Saturday, 4 June 2016

REVIEW: "Introduction to Law" by Jaap Hage, Bram Akkermans

Book Review by Sapphire Ng

Introduction to Law
by Jaap Hage, Bram Akkermans
ISBN: 978-3319069098
Copyright August 2014
Hardcover, 344 Pages

Introduction to Law is a content-rich, very meticulously-organized and practically-structured textbook optimized to present complex information in highly-segmented, concise and accessible morsels. The text qualifies as a compelling educational tool, as it satisfactorily delivers upon its proposition of introducing students to the law by boasting an admirable breadth of coverage in an effectively incremental manner, along with strategic and relevant selections of legal cases which aptly supplement the discussion of concepts.

As expressly mentioned in the preface of the text, the book was intended for use by students enrolled in the Maastricht European Law School; readers can expect a predominantly-European centered context. Chapter 10 was notably dedicated to “The Law of Europe;” there were considerable quotations from the Treaty on European Union (TEU), otherwise known as the Maastricht Treaty, multiple references to the Treaty on the Functioning of the European Union (TFEU), the inclusion of various Court of Justice of the European Union (CJEU) cases, and some of its opinions, along with a cursory look at the European Union, the primary and secondary sources of its laws.

Students are provided with a sampling of material from the Irish and French Constitutions; the German, French, and Dutch Civil Codes; and the Dutch and German Criminal Codes. Sources such as the Austrian Allgemeines Burgerliches Gesetzbuch (ABGB), the Magna Carta, the Treaty on the Functioning of the European Union, and the Principles of European Contract Law were cited. There were discussions of the European Union Law, and the Peace of Westphalia treaties. Legislations such as the English Sale of Goods Act, or the Dutch Road Traffic Act were also fittingly brought up to expound on certain legal notions. Especially interesting and particularly noteworthy are the jurisdictional comparisons between for example, England, Germany, the Netherlands, and occasionally France.

Legal cases included in the text are very interesting and excellently illustrative. The Cellar Hatch and the Century Insurance C v. Northern Ireland Transport Board cases very clearly exemplify the concept of “vicarious liability,” or employer liability. The intriguing Kadi case was incredibly succinctly used to demonstrate the interplay between the United Nations Charter, domestic law, EU law, and the law of the European Convention on Human Rights (ECHR). The “revolutionary” decisions in the Van Gend & Loos and CostalENEL cases were expounded as having addressed a very significant aspect of the EU law. The Riggs v. Palmer case compellingly showed that “a convicted murderer cannot inherit from his victim” as “nobody should profit from his own wrongs,” and the Dombo v. the Netherlands case aptly revealed a violation of the right to equality of arms, which thereafter “forced the Netherlands to charge its rules of evidence.” Other cases such as Donoghue v. Stevenson in torts, and Director General of Fair Trading v. First National Bank in the realm of contract law were similarly explanatory. The furnishing of cases in contrasting the English, Dutch, and German approach to establishing a “precise” legal border between preparatory actions and criminal attempts are also wonderfully fascinating.

As expected of a course book, the text inevitably contains numbered lists, and visual aids that hopefully aid in greater retention of information. Lists are indispensable to a complex discipline such as law—the 8 common principles of administrative law in most European legal systems are the impartiality principle, the right to be heard, and more; the 6 distinct parts of the right to a fair trial include the principle of audiatur et altera pars, the right to equality of arms, the right to be present at the trial, the right to an oral hearing, and so on; and the jurisdiction principles in international law regarding “legislation and adjudication in respect of extraterritorial persons or events” include the passive nationality principle, the protective principle, and the universality principle. In a highlighted section, the main forms of referendum are categorized as mandatory, optional, binding, and consultative.

The clear presentation of concepts in the text is remarkably outstanding. Students can quickly discern the distinction between utilitarian theories—consequentialism, deterrence, and rehabilitation—and retributive theories with regards to legal punishment; the dichotomy between the “actus reus,” the objective, and “mens rea,” the subjective; direct intent versus indirect intent, conditional intent versus recklessness, and conscious negligence versus unconscious negligence in criminal law; and in property law, there are the principles of numerus clausus, specificity, and publicity.

All material is consistently clearly delineated throughout the book. In the instance of the need to utilize the book for quick references, the reader can expect to promptly locate specific information, such as the Lex Superior, Lex Specialis, and Lex Posterior principles in dealing with rule conflicts; the distinction between an “ex post determination” and “ex ante determination” in evaluating damage-causing behavior; the interpretation of fundamental rights in terms of the crucial “Scope of Rights,” the controversial “Reversal of Rights,” and the all-important notion of “Balance;” and in the context of human rights, negative versus positive rights, or in other words, “liberty” rights versus “welfare” rights, or “civil and political rights” versus “economic, social and cultural rights.”

Particularly lucidly conveyed was the dissimilarities between the common law bipartite structure of crime versus the civil law tripartite structure of crime which includes additional stages of “wrongdoing” and “blameworthiness,” and in which order is of significance; or “common law systems, such as the English system” which apply the concept of “recklessness” instead of “conditional intent.”

Specific segmentation of material are mentioned at the beginning of each chapter. In the chapter on Constitutional Law for example, content was noted as predominantly structured into three parts—“State Power Established,” “State Power Constrained,” and “State Power Democratized.” Fundamentals were also aptly elucidated from the outset, such as the critical distinction between civil law and common law, which thereafter was further expanded into realms such as property law, as in the case of civil law property law which recognizes the distinction between “ownership, possession, and detentorship” of a good, which differentiates from common law property law. In another instance, the civil law approach is compared against the common law approach with regards to contractual performance, and damages for nonperformance.

Legal jargons in the text are very distinctly highlighted and explained as they were very first introduced. Their continued usage throughout the text also allows law students to gradually acclimatize to the language. Most prominently applied in the text includes “Trias Politica” which refers to the separation of powers, and the division between the judicial, legislative, and the executive. Others are “usufruct” in property law, “chattels” referring to movable objects, “hypothec,” “adjudication,” or “voluntarism.” The text brims with phrases such as the legality principle, peremptory norms, “juridical act,” “ratio decidendi,” “paritas creditorum,” and the prohibition of detourement de pouvoir. The text explores the antithetical focus of recours objectif in contrast to recours subjectif in terms of judicial review of administrative action. And in other instances, the adage of “the court knows the law” was expressed as ius curia novit; and anthropological concepts such as the “cultural relativism” of human rights or philosophical jargon such as “heteronomy” are explored.

The text is a feast of immensely interesting ideas. Certain mentions, though cursory, are gratifyingly interesting and successfully arouses the curiosity, such as the introduction to the field of “transitional justice,” the Principles of European Tort Law as an example of soft law, instances where the law of Scotland is said to combine “the English common law” and “the French civil law traditions,” or when South African law is mentioned to combine “Roman Dutch law” and “English common law,” and in the discussion of the creation of specialized administrative courts, where the Sweden environmental courts, and Austria's specialized courts for “migration and asylum matters” were raised as examples. Expressly stimulating also include the tracing of the origin of human rights to the natural law tradition, the post-WWII natural rights movement, and the subsequent internationalization of the rights.

The variety of legal remedies introduced are also mind-blowing. Vindication is available as an option for a “right holder” to “reclaim possession of the object of his right;” annulment can be summoned “against an administrative decision that restricts [one's] legal sphere;” and cassation, a “special” legal remedy, can be used to “secure the uniform interpretation of the law.”

In more than one occasion, it appears that the text could potentially benefit and improve with greater inclusion of details. The breadth of coverage very notably came at the sacrifice of depth. In an instance, the mere act of name-dropping legislations without any further elaboration or details whatsoever could be reasonably improved especially in the context of an academic textbook; the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and the MARPOL conventions were simply name-dropped in chapter 11.

In another instance, more content, or at least slightly more examples ought to be provided, especially when the coverage of the sole existing examples seemed considerably brief. In the Criminal Law chapter, in negating wrongfulness and blameworthiness, the justifications and excuses each were only illustrated by one example—self-defense for justification, and insanity, “the most popular excuse.”

In a case where the differences between the adversarial and the inquisitorial justice systems were adequately discussed in chapter 7, an annotation informing the reader that “the distinction between adversarial and inquisitorial systems is also discussed in Sect.” however turned out to be mildly disappointing. The supposed further discussions in chapter 13 emerged to be mostly a rephrasing of what had been mentioned in the earlier chapter, and even gave the impression of being repetitive. Whilst the part about “case management” in the context of adversarial versus inquisitorial systems was illuminating and constituted fresh material, other “additional” information supplied in chapter 13 was merely repeated references to the adversarial system as a “contest,” and the judge as a “referee.”

Disclaimer: I received a complimentary copy of this book from Springer in return for this review. 

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