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Private law > emas notes > Flashcards

emas notes Flashcards

1
Q

What are the key practical and larger objectives of law?

A

Practical: Punishing criminals, compensating damages, and enforcing agreements.
Larger objectives: Promoting justice, ensuring freedom, and safeguarding security.

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2
Q

What are the three main philosophical perspectives on the nature of law?

A

Natural Law Theory: Law is based on universal moral principles.
Legal Positivism: Law is a set of valid rules, independent of morality.
Modern Perspectives: Law protects individual rights, promotes equality, and fosters social progress.

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3
Q

What was significant about the Code of Hammurabi (1760 BCE)?

A

One of the earliest written legal codes.
Contained severe punishments (e.g., death for false testimony).
Introduced the concept of strict liability (no legal excuses or defences).

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4
Q

What reforms did Solon introduce in the 6th century BCE?

A

Divided citizens into classes based on income (obligations proportional to wealth).
Abolished debt slavery.
Introduced reforms in marriage, economy, and criminal punishment.

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5
Q

What were the Twelve Tables of Rome (450 BCE), and why were they important?

A

The first codification of Roman law, created to apply laws equally to patricians and plebeians.
Provided a stable legal foundation, applicable to all social classes.

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6
Q

What was the Corpus Juris Civilis, and why was it significant?

A

Codified by Emperor Justinian (529–534 CE).
Comprised three parts: Digest (legal opinions), Codex (imperial laws), and Institutes (student manual).
Influenced legal systems across Europe for centuries.

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7
Q

What are some key examples of modern legal codes influenced by Roman law?

A

Napoleonic Code (1804): Brief and accessible, spread across Europe and Latin America.
German Civil Code (BGB, 1900): Detailed and technical, inspired laws in countries like Japan and China.

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8
Q

What are the main challenges modern law faces today?

A

Globalization and international disputes.
Regulation of technological advances.
Human rights and environmental protection.

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9
Q

What is the distinction between public and private law?

A

Public Law: Regulates relationships between individuals and the state (e.g., constitutional law, criminal law).
Private Law: Governs relationships between individuals or groups (e.g., contract law, family law).

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10
Q

What are the essential requirements for a valid contract?

A

Intention to create legal relations: Both parties must intend to be legally bound.
Agreement: Offer and acceptance must align.
Consideration (common law): Both parties must receive a benefit.
Capacity of the parties: Must be legally capable (e.g., not minors).
Form: Some contracts must be written (e.g., real estate sales).

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11
Q

What is the key principle established in Carlill v Carbolic Smoke Ball Co. (1892)?

A

An advertisement offering a unilateral contract becomes legally binding if someone performs the required conditions. In this case, Mrs. Carlill’s use of the product constituted valid acceptance and consideration.

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12
Q

What are the remedies for breach of contract?

A

Compensation (damages): Monetary payment for losses.
Specific performance: Court orders to fulfill the contract’s terms.
Excused performance: In cases of force majeure (e.g., natural disasters), liability may be excused.

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13
Q

What are the three main categories of torts?

A

Intentional torts: Harm caused deliberately (e.g., assault, defamation).
Negligence: Failure to exercise reasonable care, causing harm.
Strict liability torts: Liability without proof of fault (e.g., hazardous activities).

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14
Q

What are the elements of negligence?

A

Duty of care: Defendant owed a duty to the plaintiff (e.g., Donoghue v Stevenson).
Breach of duty: Failure to meet the standard of a reasonable person.
Causation: Breach caused harm.
Damages: Plaintiff suffered actual harm (physical, emotional, or economic).

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15
Q

What is the rule established in Rylands v Fletcher (1868)?

A

A person who brings something dangerous onto their land is strictly liable for any damage caused if it escapes (e.g., water from a reservoir).

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16
Q

What are the main defenses against defamation claims?

A

Truth (justification): Proving the statement is true.
Absolute privilege: Statements made in legislative or judicial proceedings.
Qualified privilege: Duty to communicate to someone with a legitimate interest.
Fair comment: Honest opinions on matters of public interest.

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17
Q

What are the two elements required for criminal liability?

A

Actus reus: A guilty act (action or omission).
Mens rea: A guilty mind (intention or negligence).

18
Q

What are the main functions of punishment in criminal law?

A
  1. Deterrence: Discourage criminal behavior.
    1. Rehabilitation: Reintegrate offenders into society.
    2. Retribution: Punish for harm caused.
    3. Protection: Safeguard society from criminals.
    4. Restorative justice: Allow offenders to make amends (e.g., community service).
19
Q

How can the relationship between law and morality be visualized?

A

It can be seen as two partially overlapping circles:
* Overlap zone: Acts that are both legally and morally wrong (e.g., murder).
* Outside overlap:
* Legally wrong but not immoral (e.g., overstaying parking time).
* Morally wrong but not illegal (e.g., adultery).

20
Q

What is the Hart-Fuller debate about law and morality?

A
  • Hart: Immoral laws (e.g., Nazi laws) can still be legally valid.
    • Fuller: Laws must adhere to moral principles (e.g., clarity, non-retroactivity) to be legitimate.
21
Q

What is the Hart-Devlin debate about private morality and law?

A
  • Devlin: Society can punish immoral behavior that undermines social cohesion.
    • Hart: Law should intervene only to prevent harm, not to enforce morality (Mill’s harm principle).
22
Q

How does the issue of abortion reflect the tension between law and morality?

A
  • United States: Roe v. Wade (1973) allowed abortion based on privacy rights; overturned by Dobbs v. Jackson Women’s Health Organization (2022).
    • United Kingdom: Abortion permitted under conditions like risk to life.
    • South America/Africa: Absolute bans in many countries.
23
Q

How do legal systems differ in their treatment of euthanasia?

A
  • Active euthanasia: Generally considered murder in most jurisdictions.
    • Passive euthanasia: Increasingly accepted (e.g., withdrawal of life support).
    • Netherlands: Allows voluntary euthanasia under strict conditions (e.g., unbearable suffering).
24
Q

What is the “ticking time bomb scenario” in the context of torture?

A

It’s a moral dilemma suggesting that torture may be justified if it prevents a catastrophic event (e.g., terrorist revealing bomb location).
* Consequentialist view: Justifies actions based on outcomes.
* Deontological view: Torture is always morally wrong.

25
Q

What role does natural law play in human rights?

A
  • Universal Declaration of Human Rights (1948): Recognizes rights like life, liberty, and security.
    • Nuremberg Trials: Introduced “crimes against humanity,” condemning acts that were legal under Nazi laws but universally immoral.
26
Q

What are the fundamental roles of courts in the legal system?

A
  1. Adjudicate civil and criminal disputes.
    1. Ensure the correct and uniform application of law.
27
Q

How do courts function in common law vs. civil law systems?

A
  • Common law: Courts shape law through judicial precedent (stare decisis).
    • Civil law: Courts apply codified laws, but they interpret vague or incomplete laws when necessary.
28
Q

What is the structure of courts in a hierarchical system?

A
  1. Courts of first instance: Hear initial cases.
    1. Appellate courts: Review decisions for errors.
    2. Supreme courts: Ensure consistency and interpret constitutions.
29
Q

What is the difference between adversarial and inquisitorial systems?

A
  • Adversarial (common law):
    • Judge acts as a neutral referee.
    • Parties present evidence to the court.
  • Inquisitorial (civil law):
    * Judge plays an active role in investigating and gathering evidence.
30
Q

What are the advantages and disadvantages of jury trials?

A
  • Advantages: Symbol of democracy; reflects community values.
    • Disadvantages: Jurors may lack legal expertise or be influenced by emotions.
31
Q

What are some alternative dispute resolution (ADR) methods?

A
  1. Mediation: A mediator helps parties reach an agreement.
    1. Arbitration: A binding decision is made by an arbitrator.
    2. Negotiation: Parties resolve disputes directly without third-party involvement.
32
Q

What are the primary roles and activities of lawyers?

A
  1. Drafting legal documents (e.g., contracts, wills).
    1. Advising clients on legal matters.
    2. Resolving disputes and representing clients in court.
    3. Handling property transactions.
33
Q

How is the legal profession structured in common law countries?

A
  • Barristers: Specialists in courtroom advocacy and litigation.
    • Solicitors: Handle client interactions, case preparation, and negotiations.
34
Q

What is the cab-rank rule?

A

A rule requiring barristers to accept any case within their expertise, ensuring even unpopular defendants receive legal representation.

35
Q

How does the legal profession differ in civil law systems?

A
  • Less fragmented than common law systems.
    • Main professionals: Advocates (court representation), notaries (drafting/authenticating documents), and public prosecutors.
36
Q

What is the role of legal aid in ensuring access to justice?

A

Legal aid provides free or low-cost legal assistance to individuals who cannot afford a lawyer, especially in criminal cases.

37
Q

What are the main internal challenges to modern legal systems?

A
  1. Growing power of administrative agencies with limited judicial oversight.
    1. Complexity of balancing liberty and security (e.g., surveillance laws).
38
Q

How has globalization impacted legal systems?

A
  • Reduced authority of national laws due to international organizations (e.g., UN, EU).
    • New challenges in addressing global issues like climate change and terrorism.
39
Q

How does technology challenge the law?

A
  1. Privacy concerns (e.g., data collection by Big Tech).
    1. Legal gaps in regulating AI, self-driving cars, and cybersecurity.
    2. Ensuring law keeps pace with technological advances.
40
Q

What role does environmental law play in addressing global challenges?

A
  • Promotes sustainability and addresses climate change through agreements like the Paris Agreement.
    • Success depends on nations’ willingness to implement and enforce regulations.

Private law (5 decks)

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