law Flashcards
(40 cards)
legal certianty
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
Common law family
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.
Civil law family
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.
status of the citizen
- 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
aristotle, russeau
republican rights/ideal standard of citizen
the citizen isn’t just somebody under the law, he is also cabable of ruling and being ruled. political agency/ participating
later roman empire and locke
liberal rights/ideal standard of citizen
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
marshal
univertialist model for citizenship
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)
feminist inight
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
differentialist
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
state
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.
questions for globalsiation and citizenship
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
why law and politics go together
- some laws are made by going to court not in legistlation
- if governments make policies that are not in line with some rules you can take them to court
- politicians can use random laws to fit it within their agenda (turmp and tarrifs that used a law supposed to be for war cases)
what is law
- clearly defined rules governing dutues, rights, competencies and definitions
- motly created by legistlation or cour jugdments
- mostly enforced by state organs
- generated legal certianty about content, enforcement, consistent application
monopoly of violence
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.
federalism is
(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.
confederalism
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.
Montesqieu’s three functions of a state
- The creation of general legal rules by means of legislation
- The practical implementation and execution of these
rules: administration - 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.
sources of international law
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- 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.
legality
State action requires a legal basis: the State may not legally act unless it is authorized by written law
Jus cogens
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.
voluntarism
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
political question doctrone
some issues are not appropriate for judicial review and should be left to legistlative or executive powers, not courts
judicial restraint
courts decline to hear certain cases, even if they involve constitutional issues