law

Question 1

legal certianty

Answer 1

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

Question 2

Common law family

Answer 2

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.

Question 3

Civil law family

Answer 3

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.

Question 4

status of the citizen

Answer 4

• 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

Question 5

aristotle, russeau

republican rights/ideal standard of citizen

Answer 5

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

Question 6

later roman empire and locke

liberal rights/ideal standard of citizen

Answer 6

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

Question 6

marshal

univertialist model for citizenship

Answer 6

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)

Question 6

feminist inight

Answer 6

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

Question 7

differentialist

Answer 7

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

Question 7

state

Answer 7

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.

Question 8

questions for globalsiation and citizenship

Answer 8

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

Question 8

why law and politics go together

Answer 8

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)

Question 9

what is law

Answer 9

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

Question 10

monopoly of violence

Answer 10

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.

Question 10

federalism is

Answer 10

(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.

Question 11

confederalism

Answer 11

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.

Question 12

Montesqieu’s three functions of a state

Answer 12

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.

Question 13

sources of international law

Answer 13

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.

Question 13

legality

Answer 13

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

Question 14

Jus cogens

Answer 14

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.

Question 14

voluntarism

Answer 14

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

Question 15

political question doctrone

Answer 15

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

Question 16

judicial restraint

Answer 16

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

Question 17

non-justicability

Answer 17

the issue is not considered fit foor legal resolution by judges

Question 18

criminal law

Answer 18

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

Question 19

civil vs criminal cases

Answer 19

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

Question 20

limits and freedoms

Answer 20

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.

Question 21

ultima ratio

Answer 21

law should only be used when no other means can address harmful behavior effectively.

Question 22

the harm principle

Answer 22

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.

Question 23

The principle of individual autonomy

Answer 23

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.

Question 24

Legal moralism

Answer 24

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.

Question 25

justifying punishment

Answer 25

**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.

Question 25

detterence

Answer 25

**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.

Question 26

# bipartide system The Actus Reus and Mens Rea Dichotomy

Answer 26

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.

Question 27

Tripartide system

Answer 27

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.

Question 28

Actus Reus (Commission vs. Omission)

Answer 28

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.

Question 28

mens rea cases

Answer 28

**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)

Question 29

systems of criminal justice

Answer 29

**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.

Question 30

proportionality

Answer 30

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.

Question 31

human rights as

Answer 31

**Positive law:** - Human rights exist because they are established by law. - To know our rights, we look at legal sources like constitutions and international treaties. **Moral Claims:** - Rooted in natural law, human rights are seen as universal and existing prior to legal systems. - These moral rights guide the creation and interpretation of legal rights. **Standard of Development:** - Human rights are used to assess a country’s progress beyond just economic indicators. - Measures like the Human Development Index reflect rights-related criteria (life expectancy, education, income). **Tool for Protest:** - Human rights language is used to express social grievances. - Rights claims can influence public discourse even without legal or moral basis. Human rights may be defined as rights that every person has by virtue of merely existing. They aim to secure certain benefits or freedoms that are of fundamental importance to any human being.

Question 32

duty to respect, protect, fullfil

Answer 32

So, for example, the traditional «negative» or «liberty right» freedom of speech can be though to give rise to: - A duty to respect, in the sense that the State should not censor speech that criticizes the government - A duty to protect, in the sense that the State must protect protesters from harassment and intimidation that could discourage speech - A duty to fulfill, that the State must take steps to encourage pluralism in media Likewise, the traditionally «positive» or «welfare right» to education gives rise to: - A duty to respect, that the State should not ban certain children from receiving an education - A duty to protect, that it should ensure that negative stereotypes do not impede children from getting a good education - A duty to fulfill, to make public education available for everyone

Question 32

Positive law

Answer 32

refers to laws that are formally enacted or codified by a legitimate authority, such as a legislature, government, or ruler. It includes statutes, regulations, and legal rules that are written and enforced by institutions. Unlike natural law, which is based on moral principles or universal justice, positive law derives its authority from human decisions and political processes.

Question 33

types of human rights

Answer 33

**1. Integrity of the Person:** the right to life and being free from torture **2. Freedom rights:** here, we cluster those rights that create a sphere of autonomy for individuals, in which the State may not intervene. Freedom rights include, most prominently, freedom of conscience, freedom of religion, freedom of speech, freedom of movement, freedom of association, the right to property, and the right to privacy. **3. Political rights:**refer to the right to vote and be elected, which typically require citizenship or legal residency. While many freedom rights—like speech, assembly, and association—have political dimensions, only political rights are limited to nationals, making them an exception to the universality of human rights. **4. Welfare rights:** refer to a wide set of provisions that, funda- mentally, aim at addressing the problem of poverty. The most notable welfare rights include the right to an adequate stan- dard of living, food, water, access to health services, educa- tion, housing, social security, and work.

Question 34

no punitive chillin

Answer 34

state-imposed penalties or legal threats should not be used in ways that silence dissent or deter lawful behavior simply because individuals fear legal consequences. This principle helps protect democratic participation and ensures that rights like free speech and freedom of assembly can be exercised without intimidation or coercion.