The different branches of law

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The different branches of law
Professeur(s) Victor Monnier[1][2][3][4][5][6]
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Domestic law

The distinction between public and private law

  • The ius publicum (public law) consists of all the rules of law relating to the organisation and functioning of the State and to relations between public authorities and individuals.
  • The ius privatum (private law) is constituted by all the rules of law that govern the relationships between individuals. Deals with relations between individuals placed on an equal footing free from any interference from public authority.

Subdivisions of public law

Constitutional Law

Constitutional law is the set of legal rules relating to institutions through which authority is established, transmitted or exercised in the State. The epithet "constitutional" comes from the fact that the fundamental rules of this right are contained in a special document: the Constitution.

The classic theory of the state recognizes three powers:

  • legislative function: Federal Assembly (Council of States + National Council)
  • executive function: Federal Council
  • judicial function: Federal Court

The notion of separation of powers means that each power works in relative independence. It is the framework of the State, the right superior to all.

Administrative law

Administrative law is the body of law that governs the day-to-day management of public affairs by administrative bodies.

Several branches can be distinguished:

  • tax law: it is the financial legislation of the federal or cantonal state that refers to the financial management of the state (mandatory law)
  • social legislation: its purpose is to protect the individual against the difficulties of life. It includes labour law, which ensures the protection of the worker and his working conditions; social insurance law, which organizes a security system against accidents at work and sickness, to counter the consequences of age (old age insurance). This right helps individuals when they have lost the support of their family.
  • environmental legislation: aims to protect the environment that protects the living environment, to enact legal rules that affect environmental protection, land use planning and building regulations.
  • Public servants' rights: applies to all those who work in the public service.

Criminal Law

Criminal law is the body of law that organizes, by means of penalties, the repression of violations of social order.

  • an offence of active or passive behaviour, prohibited by law and punishable according to its seriousness by a penalty.
  • The penalty may consist of a fine and/or imprisonment.

It defines the offences and the conditions under which the penalties must be applied

Criminal law is essential to the life of the group and its future, which is why it already appears in so-called "primitive" societies. It will develop in two aspects:

  • in the family/clan: will be sanctioned by the chief;
  • the repression of crime will, in the absence of a recognized higher authority, be the result of private revenge similar to "vendetta".

For this reason, for a long time criminal law was subject to the archaic concept of revenge, which brought it closer to private law

"Faide "/ "Faida" is a primitive system of criminal law in which the victim of the damage has the right to cause the author or the family of the damage another damage unless there is the intervention of a financial composition and the offender waives his right of revenge.

The pecuniary composition is a compensation with the objective of compensation that replaces private revenge. This composition comes from the Christian influence which takes the form of transactions whose purpose is to compensate.

It is only belatedly that the State acquires the monopoly of legitimate violence and becomes strong enough to impose its own sanctions, and therefore criminal repression.

The popular imagination is immediately linked to criminal law, also known as "criminal law". This comes from the decorum of criminal justice such as the staging of death (guillotine called "the great widow"), the rites and ways of judgment. However, criminal law cases remain a minority.

The implementation of repression against offences is a matter for the State monopoly. The prohibition of private revenge will only be accepted by society if and to the extent that repression by the State is ensured.

Its task is to ensure peace and security by suppressing the breach. The rules that determine the conditions of repression are found in the Criminal Code: they are a set of legal rules relating to criminal repression.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 1

It is the state itself as the protector of the individual and society that prosecutes the punishment of criminals. It has links with private law because it protects the individual.

There are two types of criminal law:

  • Common criminal law: criminal law applied by ordinary courts, applicable to all offenders;
  • Special criminal law: entrusted to special courts (ex-military which applies to offences committed by army personnel).
Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 123

Procedural law

Procedural law refers to "all the rules governing the organisation and activity of the courts [1] which apply the law".

  • in a broad sense, it means all the forms to be respected for the realization of a right or set of rules.
  • in a narrow sense, procedural law refers more particularly to judicial proceedings, also known as judicial law or procedural law.

This law determines the organisation of the courts, determines the form and rules according to which the competent court must judge disputes [2]. Private judicial proceedings are the necessary complement to private law. It is the law that prescribes the way to act.

There are three types of procedures that are primarily intended to define the different organs of justice:

  • criminal: the rules of form are strict in order to be a guarantee for the accused. The court is not free to do what it wants.
  • administrative: defines all the formalities for the correct application of the administrative law that organises the organisation and competence of administrative courts
  • civil law: also called "private judicial law", it is the part of the procedure that denounces the rules governing the organisation and activity of courts called upon to settle disputes arising in the application of private law Example of civil procedure :
    • right of forced execution: right of pursuit (for debts) and bankruptcy (the debtor can no longer pay his debts)
    • how to file a lawsuit
    • how to pronounce and execute a judgment

This procedure is related to private law, but if it belongs to public law it is because of the relationships it establishes between the State and the individual, because the State protects the individual.

They determine both the organisation and the jurisdiction of these various courts; they establish the conduct of the trial, i.e. in what forms and under what rules the competent court must judge the disputes submitted to it.

Criminal and civil proceedings are governed by federal law and therefore fall within the jurisdiction of the Confederation.

Subdivisions of private law

Civil law has long been confused with private law. Civil law comes from Roman ius civil law, i. e. the law that applies to relationships between individuals. In French, the term "civil" has long been used as a synonym of private law. Since then, many distinctions have been made between the rules:

  • the rules that may be applied to all individuals
  • rules that apply to only one category of person.

Civil law: civil code and code of obligations

Civil law is the fundamental part of private law, including rules relating to persons, family, property and obligations.

It applies indiscriminately to all individuals and depends on the competence of the confederation. It determines the essential consequences of the individual's main facts and actions as well as their legal situation:

  • family law;
  • right of filiation;
  • matrimonial regimes;
  • property law.
Code des obligations - article 41

Commercial law: code of obligations

Commercial law or business law is the fundamental part of private law that contains all the rules of law that apply to commercial relationships.

There are three categories:

  1. rules of law relating to commercial enterprises: commercial law defines the status of the trader and commercial companies;
  2. rules of law relating to property and commercial activity: plays a particular role between traders. Right/ideal relationship that organizes official offices;
    1. intellectual property law: the right of monopoly over an idea manifested in an external form that individualizes it (copyright). A "security paper" is a security incorporating a claim that can only be asserted by a security or representation of a document.
    2. industrial property: refers to the creation of the mind within the framework of industry.
  3. special fields: banking law, maritime law, insurance law.

Characteristics of private law

  1. Individualistic law
  2. Liberal law - It is determined by the autonomy of the will of individuals - It allows him to arrange his life as he sees fit - It is dispositive in nature
  3. Homogeneous law
  4. Stable law - From the Roman tradition, extremely elaborate - Compared to public law, it is old

International law

Article détaillé : International Public Law.

International law is based on international treaties from supranational institutions

International law refers to:

  • private international law: a set of rules of domestic law that resolve conflicts arising from legal problems that include foreign elements. These rules designate the competent authority to judge.
  • public international law: all the rules of law that govern the relations between subjects of international law.

International law originates from the subjects of international law through treaties and international institutions.

Public international law

Public international law is also called "droit des gens" from the Latin "ius gentium".

It can be defined:

  • by its sources: all the rules of law whose source is international
  • by its purpose: it is called upon to regulate relations between States, their relationship with international organizations, and regulates the functioning of international organizations

This branch has existed since antiquity, because there is a community of interest between States that allows conflicts to be resolved by means other than force.

In a State, there is an established power that sanctions the rules of law. However, there is no fundamental obligation that obliges a State to adopt rules of law.

There are rules of international law only to the extent that sovereign States recognize them.

Characteristics of public international law

  1. Deficient law - There are gaps: there are areas and cases that are not dealt with at all, this differentiates it from domestic law for example. This regulates every possible case, when public international law is concentrated in the spheres of mutual understanding of States
  2. Heterogeneous law - Comes from customs, national rules, it is constructed of "bricks and pieces".
  3. Stratigraphic law - He evokes the idea that public international law is created by a accumulation of successive layers, which remain very independent - no clear link between the parties to the law.

Annexes

References

  1. ↑ Publication de Victor Monnier repertoriées sur le site de l'Université de Genève
  2. ↑ Hommage à Victor Monnier sur le site de l'Université de Genève
  3. ↑ Publications de Victor Monnier sur Cairn.info
  4. ↑ Publications de Victor Monnier sur Openedition.org
  5. ↑ Page personnelle de Victor Monnier sur le site de l'Université de Aix-Marseille
  6. ↑ En Hommage À Victor Monnier.” Hommages.ch, 11 Mar. 2019, www.hommages.ch/Defunt/119766/Victor_MONNIER.
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