Basic Concepts of Law Flashcards
What are the two fields of law?
Public and private law
What is the distinction between public and private law?
In public law the government plays a role and in private law it does not?
Private law is between citizens
What are three forms of private law?
- Property Law -> ownership
- Contract Law -> sales, work
- Tort Law -> compensation for damage when there is no contract
What are 4 forms of public law?
- criminal law
- constitutional law
- administrative law -> relation state & citizens
- public international law -> relation between states
What is substantive law?
Rules that give people rights, or determine
what people should do
What is procedural law?
Rules for court proceedings, the organisation
of the judiciary
What are legal subjects?
Legal rules require things from, and give rights
to, legal subjects. Legal subjects are:
- 'natural persons'
= humans
- or 'legal persons'
e.g. company with limited
liability ('B.V.', 'N.V.'),
foundation, municipalityWhat are some fundamental rights?
Human rights. E.g. - Right to privacy - Right to freedom of expression - Right not to be tortured - Right to freedom of assembly
What is contract law?
Set of rules and principles that govern
transactions between parties, setting the
rules and obligations of the parties
Contracts usually do not require formalities?
Even if law does not require formalities, it
can be useful to make a written contract.
If problems arise, a written contract makes it
easier to prove (e.g. to a judge) what the
other party promised.
What does freedom of contract entail?
Parties can choose
- whether they want to contract
- with whom
- about what (contents of the contract)
Contracts cannot require what?
Illegal acts e.g.
- Contract to hire a killer
- Contract requiring singer to remain single
- Selling organs
- Selling babies
- Selling sex - in many countries
Property rights are?
‘absolute’ rights; they
can be invoked against everyone: an ‘erga
omnes’ effect
Relative rights are?
Only valid against a particular
legal subject
What are tangible and intangible property rights?
Tangible:
house, land, car, chocolate bar.
Intangible
trademark, copyright, patent.
3 groups of rights are?
- Rights against a person -Claims, e.g. based on a contract, or on tort law. The other party: an ‘obligation’
- Rights on an object - Property rights
- Human/fundamental rights
What does tort law entail?
Basic rule: everybody bears their own damage Tort law is about the exceptions: Under which conditions can somebody who suffered damage claim compensation for the damage from somebody else?
What is fault liability?
A is liable for damage caused to B, because A wrongfully caused damage to B
What is strict liability?
A is liable for damage caused to B, even though A did not intentionally or negligently cause that damage
Two facets of strict liability?
i) Liability for damage caused by somebody else
ii) Liability without tortfeasor, for damage caused by defective or dangerous thing or activity.
What is criminal law?
Rules in which the state prohibits certain forms of conduct and that impose punishment for such conduct
Utilitarian criminal law?
Sanctions are only justified if they have beneficial consequences, e.g. deterrence & rehabilitation
Retributive theories?
Crime deserves punishment
What are the 2 functions of criminal law?
1) Tool to maintain public order and control deviant social behaviour
2) Tool to protect the human rights of civilians (including criminals) against the state.
What is the proportionality principle?
Infringements on people’s rights, should only be allowed when they are strictly necessary to investigate a specific offence
What does constitutional law entail?
Field of law that regulates the state
The state should comply with legal rules: the
rule of law.
What are constitutions presented as?
A document that states what states can do, they are usually harder to amend and a written document.
What is the trias politica?
- Creating legislation - Legislator
- Practical implementation of rules - Government
- Deciding disputes - Courts
What does administrative law entail?
- Administrative authorities
- Procedural rules for use of public powers
- Objection procedures and protection by courts against the state
Various powers of administration?
i) public law competences - imposing tax
ii) private law competences - government buys furniture
What are the 2 functions of administrative law?
i) Instrumental function - Rules that bind the administration in its tasks
ii) Safeguarding function - Rules about supervision by courts
