E. Legal method, philosophy, and theory Flashcards
What are the differences among the obiter, dicto, the holding, and the judgment?
In legal terms, obiter dictum and dictum are non-essential remarks made by a judge, with the former being incidental and the latter potentially persuasive for future cases. The holding is the core legal principle that determines the case´s outcome, establishing precedent, while the judgement encompasses the holding along with any necessary orders or remedies.
What is a legal norm? What are examples of norms apart from legal norms?
Legal norms are rules established by governments or legislatures, enforced through legal mechanisms, governing behavior within a society, such as laws and regulations. Social
norms are informal rules guiding behavior, like etiquette and cultural practices, while ethical
norms are principles of morality, based on concepts of fairness and human rights.
What do you understand by natural law?
Natural law proposes the existence of universal moral principles inherent in nature, guiding
human behavior towards what is considered inherently right or wrong. These principles are
believed to be discernible through reason, independent of human-made laws or social norms and serve as a basis for evaluating the legitimacy of legal systems.
Does legal validity depend on moral content?
Some argue that laws must align with moral principles for legitimacy, as per natural law theory, while others maintain that legal validity can be separate from moral considerations, according to legal positivism. The moral validity should effect and guide legislators in their choice of law.
What is legal positivism?
Legal positivism is a legal theory that separates law from morality, asserting that the validity
of laws is determined solely by their formal enactment through recognized legal processes,
irrespective of their moral content. The authority of laws comes therefore not from any moral principles.
Why do we obey law according to the command theorists (Bentham & Austin)?
Command theorists like Bentham and Austin propose that individuals obey the law primarily
due to fear of punishment by the sovereign authority. They argue that the essence of law lies in commands issued by a sovereign entity, backed by the threat of sanctions. According to
this view, obedience to the law stems from self-interest and the desire to avoid negative
consequences, rather than any inherent moral obligation or social contract.
Define legal personhood. What is the difference between legal personhood and legal capacity?
Legal personhood grants entities the recognition as subjects of legal rights and duties, enabling them to engage in legal proceedings, own property, enter contracts, and be held accountable for their actions. In contrast, legal capacity means the ability of individuals or entities to exercise rights and fulfill obligations under the law.
What are “personality rights”? How are they protected in civil law and common law systems?
Personality rights including the right to privacy, reputation, and freedom from defamation. In civil law systems, these rights are safeguarded through explicit privacy laws codified in civil codes, while in common law systems, protections are provided through statutory law, and established legal precedents.
How are so-called personality rights understood in the German and UK
jurisdiction?
In German jurisdiction, personality rights, are
extensively safeguarded under civil law through provisions in the German Civil code and
other statutes. These rights encompass privacy, reputation, and freedom from defamation. Conversely, in the UK, personality rights are not
explicitly codified but are protected through common law, specific statutes, and case law. British law often balances individual rights with the public interest.
How does the ECHR safeguard personality rights and how does this relate to the
German and UK jurisdictions?
The European Convention on Human Rights (ECHR) safeguards personality rights by
protecting fundamental human rights such as privacy, or freedom of expression. Germany and the UK, both bound by the ECHR, are influenced in interpreting and applying personality rights. These rights relate in Germany through Art. 59 „Grundgesetz“ and in the UK through the Human Rights Act from 1998.
