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law Flashcards

(40 cards)

1
Q

legal certianty

A

So legal certainty has at least three aspects:
1. Certainty about the content of the law
2. Certainty that the law will be enforced
3. Certainty that the law will be applied consistently

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2
Q

Common law family

A

Developments in the law of Europe during the second millen- nium divided the national legal systems in Europe into two «legal families». The common law family, which includes England, Wales, and Ireland, were not as influenced by the reception of Roman law as were their counterparts on the continent. This is because common law development of was driven by the judiciary, as judges made new law through their decisions. It must be said that more recently, legislation has become an important source of the law in common law coun- tries as well.

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3
Q

Civil law family

A

The great counterpart of the common law family in Europe is the civil law family. The law of most countries on the European continent has been greatly influenced by the combination of Roman and Canon laws. However, it is also possible to detect a further subdivision within this civil law tradition. On the one hand, there are countries that have been strongly influ- enced by the French codification movement. This movement emphasized the role of parliament and democratic input in making the codification. The creation of law is, from this viewpoint, firstly a political process. Countries that belong to this French family include France, Belgium, Spain, and Portugal. On the other hand, there are countries that belong to the German family, in which the development of law was driven by legal scholars. Countries that belong to this tradi- tion include Germany, Austria, and Switzerland.

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4
Q

status of the citizen

A
  • legal recognition and protection, doesnt mean that you can make laws but you are seen within the law
  • political: protesting, running for office, voting
  • identity: feeling of integration and belonging within a community
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5
Q

aristotle, russeau

republican rights/ideal standard of citizen

A

the citizen isn’t just somebody under the law, he is also cabable of ruling and being ruled. political agency/ participating

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6
Q

later roman empire and locke

liberal rights/ideal standard of citizen

A

legal protection across vast territories and individual rights. legal status, protecting individual freedoms, politics as tool for people to just go on with their lives and live well. citizens act mainly in private and politics is kinda instrumental. you entrust governing to specialists.

but, this goes hand in hand with the republican ideal of active citizenship

-> passive enjoyment means active citizenship

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6
Q

marshal

univertialist model for citizenship

A

citizenship is an identical legal/ civic/ social staus for everyone. integration for everyone which builds social cohesion.

but deep inequalities made it that even having the same rights didn’t mean having the same outcomes and opportunities. the universal standard enforces the ideals of the dominant group.

sameness ins’t only fairness (no headcover thing)

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6
Q

feminist inight

A

the public and the private are not inherently separated from politics. the public is mostly men whereas women stay at home and are neglected from politics, you can’t construct a good public life if you treat half of the population as insubordinate in the private sphere. whereas if private stuff is taken out of politcs, issues such as domestic violence and reproductive rights are neglected also., because they were private stuff and were not seen as legitimate politcal issues since they were legitimised in society.

! laws create our personal lives, boundaries are politcal construction

citizen is always race, gender and culture

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7
Q

differentialist

A

a trully democratic public is pluralistic. special rights for minority groups, gorup representation, self-governement rights. being able to engage repsectfully with different people.

but there is a danger that too much difference could undermine the conditions that would make mutuality possible. people would not see eachother as equal citizens

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7
Q

state

A

A State is an organization that is able to control a certain territory and the people living in it. This control is both in the sense of exercising powers and maintaining law and order inside its own borders and in the sense of defending it against the outside world. Statehood is not an all-or-nothing matter: not all States meet the two conditions to the same extent. Some States are internally weak and have their authority disputed. Some States provide a low protection to their citi- zens or do not (or hardly) provide for internal security or the general interest. Sometimes this even goes so far that we can conclude that there is a situation of anarchy, civil unrest, or even civil war. Also recognition from other states might be important.

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8
Q

questions for globalsiation and citizenship

A

1.what gives the state the moral right to choose who is the citizen: traditional= yes states have the rights to decide who comes in. welfare states are based on a crespolsible community and uncontrolled immigration could affect that (is there such a homogeneous cultural community tho).

but, freedom of movement should be a human right. border controls are coercive, states have to justify not only to their citizens but also to hte toher people why there are rules for keeping out certain ppl. wealthy states who aren’t doing enough to end global poverty have the respondsability to get people in= global justice.

2.rights for citizens vs non-citizens: the legal border still follows people after they have worked and oayed taxes for years: protection deportation, social/ political benefits, political participation. ideas of chaging how we give citizenship, not just where did you were born, but having a substantial effect to the society. having a stake is enough to obtain citizenship.

stakeholder idea: people should be able to have political rights if they have been living and contribuing for long enough in the country and are impacted by the laws.

? diaspora voteaza pt ca e bloodrelated, dar ppl living there not. passport for money.

3.can citizenship exist beyond the state: globalists say yes= power is dispersing, and so does governance.

but people say that sharing the language of the state is important to be a citizen and have shared political life. but people say that ideologos is enough

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8
Q

why law and politics go together

A
  1. some laws are made by going to court not in legistlation
  2. if governments make policies that are not in line with some rules you can take them to court
  3. politicians can use random laws to fit it within their agenda (turmp and tarrifs that used a law supposed to be for war cases)
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9
Q

what is law

A
  1. clearly defined rules governing dutues, rights, competencies and definitions
  2. motly created by legistlation or cour jugdments
  3. mostly enforced by state organs
  4. generated legal certianty about content, enforcement, consistent application
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10
Q

monopoly of violence

A

only the State may use coercion against individuals. Other organizations may not, and they can be prosecuted as crimi- nal gangs if they do; individuals seeking self-justice to avenge crimes are prosecuted themselves.

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10
Q

federalism is

A

(1) when a State is divided in territorial subunits, (2) which possess constitution- ally protected powers, (3) which do participate in constitu- tional amendments, (4) are represented on the federal level, wherein (5) an independent arbiter decides on conflicts of federal-State competences, and (6) finally federal laws do pre- vail over State laws and must be applied in all subunits.

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11
Q

confederalism

A

In a confederal structure, the participating entities effectively remain sovereign States in their own right. One or more of the features of federalism is then missing, such as the supremacy of federal law, or the presence of a constitutional court. The deci- sion-making process in a confederation typically requires una- nimity and is restricted to limited issues. A confederation may in fact be so loose that it would not actually be called a State.

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12
Q

Montesqieu’s three functions of a state

A
  1. The creation of general legal rules by means of legislation
  2. The practical implementation and execution of these
    rules: administration
  3. The application of rules to decide disputes in individual
    cases: adjudication

There are three generally recognized criteria for state- hood: a defined territory, a permanent population, and a gov- ernment exercising effective power. Recognition by other States is not a separate requirement for statehood. A State that fails to be recognized by other States is still a State

The most fundamental principle of international law is the sovereign equality of States.

13
Q

sources of international law

A
  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
13
Q

legality

A

State action requires a legal basis: the State may not legally act unless it is authorized by written law

14
Q

Jus cogens

A

or peremptory norms of international law, are fundamental principles recognized by the international community as rules from which no deviation is permitted. These norms override any conflicting treaties or agreements between states and can only be changed by new norms of equal authority. Examples include the prohibitions of genocide, slavery, torture, and aggressive war. Although there is no single global authority that officially declares a rule as jus cogens, their status is based on broad and consistent recognition by states, international courts, legal scholars, and institutions such as the International Law Commission.

14
Q

voluntarism

A

The central role of treaties follows from a basic principle of traditional international law, namely, that a State is bound only by the rules of international law to which it has specifically consented.
This principle reflects voluntarism, the idea that a State can only be bound by an obligation after it has given its con- sent. Voluntarism follows from State sovereignty. Since States represent the highest authority in the international legal sys- tem, they are not required to accept any obligations they do not agree with. A State may express its consent to be bound, for example, by becoming a party to a treaty in which the obli- gation in question is included

15
Q

political question doctrone

A

some issues are not appropriate for judicial review and should be left to legistlative or executive powers, not courts

16
Q

judicial restraint

A

courts decline to hear certain cases, even if they involve constitutional issues

17
non-justicability
the issue is not considered fit foor legal resolution by judges
18
criminal law
body of rules by which the State prohibits certain forms of conduct because it harms or threatens public safety and welfare and that imposes punishment for the commission of such acts
19
civil vs criminal cases
A **criminal law case** is between the whole political community, the State or the peo- ple, and the defendant. It expresses a hierarchical relationship between the State and the individual who is called to answer for his wrongful and blameworthy behavior. Conversely, **civil law** cases take place between two equal parties, and it is up to the person who was wronged to seek legal redress. ## Footnote !!! Furthermore, perhaps the most important difference to other branches of law is that a violation of the rules of criminal law commonly triggers the imposition of public censure and (severe) punishment. However, the imposition of crimi- nal punishment constitutes a severe encroachment on an individual’s freedom and autonomy and should therefore not be imposed lightly and only as a last resort (ultima ratio). Crimes as Public Wrongs
20
limits and freedoms
Criminal law sets rules to guide how people behave in society by both protecting and limiting freedoms. For example, it protects property rights by banning theft but also ensures people don’t use their property in ways that harm others.
21
ultima ratio
law should only be used when no other means can address harmful behavior effectively.
22
the harm principle
the only purpose for which power can be rightfully exercised over any member of a civilized com- munity, against his will, is to prevent harm to others ## Footnote Conduct which may be immoral (such as adultery), but which is not harmful to others, should not be the concern of criminal law, so the argument runs.
23
The principle of individual autonomy
says that people should have the freedom to make their own decisions and control their own lives without unnecessary interference from the state. In criminal law, this challenges paternalistic laws—those made to protect people from harming themselves, such as certain drug, alcohol, or tobacco laws. These types of laws are controversial because they limit personal choice on the assumption that the state knows what’s best for individuals.
24
Legal moralism
is the idea that the law can be used to prohibit behavior simply because it is considered morally wrong by society, even if it doesn’t harm others. In other words, something can be criminalized just because it offends collective moral standards.
25
justifying punishment
**Utilitarianism** justifies punishment only if it prevents more harm than it causes, aiming to increase overall happiness in society. Punishment should be limited to what is necessary to deter future crimes, and if it doesn't lead to beneficial outcomes, it loses its justification. Where utilitarians look forward by basing punishment on social benefits, **retributionists** look backward at the crime itself as the rationale for punishment. According to retributive theories, there is an intrinsic moral link between punishment and guilt. *Punishment is therefore primarily a question of responsibility for the crime committed (just desert) and not of beneficial consequences.* One of the best-known ancient forms of retributive thinking can be found in the lex talionis of Biblical times: «an eye for an eye, a tooth for a tooth, and a life for a life». One should be punished because a crime has been committed, and the punishment should be proportional to the seriousness of the offense and the degree of culpability of the offender: «Let the punishment fit the crime» captures the essence of retribution.
25
detterence
**Individual or specific deterrence** punishes an offender in order to prevent the same person from re-offending. **General deterrence** uses the threat or example of punishment to discourage other people from committing crimes. A recent example of an attempt at general deterrence is that most European systems have sig- nificantly increased the penalties for driving under the influence of alcohol in order to deter citizens from drunk driving.
26
# bipartide system The Actus Reus and Mens Rea Dichotomy
Criminal liability typically requires two elements: **actus reus** (the physical act of the crime) and **mens rea** (the mental intent). Both must be present at the same time for someone to be held criminally responsible, reflecting the idea that an act alone is not enough—there must also be a guilty mind. This distinction, rooted in Enlightenment thinking, serves as a foundational concept in many legal systems, although it is a flexible framework that covers a range of doctrines like omissions, causation, intention, recklessness, and negligence.
27
Tripartide system
The tripartite structure of crime is a method used in civil law systems (like Germany and the Netherlands) to evaluate criminal liability in three clear steps: **Fulfillment of the offense definition**: This checks whether the basic legal criteria of the crime have been met, including both the actus reus (the act itself) and the mens rea (the mental intent behind it). **Wrongdoing (Rechtswidrigkeit)**: Here, the court considers whether the act was legally unjustified—even if the crime elements are fulfilled, the act might not be "wrong" if there's a valid justification (e.g., self-defense). **Blameworthiness (Schuld)**: This stage examines whether the person can be personally blamed—even if the act was wrong, a valid excuse (e.g., insanity, coercion) might mean they’re not responsible.
28
Actus Reus (Commission vs. Omission)
Actus reus refers to the physical element of a crime, requiring some form of conduct (either an act or a failure to act) that is controlled by the person. This principle ensures criminal liability is based on an individual's actions or omissions, not on status or identity, reflecting respect for personal autonomy and preventing arbitrary punishment.
28
mens rea cases
**Direct intent:** This form of intent is characterized by a strong volitional element, where the consequence of an intention is actually desired. It is what we would consider to be intentional con- duct in an everyday meaning **Indirect intent:**characterized by a strong cogni- tive aspect and exists where the agent knows his conduct will almost certainly bring about the result, which he does not actually desire or primarily aim at. **Conditional intent:** the conscious acceptance of a possible risk. Dolus eventualis is thus said to con- sist of: 1. A cognitive element of awareness of a risk 2. A volitional element of accepting the possibility that this risk would materialize **Recklesness:** In common law systems like England’s, recklessness refers to when someone is aware of a significant risk and still unjustifiably takes it. Unlike conditional intent, it doesn’t require accepting the risk—just being conscious of it—making it easier to prove liability for risky behavior. **Unconscious Negligence:** When a person fails to recognize a risk they should and could have been aware of, due to carelessness or lack of attention. **Conscious Negligence:** When a person is aware of a risk but assumes things will turn out fine and trusts that the harmful result will not occur. (in England this is called recklesness)
29
systems of criminal justice
**In adversarial systems**, typical of common law countries, trials are contests between prosecution and defense before a passive judge and a jury. Each party presents its evidence and cross-examines witnesses. The judge does not investigate but summarizes legal questions for the jury, which delivers a verdict without giving reasons. Evidence from pre-trial investigations is generally inadmissible. **In inquisitorial systems**, common in civil law countries, a judge leads the investigation, compiles a dossier, and submits it to the trial court. The court may use this dossier and gather additional evidence. The judge examines witnesses, and parties play a limited role. Verdicts must be reasoned. !!!! *Adversarial systems seek truth through opposing arguments, while inquisitorial systems rely on official inquiry*. Both face risks of missing key facts. Modern systems blend features of both models, with inquisitorial countries reducing judicial investigation and common law systems allowing more judge involvement. Most now fall along a spectrum between the two.
30
proportionality
A legal principle requiring that investigative measures by state authorities be strictly necessary and not excessive relative to the seriousness of the offense. Coercive or intrusive actions—such as searches or surveillance—must be specifically justified, proportionate to legitimate aims, and used only when necessary to investigate a concrete crime. It serves both as part of the procedural legality principle and as an independent safeguard, often subject to judicial review to protect individual rights.