chapter 1

Question 1

law

Answer 1

organises just behaviour in a society. it applies two kinds of rules; substantive and formal law.

Question 2

substantive law

Answer 2

composed of legal rules that define the content of just behaviour. to organise just behaviour in a society we first need standards that define the ‘rules of the game’ that people are required to obey.

Question 3

formal law

Answer 3

composed of legal rules that maintain substantive law. they are necessary to provide consequences when substantive law is violated.

Question 4

public law

Answer 4

the law that regulates the relation between a government and its citizens. it can be in the form of substantive or formal rules.

Question 5

public substantive law

Answer 5

rules in society everyone should comply with for the public wellbeing/good, eg. traffic rules. when one offends the rule, the state interferes and punishes the citizen in line with the appropriate formal rules. the state acts for the sake of society.

Question 6

public formal law

Answer 6

formal rules that regulate the legal procedures that need to be taken into account when a citizen misbehaves. evidence should also be of quality before a state may interfere. a state is not unlimitedly competent in punishing a citizen.

Question 7

private law

Answer 7

the law that regulates the relation between citizen or those who act as citizens. it can be public or private.

Question 8

tort

Answer 8

rules for compensating damage to the victim of a wrongful act. a form of tort is battery.

Question 9

battery

Answer 9

someone intentionally making unwanted contact with another person, eg. a punch in the face, and from this, damage resulted.

Question 10

constitutional and administrational law

Answer 10

laws adopted to regulate the way a state is governed and the fundamental rights citizens of a state are entitled to.

Question 11

private international law

Answer 11

rules that regulate where to settle a dispute (jurisdiction) under which law and how to execute a verdict.

Question 12

just

Answer 12

the perception of ‘just’ differs per society. in general, it is defined by three basic values commonly shared in every society: justice, opportuness, and legal certainty. the exact way this balance is designed determines the characteristics of the society’s legal system.

Question 13

justice

Answer 13

the moral conviction of a given society expressed in law.

Question 14

opportuness

Answer 14

the expression of effectiveness by a given society in law. when law is not used as a tool to express moral conviction, but as a tool to effectively regulate something in society.

Question 15

legal certainty/principle of legality

Answer 15

the expression of legality in a given society. every citizen and the relevant government should be able to know the legal consequences of their actions beforehand, and not afterwards. law should, to a certain extent, be predictable.

Question 16

natural law approach

Answer 16

assumed that laws emerge from nature. this means that a law does not need to be codified first to be a law, but already exists regardless of its appearances, eg. human rights.

Question 17

positivist law approach

Answer 17

assumed that law comes forth from codification. law is only law when it has been written down first.

Question 18

bureaucracy

Answer 18

over-formalising relations in society when only written standards can be applied.

Question 19

codified standards

Answer 19

written rules produced by a legislator. has a strong emphasis on legal positivism, since written codes are what positivists consider to be the source of law. they can never be fully comprehensive and offer a clear solution for every legal conflict. there is always a need for room for interpretation.

Question 20

legal principles

Answer 20

has a strong emphasis on natural law, since a principle is usually an abstract value that represents a foundation in law, which naturally applies without the need to be codified. it is sometimes considered too vague and imprecise to apply to a real case. therefore, it might need some support in written standards to be specific enough to be effectively used.

Question 21

treaty

Answer 21

written contract between two or more states who consider themselves bound to its content relative to each other.

Question 22

bilateral treaty

Answer 22

a treaty to which two parties are party.

Question 23

multilateral treaty

Answer 23

a treaty to which more than two states are party.

Question 24

signature

Answer 24

implies the consent of the responsible negotiator on behalf of the state to the treaty. a treaty is drafted during negotiation process of involved states in which states are represented by an authorised negotiator.

Question 25

ratification

Answer 25

implies the consent of the responsible legislator on behalf of the state to the treaty. usually when the legislature consents to the signing, the state expresses the final approval and consider itself bound to the treaty.

Question 26

monism

Answer 26

an approach in law in which it is assumed that the content of a signed and ratified treaty is automatically part of the domestic legal order.

Question 27

dualism

Answer 27

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

Question 28

application of law

Answer 28

the applicator of a (codified or not) legal standard will always provide a certain interpretation of the standard. this interpretation can be a source of law when it is accepted as a valid legal reasoning.

Question 29

judiciary

Answer 29

is responsible for applying the law in cases of dispute regarding its specific meaning in most countries.

Question 30

case law

Answer 30

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

Question 31

precedent

Answer 31

term for a chain of rulings used in some legal systems.

Question 32

stare decisis

Answer 32

a legal principle in which courts have to follow the legal reasoning as applied in previous cases. lower courts may not rule in contradiction with the legal reasoning of a higher court in a similar legal matter. in equal courts, the precedent of a previous ruling should be respected. thus, case law is a consistent source of law.

Question 33

administration

Answer 33

a branch in the public sector that executes the law within the boundaries of its competences. it is assumed that administrative powers must be in line with principles of good governance.

Question 34

margin of discretion

Answer 34

the room allowed to the administration to execute the law at their own discretion. the size of the margin depends on the context. using this margin to realise policy goals is a source of law.

Question 35

legal writings and teachings

Answer 35

can be a legal source. scholars who are experts in law comment on legal developments or collect and structuralise legal information.

Question 36

legal principle of good faith

Question 37

religious writings and teachings

Answer 37

accepted as a source of law in some countries, which are non-secular states.

Question 38

non-secular state

Answer 38

a state in which governance and religion are mixed.

Question 39

secular state

Answer 39

a state in which governance and religion and separated.

Question 40

custom

Answer 40

an established and accepted legal practice.

Question 41

usus

Answer 41

an element of a legal custom that states that a practice must last for a while in a consistent way. then, people can reasonably expect the application of this legal practice, since it has become a sort of tradition.

Question 42

opinio iuris sive necessitates

Answer 42

an element of a legal custom that states that a legal custom can only be a valid source of law when those involved with its application are of the opinion that the custom should be a legal rule.

Question 43

legal principle

Answer 43

a general value that applies in law.

Question 44

principle of legality

Answer 44

someone may not be condemned for something he could not be aware of, eg. due to the fact that a law is applied in retroperspective or was unclearly formulated.

Question 45

ius cogens

Answer 45

universally binding legal principles. usually vague and understood differently around the world. the exact meaning depends on the actual application in a context in a particular legal system. eg. prohibition to genocide, slavery, and torture or equality, respect, and freedom.