Legal systems of Europe and the USA Flashcards
What is Law?
and Separation of powers:
Law can be defined as a body of rules created by the state that governs the conduct of its citizens.
Separation of powers: Checks and balances (Locke, 17th century): Judicial, executory and legislative branches.
Civil law (in Europe this is also regarded as the law of obligations)
establishes relations ships between parties, and individuals and businesses are expected to take legal actions themselves and the sanctions. Civil law provides remedies to recover damages ect. Civil law enables individuals to enforce rights governing their formal and informal relationships in the courts.
Criminal law
Criminal law prohibits behaviour that is considered so undesirable that the state itself will normally take action to enforce it and may impose relatively severe penalties. Criminal law is enforced by the state and aims to protect the public from anti-social behaviour.
Standard of proof
in criminal procedure it is necessary to prove beyond the reasonable doubt;
in civil law the standard is much lower – only a breach of law needs to be proved on the balance of probabilities.
Legal professions
Judges, advocates/lawyers/attorneys at law, scholars/academics/professors, notaries, public prosecutors.
Core Principles
Equity (is commonly said to “mitigate the rigor of common law”, allowing courts to use their
discretion and apply justice in accordance with natural law) and certainty.
The principle of legality is the legal ideal that requires all law to be clear, ascertainable and
non-retroperspective.
Retroactivity in law is the application of a given norm to events that took place or began to produce legal effects, before the law was approved —> most countries are guided by the general principle of irretroactivity of law.
The presumption of innocence (in dubio pro reo) is the principle that one is considered innocent until proven guilty —> application of this principle is a legal right of the accused in a criminal trial, recognized by many nations. The burden of proof is thus on the prosecution. If reasonable doubts remain, the accused is to be acquitted.
Right to a fair trial: everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Right to a jury trial: anyone has the right to be heard and judged by fellow country-man.
Good faith (bona fides) in law denotes the mental and moral states pf honesty and conviction regarding either the truth or the falsity of a proposition, or of a body of opinion; likewise regarding either the rectitude or the depravity of a line of conduct.
Judicial review
In modern legal systems, the main remedy against the state is provided by a procedure known as judicial review. This allows individuals or business to ask a court (usually administrative or high court) to rule on whether a decision taken by the state (or public body acting with the authority of the state) was lawful.
A jurisdiction
A jurisdiction is the territory in which particular law and legal system apply. It divides into national and supranational.
The Interpretation
Legislation involves an inescapable measure of uncertainty, which can be made certain only through judicial interpretation. Judges inevitably determine the meaning and effect that should be given to any particular piece of legislation.
a) The literal approach (the judge should look primarily to the words of the legislation in order to ensure its meaning and should not look outside - UK)
b) Thepurposiveapproach(interpretativeroleofthejudgeshouldincludealsothepower to look beyond the words of statue in pursuit of the reason for its enactment and that meaning shall be constructed in the light of that purpose - Continent)
c) The contextual approach (judge should consider the words in question against the background of other parts of the statue)
d) The principles approach (judge should take into account general principles of constitution and of law in general)
e) The historical approach (judge should look at the documents about the history of legislation prior to its enactment)
f) The objective approach (statutory provision shall be interpreted in the light of current circumstances)
g) The teleological approach (judge should consider the objective or purpose of the legislation)
Arbitration
Arbitration refers to a procedure where the parties to a dispute agree to appoint someone to resolve it (an arbitrator) and to be legally bound by the arbitrator’s decision. This offers confidentiality, flexibility and specialist knowledge of arbitrator.
Alternative dispute resolution (ADR)
Alternative dispute resolution (ADR) represents a broad term that may be used to refer to any method of resolving disputes not involving arbitration or court proceedings. The outcome is not binding on the parties and it is very flexible. Types of ADR: mediation, conciliation…
The claimant and defendant
these are the parties in civil case (action). The claimant sues (brings the case against) the defendant.
The prosecution and the defence
parties to a criminal case. The defence is sometimes called the defendant or the accused.
The appellant and the respondent
parties in an appeal hearing. The appellant is the party who is bringing the appeal against the decision of the court below in which the respondent won his or her case.
