
- Property is what the law declares to be.
- E.g. a five thousand ALL (Albanian Leke ) bill is a piece of paper to which the law
imparts a value.
- The law may create a property e.g. intellectual property (copyrights) - As the owner
of software programs the software developer has several rights on it.

● When a person acquires an exclusive right to a thing; who the owner is

- The owner is determined by discovering who has the strongest long-term right to
control the thing in question.
- This right includes the right of person to transfer the ownership to another person.
- The law may settle the contest between the owner and the belonger of a thing.(e.g.
rent contract- the tenant has some rights during the period of lease)

Tort law
Defn: Torts (or delicts) are civil wrongs. e.g. injuries to a person , property
reputation, privacy, even psychologically
The law of tort provides victims (or plaintiffs) with the right to obtain compensation for their
loss.
The plaintiff has to prove that the wrong was done intentionally or negligently.
The defendant is a person who is primarily liable for civil wrong.

Family law
Relates to marriage (and its contemporary equivalents) divorce,
children, child support , adoption , custody , guardianship , surrogacy and domestic
violence.

Company law
- Deals with the “floating” of corporations and other business organizations.
- A company is a legal person with the capacity to enter into contracts,
to sue and to be sued.
- Company law stipulates the rights and duties of directors,
shareholders and the concerns with rules of companies governance , mergers and
acquisitions.