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1
Q

Law

A

law organizes just behavior in a society. Law does this by applying 2 different kinds of rules, substantive and formal law

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2
Q

Substantive law

A

composed of legal rules that define the content of just behavior

  • organizing behavior
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3
Q

Formal law

A

composed of legal rules that maintain substantive law
- maintaining intended behavior

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4
Q

public law

A
  • relation between government and its citizens
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5
Q

private law

A

relation between citizens or those who act as citizens

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6
Q

meaning of just behavior

A
  • just implies a balance between the values of justice, opportuness and legal certainty
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7
Q

justice

A

moral conviction of a given society expressed in law.

law does not always express moral convition and sometimes law is a tool to effectively regulate something in society that needs to be done or to establish clarity on ones legal postion beforehand

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8
Q

opportuness

A

expression of effectiveness by a given society in law

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9
Q

legal certainty

A
  • expression of legality in a given society
  • idea that every citizens and the relevant gov should be able to know the legal consequences of their actions beforehand and not afterwords.
  • law to a certain extent should be predicatable
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10
Q

what is natural alw

A

assumes that laws emerged from nature

laws do not need to be codified first to be a law but already exists regardless of its appearances

ex - human rights

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11
Q

advantage and disadvantage of natural law

A

+ not dependent on any formalization and can therefore be applied because it is only reasonable to do so

  • Natural law can be subject to many different forms of understanding, leading to legal uncertainty
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12
Q

positivist approach

A
  • law comes forth from codification
  • law is only law when it has been written down first
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13
Q

advantages and disadvantages of Positivist law

A

+ people know beforehand what the rules of the game are, and in most legal systems, the formation of written codes is subject to strict rules, in which a certain degree of quality and consent of the people that are bound by this law is guaranteed

  • Written law is always two steps behind reality, as one cannot create rules beforehand that flawlessly provide solutions to every possible case. It might lead to over-formalizing relations in society when only written standards can be applied (bureaucracy)
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14
Q

What are some examples of legal sources

A
  1. codified standards - legal positivism
  2. application of law
  3. Legal writings and teachings
  4. religious writings and teachings
  5. customary law
  6. Legal principles- natural
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15
Q

codified standards

A
  • naturally strong emphasis on legal positivism
  • codified standards are written rules produced by a legislator
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16
Q

types of treaty

A

treaty - written contract between 2+ states who consider themselves bound to its content relative to each other

bilateral treaty
- two states

Multilateral
- two or more states

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17
Q

What are the two approaches in law regarding the effect of international law in the domestic legal order?

A

1.) MONISM
- assumed that the content of a signed and ratified treaty is automatically part of the domestic legal order

2.) DUALISM
- an approach in law in which it is assumed that a signed and ratified treaty needs to be transformed into domestic laws before it forms part of the domestic legal order

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18
Q

Case law

A

case law is a chain of authoritative legal rulings in which the same reasoning pattern of the court is applied to similar cases

Such a chain of rulings in some legal systems is called a precedent

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19
Q

stare decisis

A

A legal principle in which courts have to follow the legal reasoning applied in previous cases

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20
Q

administration

A

The administration is the branch in the public sector that executes the law within the boundaries of its competences

Margin of discretion is the room allowed to the administration to execute the law at their own discretion

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21
Q

non secular vs secular state

A

non secular- governance and religion are mixed

secular- governance and religion are seperate

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22
Q

CHAPTER 2

A
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23
Q

comparative law 5 main purposes

A

1.) gaining knowledge
2.)Evaluating the better law
3.) Substantiate the application of law
4.) improve legal education
5.) unification of law

24
Q

macro comparison: Legal families

A

-Legal comparison is done at the macro level

  • Macro comparison is the activity in which the main characteristics of legal systems are compared. Comparing at macro level allows an insight into how the lefla systems work and to what extent they are similar or different from one another
25
common law vs civil law
common law - case law driven and predominantly developed by judges - great emphasis on the procedural matters of law - written law is 'merely' applied Civil law - driven by codified standards. idea that a society can be organizes in a coherent way by adopting written codified standards
26
socialist system
- driven by the administration - law is produced by the state on behalf of all its citizens to create a society based on socialist principles - there is no role of private law: result of the fact that all means of production are owned by the state - country governed by one powerful political party and this party has a monopoly on decision making
27
religious vs traditional law system
Religious -Driven by religious rules -By definition, it is nonsecular traditional - driven by customary law (law consisting of customs that are accepted as legal requirements or. obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a. social and economic system that they are treated as if they were laws)
28
micro comparison
- the activity in which the legal solutions to a social problem in a legal system are compared 1.)Comparison starts with a social problem that needs to be resolved by law 2.) how to find legal solutions - determine to which legal family the system belongs and what particular characteristics are important in this legal system - Determine how the legal sources are used by those who live in that legal system - Do not study the law in the books only, but also the law in practice - study the sources in the original form, preferably in the original language - Be mindful that a legal solution may respond to more than one social problem
29
tertium comparationis
shared social problem to which the compared legal solutions answer
30
presumption similtudinis
assumption that in essence each sociaty faces the same social problesm
31
Chapter 3
32
constitutional law
regulates and restricts the attribution of power within a state 1. define the state 2. attribute powers to state institutions and limiting this power to a certain margin 3.) recognize rights of citizens and define them to prevent or stop abuse of power by the state
33
2 types of freedoms
positive freedom - as a result of interference one has the opportunity to better give direction to his life negative freedom - means one is free to do whatever they want without any interference
34
trias politica
separation of powers legistaltive - responsivle for enacting the laws of the state and appropriating the money necessary to opperate the government executive - executing law in practice. responsible for implementing and administering the public policy enacted and funded by the legislative brand and judicial powers - settling legal disputes. responsible for interpreting the constitution and laws and applying their interpretation to controversies brought before it.
35
2 most frequntyl used gov systems
monarchy- state in which highest power is vested in and distributed from one person or a group of persons republic- state in which the highest power is attributed to political bodies that rule within the boundaries of a consitution and is headed by a president
36
WEEK 2 CHAPTER 8
37
what is a contract
An agreement between two parties in which the contracting parties promise to do something in exchange for something in return
38
how does a contract look like under common law
- complies with the doctrine of consideration, which means that a contract is, by definition something of legal value is exchanged for something else of legal value
39
In the US and Australia, the English consideration theory is transformed in the direction of the so called bargain theory. what is that?
Bargain theory implies that consideration exists when he promise and return promise are bargained for mutual exchange
40
what is promissory estoppel
implies that a tone sided promise is enforceable when the promisor should reasonably expect the promisee to rely on the promise
41
how does a contract look like under civil law
- no such thing as consideration theory - strong emphasis on the willingness of the contracting parties to be bound to the agreement - valid contract is the result of two parties expressing their will to be bound by their promises - intention and expression of that intention must be the same and if there appears to be a difference between the expression of a promise and the intention to be contractually bound by this, the legal act is considered to be invalid
42
Anglo/American model
- originate in the UK and used in common law countries - The offer is revocable until accepted - The receiver of the offer may accept it once the offer arrives, until the offer expires
43
romanistic model
- applied in countries that used the French Civil Code a model to their own - The offer is revocable until accepted, BUT when the offeror revokes the offer before the offer expires, the other party may claim damages compensation - The offer can be accepted from the moment the offer was received
44
Germanic model
- The offer is, in principle, irrevocable, which means that the offer may not be revoked until the offer is accepted. - The offer has a legal effect when received by the other party
45
null or void
contract never existed by law as a result of a factor affecting the validity of the contract
46
voidability
A contract that is lawfully concluded may be rescinded by the disadvantaged party as a result of a factor affecting the validity of a contract
47
Internal factors affecting the validity of a contract
1.) legal capacity - minors, mentally ill people 2.) unilateral mistake - only one of the contracting parties' errors in the interpretation or understanding of the contract
48
external factors
bilateral mistake - both parties of a contract are mistaken regarding natural of the content in the contract misinterpretation- disadvantaged a party is mistaken regarding the nature or scope of the contract while this is caused by the action of another party duress- a situation in which a party consents to a contract under threat, such as violence or blackmail
49
3 types of misinterpretation
fraudulent- dishonest on purpose Negligent- part is not necessarily dishonest, but certainly negligent in providing info innocent- not dishonest, not negligent, but provides false info nevertheless
50
CHAPTER 11
51
Traits of unincorporated company
- company has no separate legal entity(owners are the company) - personal liability ( individuals of which the company is composed are unrestrictedly liable for any company debts
51
Unincorporated company vs Incorporated company
unin - composed of natural persons and has no separate legal identity, these natural persons are the company incor - composed of shared owned by a natural or legal persons but has its own legal identity. People or other companies may own an incorporated company by obtaining shares. The owned company has a legal identity of its own
52
traits of incorporated companies
- the company is a legal personality and therefore has the same rights and duties as a natural person - limited liability -transferable shares - A centralized board of directors who governs the company on behalf of the shareholders - Ownership of the company is shared among the shareholders in proportion to the value of the share
53
customary law
- written standard is NOT the source but an established practice is a source of law by its users
54
usus
people can reasonably expect the application of this legal pratcie for it has become a sort of a tradition
55
opinio iuris sive necessitates
A legal custom can only be a valid source of law when those who are involved with its application are of the opinion that the custom should indeed be a legal rule

BA LAW MIDTERM (1 decks)

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