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Jaap Hage · Antonia Waltermann Bram Akkermans Editors Introduction to Law Second Edition
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The Introduction to Law that you are now holding in your hands is special in thesense that it introduces students to law in general and not to the law of onespecific jurisdiction. It has been written with two goals in mind. First, this bookis meant to be used in the course Introduction to Law of the Maastricht European Law School. This course aims to provide law students with the globalknowledge of the basic legal concepts, elementary philosophy of law, and mainfields of law. Since the European Law School does not exclusively focus on thelaw of one particular European jurisdiction, there is a need for an introductorycourse that also abstracts from the law of specific jurisdictions.Second, and perhaps more importantly, this book reflects a special way of looking at legal education. We believe that it is of crucial importance for lawyers tobe aware of the different ways in which societal problems can be solved and tobe able to argue about the advantages and disadvantages of different legal solutions. Being a lawyer involves, on this view, being able to reason like a lawyer,even more than having detailed knowledge of particular sets of rules. The present Introduction to Law reflects this view by paying explicit attention to thefunctions of rules and to ways of reasoning about the qualities of different legalsolutions. Where «positive» law is discussed, the emphasis is on the legal questions that must be addressed by a field of law and on the different kinds ofsolutions that have been adopted by—for instance—the common law and thecivil law tradition. The law of specific jurisdictions is mainly discussed by wayof illustration of a possible answer to, for instance, the question when the existence of a valid contract is assumed.This is the second edition of the book. The list of persons who deserve gratitude for their contributions to the present and earlier editions has become toolong to mention in full. Therefore we will confine ourselves to those whose rolehas been particularly important for this second edition. The chapter on tort lawis based on an original text written by Gerrit van Maanen, and its present version has benefited from extensive comments by Cees van Dam. Sjoerd Claessens improved the chapter on the law of Europe. Daniel Hannappel has takencare of the format of the text, and Rebecca Kumi has improved the quality ofthe English. Last but not least, thanks go to all the students and tutors who usedthis book in our Maastricht Introduction to Law course and reported on theirfindings.VIThe editors of Introduction to Law are interested in your opinion of this book.We therefore invite you to send comments, suggestions, and questions tojaap.hage@maastrichtuniversity.nl

Direct and Indirect Democracies Democracy is a system of government where public power lies with, or emanates from, the people. If the democracy is direct (lies with the people), the State power is actually exercised by the people themselves. If the democracy is indirect (emanates from the people), the power is exercised by the peoples representatives. Direct Democracy In hunter-gatherer societies, the members of a band could easily assemble around a campfire to discuss public affairs, such as where to move next or how to deal with individual misbehavior. Communal decision-making was very immediate. In constitutional terms, it is a form of direct democracy as the constituents who make up a society decide by themselves and for themselves. Later, urban societies, notably the Athenian democracy, also reserved crucial decision-making powers to the general assembly of citizens. This still occurs in Swiss villages and cantons.
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There are two major problems with the practicality of direct democracy. One has to do with the complexity of the decisions that need to be taken. In organized societies, gains in productivity are achieved by division of labor, which in turn compartmentalizes society. Meanwhile, the reduced rates of violence between people, and the rising living standards resulting from productivity gain, facilitate population growth. In turn, this growth increases the complexity of society. In increasingly large and complex societies, assuming they are still to be organized according to democratic principles, decisions also become more complex. This may extend to the point where ordinary citizens cannot grasp the full extent of the implications that every particular decision could have. Complex Decisions 194
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Logistics This leads to the other problem: the logistical organization of democratic decision-making in societies made up of millions of people is complicated. This is especially the case if such decision-making is not supposed to be limited to casting a vote but should also include collective consultation and an exchange of opinions. Furthermore, one would need rules to prevent the abuse of powers by direct democratic majorities and human rights violations, as well as definitions of who participates, in what procedures, and under what criteria, as well as about the execution of policies and possibilities of redress, judicial review, etc. These issues however do also apply to representative democracy. 8
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Representative Democracy To deal with the increasing size and complexity of decisionmaking, representative or indirect democracy becomes a viable alternative to direct democracy. In a pure representative democracy, public power is exercised by a ruler, or group of rulers, who have been elected or appointed by the ruled. For the duration of their term of office, the rulers are not subject to dismissal by the ruled, and their decisions may not be overturned by the ruled themselves. As the French scholar Montesquieu wrote in 1748: As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large States, and in small ones is subject to inconvenience, it is fitting that the people should transact through their representatives what they cannot transact by themselves.
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