Exam Law and State

Question 1

Four approaches to law

Answer 1

• Linguistic approach (two basic types of legal language: language of legal texts and legal practice, legal science (clear full statements and specific definitions))
• Axiological approach (law as an expression of values)
• Sociological approach (acts of social agents, social relations, and social institutions)
• Psychological approach (in human being’s minds)
  also economical and political

Question 2

The legal norm

Answer 2

is the rule of conduct (поведінка) that is reconstructed from texts of binding (зобов’язуючих) legal instruments.

Question 3

The legal system

Answer 3

is organized, and internally coherent (послідовна) collection of such norms created by a political authority, that is a legislator, and contained in legal texts issued by this legislator.

Question 4

Legal order

Answer 4

multi-layered phenomenon which contains extra-textual, not-written rules and principles.

Question 5

Three levels of law

Answer 5

• Surface level
• Legal culture level
• Deep legal culture level

Question 6

Surface level of law

Answer 6

the most obvious but the most unstable
Surface level – is level of legal provisions formulated in law-making instruments and other typical sources of law.
(creation)

Question 7

Legal Culture level of law

Answer 7

not only produced by the acts of legislator, but also is created by legal practice and legal scholarship.
На відміну від поверхневого рівня, правова культура продукується не лише актами законодавця, але й створюється юридичною практикою та юридичною наукою.
o methodical elements (argumentation)
o conceptual elements (basic legal concepts)
o normative elements (general legal principles)
o general doctrine (more comprehensive doctrine)
Contains:
- Values
- Principals
- Concepts

Question 8

Deep legal culture level

Answer 8

level that is built by the most basic qualities of the law and the way that it is perceived.
e.g., the idea of human rights protection – may be included into the deep culture of law.

Question 9

Four types of law by Thomas Aquinas

Answer 9

The Eternal – God’s plan for the universe
The Natural – discoverable by reason and is to be found in human minds
The Human – is made by human on basis of natural reason
The Divine – the law revealed in scripture

Question 10

What is law? Four possible answers

Answer 10

Common law
Natural law
Positivism
Realism

Question 11

Legal positivism

Answer 11

Legal systems are created by people rather than having some natural or metaphysical existence.
Only valid laws are those written rules, regulations, principles that have been expressly enacted, adopted, or recognized by the official political authority.
The laws are seen to be completely separated from moral norms and ethical values.
Legal norms are binding and enforceable by the force, by the police power of government.
Separability thesis: law and morality are conceptually distinct.

Question 12

Natural law

Answer 12

All laws must to be informed by or made to comply with universal principles of morality, religion, and justice.

Question 13

Legal realism

Answer 13

Is a philosophical conception of law which states that we should look for legal norms in judicial decisions and other acts of applying law. Law is neither based on some formal acts nor on some universal authority.
Legal realists often hold the view that law is nothing more than what a particular court says on particular day and the decision will vary according to the political, religious, cultural persuasion of the judge.
Legal realists share belief in the importance of interdisciplinary while approaching to law. Many proponents are interested in anthropological and sociological insights in the study of law.

Question 14

Legal instrumentalism

Answer 14

Law should be used as a tool to achieve social purposes and to balance competing social interests.

Question 15

Types of norms

Answer 15

Abstract and concrete
General and individual
Ius cogens and ius dispositivum
Rules and principles
Policies

Question 16

General and Individual types of norms

Answer 16

The division is based on a way of describing the addressee. The addressee can be indicated as a part of the group (distinguished by some general attributes) or as a particular entity (distinguished using personal, unique features).

In general norms an addressee can be described using the criterion of profession, social role, or role in social relation. The norm is general even if only one person can be characterised by such general qualities.

In individual norms an addressee can be described using for example: name, national identification number, Tax identification number.

Question 17

Abstract and Concrete types of norms

Answer 17

The division is based on a manner of describing a legal obligation.

The norm is abstract if the type of conduct is described in repeatable way, using non-contextual designation.

The norm is concrete if the criteria of norm’s applicability is specified as a particular situation.

Question 18

Ius cogens and Ius dispositivum

Answer 18

The division is based on scope of latitude in applying and modifying a particular norm by its addressees.

Ius cogens (peremptory norm) means that the norm must be strictly applied. It is a characteristic of public law.

Ius dispositivum means that norms are relatively applied rules. It is a characteristic of private law.

Question 19

Principles and Rules

Answer 19

Principles are valid because of the material significance. They are accepted and applied generally by lawyers. Their scope of application is imprecise; it depends on a wider context. For these reasons they need to be applied in a ‘more or less’ mode.
Principle:
* Normative sense – principles are legal norms formulated in legal texts. These are norms of special importance for the whole legal system, a branch of law, a particular legal institution.
* Descriptive sense – principles can be reconstructed from sets of particular rules in a process of induction.
* Non-positivism sense

Rules are valid because they meet formal criteria (so called test of pedigree). They have precise scope of application; therefore they are applied in ‘all or nothing’ mode. In the case of a collision between the rules, one of them is repealed and is not binding any more. Any ‘middle’ solution cannot be applied.

Question 20

Policies

Answer 20

Policies are norms establishing the aim which is to be achieved by addressees of a particular legal instrument. Usually they appear in constitutional provisions. In a sense, they describe general aspirations of the lawgiver, without giving more precise prescriptions as for the way of achieving them. Policies may be either quite technical and precise (e.g., guaranteeing a certain amount of electric energy produced with a use of ‘green technologies’), or axiological and open for various interpretations. The second type is typical for constitutional rules.

Question 21

Postulates of legal system

Answer 21

Postulates of legal system are basic qualities legal system should possess.

Question 22

Two basic postulates of modern legal system

Answer 22

Coherence (no collisions between norms) and completeness (no loopholes in the system)

Question 23

Loopholes in the law

Answer 23

Axiological lacuna is an outcome of comparing existing legal system with the ideal one.
* Extra legem – the lack of norm that should exist in the legal system is assessed negatively, not possible to do because of the other law.
* Contra legem – the existence of the norms is judged negatively.
* Praeter legem – the existence of the norm is judged as too general, lack of information.

Constructional lacuna is an outcome of analysing internal relations between norms within the system by itself.
* Specific loopholes – the law-making process is unfinished, what results in a situation when there lacks a regulation that should be issued according to another norm.
* Technical loopholes – law-making process has been finished but the regulation is incomplete.

Question 24

Collisions between the norms

Answer 24

two norms refer to the same issue, but they cannot be both applied. Collisions can be divided into:
a) Logical (contrary and contradiction)
b) Praxeological
c) Axiological

Question 25

Collision rules

Answer 25

a) Lex superior derogat legi inferiori – superior norm supresses inferior norm
b) Lex specialis derogat legi generali – particular norm suppresses general norm
c) Lex posterior derogat legi priori – the norm that was issued later supresses the norm which was issued earlier

Question 26

Division within a legal system

Answer 26

a) Civil law
b) Criminal law
c) Administrative law
d) Substantive law
e) Political law
f) Procedural law

Question 27

Hierarchy of sources of law

Answer 27

The higher the position of the authority in the hierarchy of public authorities, the greater the legal force of instruments established by this authority.

Question 28

Sources of law

Answer 28

Sources of law are facts/acts which are thought to be the ground for validity of legal norms binding in a specific legal system.

Question 29

International treaties

Answer 29

Governments may sign International Conventions and Treaties.

Question 30

European Community Law

Answer 30

The European Union is a special example of international law. European nations can join the EU thereby adopt all EC Law to date

Question 31

Stare decisis

Answer 31

According to this principle, every court is bound by the precedent established by the court of a higher instance and the precedent may be overruled only by the court that established it or the court of a higher instance or by the statutory law. Judges are therefore, generally speaking, obliged to apply precedents that have been established in their rulings.

Question 32

Legislation

Answer 32

Legislation is the main source of law and consists in the promulgation of legal rules by a competent authority. Legislation can have many purposes: to regulate, authorize, permit, prohibit, provide funds, punish, grant, declare or restrict. The parliamentary legislature develops new laws and amends or repeals old laws. The legislature may delegate legislative powers to lower bodies.
The powers of most legislatures are limited by the country’s Constitution, and Montesquieu’s theory of separation of powers generally limits the powers of the legislature to legislative activities.

Question 33

Case law

Answer 33

Judicial precedent (also known as case law or judge-made law) is based on the doctrine of stare decisis and is mostly associated with jurisdictions based on English common law, but the concept has been partially adopted by civil law systems. Precedent is the accumulated principles of law derived from centuries of decisions. Decisions made by judges in important cases are recorded and become an important source of law.

Question 34

The Constitution

Answer 34

1. The constitution is a legal instrument with the highest legal force.
   a. Establishes the innate characteristics of the country and its sovereignty outlines the rights and responsibilities of its citizens
   b. Establishes the country’s governance structure
   c. All other laws must adhere to the constitution
   d. The constitution should reflect and adhere to a country’s international obligations

Question 35

International laws

Answer 35

a. Transborder agreements that have different impacts on the country’s law, depending on the treaty language and the way a country’s constitution manages them
b. Sometimes only a limited degree of compliance with treaties, and some treaties that enshrine fundamental rights are not always followed through in the signatory nation’s constitution, or through domestic enforcement. (Іноді спостерігається лише обмежений ступінь дотримання договорів, а деякі договори, які закріплюють фундаментальні права, не завжди виконуються в конституції країни-підписанта або через внутрішнє правозастосування.)
c. No legal way to enforce compliance unless the treaty sets up a dispute resolution process.

Question 36

Statute:

Answer 36

a. Statutes are enacted by the legislative branch of government, and govern a wide range of issues that require regulation in a modern, democratic state
b. Must adhere to the constitution and the international law
c. Amended by the same process as first enacted, and enforced by a country’s enforcement agencies

Question 37

Common law/case law

Answer 37

a. Is a law made by the courts, not legislature, and is not a level of hierarchy per se
b. It consists of the judgment of courts, to interpret the wording of a statute law, or to deal with an unforeseen situation not covered by statute.
c. A judgement of a court may award damages, punishment, sanction, or other remedial action, enforced by a country’s enforcement agencies

Question 38

Regulations

Answer 38

a. A form of delegated legislation, developed and enacted by ministers, department heads, or
b. by an independent body or commission, to administer their responsibilities
c. Must adhere to the constitution, international law, and governing statute, and can be enforced in the same way as statutory law.
d. Provide detail on the administration of principles in the law.
e. A violation of a regulation can be treated as an offence and enforced as such.

Question 39

Procedure

Answer 39

a. A procedure is a description of the required steps necessary to complete a process.
b. Procedures are generally written by an administrative body to ensure that the law and regulations are applied consistently and fairly to all parties.
c. Enforcement of a procedure is generally achieved by requesting compliance as a condition of completing a process or receiving a benefit (for example, candidacy) - rather than sanction or punishment.

Question 40

Codes of Conduct

Answer 40

a. A written set of rules, principles, or standards to govern the behaviour of certain groups.
b. It is a best practice for EMBs to develop codes of conduct to govern external factors such as candidates, media, election observers, security personnel, and election officials.
c. Enforcement of codes of conduct depends on whether they are considered “soft” or “hard” law. Codes of conduct are considered “soft law” when they are not passed by a law-making body and thus rely on voluntary compliance.

Question 41

Precendent

Answer 41

Making of law by the recognition and application of new rules by courts themselves in the administration of justice

Question 42

Customary law

Answer 42

Constituted by customs which fulfil the requirements laid down by law as the condition for their recognition as obligatory rules of conduct

Question 43

Judicial power

Answer 43

Judicial power strikes down unconstitutional executive orders and laws that are unconstitutional, presides over impeachment.

Question 44

Legislative power

Answer 44

Legislative power impeaches the president, rejects executive appointments, overrides vetoes, amends constitution, passes legislation overriding court decisions, impeaches judges.

Question 45

Executive power

Answer 45

Executive power nominates judges and justices, pardons people convicted by courts. Vetoes bills, calls congress into special session, vice president brakes senate ties.