1 Flashcards
In what order is hierarchical legislation to be interpreted?
1 - Constitution (Grundloven) 2 - Law 3 - executive order (Bekendtgørelse) 4 - case law practice (Retspraksis) 5 - administrative practice
Interpretation of treaties:
What must be considered when a treaty has been translated in to 2 or more languages?
- If it has any confirmed versions
- If any of the confirmed versions have precedence
- To assume that every confirmed versions wording carries meaning
- When 2 or more versions wording result in a different interpretations of them. You must choose the meaning that unites all versions the most, and look at the intention and regards of the treaty
Sentence 1 in Article 31 about how to interpret a treaty?
To read them loyally with regard to the treaties initial intention
what does lege lata mean?
Current law
What is formel fairness?
Equals must be treated equal, The principal of equality (Lighedsprinscippet)
What does lege ferenda mean?
Desirable future law
Explain hermeneutic science filosofi, and the hermeneutic circle
One must know the bigger picture to understand a small detail, in the same way one must know the specific details to understand the bigger picture.
What principles are private law built on?
- private autonomi
- equivalence
What principle is criminal law built on?
- legality
prosecution law §1
What principle is bankruptcy law built on?
- equality
What principles are public law built on?
Competing
- legal certainty
vs.
- effectivity
What principle is process law built on?
- Contradiction
Even though supreme court must promote uniform application of a treaty in its rulings, what are they not forced to do?
Incorporate other countries rulings
What does analog use of a law mean?
The law is used in circumstances, that aren’t incorporated in the laws wording
In which field of law is analog interpretation forbidden?
Criminal law
When is analog interpretation allowed?
“When the rule’s real meaning is so obvious, that a rejection of using the rule would seem like pure formalism”
Explain “a fortiori” endings
When the principles the law is made on are stronger in non-legislated areas, than areas regulated by law. (for example, private law. One would seek to exempt disputes from the law rather than try to find a rule to match the circumstance)
Explain “e contrario” endings also called “anti-ethical interpretation”
When interpretation concludes that the law cannot be used in cases that aren’t explicitly stated in the wording (example: Laws on incarceration)
What 2 perspectives are important to reflect on when interpreting EU-law
The danish perspective and the EU perspective
What does the EU say is important to consider when reading and using EU laws
- The many languages
- The different meaning of concepts in different countries
- Must be looked at in the light of EU laws as a whole
- The underlying goal of the law
Explain the case “The American renter”
An American woman, Teresa, pays 50% of the price for a summer house for “unlimited use of the property as long as she lives”,.
There was a ban on people who hadn’t lived in Denmark for 5 years prior to buying proporty, to do so without getting permission from the Ministry of Justice.
Even though private/contract law is founded on the principle of autonomi, the agreement was rules illegal, as it was a direct circumvention attempt.
quotes:
»Everything that isn’t illegal, is legal, except when its not«
»agreements that are assumed to be made with the primary purpose of circumventing the law, are invalid
What is the latin concept that is the reason circumvention is illegal?
ordre public
- the fundamental considerations on which society rests
Explain the principle of proportionality
The verdict must be proportionate to the crime
Explain “nulle puella sin lege”
No conviction without law
The principle of legality
Explain “audiatur et altera pars”
The right to be heard
Where is Culpa from?
Roman scripture
Why are alot of legal definitions in latin?
Most don’t actually come form roman times, but the writers in the late 1700s used latin to add authority to the concepts and definitions
Explain “in dubeo pro reo”
Lack of evidence benefits the accused
What is crutial if private law is to follow its principle of autonomi?
Equally strong parts (equivalence)
What 3 requirements must be men when applying the principle of proportionality
necessity, comparison, suitability
nødvendighed, forholdsmæssighed, egnethed
What is Jens Peter Christiansens opinion on legal principles in constitutional law?
“It would ly far from danish constitutional tradition, if the courts were to undertake, in reviewing the constitutionality of laws, assert the existence of such unwritten and substantively uncertain principles.”
Principles too uncertain to be incorporated in constitutional rulings
Explain the principle of proportionality regarding the European convention on Human Rights
The states must choose a less intrusive type of restriction in oppose to a more intrusive type. The intensity of the intervention must also be proportionate to the purpose.
