International law Flashcards
Treaties
Agreements between states in regards to arrangement (verdrag)
Self-determination
have the right to freely choose their sovereignty and international political status with no interference
What is law?
It is a general norm which prescribes what activity may, should or should not be carried out, or in what specific way and activity should be carried out.
what does it mean that rules are normative?
That it tells what us what should happen, not what actually happens
What are the different ways to expect law?
- Law as a closed system of rules, which is separate from society
- Law is an open system which responds to societal, economic and political demands
- Legal realism: see how the legal system actually works
What are Webber’s 3 types of authority?
- Tradition law = Customary law
- Charisma(religious prophets) > religious law
- Legal/Rational authority: Rules and procedures give legitimacy
What are the 5 functions of law according to Summers?
- Remedy grievances
- Prohibit and prosecute forbidden activities
- Promote certain activities
- Manage goods provided by government
- Facilitate private arrangements
What are the 3 functions of law according to Llewelyn?
- Help ensure group survival
- Prevent disruptive disputes within the group
- Structure authority in the group
How does Law relates to Society?
When society changes, law changes. So in underdeveloped countries the law is preventive (punishing people that deviate from community norms). In developed countries the law is remedial (offering compensation of breach of contract)
How does law relate to morality?
- Moral rules rest on social disapproval, legal rules are backed by official state sanctions
- But can be closely related, so a perpetrator ca be punished only if its believed that they are at fault.
What is Natural Law?
Natural law theories establish a close link between law and morality. although it is hard to proof because of not being a consensus on moral rules( example: abortion)
What are the different concepts of “legal rights”?
- Salmond: Rights are connected interests
- Salmond: Rights only Exist when legal remedy is available
- Salmond: To every right correspond a duty
- Austing: Duties correspond to a certain type of duty only
- Hohfeld: The concepts of right and duties are too general, they need to be replaced by other concepts.
- H.L.A. Hart: The concepts of right and duties take different meanings depending on the context in which they are used
What is the dynamic view on rights
Circumstances do not alwats stay the same, they change. hence we need to see a right as a process
What are the 3 steps of seeing a right as a process?
- Claiming your right
- Legal recognition of the right claimed
- Court offering legal remedy on that Right
Who was rights?
in a broader sense, every human being. but each right depends on your role in society, there are different rights for different roles, like rights of employee might be different than the ones of a student.
What are property rights?
In the agricultural societies means rights over ownership of land, but with the inclusion of money, property rights can be things that exist on paper or digital( stock, bank balance, intellectual property)
What are legal traditions?
A group of countries whose legal system is similar can be considered legal traditions
What are the 4 main legal traditions?
- Civil Law: 75% of the countires
- Common Law: used in 80 countries(prev british colonies)
- Islamic Law(in 15 islamic states)
- Customary Law(in 40 countries)
(half of all countries use a mixed legal tradition)
What is legal personality?
It refers toa human or non-human entity that is treated as a person for legal purposes
What are commonalities of the common law tradition and the civil law tradition?
- Both are western legal systems
- Law is separate from religion, morality and social norms
- Law most important vehicle to regulate society
- Law regulates the conduct of people and the state
- Zero-sum game, not an attempt to reconcile the parties, so one party has to lose for the other one to win
What is the Roman Civil Law?
It is the legal system of ancient Rome, it is the basic framework for civil law
What are Vertical and horizontal relations?
Vertical: Relations between state and citizen
Horizontal: Relations between citizen and citizen
What does civil law refer to?
The legal tradition that 150 countries have in common
The law that regulates horizontal relations
What is cannon law?
It is the universal law of the spiritual domain. associated with the authority of the church
What is Commercial law?
Law established for the conduct of commercial affairs
What is Codifying?
Putting together laws by writting them down in a single book( or Code)
What caused the legal revolution?
- Age of enlightenment- Ways of thinking on state and individual
-Antireligious, anticlerical and antifeudal - Inequalities because of aristocracy
-Birth of nation-states
What are the Sources of Civil Law?
- State instead of god or the church
- Sovereignty
- Law is only statutes enacted by the legislative power
- Supremacy of legislative power
Sources of Common law?
- Similar sources as civil law
- In civil law, the legislation is very important, while in the common law there is no clear hierarchy
Difference between the Common law and Civil law
-Civil: very coded // Common: generally uncodified
-Civil: emphasis on system and structure//Common: not organized in a coherent way
-Civil: clear as possible//Common: case by case system
Role of legislation in the Civil and Common law?
Civil: Ambition to cover all areas by comprehensive articles. new law supersede old laws
Common: Narrow scope.
Role of judges in Civil and Common law?
Civil: establishes the facts and apply provisions of relevant law
Common: impartial referee, judge decides on the facts
Central actor in shaping the law in Civil and Common laws?
Civil: Parliaments, legal scholars
Common: judge
Juries in Civil and Common law?
Civil: relies on professional investigation and decisions
Common: Jury are central to the legal system, not legally trained. attempting more democratical process
Lawyers in Civil and Common Law?
Civil: Inform and advice the court
Common: Very important role, questioning witnesses and presenting evidence.
Trials in Civil and Common law?
Civil: process consisting in several sessions, inquisitorial, collaborative effort
Common: accusatorial, confrontational
Discovery of evidence in Civil and Common Law?
Civil: Court decides what information each party receives
Common: extensive and expensive, open for all parties
Admissibility of evidence in Civil and Common Law?
Civil: all evidence considered
Common: very restrictive, strict procedures.
What is Law certainty?
That law should provide those subject to it the ability to regulate their conduct, making it judge proof in civil law. In common law, certainty is not assured.
What are the Civil law characteristics?
- Legislative positivism
- Sharp separation of powers
- Comprehensive codification
- Legal certainty
-Denial of equitable powers of the judge - Denials of stare decisis(to follow precedents when making a rule on similar background)
What is Legal science?
It is law seeing as systematic science(similar as physics or chemistry) new data is integrated into the system, high level of abstraction, focuses on theorical scientific structure
Distinction between Private and public law
Public: Criminal, Administrative, constitutional
Private: Contract, property, torts, commercial, corporate, competition, labour
Legal process in the civil law tradition
-Scholars avoid non-legal matters
-Maintain the system by investigation
-Focus on perfection of prior laws
-Judges are operators of law
-Tasks of judges is to find the correct solution
What is a constitution?
A written document that sets out the basic rules of government
What is constitutional law?
It is the law beyond the constitution, it includes, court decisions, international treaties and customary law
What is Constitutional review?
Is the evaluation of the constitutionality of the laws. It is supposed to be a system of preventing violations of the rights granted by the constitution, assuring its efficacy, their stability and preservation
What is Constitutionalism?
The idea that the exercised of public power is governed and constrained by a constitution and the rule of law
What is rule of law?
The idea that political actors should obey legal norms in how they govern and t o which extent they govern
What is administrative law?
The body of law that focuses on decisions taken by the government.
Example: A government’s agency decision to award a benefit, withdrawal an operating permit or enforce another decision.
How it is the Administrative law in civil and common laws?
In civil law: Administrative law is a separate body of law having its own law code.
In Common law: there is no administrative code.
Principles of administrative law in civil law countries(French model)
- Prohibition of detournement de Puovoir: A government agency cannot use its powers for any other purpose than the one for which it has given those powers.
-Prohibition of detournement de procedure: When confronted with a choice between procedures, the government should always follow the procedure that gives citizens the stronger guarantees
