ITL, chapter 1
Chapter 1, Foundations
Chapter 1, Foundations
Kartei Details
| Karten | 22 |
|---|---|
| Sprache | English |
| Kategorie | Recht |
| Stufe | Universität |
| Erstellt / Aktualisiert | 24.09.2014 / 24.09.2014 |
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What are the characteristics of Law (5)
-Legal rules
-collective enforcement (state organs)
-specific sanctions
-positive law (a law that have been laid down) --> offers legal certainty
-can be repealed
Differences between law and morality (3)
1) law is a guideline for behaviour by telling what is authorised and what is prohibited
Morality sets standards through which we can evaluate our behaviour as good, not so good, or bad.
2) morality is important for the well functioning of the society
3) laws have state enforcement
What is positive law and how does it differ from positive morality ?
Positive law is the law at have been laid down and imposed by organs of the state at all time, while positive morality is the moral precepts and standards that are broadly accepted at a particular time and place.
What are the characteristics of roman law. (8)
-Tribal law (the law of a tribe, of the people
-Customary law
-Historical legislator, transmitted from generations to generations
-Immutability, the law have been such and since time immemorial and will never change
-ius civile and gentium
-codification, the law written down
-Praetor and Iudex
-The Corpus Iuris Civilis
What is customary law?
Consists of guideline for behaviour that have grown spontaneously in a society in the form of mutual expectations, which after some time are accepted as binding.
What is the difference between Ius Civile and Ius Gentium ?
Ius Civile : mutual relations between members of the tribe
Ius Gentium : mutual relations between tribe members and foreigners or between foreigners among them
What is th Corpus Iuris Civilis ?
It was an attempt to codify the existing Roman law, for the Eastern Empire.
it consisted of 3 parts :
-the Codex :contained imperial legislation of several centuries
-the Digest : a collection of excerpts from writing of jurists
-the Institutions : a student textbook
What are the main difference between the civil law tradition and the common law tradition ?
Common law was used in the British Empire and Civil law was used in continental Europe.
What are the Royal Justices?
Royal representatives who traveled through England to administer the law, the common law of England.
What are precedents ?
1) If the rule already existed, it is clear that the same rule should be applied in future cases and also by other judges.
2) If a judge, by giving his decision, creates a new rule that did not exist yet but would exist from the moment that the decision was given. Other judges will have to apply the rule in future cases. (Stare Decisis)
What is Stare Decisis ?
From Latin, stand by your decision
If a court has decided a case in a particular way, then the same court and the courts that are inferior to it must give the same decision in future cases that are similar.
What is case-based reasoning ?
In common law, looking for similarities and differences between new cases and old cases that have already been decided.
What is Equity ?
A separate branch of law made of a body of rules and principles that were developed to mitigate harsh results that might result from the application of common law.
What is the Ius Commune and what are its two main sources ?
Latin name for common law. The Roman Law and the Canon Law.
What is rationalist law?
Law on rational basis and not as a matter of social fact
What is codification and what has it to do with the formation of nations states?
The process of state formation reached a provisional end point in 1648 Shan a number of wars were ended by the peace treaties of Westphalia. This treaty was codified, so written down. It state that Europe was divided into a number of nation state which were assumed to be sovereign. The law become national law.
What is the Westphalian duo ?
Made of national law and international public law
Explain the resistance movement against codification.
Under the leadership of Von Savigny, a law professor in Berlin, it was said that the national law reflected the spirit of that nation. So codification would fossilize the law, and the connection between the law and the spirit of the people would be lost.
What are the possible interpretation of the law?
1) The Literal Rule or Grammatical Interpretation (rules should be interpreted literally)
2) The Mischief Rule or Legislative Intent (if a legal decision maker gives the rule an interpretation that makes it suit the intention of the legislator)
3) The Golden Rule; Purposive or Teological Interpretation (determine the purpose of the rule himself)
4) The Lawyer's Toolbox (makes his own value judgement and bases his interpretation of the rule on this value judgement)
Which legal families are there ?
1) common law family (England, Wales, Ireland)
2) civil law family
-French family (France, Belgium, Spain, Portugal )
-German family (Germany, Austria, Switzerland )
-both (Italy, the Netherlands, Poland)
3) both ( Scotland )
Mention three kind of transnational law.
1) Human Rights (because they are protected by international treaties) Ius Cogens, a set of peremptory norms of international law
2) European Union Law (the member states of the EU and their legal subject are bound by a legal system that is neither the system of a nation state or a system that regulates the mutual relations between nation states)
3) Lex Mercatoria (a set of rules created by merchants to regulate their mutual dealings)
What is transnational law ?
A law that is not made or not enforced by national states or that is not meant for the regulation of behaviour of legal subjects within nation states to the mutual relations between nation states.
