notes on blue law book Flashcards
1
Q
What is the significance of law in society?
A
- Law is the heart of society, managing every aspect of life, from jobs and homes to relationships and death.
- It:
- Protects rights.
- Imposes duties.
- Establishes a framework for social, political, and economic activities.
- Strives to achieve justice, promote freedom, uphold the rule of law, and protect security.
2
Q
How is law defined?
A
- A set of universal, moral principles in accordance with nature.
- A collection of valid rules, commands, or norms that may lack moral content.
- A vehicle for protecting individual rights.
- A mechanism to attain justice.
- A means to achieve economic, political, and sexual equality.
3
Q
What is the rule of law, and what are its three key principles?
A
- Rule of law: The principle that everyone (individuals, organizations, and governments) is subject to the law, applied fairly and impartially.
- Key principles:
1. Absolute supremacy of law: Law prevails over arbitrary power.
2. Equality before the law: All classes are equally subject to ordinary laws and courts.
3. Rights of individuals: Defined and enforced by courts.
- Key principles:
4
Q
What was the significance of Hammurabi’s Code (1760 BCE)?
A
- One of the earliest written legal codes.
- Established rights and duties systematically.
- Examples of laws:
1. Punishment for false witnesses: Death.
2. Builder of a collapsing house: Death. - Introduced strict liability, where responsibility exists regardless of intent.
5
Q
What is Justinian’s Codification?
A
- A Roman legal code (6th century CE) that sought to systematize and clarify laws.
- Highlighted the impossibility of maintaining absolute certainty in law.
6
Q
What are the main differences between common law and civil law systems?
A
- Source of law:
- Common law: Unwritten, based on cases and judicial precedent.
- Civil law: Codified, based on texts.
2. Development: - Common law is casuistic (case-based).
- Civil law is textual.
3. Judicial role: - Common law judges rely on precedents (stare decisis).
- Civil law judges interpret written laws.
4. Principles: - Common law: “Where there is a remedy, there is a right.”
- Civil law: “Where there is a right, there is a remedy.”
5. Trial structure: - Common law: Uses juries for criminal and civil cases.
- Civil law: Relies on written arguments, judges determine both facts and law.
7
Q
What is the doctrine of precedent (stare decisis)?
A
A fundamental principle in common law where courts follow decisions (precedents) set by higher courts when facts and legal issues are similar.
* Key aspects:
1. Ratio decidendi: Binding legal reasoning behind a decision.
2. Obiter dicta: Non-binding remarks made by judges.
8
Q
What are the main types of justice addressed by law?
A
- Corrective justice: Corrects past wrongs (e.g., compensating victims).
- Commutative justice: Ensures fairness in exchanges (e.g., contracts).
- Distributive justice: Fair allocation of resources, benefits, and burdens based on need, merit, or equality.
9
Q
What are the key elements of a fair legal system?
A
- Independent and impartial judiciary.
- Competent legal professionals.
- Procedural justice.
- Access to legal advice and representation.
- Guarantee of a fair trial.
10
Q
What is a contract, and what are its key elements?
A
Contract: A legally binding agreement between parties.
* Key elements:
1. Intention to create legal relations.
2. Offer and acceptance.
3. Consideration (in common law).
4. Capacity of the parties.
5. Legal purpose.
11
Q
What is “freedom of contract”?
A
- The ability of parties to freely agree on terms and conditions of a contract.
- Enables efficient allocation of scarce resources through market mechanisms.
12
Q
What is the significance of the case Carlill v. Carbolic Smoke Ball Co.?
A
Established that an advertisement offering a unilateral contract (e.g., a reward for using a product) is legally binding if terms are fulfilled.
13
Q
What are common defenses against contract enforcement?
A
- Mistake.
- Misrepresentation.
- Duress.
- Frustration: External events make performance impossible.
14
Q
What is tort law, and what does it address?
A
- Tort law addresses civil wrongs that cause harm to individuals.
- Includes injury to persons, property, reputation, or privacy.
15
Q
What are the key principles of negligence in tort law?
A
- Duty of care: Defendant owes a duty to the claimant.
- Breach of duty: Failure to meet the standard of a reasonable person.
- Causation: Breach caused harm.
- Damages: Plaintiff suffered actual harm.
16
Q
What is strict liability in tort law?
A
- Liability imposed regardless of intent or negligence.
- Common in cases involving dangerous activities or defective products.
17
Q
What defences can be raised against tort claims?
A
- Contributory negligence: Plaintiff contributed to their harm.
- Assumption of risk: Plaintiff voluntarily accepted the risk.
- Inevitable accident: Harm was unavoidable.
18
Q
How does property law distinguish between movable and immovable property?
A
- Movable property: Personal items like goods, jewelry, or vehicles.
- Immovable property: Land, buildings, or other permanent structures attached to land.
19
Q
What is the difference between ownership and possession in property law?
A
- Ownership: Legal right to control and use property indefinitely.
- Possession: Physical control or occupancy of property without necessarily owning it.
- Example: A tenant possesses a house but doesn’t own it.
20
Q
What is a trust, and how does it function in property law?
A
- A trust is a legal arrangement where a settlor transfers property to trustees for the benefit of beneficiaries.
- Trustees manage the property, and beneficiaries have enforceable rights to the trust’s assets.
21
Q
What are equitable remedies in property law?
A
- Remedies granted by courts to achieve fairness, including:
- Injunctions: Orders to prevent harm.
- Specific performance: Orders to complete a contract.
- Constructive trusts: Created to prevent unjust enrichment.
22
Q
What is property law, and what does it regulate?
A
- Property law governs the ownership, transfer, and use of property.
- It determines:
1. What counts as property: Includes land, buildings, goods, and intellectual property.
2. Ownership rights: Who has exclusive rights to control, sell, or use property.
3. Legal remedies: Protects ownership through laws, contracts, or litigation.
- It determines:
23
Q
What is the primary purpose of family law?
A
- Family law governs legal relationships arising from marriage, parenthood, and domestic partnerships.
- It regulates issues like:
1. Marriage and divorce.
2. Parental responsibilities and child custody.
3. Adoption and surrogacy.
4. Property distribution and financial support after divorce.
- It regulates issues like:
24
Q
What is the legal definition of marriage in family law?
A
- Marriage is a legal contract between two individuals that establishes:
- Rights and duties between spouses.
- Legal recognition of the relationship.
- Obligations regarding property and children.
25
What is the “best interests of the child” standard in custody disputes?
* Courts prioritize the child’s welfare by considering factors like:
1. Emotional bonds with parents.
2. Stability and continuity of care.
3. Parents’ mental and physical health.
4. Child’s preferences (if age-appropriate).
26
How are financial consequences addressed in divorce?
1. Maintenance payments: Support for an ex-spouse or children.
2. Property division: Equitable distribution of marital assets.
3. Child support: Ensures adequate care for children.
27
What is succession law, and what does it regulate?
* Succession law governs the transfer of property after death.
* Includes:
1. Testate succession: When there is a valid will.
2. Intestate succession: Default rules apply if there is no will.
28
What is the doctrine of freedom of testation?
* Individuals can decide how their property is distributed after death.
* Limitations: Many jurisdictions protect family members through forced heirship rules, ensuring spouses or children receive a share.
29
What are intestate succession rules?
* If someone dies without a will, property is distributed based on statutory laws, typically favoring:
1. Spouses.
2. Children.
3. Parents or other relatives.
30
What is the primary purpose of tort law?
* Tort law addresses wrongful acts that harm individuals or their property.
* Purposes:
1. Compensates victims for losses.
2. Deterrence: Discourages harmful behavior.
3. Protects rights (e.g., trespass and defamation).
31
What is vicarious liability?
* A legal doctrine holding employers responsible for their employees’ wrongful acts committed during employment.
* Example: A company may be liable if an employee causes harm while performing job duties.
32
What are intentional torts?
Torts committed deliberately to harm someone. Examples include:
1. Defamation: Publishing false statements that harm reputation.
2. Assault and battery: Intentional physical or verbal harm.
3. Trespass: Unauthorized entry onto another’s property.
33
What are the main defenses against defamation claims?
1. Truth (justification): The statement is factually correct.
2. Absolute privilege: Statements made during judicial or legislative proceedings.
3. Qualified privilege: Statements made with a duty or interest to communicate them.
4. Fair comment: Honest opinions on matters of public interest.
34
What is ADR, and why is it important?
* Alternative Dispute Resolution: Methods for resolving disputes outside traditional courts.
* Importance:
1. Saves time and costs.
2. Reduces formality and conflict.
3. Offers more flexible solutions.
35
What are the main types of ADR?
1. Mediation: A neutral mediator helps parties reach a voluntary settlement.
2. Arbitration: A third party imposes a binding decision.
3. Negotiation: Parties resolve disputes themselves without a third party.
36
What is natural law theory?
* Asserts that laws must align with universal moral principles.
* Proponents: John Locke and Thomas Aquinas believed laws derive legitimacy from morality.
* Example: Segregation laws were unjust under natural law.
37
What is legal positivism?
* Argues that law is valid if enacted through proper procedures, regardless of morality.
* Separability thesis: Law and morality are distinct.
* Example: Nazi anti-Semitic laws were legally valid but morally wrong.
38
What are Lon Fuller’s eight principles of legality?
1. Generality: Laws must apply broadly, not target individuals.
2. Promulgation: Laws must be publicized.
3. Non-retroactivity: Laws cannot apply to past actions.
4. Clarity: Laws must be clear.
5. Non-contradiction: Laws cannot conflict.
6. Compliance: Laws must be realistic to follow.
7. Constancy: Laws should remain stable over time.
8. Congruence: Officials must enforce laws as written.
39
What is the harm principle?
* Individuals are free to act as they wish unless their actions harm others.
* Promoted by John Stuart Mill.
40
Why is law described as being in a constant state of flux?
aw evolves to adapt to societal changes, technological advancements, globalization, and new political or economic realities. It grows and changes to meet the needs of society.
41
What are the two opposing views on the future of law?
Law will die out: Citing the privatization of law (e.g., ADR, plea-bargaining), the rise of regulatory agencies, and the decline of the rule of law in some countries.
2. Law will become stronger: Law is extending into private domains (e.g., efficiency and justice), globalizing through institutions like the UN, and adapting to new challenges like technology.
42
What does Sir Henry Maine’s theory of “status to contract” mean?
In ancient societies, individuals were bound by status to traditional groups, while modern societies emphasize autonomy, allowing individuals to form contracts and associations freely.
43
What challenges exist to true “freedom of contract”?
In many cases, “freedom” is limited by:
* Pre-drafted, non-negotiable contracts (e.g., phone contracts, utilities, employment agreements).
* Imbalances of power between parties (e.g., individuals vs. corporations).
44
How does Max Weber distinguish between rational and irrational legal systems?
* Rational systems: Apply rules and procedures logically and consistently.
* Irrational systems: Base decisions on personal opinions or arbitrary factors.
45
What is “formal legal rationality” according to Weber?
A system where decisions are based on a clear, logically consistent body of legal rules.
46
What is “substantive legal rationality”?
Decisions are based on moral principles or justice rather than strict legal rules.
47
How has the privatization of industries affected the role of law?
Nationalized industries have been privatized, giving rise to regulatory agencies with powers to investigate, create rules, and impose penalties. Ordinary courts may be marginalized.
48
What does Marxism argue about the future of law?
Marxism contends that law is a tool of class oppression and will disappear in a classless society.
49
What internal challenges threaten the law?
1. Increasing terrorism tests the balance between security and freedom.
2. Advancing technology challenges data protection and privacy laws.
3. Globalization complicates regulation and justice on a transnational scale.
50
What is the impact of globalization on the law?
* A transnational economy dominated by multinational companies.
* Regulation by supranational institutions (e.g., WTO, UN).
* Calls for reforms to promote fair cooperation and reduce global poverty.
51
How does corruption affect law and society?
Corruption erodes trust in public institutions, hinders economic development, and disproportionately impacts human rights.
52
What is the difference between negative and positive rights?
* Negative rights: Freedom from interference (e.g., freedom of speech).
* Positive rights: Entitlement to something (e.g., education, healthcare).
53
What historical milestones demonstrate the international commitment to human rights?
* 1948: Universal Declaration of Human Rights.
* 1976: International Covenants on Civil, Political, Economic, Social, and Cultural Rights.
54
How has technology challenged the law?
1. Collection and misuse of personal data.
2. Cybercrimes like fraud and identity theft.
3. Tension between privacy-enhancing technologies (PETs) and privacy-invading technologies (PITs).
55
What principles guide data protection laws?
* Use limitation principle: Data must only be used for genuine purposes.
* Purpose specification principle: Data collection must align with declared purposes.
56
What is the relationship between security and liberty in law?
Law often struggles to balance these competing values. Increased surveillance (e.g., CCTV) may protect security but can erode liberty and create a climate of mistrust.
57
How does crime displacement relate to surveillance?
Criminals may simply move their activities elsewhere if one area becomes heavily monitored, limiting the effectiveness of surveillance.
58
To what extent can law improve society?
Law is essential for combating discrimination and addressing social issues (e.g., global warming, animal rights). However, it has limits, as it is often a blunt instrument unable to address complex problems entirely.
59
How can the law itself be a source of injustice?
Courts can make errors, leading to miscarriages of justice (e.g., wrongful convictions in capital punishment cases).
60
What did Thomas Hobbes say about life without law?
Hobbes argued that without law, life would be “solitary, poor, nasty, brutish, and short,” with no industry, culture, or security.
61
How does Da Vinci’s quote on animals relate to law?
He predicted a time when harming animals would be seen as morally equivalent to harming humans, suggesting that the law might one day extend rights to animals.
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