Introduction to Codification Flashcards
What is codification (elements)
Law that is:
- Written
- Issued by a body with AUTHORITY
-Exclusivity (no other laws outside the code with applies to this area of law)
Who first coined the term ‘codification’
-Jeremy Benthem
What are the requirements for a authoritative body to be considered worthy of codifying law?
-Exerts REAL authority over its citz.
-able to control
-e.g: government in exile cannot sub. citz. 2 power
-Sufficient acceptance of citz. of their rule
-problem rel. solved by JJR’s Contract Social
How can exclusivity be achieved?
- Exclusivity is arguably achieved through the INH. completeness of codification (it inherently covers all asp. of that law)
-BVO material completeness
-through int. of prov. the judges able 2 app. prov. 2 broader types of sit.
Name the types of completeness
Formal Completeness
Material completeness
Explain what formal completeness is
- All prov. in regards 2 that type of law are codif.
-those prov. are the only source of law for that area of law
Explain what material completeness is
-completeness achieved through the freedom of interpretation
Summarise Jean Jacques Rousseau’s views
Believed in the social contract theory
-surrounding the general will
-general will / VOLONTE GENERALE=
-need to give up nat. free. for eq. of citizenship + protect. of state
-opinion of majority trumps
- gov. power lies in MAJ. willingness 4 gov. 2 be in power.
- ‘sovereignty LIES in the people’
How does JJR’s social contract theory link into the idea that codification must be authorised by a body with authority
- codification must be authorised by a body with auth.
= but what if not every citizen accepts a government’s authority
–> does that codification still have leg. auth.
–> JJR: yes
–> in ideal soc. under SCT,
–> IND. will voluntarily give up NF for CL
–> therefore, minority submits to effective power of gov. auth.
Who first conceptualised the principle of legality
Cesare Beccaria
-18th cent. (1700s)
-Italiano dude
Which work was the principle of legality first developed
Del Delittie e dell pene(1764)
(About Crimes and Punishments)
Explain the principle of legality (and give examples)
No penalty without pre-existing law, art 1(1) Penal Code (PC)
Lex scripta = written description of guilty act
Lex praevia = no retroactive effect
-A retroactive law is “a legislative act that looks backward, affecting acts or facts that existed before the act came into effect”
Lex certa = precise legislation (well defined law, fixed PEN.)
Lex stricta = ban on reasoning by analogy (extensive interpretation =/ necessarily analogy)
What are the two main categories of methods of interpretation
-Intrinic Interpretation
-Extrinsic Interpretation
Name intrinsic methods of Interpretation
-Grammatical interpretation
Name extrinsic methods of interpretation
-Systematic interpretation–> judges how prov. fits into leg. sys. + see if part of any wider legal concepts
-Historical(takes into acc. LS/ fams the prov. is part of)
-Legislative-historical (purpose/goal in his.)
-teleological (merely purpose in itself)
List cases in which interpretion has been put into question
Nix v. Hedden
-veg. imp. tax put on tomat.
-legally taxed like a veg
-eventhoug factually/ botanically they are fruit
Why is interpretation necessary?
-Words are constantly being interpreted it’s in their nature
-Judge is not allowed to not make decision
-must allows attach a provision 2 ruling
-interpr. allows them to do this
-even if far-fetched
-Lex SEMPER LOQUITOR! = Law always speaks!
-can be prosecuted if silent under Dutch law (art 13. Gen. Prov.)
What is the term for authoritative interpration of a prov.
-Authentic interpretation
-interpretation by the original legislator
Explain Montesquieu’s separation of powers theory
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