Unit 4- Rules, principles, legal systems

Question 1

Difference between norms in religion and law

Answer 1

Law conveys a coercive social order

Religion binds only those who believe in it and morality of those who accept it

Question 2

What is kelson’s theory

Answer 2

A norm is such not because it stipulates a command, but because it stipulates a sanction to be applied in case the command is disobeyed by someone

Question 3

What structure are norms built in

Answer 3

Conditional structure –> there are punishments and consequences attached to breach of norm

Question 4

What are the characteristics (scope) of norms?

Answer 4

Generality

Abstractness

Question 5

What is generality in the scope of norms

Answer 5

A norm is applicable to anyone who finds themselves in a state of affairs envisages by the if clause

The norm applies to a wide range of individuals or situations

Question 6

Abstractness

Answer 6

Leaves room for interpretation and contextualisation

Provides a general guiding principle without specifying the precise actions or behaviours required in particular situations

Question 7

What are mandatory rules

Answer 7

They establish non negotiable standards that parties must adhere to, even if there is a mutual agreement

Most public law consists of mandatory rules

Question 8

What are default rules

Answer 8

May be set aside through an agreement between their addresses

Nearly the entirety of private law consists of default rules

Question 9

Hierarchical order of norms

Answer 9

1. Constitution
2. Statues
3. Administrative Regulations
4. Customs

Question 10

What are primary rules

Answer 10

Rules or laws that govern general society conduct (what we must abide by)

Law against murder

Question 11

Secondary rules

Answer 11

They have the power to change/ modify/ enforce primary rules –> known as the sources of law

Important role in the historical development of legal order

Question 12

What are the three major issues that secondary rules combat that primary rules can’t

Answer 12

Uncertainty of the law

Efficiency of the law

Static quality of the law

Question 13

What are the two meanings of sources

Answer 13

Sources of production

Sources of cognition

Question 14

What are the sources of production

Answer 14

Determines how laws are formulated, enacted and brought into existence

Change the law through legal acts and facts

Question 15

What are the sources of production in the italian legal system

Answer 15

1. Constitution
2. Statues/ enactments
3. Regional laws
4. Regulations

Question 16

What are sources of cognition

Answer 16

The mechanisms and criteria used to recognise, identify and acknowledge existing legal rules

Gives legal notice about the sources of production

Question 17

What does complete and consistent mean in regards to a legal system

Answer 17

Complete: no gaps are to be encountered in its primary rules

Consistent: no contradictions in its primary rules since each relevant case is giben just one legal response

Question 18

How are gaps in primary norms sorted

Answer 18

May be filled in by secondary rules authorising judges either to create a new law or to extend the scope of law which already exists

Question 19

To interpret law what are the three ways in which civil law jurisdiction can be applied

Answer 19

Grammatical: sticks to the wording

Historical: reverts to the intention of law maker

Systematic interpretation: derives the meaning of a provision based on the legal system as a whole

Teleological interpretation: emphasises the purpose, objective and underlying goal

Question 20

What are antinomies

Answer 20

Situations where two legal principles or rules conflict with each other leading to contradictory outcomes/ interpretation

Question 21

What are the criterions to solve antinomies?

Answer 21

• Hierachal criterion
• Content based criterion
• Time based criterion

Question 22

What is the “basic” or “grundnorms”?

Answer 22

Typically a secondary rule which aims at identifying primary rules, thus ensuring certainty of a legal system