1. Sources of Law Flashcards
Collective enforcement
Legal rules are normal enforced by collective means and in particular by organs of the State
Positive law
Laws explicitly created by means of legislation/judicial decisions (the law that is valid here and now)
Legal certainty
Establishes the contents of the law beyond a reasonable doubt (unnecessary to invoke an authority to settle a legal dispute)
Legal certainty aspects
- Certainty about the content of the law
- Certainty that the law ill be enforced
- Certainty that the law will be applied consistently
Tribal Customary Law
Law of a people; comprised of a tribal group whose members were connected mostly by family ties
Customary Law
Consists of guidelines for behaviour that have grown spontaneously in a society (such as a tribe) in the form of mutual expectations (these expectations are sometimes accepted as binding)
Codification
If customary law is written down = codified
Praetor
If the praetor was of the opinion that a case might be successful, he would formulate a kind of legal instruction (the formula) for the iudex (role of lawyer)
Iudex
The iudex would be told told to grant the suing party a legal remedy if he believed that the factual conditions have been fulfilled (role of judge)
Jurists
Advised the praetor and advised the process parties
The Corpus Iuris Civilis
An attempt to codify the existing Roman law and was published in several parts on the order of Emperor Justinianus
The Codex
Contained imperial legislation spanning several centuries
The Digest
Collection of excerpts from writings of jurists from the period of about 100 BCE until 300 CE
The Institutions
A student textbook
Precedent
Function; the decision of the judge will be used in future cases
Stare decisis
Stand by your decisions; if a court has decided a case in a particular way, the the same court and inferior courts must give the same decision in future cases
Case-based reasoning
Comparing and contrasting new cases with old cases that have already been decided (common law)
Equity
Procedures to promote fairness and equality through different legal procedures (judge made law in common law)
Ius Commune
Combination of canon law and roman law that built the English legal system (common law)
Canon law
Deals with the internal organisation of the church, also civil affairs (marriage, contracts, wills)
Bachelor of Laws/Master of Laws (LLM)
Roman law and Canon law studied together
Reception of Roman law
The process in which Roman law conquered legal science in Europe
Natural law
Human beings possess intrinsic values that govern their behaviour and reasoning, laws established by a means of reasoning
Ratio scripta
Reason written down
