Intro to law 101 Flashcards
first appearance of law
what are the two definitions of law ?
1.law is a set of universal moral principles in accordance with nature.
- Law is a collection of valid rules, commands or norms that may lack any moral content
what’s the rule of law and its 3 most important principles?
- Everyone should be equal before the law and subject to the same laws in the same courts.( equally enforced)
- Regular law should be supreme, not arbitrary power.(independently adjudicated)
- The constitution’s laws come from the rights of individuals, which are defined and enforced by the courts.( consistent with international human rights norms and standards.)
what’s the difference between law and morality?
law is system of rules
deliberately changed by entities vested with the authority to do so
change entails respect for certain formalities
can develop quickly
official sanctions are imposed for violation/breach of
morality is- system of values and principles
-cannot be changed intentionally does -not require formalities
-develops slowly
-no official sanction, but may be subject to censorship
what is law through the lense of legal positivism?
collection of valid rules, ; may lack any moral content legal rules often coincide with moral principles but a connection with morality is not a necessary feature of “law
what is law through the lense of natural law?
certain rights/values are inherent by virtue of human nature
law has an inherent morality can be universally understood through human reason
The Hart- Fuller debate
Hart- positivist
Nazi law was in Harts opinion a formally valid law, so the court was in the wrong for convicting the woman for denouncing her husband.
Fuller-Naturalist
In fullers opinion was this law so morally wrong, that it could not be considered law.
In his opinion was the court right in convicting the woman.
what are the 8 principles identifying law’s internal morality?
generality,
promulgation,
non-retroactivity,
clarity,
non-contradiction,
possibility of compliance, constancy,
congruence between declared rule and official action
Natural persons
human beings- must be born, not deceased.
legal person
entities (i.e. organizations) that have received the status of legal subjects e.g. corporations, university, municipality,
A good example of this is Hilton hiring people.
can vary from one field to another
essentially entails that the legal subject is/can be an addressee of the law
CS: may hold certain rights, become duty bearers, receive certain permissions
Obligations to do
obligation to perform a certain type of action
sanctions may arise from failure to comply
can apply generally but sometimes entity/agent must have a specific status
e.g. car drivers must turn their car lights on when it gets dark
Obligations to not do
i.e. a prohibition
entails an interdiction of doing something or an obligation to refrain
sanctions may arise from failure to comply e.g. anti-doping rules in sports law
permission
usually, absence of a prohibition
in law, what is not prohibited is usually permitted (e.g. stepping on the grass is OK, if no rule states otherwise)
sometimes, permissions are explicit (e.g. police officers performing body searches)
rights
interest protected by law (to do something/be protected from something) e.g. right to be free from torture, inhumane and degrading treatment
definitions
a statement of what a legal term entails (i.e. the conditions required for a factual situation to acquire a legal meaning)
e.g. murder is ‘the unlawful killing of a human being with malice afterthought’; ‘every murder perpetrated by poison, lying in wait […] is murder in the first degree’
certain further legal consequences may flow from them (i.e. whoever is found guilty of first degree murder is to be punished by death or by life imprisonment
public law
citizen- state
(constitutional, administrative law, criminal law)
private law
between individuals or groups in society.
contract law
binding contract
it requires that the parties to the agreement actually intend to create legal relations.
agreement(common law)
1-offer by one party and acceptance of that offer by the other. by word, speech, fax, email or conduct.(serious intention)
2- Consideration is the bargain element of the agreement: each party stands to gain something from the agreement – otherwise they would not have entered into it
breach of contract
Thus I agree to sell you my car; I stand to gain the purchase price and you, the ownership of the vehicle. If I ignore my agreement with you and sell my car to someone else, you may invoke the
law to obtain a remedy – because you relied on my keeping my promise. This is known as breach of contract,
people incapable of binding themselves contractually
the young (minors) or those afflicted by mental or other impairments of their rational faculties are generally regarded as incapable of binding themselves contractually.
does a contract has to be always written
Contrary to the popular myth, a contract does not generally need to be in writing. Apart from certain contracts (the sale of land
is the most conspicuous example), no formality is required to bind the parties. An oral agreement is generally no less binding than a written one, though, as we have seen, the common law requires evidence of consideration in return for a promise
voidable contract
Mistake, misrepresentation, or duress may render a contract voidable. This is because there is, in effect, no genuine agreement.
under which circumstances may I escape liability for breach of contract
A court may award damages for breach of contract. Should I fail to perform my obligations under a contract, you may sue me to recover compensation or, in a limited number of cases, compel me to carry out my side of the bargain. If, however, I can show that circumstances have rendered performance impossible or that the purpose of the contract has been frustrated, I may escape liability for breach of contract
tort
Torts (or delicts, as they are called in Continental legal systems) are civil wrongs; they include injuries to my person, property, reputation, privacy, even my peace of mind.
for example, should you run me over in your car, and I can prove that you were driving negligently, I may be awarded damages to cover the cost of my hospital treatment, the money I lost through being away from work, and my pain and suffering.
requirements for a tort to succeed
The wrong had to be done intentionally or by being negligent.
- has caused actual injury or damage*
*some torts whose principal purpose is to protect rights rather than compensate for damage
( trespassing) are actionable without proof of damage)
MacPherson v Buick Motor Co.
Justice Cardozo held that where a manufacturer negligently produces a defective car that injures the person who purchased it from the dealer, the manufacturer is liable to that person despite the absence of a contract between them and the person injured.
Rylands v Fletcher
a defendant who brings onto his land a source of danger is strictly liable should it ‘escape’ and cause damage.
mass torts
these are lawsuits launched by a large number of plaintiffs (‘class actions’) associated with a single product
They include product liability claims against, for example, tobacco companies, for lung cancer caused by smoking
The four main defences to an action for defamation
- defense of justification
-defense of absolute privelege(protects defamatory statements when made in the course of legislative, judicial and other oficial proceedings)
Third, the defence of qualified privilege obtains in circumstances where the defendant has a
duty (legal, social, or moral) to make a statement to a person
who has a corresponding interest or duty to receive it, i.e., where the publisher and those to whom the publication is made have a common interest in the data concerned.
There is the defence of fair comment which, in practice, tends to be the most important. This defence protects honest expressions of opinion on matters of public interest and is particularly relevant to the protection of free speech
the 3 basic components of criminal liability
- conduct(To amount to a crime, ‘conduct’ must inflict or threaten substantial harm to individual or public interests)
- without justification
-without excuse
Criminal responsibility normally entails the presence of a guilty act (the ‘actus reus’) as well as a guilty mind (‘mens rea’). But
Civil law systems distinguish between movable and immovable property. The former corresponds roughly to personal property, while immovable property corresponds to real property.
con
legal analysis
make an overview of parties and events
differences between civil and common law
civil is codified, common is not
common law is cases , not texts
in common law precedent is supreme
Primairy source
The rules themselves( legislation, regulations). They emanate from official bodies, and therefore binding.
Secondary source
Background sources that analyze and interpret the rules. Although they are not binding, they can directly influence the creation of primairy sources.
