introduction Flashcards
Define: absolute right
Right that can exercised against all others (e.g. property right)
Define: relative right
Right that can only be exercised against one or more determined persons (e.g. loan)
Define: law
Rules that govern and guide actions and relations among and between persons, organizations, and governments
Define objective right
General rules that hold for everybody
Define subjective right
Rule that somebody holds, e.g. property right
What is the purpose of law? (4)
Establishing standards,
Maintaining order,
Resolving disputes,
Protecting liberties and rights
What are the functions of law? (3)
(1) Judicial function: adjudicates disputes, deciding how a disagreement should be settled.
(2) Legislative function: determine the rules that will govern the process of adjudication. Legislation tells judicial function how to adjudicate.
(3) Executive function: ensure, first, that the disputing parties submit to adjudication in the first place, and second, that they actually comply with the settlement eventually reached through the judicial process.
Define: legal system
an operating set of legal institutions, procedures and rules.
What are the two legal traditions?
Civil Law and Common Law
What are the main differences between civil and common law?
1. Written constitution or codified laws? civil law: yes common law: not necessarily 2. Judge made-Law? civil law: no common law: yes 3. Contractual freedom? civil law: less common law: more
Civil law: Statutes more important (legistlative), tend to look more at the rules that have been made common law (angelsaksen countries, england, australia, india): More emphasis on the courts, looking at older cases, that are similar to the current case, precedents (decisions of old cases)
What is the difference between rules and principles?
Rules:
if this situation occurs than ….
More concrete
Not all rules are legal rules, only if made by judge (in verdict) or legislator
Principles
Higher level of abstraction
They form the background of legal rules and can be used to interpret, to complete or to correct legal rules.
Above or below a certain valu
What are the sources of law? (4)
(1) Statues / Acts
- Constitutions: human rights and rules about how government should function
- Acts of parliament
- Delegated acts, e.g. drugs, lower authorities decide what is seen as drugs
(2) Customary rules
- Custom and principles: evidence of a general practice accepted as law.”
- E.g. if you damage someone, you have to repay the damage
- Because you can’t have a rule for everything
(3) Judicial decisions
- For common law: precedents
- For civil law: how to interpret the law, precedents are still useful
(4) Treaties and binding decisions of international organisations
- Eu law
- declarations
In what hierarchy can you place the four sources of law?
- Treaties
- Statutes
- Customary rules
- Judicial decisions
Name the legal domains (3)
(1) Private law (aka civil law): between citizens, e.g. contracts, damages
Lose procedure, much more open
claimant has to state, if the defendant doesn’t contest it’s taken for true
(2) Public law: government vs citizens
(3) Criminal law: a branch of public law, public prosecutor is government, defendant is citizen
A lot at stake for the defendant, really important that the facts are inspected thoroughly, active role
Government would still in its own accords check the facts even if the defendant doesn’t contest anything
Name the interpretation methods (4)
(1) Grammatical / linguistic interpretation: literal meaning. (2) Historical interpretation: using the legislative history, to reveal the intent of the legislator. (look at documentation about the proceduren of getting the bill accepted NOT older cases)
(3) Systematic interpretation: considering the broader context of the legal framework in which a provision is listed. E.g. does it belong to property law or privacy law?
(4) Teleological interpretation: focus on the purpose of the law
