Lecture 1 Sources of Law / Legal Reasoning Flashcards
Absolute right
can never be changed and is always applicable. For example, torture is forbidden in all situations
Relative right
can be flexible, depending on the situation. For example, freedom of speech being limited when it comes to hate speech
4 functions of law
- establishing standards
- maintaining order
- resolving disputes
- protecting liberties and rights
what is law?
rules specifying how people should behave, providing definitions of terms, creating competencies, etc.
competence
specifies something a person, organization, or institution can do
positive law
law explicitly created by means of legislation or judicial decision
3 aspects of legal certainty
- certainty about the content of the law
- certainty that the law will be enforced
- certainty that the law will be applied consistently
Roman law
law based on tribal clans / aristocracy, leading to the concept of customary law. Roman law is the basis for most present-day law.
customary law
set of rules that emerged spontaneously within a society based on mutual expectations, and these become binding over time. They changed gradually with time and eventually became codified.
common law
law in which decisions are made by judges through precedent. Established because the king of England wanted the same rules to be applied through all of England.
statutory law
law created by legislation
doctrine of state decicis
obligates courts to follow ruling of previous cases, which ensures that cases with similar scenarios are handled in the same way.
lex specialis
special rules are more important than usual rules. If two law govern the same situation, the law governing a more specific matter overrules the law governing only general matters
lex superior
the higher law overrules the ‘lower’ law. If the Netherlands has a law that is in conflict with an EU law, they will have to listen to the EU because the EU is higher in the hierarchy of the legislative body.
lex posterior
if there are two laws, and one is made later than the other, the newer law is more important.
