A. Historical Development & theory of the state Flashcards
How did the common-law legal system develop and then spread?
The common-law legal system originated in England after the Norman Conquest in 1066,
evolving into a unified body of law through royal courts and recorded precedents. Key
developments like the Magna Carta in 1215 and a standardized system of writs laid the foundation for the rule of law. It spread globally through British colonization, influencing legal
systems in countries such as the United States or Canada.
What are basic differences between the civil-law and the common-law legal systems?
Civil-law systems, originating in continental Europe, are based on comprehensive codes and statutes, with judges applying these laws without creating precedents. In contrast, common-law systems, originating in England, rely on judicial decisions and precedents, with judges interpreting laws based on previous rulings. This makes common-law systems more flexible and adaptive, while civil-law systems emphasize clarity and predictability through codified laws.
What are the basic differences between the constitutional system in the US and in the UK?
The US constitutional system is based on a single, written Constitution outlining government structure, separation of powers, and citizen´s rights, with a defined amendment process. The UK has an uncodified constitution comprising statutes, conventions, judicial decisions, and historical documents. The US emphasizes judicial review by an independent judiciary, while the UK upholds parliamentary sovereignty, making Parliament the supreme legal authority.
What is the difference between the adversarial and inquisitional approach to litigation before a court?
In the adversarial approach, common in common-law systems, two opposing parties present their cases before an impartial judge or jury, who act as neutral arbiters. In the inquisitorial approach, typical in civil-law systems, the judge takes an active role in leading the investigation, examining evidence, and questioning witnesses, with the parties playing a more passive role.
What is the significance of the Magna Carta of 1215?
The Magna Carta of 1215 is significant for limiting monarchial power and establishing
principles fundamental to modern democracies. Agreed upon by King John and his barons, it addressed appeals, asserting that the king was subject to the law. Its legacy influenced constitutional law and individual rights, inspiring documents like the US Constitution and the Universal Declaration of Human Rights.
How did equity develop and what is it?
Equity emerged in England as a supplement to common law, addressing its limitations by
focusing on fairness and justice. Equity courts like the Court of Chancery provided remedies such as injunctions and trusts. Over time, equity principles became integrated into the common-law system, leading to a more comprehensive approach to justice.
What is sovereignty of parliament?
Parliamentary sovereignty, asserts that Parliament holds supreme legal authority, with the power to create, amend, or repeal laws without limitation. This means that legislation passed by Parliament cannot be overturned by any other body, including the courts. While there are certain limitations, such as international treaties, parliamentary sovereignty remains a fundamental aspect of the UK`s legal framework.
What is “judicial review”?
Judicial review grants courts the power to review and potentially invalidate laws, regulations or government actions that are unconstitutional. It allows the judiciary to assess governmental action´s compatibility with the constitution or legal standards, serving as a check on the legislative and executive branches. Landmark case for establishing the
principle of judicial review is Marbury v. Madison from 1803.
What is the role of precedent?
Precedent, or stare decisis, in the legal system ensures consistency, predictability, and stability in judicial decision-making by using past court decisions as guides for similar cases. It promotes fairness and equality in applying the law, maintains integrity within the legal system, and enhances public confidence in the judiciary.
What does “hierarchy of the legal sources” mean?
The hierarchy of legal sources establishes the order of authority among different types of
laws within a legal system, guiding courts in resolving disputes and interpreting the law.
Constitutional provisions typically hold the highest position, followed by statues, regulations and judicial decisions. This framework ensures consistency in legal decision-making by prioritizing certain sources over others.
Is an island state that is now submerged still a “state” for international purposes?
Whether a submerged island state retains its status as a “state” in international law depends
on factors like the legal and political context, international agreements, and recognition by
other states. Statehood typically requires criteria such as a permanent population, defined territory, government, and capacity to engage with other states. If these attributes are lost due submersion, but its government operates in exile, it could retain its statehood status.
Statutory interpretation, and the legislature´s response thereto, can be illustrated by two cases: Excell v. Butler and LePage v. Center for Reproductive Medicine? Discuss.
Statutory interpretation and legislative response are exemplified in Excell v. Butler and
LePage v. Center for Reproductive Medicine. In LePage, a statute on abortion clinic regulation was interpreted by the court, leading to legislative amendments to address concerns. These cases showcase the interaction between judicial interpretation and legislative action.
Explain the positivist v. naturalist approach to statutory interpretation.
The positivist approach focuses on interpreting laws based strictly on their explicit language
and legislative intent, prioritizing the literal meaning of the text. Conversely, the naturalist
approach considers broader principles of justice, morality, and societal values when interpreting statutes, looking beyond the literal text to understand the overarching legal principles and the spirit of the law.
