Foundations And Sources Of Law Flashcards
What is lex posterior?
The newer rule prevails over the older one
What is lex specialis?
The more specific rule prevails over the other one
What is lex superior?
The superior rule prevails over the inferior rule
European law always prevails over national law
Hierarchy between legislative bodies and their rules
What is positive law?
A law that has been laid down
- Legislation
- Judicial decision
What kind of morality does exist?
- positive morality
- critical morality
What is the difference between law and morality?
- morality doesn’t tell us how to behave
- legal rules deal with issues considered less serious
- an act which is against morality isn’t often punished
- law is enforced by collective means
What does stare decisis mean?
Stand by your decision
If a court has decided a case in a particular way the same court and the courts that are inferior to it must give the same decision in future cases that are similar
What is equality
- common law
- kind of judge made law
- mitigate harsh results
- focused on obtaining fair results
What is ius commune?
European law based on roman and canon law
What is canon law?
Canon law deals with the international organization of the church and civil affairs such as marriage, contracts and wills
What is the Westphalian duo?
National state law and international public law
What is ratio decidendi?
Judges are bound by the decisive grounds that made the court take the decision
What is obiger dicta?
Things that were also said
Courts aren’t bound by it
What is Ius cogens?
A set of norms of international law that are accepted and recognized by the international community of states
Violation isn’t acceptable
What are legal sources?
- Sources of legal validity
- Sources of origin
- Knowledge source
What is soft law?
Rules that aren’t officially but still influential
What is Broadening?
Courts treat cases similar even if their similarity wasn’t obvious
What is legal certainty?
- Certainty about the content of law
- certainty that the law will be enforced
- certainty that the law will be applied consistently
On what depends a legal solution if two parties have a dispute?
- The facts of the case
- The content of law
What are characteristics of rules?
- specific sanctions
- enforced by organs of state
- can be replaced
- does not directly tell us what to do or not to do
All rules can be divided between?
- Social rules
- Institutional rules
What are the sources of origin in Common Law?
- Customary Law
- legal doctrin
- reason
What are the sources of origin in Civil Law?
- Customary law
- legal doctrin
- reason
- case law
What are the sources of validity in Common Law
- legislation
- treaties
- case law
What are the sources of validity in Civil Law
- legislation
- treaties
What is opinio iruris?
The belief that the custom is binding
What is legal doctrine?
Writings of legal scholars which might influence the decicions
What is substantive law?
Rules that concretely tell us what to do
A distinction of law
What is procedural law?
Rules that concern what happens if we don’t follow rules
A distinction of law
What is a rule?
A rule is a regulation that:
- prescribes a behavior
- gives a definition or creates a competence
What are operative facts?
the facts considered relevant in order to make a decision about a legal issue because they match the conditions of a rule
Have a unintentionally effect
What is a juridical act?
Is an act performed to bring a specific legal effect intentionally
What is a duty?
Obligation whose content tells us how to behave
What is a prohibition?
Rule that forbids something
What is an explicit permission?
Exception to a prohibition
What is right in personam?
- they regard a specific person and are valid only against that person
- they a relative rights
What are rights in rem?
- They regard an object and are valid against everyone
- They are absolute rights
What is an implicit permission
The absence of a prohibition
