The different branches of law

De Baripedia

Based on a course by Victor Monnier[1][2][3]

Domestic law[modifier | modifier le wikicode]

The distinction between public and private law[modifier | modifier le wikicode]

Ius publicum, or public law, is an essential branch of law that encompasses all the rules governing the organisation and operation of the state, as well as interactions between public authorities and individuals. This area of law is crucial to ensuring that the State functions smoothly and fairly, and to protecting the rights and freedoms of individuals. At the heart of public law is the organisation of the state. This discipline defines the structure and functions of the different branches of government - executive, legislative and judicial. It establishes the fundamental principles that guide the formation and operation of these institutions. For example, in many democratic countries, public law dictates the separation of powers between these branches to prevent abuse and maintain a balance in the exercise of state power.

An important aspect of public law is the regulation of relations between the state and its citizens. This branch of law governs the way in which the state interacts with its citizens, ensuring the protection of fundamental rights such as freedom of expression and the right to a fair trial. It also governs the delivery of public services and puts in place mechanisms to prevent abuses of power, such as administrative appeals and judicial review of the administration.

Constitutional law, a subset of public law, plays a crucial role in establishing the fundamental rules governing the State. It defines the rights and freedoms of citizens, electoral principles and the limits of state power. For example, the US Constitution not only establishes the structure of the federal government but also guarantees essential rights such as freedom of religion and of the press. Administrative law, another component of public law, deals specifically with the rules governing public administration and its interactions with individuals and businesses. It covers areas such as administrative procedures, judicial review of the administration, and the regulation of public services. A concrete example of the application of administrative law is the process of challenging a government decision, such as the refusal of planning permission. In addition, tax law, although it has its own specific features, is an integral part of public law. It deals with the collection and management of the State's financial resources, an essential element in the funding of public services and infrastructure. Finally, public international law is the branch of public law that governs relations between states and other entities governed by international law, such as international organisations. This includes issues such as international treaties, the law of the sea and the rules governing armed conflict. Public law as a whole therefore plays a fundamental role in guaranteeing the rule of law, protecting the rights of citizens in the face of state authority, and maintaining order and justice within society.

Ius privatum, or private law, is a fundamental branch of law that deals with relations between private individuals. Unlike public law, which governs relations between the state and individuals or between different branches of the state, private law deals with interactions between individuals or private entities, placing them on an equal footing and free from direct interference by public authority. This branch of law encompasses several key areas that are essential to the regulation of day-to-day interactions between individuals and organisations. For example, civil law, a central element of private law, includes areas such as contract law, which governs agreements between private parties; family law, which deals with issues such as marriage, divorce and child custody; and inheritance law, which concerns the transmission of a person's estate after death.

Another important area of private law is commercial and business law, which deals with the legal aspects of trade and business. This area includes company law, which governs the creation and management of businesses, commercial law, which deals with commercial transactions and business practices, and intellectual property law, which protects intellectual creations such as patents, trademarks and copyright. Private law also plays a crucial role in providing a framework for resolving disputes between private parties. Courts and mediation systems provide mechanisms for dealing with these disputes, whether they be contractual or family disputes. Moreover, private law is dynamic and constantly evolving in response to changes in society. For example, with the advent of digital technology and the internet, new areas such as cyber law and data protection law have emerged, reflecting the need to adapt legal principles to new technologies and practices. Private law is essential for regulating relationships between individuals and private entities, providing a legal framework for managing a wide variety of personal and commercial interactions. It ensures order and justice in the private sphere, enabling individuals to conduct their affairs with confidence and security, while protecting their rights and interests.

The subdivisions of public law[modifier | modifier le wikicode]

Constitutional law[modifier | modifier le wikicode]

Constitutional law is a fundamental branch of law that establishes the basic legal rules governing a state's institutions. These rules determine how authority is established, transmitted and exercised within the state, forming the basis for its political organisation and functioning. The most significant aspect of constitutional law is that it is often codified in a formal, supreme document known as the Constitution. This Constitution serves as the fundamental charter for the State, defining not only the structure and powers of the various government bodies, but also the rights and freedoms of citizens. It plays a crucial role in delimiting the powers of the state and protecting individual rights, acting as a framework for other forms of legislation.

The Constitution generally establishes the structure of government, including the separation of powers between the executive, legislative and judicial branches. It specifies the operating procedures of each branch, the ways in which decisions are made, and the interactions between these different branches. For example, in many democratic systems, the Constitution provides for checks and balances to ensure that no branch of government exercises excessive authority.

Constitutional law also deals with issues of civil and political rights. Modern constitutions often include a charter or bill of rights, which guarantees fundamental freedoms such as freedom of speech, religion and the right to a fair trial. These protections play an essential role in preserving the rule of law and protecting individuals against arbitrary government action. Constitutional law also has a dynamic and evolving dimension. Constitutions can be amended or revised to reflect changes in society's values and circumstances. In addition, constitutional courts and supreme courts in many countries play an important role in interpreting the constitution, thereby influencing the evolution of the legal and political framework of the state. Constitutional law forms the foundation on which the entire legal and political order of a state rests. It provides the framework for governance, ensures the protection of fundamental rights and freedoms, and adapts over time to meet the changing needs and aspirations of society.

Classical state theory, deeply influenced by Montesquieu's ideas on the separation of powers, identifies three essential functions within a government: legislative, executive and judicial. This separation aims to maintain a balance and prevent the abuse of power, a fundamental principle of balanced democratic government.

The legislative function, responsible for creating laws, is embodied in the Swiss context by the Federal Assembly, a bicameral parliament made up of the Council of States and the National Council. These two chambers work together to formulate and pass legislation, playing a crucial role in the country's legal framework. Historically, the development of bicameralism, as seen in the American system with the Senate and the House of Representatives, is an example of how this legislative branch has evolved to better represent the various interests of the States and the people.

The executive branch, represented in Switzerland by the Federal Council, is responsible for applying the law and managing the affairs of state. This branch, made up of members elected by the Federal Assembly, runs the administration and represents the country internationally. The Swiss model of the Federal Council, with its collegiate structure and proportional representation, is a unique example of consensual governance. Historically, figures such as George Washington in the United States have set standards for the executive role, emphasising the importance of leadership and decision-making in managing the affairs of state.

Finally, the judicial function, with the Federal Supreme Court in Switzerland as the highest judicial body, is essential for interpreting laws and resolving disputes. This branch ensures that legislation is applied fairly and uniformly, thereby protecting constitutional rights and underpinning the rule of law. Historically, courts such as the US Supreme Court have played a major role in interpreting laws and defining civil rights, illustrating the significant impact of the judicial function on society.

This separation and interaction between the legislative, executive and judicial powers is crucial to democracy. They guarantee not only a balance in the exercise of power, but also that citizens' rights and freedoms are protected against any form of tyranny or abuse. The Swiss model, with its particularities, and historical examples such as the United States, show how these principles have been implemented and adapted to national contexts, playing a decisive role in the formation of modern governments.

The notion of the separation of powers, a fundamental concept in the theory and practice of government, is based on the idea that the different branches of power - legislative, executive and judicial - should operate independently of each other. This independence is essential to prevent the concentration of power and to ensure a balance that is vital to the health and stability of a democracy. According to this theory, each branch of government has its own area of competence and must not encroach on the functions of the other branches. The legislative branch creates the laws, the executive branch implements them, and the judicial branch interprets the laws. This division of responsibilities is designed to prevent any single branch or entity from acquiring excessive power, which could lead to authoritarian or tyrannical forms of governance.

The separation of powers is often seen as the backbone of the state, a higher law that underpins the whole organisation of government. It is incorporated into the constitutions of many democratic countries, acting as a beacon that guides the structuring and functioning of government. Historically, this notion has been strongly influenced by the work of philosophers such as Montesquieu, whose work "De l'esprit des lois" greatly contributed to the popularisation of this idea. Montesquieu argued that political freedom in a state can only be preserved if there is a separation and balance between the powers.

In practice, although the powers are separate, there is often a system of checks and balances to ensure that each branch cooperates with the others and to prevent abuse. For example, a president (executive power) may have the power of veto over laws passed by parliament (legislative power), but this veto can be overridden by parliament with a qualified majority. Similarly, the courts (judicial power) can declare certain laws or executive actions unconstitutional. The separation of powers is a fundamental principle that ensures the balance and independence of the different branches of government, playing a crucial role in maintaining democracy and the rule of law.

Administrative law[modifier | modifier le wikicode]

Administrative law is an essential branch of law that encompasses the rules governing the day-to-day management of public affairs by the State's administrative bodies. This branch of law is crucial because it governs the way in which public administration operates and interacts with citizens, playing a major role in the effective implementation of government policies and the maintenance of public order. Administrative law covers a wide range of government activities, from issuing permits and licences to regulating public services, managing public resources and enforcing legislation in specific areas such as the environment, health and safety. It sets out the procedures that public bodies must follow in carrying out their functions, ensuring that government actions are carried out in a transparent, accountable and fair manner.

An important aspect of administrative law is judicial review of the administration. The courts have the power to review decisions taken by administrative bodies to ensure that they comply with the laws in force and the principles of fundamental justice. This includes checking that government agencies have not exceeded their legal authority, that they have followed the required procedures, and that they have acted fairly and reasonably. Administrative law also plays a crucial role in protecting citizens' rights. It provides mechanisms by which individuals can challenge government decisions that directly affect them, such as decisions on welfare benefits, planning permission or regulatory sanctions. This possibility of appeal ensures that citizens have a means of defending their rights against the administration and helps to maintain confidence in the administrative system. Administrative law is a vital part of the legal framework governing interactions between the state and its citizens. It ensures that the public administration acts within the limits of the law, in an efficient, transparent and fair manner, and plays an essential role in safeguarding the rights of individuals and in the overall functioning of the State.

Administrative law, in all its complexity and diversity, covers a wide range of areas, each of which plays a crucial role in the management of public affairs and the protection of citizens and the environment. Among these areas, tax law stands out for its focus on the State's financial legislation, whether at federal or cantonal level. This branch is essential for defining the way in which the State collects and manages financial resources, primarily through taxes. It is the cornerstone of the financing of public services and the redistribution of resources to achieve social and economic objectives. For example, major tax reforms, such as those undertaken in many countries to modernise their tax systems, illustrate the importance and impact of tax law in economic and social management.

Social legislation is another crucial branch of administrative law, designed to protect individuals against the vagaries of life. This legislation encompasses labour law, which protects workers and their working conditions, ensuring a safe and fair working environment. It also includes social insurance law, which provides security against accidents at work, sickness, and supports individuals in their old age. This legislation is fundamental to providing a safety net for individuals, particularly when they lose the support of their family. Social security systems in Europe, for example, demonstrate how social legislation can provide essential assistance at critical times in people's lives.

Environmental legislation, focused on protecting the environment and preserving the quality of life, is also an important component of administrative law. This legislation covers areas such as environmental protection, town and country planning, and building regulation, playing an essential role in preserving natural resources and promoting sustainable development. Initiatives such as climate change legislation and sustainable development policies illustrate the growing importance of environmental legislation in responding to global environmental challenges.

Finally, civil service law, which applies to public sector employees, is a specialised branch of administrative law. It governs the conditions of employment, rights and obligations of civil servants, ensuring fair treatment while emphasising efficiency and integrity in the public service. Systems such as the French civil service show how civil service law can effectively structure careers and guarantee high standards of public service.

Together, these different branches of administrative law form a comprehensive legal and regulatory framework that guides state action and ensures fairness and justice in society. They show how the State intervenes in various areas of public life to protect and serve citizens, while efficiently managing resources and preserving the environment for future generations.

Criminal law[modifier | modifier le wikicode]

Criminal law is a fundamental branch of the legal system that focuses on regulating and punishing behaviour deemed harmful or dangerous to society. Its main objective is to maintain social order by defining what constitutes criminal behaviour and establishing appropriate penalties for these offences. In criminal law, an offence is defined as an act or omission that violates a law and is punishable by a criminal penalty, such as a fine, imprisonment or other forms of reparation. Criminal law specifies not only the types of actions considered to be offences, but also the circumstances and intentions (mens rea) required for an act to be classified as criminal.

The aim of criminal law goes beyond simply punishing offenders. It also aims to prevent crime, rehabilitate offenders and protect society. By clearly defining unacceptable behaviour and the associated consequences, the criminal law plays a deterrent role, aimed at preventing the commission of future crimes. The criminal justice system, which implements criminal law, includes police forces (which investigate crimes), courts (which try criminal cases), and correctional systems (which enforce sentences). Criminal procedure, an integral part of criminal law, ensures that the rights of accused persons are protected, including the right to a fair trial and the right not to be subjected to cruel or unusual treatment.

Historically, criminal law has evolved to reflect changes in social values and norms. For example, over time, many legal systems have abolished punishments deemed inhuman or degrading and have developed concepts such as diminished responsibility for certain groups of people, such as minors. Criminal law is a crucial pillar of the legal system, playing an essential role in preserving social order, protecting citizens from criminal behaviour, and ensuring fairness and justice in the treatment of offences.

A criminal offence, as defined in criminal law, may be active or passive behaviour that is prohibited by law and is punishable by penalties depending on its seriousness. This definition encompasses a wide range of acts and omissions that are considered harmful or dangerous to society and therefore merit a criminal response. Active behaviour generally involves deliberate action, such as theft, assault or murder. In these cases, the individual commits an act that directly contravenes the law. On the other hand, passive behaviour may involve an omission or failure to act when the law imposes a specific obligation, as in the case of parental neglect or failure to comply with safety standards at work.

The seriousness of an offence is a key factor in determining the appropriate sentence. Offences are generally classified according to their severity, as contraventions, délits, and crimes, each attracting different levels of punishment. Contraventions, considered to be the least serious offences, can be punished by fines or other minor penalties. Misdemeanours, which are more serious, can result in short prison sentences or larger fines. Crimes, which are the most serious offences, can lead to long prison sentences, or even life imprisonment in the most serious cases.

The nature of the sentence depends on the specific legal system and the particular circumstances of each case. Fines are often used for less serious or first-time offences, while prison is generally reserved for more serious misdemeanours and felonies. Some jurisdictions may also use other forms of punishment, such as community service, probation or rehabilitation programmes. A criminal offence may be an act or omission prohibited by law, and the penalty imposed depends on the seriousness of the offence. The criminal justice system uses these penalties not only to punish offenders, but also to deter criminal behaviour and protect society.

Criminal law plays a crucial role in the legal system by defining offences and establishing the conditions under which penalties must be applied. This branch of law is concerned with identifying precisely what behaviour is considered criminal and what the appropriate penalties are for these acts, depending on their nature and seriousness. Offences in criminal law are classified into different categories, such as contraventions, délits and crimes, according to their severity. Each category of offence is associated with a specific set of possible penalties. For example, contraventions, which are the least serious offences, may be punished by fines or short prison sentences, while crimes, which are the most serious, may result in longer prison sentences or other severe penalties.

Criminal law also stipulates the conditions under which penalties must be applied. This includes the legal procedures that must be followed to ensure a fair trial and respect for the rights of those accused. The principle of legality is fundamental to criminal law: a person can only be tried and punished if his or her behaviour corresponds to an offence clearly defined in the law. Furthermore, criminal law takes into account various factors, such as intent (mens rea), mitigating or aggravating circumstances, and the criminal past of the accused, to determine the appropriate sentence. Furthermore, criminal law is not only punitive, but also aims to prevent re-offending, rehabilitate offenders and protect society. Rehabilitation programmes, alternatives to imprisonment and probation systems are examples of how criminal law seeks to integrate these objectives. Criminal law is essential for maintaining social order by defining offences and setting clear standards for the application of penalties. It ensures that sanctions are applied fairly and proportionately, while protecting the fundamental rights of individuals and preserving public safety.

Criminal law, as an essential element of social order and cohesion, has been present since the earliest societies, including those described as 'primitive'. In these societies, criminal law manifests itself in forms that reflect the social structures and cultural norms of the time. In the family or clan context, criminal justice was often administered by the head of the family or clan. This authority figure played a central role in managing conflicts and punishing behaviour deemed unacceptable or harmful to the group. The justice meted out by the chief could take various forms, ranging from material reparation to more severe sanctions, depending on the nature of the offence and the traditions of the group. In the absence of a recognised central or higher authority, the punishment of crimes could take the form of private vengeance. This type of justice, often guided by specific cultural norms and codes, manifested itself in practices such as the 'vendetta', where the victim's family or clan took the necessary steps to repair the harm suffered, often through acts of retaliation. This approach to justice was rooted in concepts of honour and reparation, and played a crucial role in regulating behaviour within the community.

These systems of primitive justice, although very different from modern legal systems, illustrate the universal importance of criminal law in preserving social order and managing conflict within human groups. Over time, these systems have evolved into more organised and centralised forms of criminal justice, reflecting the development of more complex state structures and the recognition of principles such as fairness and human rights. Thus, criminal law, from its origins in primitive societies to its modern incarnations, has always played an essential role in regulating human interaction and preserving social harmony.

Historically, in many societies, criminal law was initially dominated by the concept of revenge, a practice that brought it closer to private law. In this context, criminal justice was largely a personal or family affair. A system emblematic of this approach is the "Faide" (or "Faida"), a primitive criminal law mechanism in which the victim of an injury had the right to cause a similar injury to the perpetrator or his family. This system was based on the principle of reciprocity and balance in retaliation, and reflected a conception of justice based on honour and personal reparation. However, with time and the growing influence of ethical and religious principles, particularly Christian ones, the concept of pecuniary composition began to replace private vengeance. This was a form of financial compensation designed to compensate the victim or his or her family. The payment of a sum of money or some other form of compensation served to appease the victim and avoid cycles of revenge that could destabilise society.

This development reflects a fundamental change in the understanding of justice and criminal law. The transition from private vengeance to forms of financial compensation marks the beginning of a more structured legal system, where conflict resolution is more organised and less violent. This change is also indicative of the growing influence of values such as forgiveness, reconciliation and social stability, which began to take precedence over the practices of revenge and retaliation. The history of criminal law shows a gradual evolution from a system based on personal vengeance and private law to a more formal and institutionalised legal system. This evolution has been strongly influenced by changes in social, ethical and religious norms, leading to more civilised and equitable practices of conflict resolution and reparation of damages.

The transition to a system where the state holds a monopoly on legitimate violence and imposes its own criminal sanctions represents a major turning point in the history of law and governance. This evolution occurred gradually and can be seen as a key stage in the development of modern states. In earlier societies, as we have seen, criminal justice was often a private matter, managed within the family or clan, and based on principles of personal vengeance or direct reparation. However, with the emergence of nation states and the development of more centralised government structures, the state began to claim a monopoly on the exercise of force and criminal sanction. This process was influenced by a variety of factors, including the need for stable public order, the centralisation of political power, and the influence of more universal legal and ethical principles.

The monopolisation of legitimate violence by the state means that only the state authority can legally exercise force or impose criminal sanctions. This idea was conceptualised by the sociologist Max Weber, who identified the monopoly of legitimate violence as a fundamental characteristic of the modern state. By taking control of criminal justice, the state not only established its authority over domestic affairs, but also contributed to a more predictable and just environment for its citizens. The introduction of criminal law enforcement by the state has led to the creation of formalised judicial systems, where laws are defined by legislative bodies and enforced by the courts. This has led to a more systematic and equitable administration of justice, with clearly defined procedures to ensure the rights of the accused and fair treatment. This change has also led to the standardisation of laws and penalties across the territories, replacing the varied and often contradictory local or tribal systems of justice. It has also encouraged the development of legal principles such as the presumption of innocence and the right to a fair trial, which are now regarded as fundamental aspects of modern legal systems.

The popular imagination often immediately associates criminal law with dramatic and powerful images. This perception is largely influenced by the most visible and theatrical aspects of criminal justice, in particular the historic methods of execution such as the guillotine, nicknamed "the great widow", as well as the rites and spectacular procedures of criminal trials. This representation is reinforced by the media, literature and film, where criminal cases are often presented in a sensational manner, accentuating the elements of drama, conflict and punishment. The guillotine, for example, became a powerful symbol of criminal justice, particularly during the French Revolution, when it was used to publicly execute those considered enemies of the state. These public executions were not only acts of justice, but also spectacles designed to send a strong message to the public. However, despite this strong and often dramatic association in the public mind, criminal law cases are actually a minority of court cases. Instead, the majority of cases handled by the judicial systems in many countries fall under civil law, which deals with disputes between individuals or entities, or administrative law, which concerns relations between citizens and the state. These cases include issues such as contractual disputes, divorce, property, and breaches of municipal by-laws, which are generally less sensational but more relevant to people's daily lives.

The enforcement of offences is exclusively the monopoly of the State. This centralisation of repressive authority is a key element in the transition of societies towards more structured and ordered legal systems. The prohibition of private vengeance and the transition to a state criminal justice system were crucial steps in the development of more peaceful and stable societies. Historically, private vengeance, such as faide or vendetta, was a common way of settling disputes and punishing offences in many societies. However, this system tended to generate cycles of violence and retaliation, disrupting social peace and public order.

For society to accept the abandonment of private vengeance, it is imperative that the State provides an effective and reliable criminal justice system. This means not only punishing offences fairly and proportionately, but also ensuring that victims of crime are heard and their rights protected. Public confidence in the State's ability and willingness to punish crime is therefore essential to maintaining social order and preventing a return to forms of private justice. Furthermore, the centralisation of criminal law enforcement in the hands of the state has led to the development of key legal principles such as the presumption of innocence, the right to a fair trial, and the proportionality of sentences. These principles not only ensure that justice is done fairly, but also contribute to the legitimacy of the legal system in the eyes of the public.

One of the State's primary tasks in the area of criminal law is to ensure peace and security by punishing breaches of the social order. To achieve this, the State relies on a structured set of rules and laws, generally codified in what is known as the Criminal Code. This code is essential for defining criminal offences and establishing the conditions for punishing them. The Penal Code plays a central role in the criminal justice system. It specifically defines which behaviours are considered criminal offences and stipulates the penalties applicable to these offences. By clearly delimiting reprehensible acts and setting out the corresponding penalties, the Penal Code serves as a guide both for citizens and for law enforcement authorities, prosecutors and judges.

The Code generally covers a wide range of offences, from minor offences such as traffic offences to major crimes such as murder or robbery. As well as defining offences, the Penal Code often establishes fundamental principles of criminal justice, such as the presumption of innocence, the need for criminal intent (mens rea) for most crimes, and mitigating or aggravating circumstances that can influence the severity of the punishment. In addition, the Penal Code may include provisions relating to prosecution procedures, the rights of the accused and the various stages of the judicial process. These provisions ensure that criminal proceedings are conducted fairly and in accordance with the rule of law. By ensuring that offences are punished in a structured and fair manner, the State fulfils its role as protector of peace and public safety. The Criminal Code is therefore an essential instrument for maintaining social order, preventing crime and ensuring justice in society.

The conception of the role of the State in criminal law is that of a protector of the individual and of society. This perspective is clearly expressed in documents such as the Swiss Federal Constitution, where the State is mandated to protect the freedom and rights of the people, ensure the independence and security of the country, and promote the general welfare. In the context of criminal law, this responsibility of the State manifests itself in the prosecution and punishment of criminal activities. The State acts not only to punish reprehensible behaviour, but also to prevent crime, protect citizens against infringements of their security and rights, and maintain public order. This repressive function is fundamental to maintaining social peace and protecting individual freedoms.

Although criminal law is distinct from private law, they are interconnected in their common objective of protecting the individual. Private law deals primarily with relationships between individuals or private entities, while criminal law focuses on offences against the state or society as a whole. However, both contribute to the creation of a safe and just environment where the rights and freedoms of individuals are protected. Article 2 of the Swiss Federal Constitution encapsulates this vision by setting out the fundamental objectives of the Confederation, which include the protection of freedoms and rights, the promotion of common prosperity, social cohesion, and sustainability. These principles reflect a holistic approach to governance, where the protection of individual rights, security, economic and social well-being, and the preservation of the environment are seen as interdependent elements of a stable and prosperous society.

Within the broad field of criminal law, there is an important distinction between so-called ordinary criminal law and special criminal law, each responding to specific needs in society and within particular structures.

Ordinary criminal law is the most widespread and familiar form of criminal law. Applied by the ordinary courts, it is universally applicable to all citizens. This branch of criminal law covers general offences such as theft, assault, murder and many other misdemeanours and felonies. It serves as the backbone of the criminal justice system, ensuring that everyone, regardless of status or profession, is subject to the same criminal rules and penalties. For example, whether you are an ordinary citizen or a high-profile celebrity, if you commit a theft, you will be tried under the same laws and procedures. This legal framework plays an essential role in maintaining public order and security, guaranteeing fairness and justice in society.

Alongside ordinary criminal law, special criminal law focuses on specific categories of offender or particular situations, often dealt with by specialised courts. An emblematic example is military criminal law, which applies exclusively to members of the armed forces. This special law takes into account the specific needs and unique nature of the military environment. It deals with offences specific to this context, such as desertion or insubordination, and is applied in recognition of the strict hierarchical structure and disciplinary needs of the armed forces. These special rules recognise that certain behaviours, which might not be considered offences in civilian life, can have serious consequences in the military context.

This coexistence of ordinary criminal law and special criminal law reflects the diversity and complexity of modern societies. While ordinary criminal law ensures that the law is applied uniformly and fairly to society as a whole, special criminal law enables more tailored and targeted management of offences in specific contexts. Together, these two branches of criminal law form a comprehensive legal system, capable of providing an appropriate and balanced response to a wide range of offences and behaviour in society.

Article 123 of the Swiss Federal Constitution sets out the framework for the division of powers between the Confederation and the cantons in matters of criminal law and procedure. This constitutional provision reflects Switzerland's federalist organisation, where responsibility and authority are shared between the federal government and the cantons.

According to the first paragraph, the Confederation is responsible for legislation on criminal law and procedure. This means that it is at federal level that the laws governing criminal offences, the applicable penalties and the procedural rules for handling criminal cases are defined. This centralisation ensures that criminal law standards are uniform throughout the country, thereby guaranteeing that the same criminal laws are applied in all parts of Switzerland. The second paragraph specifies that the organisation of the judiciary, the administration of criminal justice and the enforcement of criminal penalties and measures are the responsibility of the cantons, unless otherwise provided by law. This means that although legislation is established at federal level, the cantons are responsible for the organisation of the courts, the administration of legal proceedings and the enforcement of sentences. This division of responsibilities allows a degree of flexibility and adaptation to local circumstances, while maintaining a coherent legal framework at national level. Finally, the third paragraph allows the Confederation to legislate on the enforcement of sentences and measures. It may also provide financial support to the cantons for building prisons, improving the enforcement of sentences and measures, and supporting educational institutions for children, adolescents and young adults. This provision recognises the importance of collaboration and support between the federal and cantonal levels to ensure an efficient and humane administration of criminal justice. This article of the Swiss Constitution thus illustrates the way in which Switzerland balances federal and cantonal responsibilities in the area of criminal law, guaranteeing both uniformity of criminal standards across the country and management adapted to specific regional characteristics.

Procedural law[modifier | modifier le wikicode]

Procedural law is an essential aspect of the legal system, setting out the rules and standards for the conduct of legal proceedings. This branch of law can be viewed from two angles: a broad sense and a narrow sense.

In its broad sense, procedural law encompasses all the forms and formalities necessary for the realisation and exercise of a right or set of rules. It is the set of administrative and legal procedures that must be followed to assert a right or enforce a rule. This can include procedures such as filing a complaint, rules for notifying the parties involved, how to submit evidence and documents, and the steps to follow to appeal a decision. This broad sense of procedural law is crucial to ensuring that rights are exercised in an orderly, fair and lawful manner.

In its narrow sense, procedural law refers specifically to court procedure, also known as judicial law or process law. This branch deals with the rules governing the operation of the courts and the way in which legal cases are handled. It defines how a trial is to be conducted, including how evidence is presented and evaluated, appeal procedures, and standards of conduct for judges, lawyers, and the parties involved. Judicial procedural law is fundamental to ensuring that cases are dealt with fairly and impartially before the courts, guaranteeing that all citizens have access to justice and that cases are decided fairly and in accordance with the principles of the rule of law.

Procedural law plays an essential role in determining the organisation of the courts and setting the forms and rules according to which the competent courts must judge disputes. Procedural law encompasses a set of standards and procedures that ensure that legal cases are dealt with in an orderly and fair manner and in accordance with the principles of the rule of law. The organisation of the courts, a crucial aspect of procedural law, involves the structuring of judicial systems, including the definition of the different levels of jurisdiction (such as courts of first instance, appeal courts and supreme courts) and their respective areas of competence. This organisation is designed to ensure that each case is dealt with by the most appropriate court, depending on the nature of the dispute and the legal issues involved. Procedural forms and rules determine how disputes are to be adjudicated. These include procedures for lodging complaints, rules of evidence, time limits for the various stages of the trial, hearing procedures, and methods of appeal. These rules are designed to ensure a transparent, fair and efficient judicial process, where the rights of all parties are protected.

As far as private legal proceedings are concerned, they are seen as the necessary complement to private law. Whereas private law defines the rights and obligations between individuals or entities, private litigation provides the mechanism through which these rights and obligations can be enforced and challenged in court. For example, in a contractual matter, private law will determine the obligations of the parties to the contract, while private judicial procedure will govern the way in which a dispute concerning that contract will be dealt with in court. It is the law that prescribes these methods and procedures, reflecting the importance of legislative codification in establishing clear and enforceable rules for the resolution of disputes. Thus, procedural law is a vital element of the legal system, enabling the law to be applied effectively and fairly, and ensuring that justice is accessible and achievable for all citizens.

In the legal system, the distinction between the different legal procedures - criminal, administrative and civil - is crucial to understanding how disputes are handled and resolved according to their specific nature.

Criminal proceedings are those that govern the handling of criminal cases. In this context, the rigour of the rules of form is essential to guarantee the rights of the accused, a fundamental principle of criminal justice. For example, in a theft trial, the accused has the right to a fair trial, the right to challenge evidence and the right to an adequate defence. These strict procedural safeguards are put in place to ensure that the accused receives a fair trial and that his or her fundamental rights are protected, as the stakes may include deprivation of liberty or other severe penalties.

In the area of administrative procedure, formalities and processes are designed to regulate interactions between citizens and the administrative bodies of the State. These procedures ensure that administrative decisions, such as the granting or refusal of a business licence, are taken in accordance with the law. Administrative tribunals play a key role in this process, providing a forum for challenging the decisions of public authorities and ensuring that the rights of individuals are respected.

Finally, civil procedure, or private judicial law, governs disputes under private law, i.e. disputes between individuals or private entities. This procedure encompasses aspects such as the right of compulsory execution, where a creditor can seek judicial intervention to recover debts. For example, in the event of non-payment of a debt, the creditor can initiate debt collection and bankruptcy proceedings. Civil procedure also determines how a lawsuit is brought and how judgments are handed down and enforced, thus ensuring an orderly and fair resolution of disputes, as in the case of a contractual dispute.

These different types of legal proceedings reflect the complexity and diversity of legal cases that can arise in a society. Each plays a specific role, tailored to the nature of the disputes it is designed to deal with, thus ensuring that the legal system can respond effectively and fairly to a wide range of conflict situations.

Judicial procedure, although often associated with private law, can also be considered as a matter of public law, particularly because of the nature of the relationship it establishes between the State and the individual. This duality reflects the complexity and interdependence of the different branches of law in regulating interactions within society. In the context of private law, judicial procedure deals primarily with disputes between individuals or private entities. For example, civil proceedings govern contractual disputes, property disputes, family matters and other private disputes, where parties seek to assert their rights or obtain redress for wrongs suffered. Here, the emphasis is on resolving private disputes and protecting individual rights and interests.

However, legal proceedings are also a matter of public law because of their role in defining and regulating relations between the State and the individual. In this context, the State, through its judicial institutions, acts as an impartial arbiter, ensuring that disputes are resolved in accordance with the laws in force. By protecting the individual, the State guarantees the fairness of the judicial process, respect for fundamental rights and the maintenance of public order. For example, in the criminal justice system, the State prosecutes offenders on behalf of society, thus affirming its role as guarantor of public safety and welfare. This perspective emphasises that legal proceedings are not confined to the sphere of private law, but also encompass essential elements of public law. The interaction between these two areas in the judicial process reflects the State's commitment to ensuring fair and accessible justice, while protecting the rights and freedoms of individuals within a society organised and regulated by law.

Judicial procedures play an essential role in the legal system by determining the organisation and jurisdiction of the various courts, as well as the conduct of trials. These procedures provide the necessary framework to ensure that disputes are dealt with in an orderly, efficient and fair manner. The organisation of the courts involves defining their structure, hierarchy and areas of jurisdiction. This organisation is essential to ensure that each case is heard by the most appropriate court. For example, some cases may fall within the jurisdiction of the courts of first instance, while others may require the involvement of appeal courts or specialised tribunals. The rules governing the jurisdiction of the courts ensure that disputes are dealt with by the most qualified and experienced judges in the relevant areas of law. As for the conduct of the trial, these are the procedures that govern the way in which cases are judged. These include the stages of the trial, the rules for presenting and challenging evidence, hearing procedures, and the arrangements for appealing decisions. These procedures determine in what form and according to what rules the competent courts must judge disputes. They are crucial to guaranteeing the fairness and objectivity of the judicial process, by ensuring that all parties have an equal opportunity to present their case and that judgements are based on the facts and the law. These judicial procedures, by governing the organisation of the courts and the conduct of trials, are therefore a fundamental element of the rule of law. They ensure not only that the judicial system functions properly, but also that the rights of individuals are respected and that justice is done in society.

In Switzerland, the centralisation of certain legal powers at federal level, particularly in relation to criminal and civil procedure, is a key aspect of the organisation and operation of its legal system. This centralisation guarantees uniformity and consistency in the application of laws and procedures across the country. In the area of criminal procedure, federal legislation establishes a common framework for dealing with criminal offences throughout Switzerland. This means that whether the offence is committed in Geneva, Zurich or another canton, it will be dealt with according to the same procedural standards. This uniformity is essential to ensure fairness in the handling of criminal cases, guaranteeing that all citizens are subject to the same rules and procedures, regardless of where they live. For example, the rules governing the rights of the accused, investigation and trial procedures, and appeal procedures are the same throughout Switzerland. Similarly, civil procedure, governing disputes between individuals or entities, is also standardised at federal level. Whether it's a contractual dispute, a divorce case or a question of inheritance, the parties involved in a civil dispute follow the same legal procedures, regardless of which canton they are in. This standardisation provides a stable and predictable framework for the resolution of civil disputes, facilitating access to justice and the efficient resolution of disputes. This centralised approach, adopted by Switzerland, reflects its federalist system, where nationwide uniformity of laws and procedures is balanced with cantonal autonomy in other areas. As a result, although the Swiss cantons enjoy a high degree of autonomy in many aspects of governance, in matters of criminal and civil procedure, federal legislation prevails, ensuring a uniform application of justice across the country.

Subdivisions of private law[modifier | modifier le wikicode]

The history of civil law is so closely linked to that of private law that the two terms have often been used interchangeably. The origins of civil law can be traced back to Roman law, specifically to the concept of 'ius civile', which referred to the law applicable to relations between individuals within Roman society. The ius civile in ancient Rome was a set of laws and regulations that governed interactions and transactions between Roman citizens. This legal system focused heavily on areas such as family law, contract law, property law and inheritance. Over time, these Roman legal principles and concepts have greatly influenced the development of legal systems in many parts of the world, particularly in Europe.

In France, and in other countries influenced by civil law, the term 'civil' has long been synonymous with private law. Civil law, in this context, encompassed all the rules governing relations between private individuals, whether natural persons or legal entities. This branch of law covers areas such as contract law, family law, inheritance law and property law, all of which focus on private relationships and the interests of individuals. Over time, however, the distinction between civil law and private law has become more nuanced. Although civil law remains a central pillar of private law, the latter is now seen as a broader field that also includes other specific branches such as commercial law, company law and employment law. Private law, in its modern sense, is therefore understood to encompass all the rules governing relations between private entities, including but not limited to matters traditionally covered by civil law.

The evolution of law has led to a more nuanced distinction between different types of rules, reflecting the diversity and complexity of modern societies. On the one hand, some legal rules are designed to be universal, applying to all individuals without distinction. On the other hand, there are rules that are specifically adapted to particular categories of people, according to criteria such as their profession, social status or other specific characteristics. Universal rules encompass the fundamental laws and norms that govern the essential aspects of social coexistence. These rules apply to everyone and are intended to guarantee fundamental rights and freedoms. For example, contract laws establish a common framework for agreements between individuals or entities, ensuring that commercial and personal transactions take place in a fair and predictable manner. Similarly, standards governing civil rights, such as freedom of expression, are applicable to all citizens, thereby guaranteeing a set of fundamental rights in society. At the same time, rules specific to certain categories of people are developed to meet the particular needs of these groups. For example, labour law, which governs relations between employers and employees, is designed to protect workers' rights, by setting standards for working conditions, job security and social benefits. These rules take into account the specific dynamics and challenges of the workplace. Similarly, company law, which applies to businesses, manages aspects such as business formation, corporate governance, and liability issues, responding to the specific needs of the commercial sector. This distinction in the law allows for a more targeted and relevant application of legal rules. It recognises that while some standards need to be universal to ensure fairness and justice for all, others need to be specialised to adequately address the realities and challenges of different groups or sectors. In this way, the law achieves a balance between the needs of universality and specificity, ensuring both equality before the law and accommodation of diverse social and economic situations.

Civil law: Civil Code and Code of Obligations[modifier | modifier le wikicode]

Civil law, considered to be the bedrock of private law, encompasses a range of rules and principles that govern the most fundamental aspects of interactions and relationships between individuals in society. This area of law deals with many essential aspects of everyday life, providing a legal framework for personal, family and economic relationships.

At the heart of civil law is the law of persons, which focuses on the recognition and legal protection of individuals. This area covers issues such as birth, legal capacity, identity and nationality. For example, the rules defining a person's legal majority and associated rights and responsibilities are an important part of this area of civil law. Family law, another pillar of civil law, governs family relationships, including marriage, civil partnerships, divorce and child custody. These rules are vital for structuring and protecting relationships within the family. For example, in the event of divorce, civil law determines how property is divided and how custody of children is awarded, ensuring a fair and protective approach to the interests of all family members, particularly children. Property law regulates the possession, use and transfer of property. This area of civil law is crucial in defining the way in which real and personal property is managed, used and transferred. For example, the rules governing the purchase and sale of property, leases and mortgages fall within this area. Finally, the law of obligations, which deals with contractual commitments, is an essential aspect of civil law. This area governs the creation, performance and dissolution of contracts, as well as civil liability in the event of damage caused to others. So when one party breaches a contract, the law of obligations provides the mechanisms for seeking redress or resolving the dispute.

Civil law in Switzerland, which applies without distinction to all individuals, comes under the jurisdiction of the Confederation. This national uniformity ensures that the fundamental principles and rules of civil law are the same for every citizen, regardless of their canton of residence. Swiss civil law, influenced by European civil law and in particular the Napoleonic Code, covers essential areas that define the legal consequences of the main facts and acts in an individual's life.

Family law is a key area of civil law. It covers aspects such as marriage, divorce, child custody and kinship relationships. For example, the laws governing marriage in Switzerland define the conditions for getting married, the rights and obligations of the spouses, as well as divorce procedures and child custody provisions in the event of separation. Parentage law, which is closely linked to family law, deals with the recognition of family ties, in particular paternity and maternity. This area governs aspects such as the establishment of filiation, adoption and parental rights and duties. The rules of filiation determine the legal obligations of parents towards their children and vice versa. Matrimonial property regimes, also a component of civil law, define how property is managed and shared between the spouses during the marriage and in the event of its dissolution. These rules may include provisions on joint ownership, separation of property and management of finances during the marriage. Finally, property law is another important branch of civil law. This area covers rules relating to the ownership, use, transmission and protection of property, both movable and immovable. It includes aspects such as ownership of land, rights in rem such as usufruct or pledge, and intellectual property.

Swiss civil law, which falls within the remit of the Confederation, provides a coherent and uniform legal framework governing the most fundamental aspects of people's lives, from their family relationships to the management of their property. This legal framework is essential to ensure the stability and predictability of legal relations in Swiss society.

Article 41 of the Swiss Code of Obligations, which forms part of the Federal Act supplementing the Swiss Civil Code, establishes the fundamental principles relating to civil liability for unlawful acts. This piece of legislation plays a crucial role in the field of tort liability in Switzerland. According to the first paragraph of Article 41, anyone who causes damage to another person in an unlawful manner, whether intentionally or through negligence or imprudence, is legally obliged to compensate for that damage. This means that if an individual causes harm to another person, for example by causing a road accident through recklessness, he or she is responsible for compensating the victim for the loss or damage suffered. This provision is fundamental to ensuring that victims of unfair damage can obtain compensation. The second paragraph extends this liability to situations where damage is caused intentionally by acts contrary to morality. This includes behaviour which, although it may not constitute a criminal offence, is nevertheless deemed reprehensible from an ethical or moral point of view. For example, if a person intentionally disseminates defamatory information about another, thereby causing damage to that person's reputation, that person may be liable to compensate for the damage caused. These provisions of Swiss federal law illustrate how the Swiss legal system approaches the issue of civil liability. They underline the importance of individual responsibility and respect for the rights of others, by establishing clear rules for compensation for damage caused by unlawful acts.

Commercial law: Code of Obligations[modifier | modifier le wikicode]

Commercial law, also known as business law, is an essential branch of private law. It covers all the legal rules governing commercial relations and business activities. This area of law is specifically designed to meet the needs and particularities of commercial activities, covering a wide range of subjects from commercial transactions to company structures and relations between traders and consumers. At the heart of commercial law are the rules governing commercial contracts, which are the foundation of economic exchanges. These rules define how contracts should be formed, interpreted and enforced, ensuring that commercial transactions take place in a fair and predictable manner. For example, commercial law determines the obligations and rights of the parties in a contract for the sale or provision of services.

Commercial law also deals with the regulation of companies and businesses. It includes the laws governing the formation, management, restructuring and dissolution of companies and other forms of business entity. These rules are essential for structuring business activities and ensuring ethical and effective corporate governance. In addition, commercial law encompasses areas such as competition law, which aims to prevent anti-competitive practices and promote a fair market, and consumer law, which protects consumer rights and ensures fair commercial practices.

Taken as a whole, commercial law facilitates and frames commercial activities by providing a stable and clear legal framework. This framework is essential to ensure confidence and security in commercial transactions, thereby promoting economic development and prosperity. It reflects the importance of a legal system that is adapted to the realities and challenges of the business world, ensuring that commercial activities are conducted ethically, efficiently and in accordance with the law.

Commercial law, a vital branch of private law, encompasses a diverse set of rules governing activities and relationships in the business world. This legal discipline is subdivided into several categories, each targeting specific aspects of commerce and industry.

Within commercial law, particular attention is paid to the laws that define the status of merchants and commercial companies. These rules cover issues such as the formation of a company, its legal obligations, corporate governance, and the conditions for its dissolution. For example, the laws governing the creation of a public limited company in Switzerland set out the criteria for its formation, its responsibilities to shareholders and the requirements for publication of its accounts. In addition, commercial law also deals with rules relating to property and commercial activity. This category includes laws on commercial transactions, such as purchases and sales, credit agreements and service contracts. These rules are essential to ensure fair and transparent commercial transactions. For example, the rules governing commercial transactions in Switzerland ensure that agreements between companies are concluded fairly and are legally binding. Intellectual property law is another important pillar of commercial law. It protects intellectual creations, such as literary and artistic works (copyright) and inventions (patents). These legal protections encourage innovation and creation by granting creators exclusive rights over the use of their works. In the case of patents, for example, an inventor can obtain the exclusive right to exploit his or her invention for a specified period, thereby encouraging investment in research and development. Finally, commercial law includes specialist areas such as banking, maritime and insurance law. Each of these areas responds to specific needs and presents unique challenges. Banking law, for example, regulates the operations and services of banks, ensuring the security and integrity of the financial system. Maritime law deals with the legal aspects of shipping, while insurance law covers insurance contracts and claims management.

Taken as a whole, commercial law provides the necessary framework for the ethical and efficient conduct of business. It plays a crucial role in the economy by facilitating trade, protecting the rights of businesses and consumers, and contributing to the stability and predictability of economic activities.

Characteristics of private law[modifier | modifier le wikicode]

Private law, characterised by its individualistic and liberal nature, plays a fundamental role in regulating relations between individuals and private entities. Its distinctive features reflect fundamental principles that have evolved over time, largely inspired by the Roman legal tradition.

Firstly, private law is often described as individualistic. It focuses on the rights and interests of individuals, allowing people to regulate their private affairs with a high degree of autonomy. This individualistic characteristic ensures that personal interests are protected and that individuals have the freedom to make legal decisions that affect their personal and professional lives. Secondly, private law is also considered liberal, mainly because of its respect for the autonomy of the will of individuals. This autonomy allows parties to enter into agreements and create legal relationships on their own terms, as long as they respect the legal framework in force. For example, when forming a contract, the parties are free to negotiate the terms and conditions that suit them, as long as these do not violate the applicable laws.

Private law is also dispositive in nature, which means that the rules can often be modified or excluded by agreement between the parties. This flexibility means that rules can be adapted and customised to meet the specific needs of the parties involved in a legal relationship. In terms of homogeneity, private law is consistent and uniform in its principles and applications. This characteristic contributes to its predictability and comprehensibility, which is essential for the stability of private transactions and relationships. Finally, private law is characterised by its stability, which stems from its roots in the Roman legal tradition. This tradition gave rise to an extremely elaborate and refined legal system, which has greatly influenced the development of modern private law. Compared with public law, which can be more subject to change in response to government policies and societal needs, private law is generally older and more stable.

In summary, private law, with its characteristics of individualism, liberalism, dispositiveness, homogeneity and stability, provides an essential legal framework for the management of private relationships and affairs. It protects individual rights and facilitates private interactions and transactions within a secure and predictable legal framework.

International law[modifier | modifier le wikicode]

International law is a complex and dynamic field of law based primarily on international treaties and agreements between states. These treaties, which are legally binding agreements between two or more sovereign states, form the basis of international law. They are often negotiated and adopted under the aegis of international organisations or supranational institutions. These international organisations, such as the United Nations, the World Trade Organisation or the European Union, play an essential role in facilitating, negotiating and sometimes applying international treaties. They provide a platform for international cooperation and dialogue between states, thereby contributing to the development and maintenance of the international legal order.

International treaties can cover a wide variety of areas, such as international trade, human rights, environmental protection, disarmament and many others. Once ratified, these treaties bind the States parties and become an important source of international law. Furthermore, in many national legal systems, ratified international treaties are incorporated into domestic law and can have a direct impact on national laws. In addition to treaties, international law also includes other sources such as customary international law, which is formed by the practices generally accepted as law by states, and the general principles of law recognised by civilised nations. The decisions of international tribunals, such as the International Court of Justice, also contribute to the development and interpretation of international law.

International law, with its extensive ramifications, encompasses legal systems that transcend national borders and regulate transnational relations. It is divided into two main branches, each playing a distinct role in the global context.

Private international law is concerned with resolving conflicts of law in situations involving foreign elements, i.e. cases where more than one national legal system is involved. This branch of law is particularly relevant in contexts where individuals or private entities from different countries are involved in disputes or transactions. For example, if a Swiss company and a French company are involved in a contractual dispute, private international law will help to determine which national law applies and which court has jurisdiction to hear the case. These rules aim to provide a fair and practical solution for complex legal situations that extend beyond the borders of a single country.

On the other hand, public international law governs relations between subjects of international law, such as states and international organisations. This branch of law covers a wide range of subjects, from treaty law and international humanitarian law to human rights and environmental law. For example, the principles of public international law define how nations can behave in times of war and peace, establish norms for international agreements, and set standards for the protection of human rights worldwide. International treaties, such as the Geneva Convention, illustrate how public international law facilitates cooperation between nations and promotes global peace and security.

Together, these two branches of international law form an essential framework for regulating interactions across national borders, providing solutions and guidance for issues and disputes that involve multiple jurisdictions or international actors. Their existence and application are crucial to legal stability, international cooperation and the promotion of justice in an increasingly interconnected world.

International law derives its main sources from the subjects of international law, in particular States and international organisations, mainly through international treaties and agreements. These treaties, which are formal agreements between states, are an essential source of international law and define the obligations and rights of the parties involved. International institutions, such as the United Nations, the World Trade Organisation, the European Union and many others, play a crucial role in facilitating, creating and sometimes applying international law. These organisations act as forums for the negotiation and ratification of international treaties, enabling effective cooperation and coordination between states on a range of global issues. In addition, these international institutions can also create international law through their own regulations and resolutions. For example, United Nations Security Council resolutions can have legal implications for member states. Similarly, the decisions and directives of the European Union are a source of international law for its Member States.

International law is therefore a complex system based on the contributions and commitment of States and international organisations. Through treaties and the activities of these institutions, international law shapes relations between nations and establishes common standards and rules on issues such as international trade, human rights, environmental protection and global security. This enables more orderly and fairer management of international affairs and contributes to the peaceful resolution of conflicts and international cooperation.

Public international law[modifier | modifier le wikicode]

The term "public international law", often referred to in the past as the "law of nations", derives from the Latin "ius gentium". This historical expression reflects the roots and evolution of public international law over the centuries. In Roman antiquity, "ius gentium" was the law applied to relations between Roman citizens and foreigners, and between different peoples. Although different in content and scope from modern public international law, ius gentium represented an early recognition of the need for legal norms governing interactions beyond the borders of a particular community or state.

Over time, with the emergence of sovereign nation states and the growth of international interactions, ius gentium evolved into public international law. Public international law is a legal system that governs relations between sovereign states and other subjects of international law, such as international organisations. Modern public international law covers a wide range of areas, including international treaties, the law of the sea, diplomatic and consular law, humanitarian law, human rights and environmental law. Today, public international law plays a crucial role in structuring international relations. It provides a framework for cooperation between states, contributes to the peaceful resolution of conflicts and promotes respect for human rights and the rule of law worldwide. Although the term 'law of nations' is less widely used today, its legacy continues to influence the understanding and application of public international law.

Public international law, an area of law of paramount importance in today's global context, can be understood through an analysis of its sources and purpose. This system of law, which transcends national borders, is made up of a set of rules and principles emanating from international sources.

The sources of public international law mainly include international treaties, which are binding agreements concluded between States or between States and international organisations. For example, the United Nations Convention on the Law of the Sea is a treaty that establishes legal standards governing the use of the oceans and seas. In addition to treaties, customary international law, formed by the customary practices and legal beliefs of states, is another major source. The general principles of law recognised by civilised nations, as well as the decisions of international tribunals and the writings of jurists, also serve as references for interpreting and applying public international law. In terms of its subject matter, public international law focuses on the regulation of relations between states, as well as their interactions with international organisations. It governs aspects such as diplomatic conduct, armed conflict, international trade and the protection of human rights. A concrete example is the role of the World Trade Organisation (WTO) in regulating international trade, where it provides a framework for trade agreements and resolves trade disputes between member states. In addition, public international law provides a framework for the operation of international organisations, defining, for example, the decision-making and operating procedures of the United Nations.

Public international law, with its rules derived from international sources and its aim of regulating transnational relations, is essential for maintaining order and cooperation in an increasingly interconnected world. It provides the basis for the peaceful and orderly conduct of international affairs, facilitating cooperation, conflict resolution, and the promotion of universal values such as justice and respect for human rights.

The notion of a form of law governing relations between different political entities dates back to antiquity, underlining the long history of the quest for order and justice in international relations. Although different from public international law as we know it today, this ancient concept reflects the early recognition of the importance of a community of interests between states and the need to resolve conflicts by means other than force. In ancient times, various civilisations had already established forms of relations and agreements between themselves. For example, the Greek city-states and later the political entities of ancient Rome entered into treaties, non-aggression agreements and alliances, which were forerunners of modern international treaties. These agreements were often motivated by common interests, such as trade, defence against common enemies, or the management of shared resources.

These early practices indicate an early understanding that cooperation and negotiation could be more beneficial than open conflict. Although the mechanisms and principles of public international law as we know it today have been largely developed over the centuries, particularly after the Peace of Westphalia in 1648, these ancient roots show that the idea of a legal order governing relations between different political entities is far from new. Today, public international law is much more structured and formalised, with dedicated international institutions and treaties covering a wide range of subjects. Nevertheless, the fundamental idea of a community of interests between states, seeking to resolve conflicts in a peaceful and orderly manner, remains a central principle of public international law. This historical continuity underlines the enduring importance and relevance of the principles of cooperation and peaceful conflict resolution in international relations.

A fundamental feature of international law that distinguishes it from domestic law is the question of the sovereignty of states and their consent to submit to the rules of international law. In a State, the existence of an established power makes it possible to apply and enforce the rules of law. This established power, generally embodied by the government and the judicial system, ensures that laws are followed and that sanctions are applied in the event of non-compliance. A state's domestic legal system therefore operates within a framework where the authority and capacity to enforce the law are clearly established. On the international scene, however, the situation is different. States are sovereign entities, which means that there is no supreme global authority with absolute power to impose rules of international law. Consequently, the rules of international law exist and are effective to the extent that sovereign states recognise them and choose to abide by them. This is generally done through treaties, agreements and other forms of mutual consent. Recognition of and adherence to the rules of international law therefore depend largely on the will of States. Although some norms of international law, such as the principles of customary international law and jus cogens norms (peremptory norms of general international law), are considered binding on all states, most international law is based on the explicit or implicit consent of states.

This feature of international law highlights the importance of cooperation, dialogue and mutual respect between states in maintaining the international legal order and promoting global peace and stability. While this structure can present challenges, particularly in relation to the application and enforcement of international rules, it reflects the delicate balance between state sovereignty and the need for international regulation and cooperation.

Characteristics of public international law[modifier | modifier le wikicode]

Public international law, as a legal system governing relations between states and other international actors, has distinct characteristics that distinguish it from the domestic law of states. One of the main features of this law is its incomplete or lacunar nature, reflecting the complexities and limits of international cooperation. Unlike domestic law, which tends to provide a detailed legal framework covering a wide range of situations, public international law does not exhaustively cover all possible areas. There are areas and situations that public international law does not address, which can leave gaps in the regulation of international relations. For example, although public international law addresses issues such as human rights and humanitarian law, it may lack specific guidance for new or rapidly evolving situations, such as the use of emerging technologies in armed conflict or cyber security issues.

Furthermore, public international law focuses primarily on areas where there is mutual understanding and agreement between states. The rules and norms of this law are established where states perceive a common interest in cooperating. For example, international trade treaties, such as those governed by the World Trade Organisation, are the result of a consensus between states on the need to regulate and facilitate trade on a global scale. However, in areas where there is no clear consensus, such as certain aspects of environmental regulation or global resource management, public international law may be less developed or less binding. This lacunar nature of public international law underlines the challenges inherent in regulating international relations. It reflects the reality that, in a world of sovereign nations, cooperation and the development of common legal norms depend largely on the will and consent of individual states. This dynamic makes public international law both a fascinating and complex field, essential for international cooperation but limited by the very nature of relations between sovereign states.

Public international law, with its heterogeneous nature, is a mosaic of different legal sources and traditions. This heterogeneity reflects the diversity of legal systems and practices throughout the world, contributing to the richness but also the complexity of this area of law. One of the major sources of public international law is customary international law, formed from repeated practices that are accepted by states as legally binding. For example, the principle of non-intervention in the internal affairs of other states is an aspect of customary international law that has long been recognised and respected by the international community. In addition to customary law, international treaties, which are formal agreements between states, are another important source. These treaties can cover a variety of subjects, from international trade to the protection of human rights, as illustrated by the United Nations Convention on the Law of the Sea or the Geneva Convention. The "bricks and mortar" construction of public international law reflects its evolution over time, incorporating new norms and adapting old ones. This metaphor illustrates how different pieces from different contexts and periods are assembled to form the international legal framework. For example, the development of international environmental law and the emergence of climate change treaties demonstrate how new areas of public international law can emerge in response to global challenges.

The characterisation of public international law as "stratigraphic" captures the idea that this area of law develops through the successive accumulation of layers of rules and norms that can remain relatively independent of one another. This geological metaphor illustrates how public international law has been built up and evolves over time. The idea of stratigraphy in public international law suggests that different historical periods and events have contributed to the development of new norms and rules, each adding a new layer to the existing legal system. These different layers reflect the contexts and needs of their respective times, but are not always directly linked or coherently integrated into a unified whole. For example, the principles established as part of the creation of the United Nations after the Second World War added an important layer to international law, as did subsequent treaties on specific subjects such as environmental law or international trade law.

This stratigraphic feature of public international law means that there may be a lack of cohesion or clear connection between different parts of the law. Norms developed at different periods may coexist without necessarily forming a fully integrated or harmonised legal system. This can sometimes lead to difficulties of interpretation or conflicts between norms established at different times or in different contexts. Nevertheless, this stratigraphic approach also has its advantages. It allows a degree of flexibility and adaptability in public international law, offering the possibility of adding new rules and standards in response to changing international challenges and situations. In sum, while the stratigraphic nature of public international law may present challenges in terms of coherence and interpretation, it is also indicative of the capacity of international law to evolve and adapt to the changing needs of the international community.

Annexes[modifier | modifier le wikicode]

References[modifier | modifier le wikicode]