Constitutional Law vs. Legal Positivism
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Questions and Answers

Under what circumstances can property rights be restricted?

  • For improving individual rights
  • Without any legal backing
  • For personal financial gain
  • For public purposes with compensation (correct)

    • Which of the following scenarios allows for lawful detention according to legal provisions?

  • Preventing the spreading of infectious diseases (correct)
  • Detaining individuals for unpaid debts
  • Arresting individuals for minor traffic violations
  • Detaining individuals suspected of stealing

    • What is the first step in assessing whether human rights restrictions are compliant with the European Convention?

  • Evaluating the necessity of restrictions
  • Analyzing public opinion on the matter
  • Defining the punishment for violations
  • Determining if a right exists (correct)

    • Which of the following is NOT considered a legitimate aim for restricting human rights?

    <p>Enhancement of individual freedoms</p> Signup and view all the answers

    In the context of Article 8 regarding private and family life, what must be proven regarding a restriction?

    <p>The restriction should comply with established laws</p> Signup and view all the answers

    What is the primary function of the Basic Norm in a legal system?

    <p>To provide the ultimate validity for all other legal norms</p> Signup and view all the answers

    Why is the Basic Norm not considered positive law?

    <p>Because it is a subjective will and not a written law</p> Signup and view all the answers

    How does the Basic Norm influence the legal system?

    <p>It legitimizes the constitution and subsequent laws</p> Signup and view all the answers

    Within a legal system, who is identified as the source of the Basic Norm?

    <p>The sovereign authority</p> Signup and view all the answers

    In what way does the Basic Norm reflect a society's identity?

    <p>It encapsulates the societal intentions at the time of its establishment</p> Signup and view all the answers

    What aspect differentiates legal positivism from natural law in the context of legal systems?

    <p>The source of legitimacy for the laws</p> Signup and view all the answers

    What does a breakdown of the Basic Norm in a society imply for its legal framework?

    <p>It results in a lack of coherence and justification</p> Signup and view all the answers

    Which of the following statements best describes the relationship between the Basic Norm and the constitution?

    <p>The Basic Norm validates the constitution but is not the constitution itself.</p> Signup and view all the answers

    What is the role of the prerogative branch of government as defined by Montesquieu?

    <p>It addresses situations where the law is unclear or silent.</p> Signup and view all the answers

    How does Montesquieu believe the legislative and judiciary branches should operate?

    <p>They must operate completely independently.</p> Signup and view all the answers

    What principle is crucial to Montesquieu's doctrine of separation of powers?

    <p>Each branch of government should have equal authority.</p> Signup and view all the answers

    Which of the following is a primary function of the legislative branch in practice?

    <p>Pass laws and approve budgets.</p> Signup and view all the answers

    What checks can the executive branch impose on the legislative branch?

    <p>Veto laws or dissolve legislatures.</p> Signup and view all the answers

    Which statement accurately describes the judiciary's role in the separation of powers?

    <p>It performs dispute resolution and judicial review.</p> Signup and view all the answers

    What are the potential risks of excessive checks and balances between branches of government, according to Montesquieu?

    <p>A deadlock may result in ineffective governance.</p> Signup and view all the answers

    What is one way in which the legislature holds the executive branch accountable?

    <p>Through budget approval processes.</p> Signup and view all the answers

    What is one way judicial review can be initiated?

    <p>By individuals challenging the constitutionality of laws</p> Signup and view all the answers

    What is the role of a constitutional court as a negative legislator according to Kelsen's model?

    <p>To annul unconstitutional laws and not create new laws</p> Signup and view all the answers

    What action do courts take if they find a law unconstitutional in centralized systems?

    <p>They annul the law</p> Signup and view all the answers

    How do decentralized systems differ regarding the application of judicial review?

    <p>They can refuse to apply unconstitutional laws in specific cases</p> Signup and view all the answers

    What potential issue arises from constitutional courts acting as judicial legislators?

    <p>It allows judges to perform quasi-legislative functions</p> Signup and view all the answers

    What distinguishes centralized judicial review from decentralized judicial review?

    <p>Centralized review involves a single constitutional court with exclusive authority</p> Signup and view all the answers

    Which function may constitutional courts perform as part of their judicial legislator role?

    <p>Engage in constitutional interpretation that creates new legal norms</p> Signup and view all the answers

    What is the primary function of judicial review once it is initiated?

    <p>To analyze whether the law or action contradicts constitutional principles</p> Signup and view all the answers

    What describes the Basic Norm according to Kelsen?

    <p>It is an abstract principle that exists prior to written law.</p> Signup and view all the answers

    What is a primary criticism of the Basic Norm?

    <p>Its creation is difficult to attribute to either people or state.</p> Signup and view all the answers

    Which of the following best defines Direct Democracy?

    <p>A governance model where citizens directly vote on laws and policies.</p> Signup and view all the answers

    What is a significant challenge associated with Direct Democracy?

    <p>Oversimplification of complex issues for voting.</p> Signup and view all the answers

    Which term describes a vote by the public on a specific policy or legal issue?

    <p>Referendum</p> Signup and view all the answers

    What does the term 'plebiscite' refer to?

    <p>A form of referendum typically initiated by the government.</p> Signup and view all the answers

    James Madison mentioned, "If men were angels, no government would be necessary." What concept is he emphasizing?

    <p>The inherent human conflict requiring governance.</p> Signup and view all the answers

    Which issue may be considered too complex to be resolved by referenda?

    <p>Tax reform.</p> Signup and view all the answers

    What is the purpose of the procedure described in the content regarding the executive and legislative branches?

    <p>To ensure checks and balances between the branches</p> Signup and view all the answers

    Which of the following sources of law is recognized for international treaties under Article 38 of the International Court of Justice?

    <p>General Principles of Law</p> Signup and view all the answers

    According to the German Federal Constitution, what prevails over federal laws?

    <p>International law</p> Signup and view all the answers

    What is the primary aim of Article 13 of the Law on International Treaties in Latvia?

    <p>To achieve mutual harmony between domestic and international legal norms</p> Signup and view all the answers

    What did Article VI, clause 2 of the US Constitution state about international law?

    <p>It is the supreme law of the land</p> Signup and view all the answers

    How does EU Law differ from international law in relation to domestic law?

    <p>EU Law cannot be separated from domestic law</p> Signup and view all the answers

    What legal basis does Article 24(1) of the German Federal Constitution provide?

    <p>For transferring sovereign powers to international organizations</p> Signup and view all the answers

    What percentage of voters in Latvia voted in favor of joining the EU referendum held in September 2003?

    <p>65%</p> Signup and view all the answers

    Study Notes

    Constitutional Law

    • Courts have jurisdiction because the constitution states so
    • The constitution's binding authority stems from the idea of natural law
    • Natural law is derived from nature, God, justice, conscience, and reason
    • Natural law outlines inherent human rights (e.g., life, liberty, happiness)
    • Natural law distinguishes between law and justice, natural and positive law
    • Natural law connects law and morality
    • Determining the nature of natural law and associated authority are problematic
    • Different perspectives exist on the appropriate authority (e.g., Locke vs. Filmer)
    • Positivism views law as a system of written norms adopted by the state
    • Law and justice are considered equal in legal positivism
    • Moral assessment of law is impermissible in legal positivism
    • Positive law is a product of the legislative process
    • Customary law and general legal principles are not positive law (and not legally enforced by state legislature)
    • Issues arise in positivism when the state is despotic or oppresses its citizenry
    • Does not inherently safeguard minority rights
    • Can conflict with moral considerations

    The Basic Norm

    • The Basic Norm is the foundation of a legal order
    • It is essentially the subjective will of the constitution-creating act
    • It distinguishes between the constitution itself and the foundational intent behind its creation
    • Ensures a law-making body and sovereign will exist within the country
    • The sovereign will defines the Basic Norm contents
    • The sovereign's will defines the country's type and governance structures

    Criticism of the Basic Norm

    • Kelsen questioned whether the Basic Norm is derived from the people or the state
    • Difficulty reconciling national and international legal systems in the Basic Norm idea
    • Basic Norm is considered subjective

    Direct Democracy

    • Direct democracy is a system of governance where citizens directly make decisions
    • Referenda and initiatives are part of direct democracy
    • Citizens in a direct democracy can be influenced by biased questions posed by the legislative or executive branch
    • Direct democracy can overlook the interests of minority groups

    The Legislative Branch

    • Legislatures serve as a check against the other branches, safeguarding the separation of powers
    • German legislature is bicameral (Bundestag and Bundesrat)
    • Latvian legislature is unicameral (Saeima)
    • The US has a bicameral legislature (House of Representatives and Senate)
    • Legislatures make laws, approve budgets, and oversee executive branch

    The Executive Branch

    • The executive branch enforces laws and manages policies
    • Executive power includes foreign affairs, making executive decisions, and policy implementation
    • Interactions arise between executive and other branches of government

    The Judiciary Branch

    • The judiciary interprets laws and resolves disputes
    • Judiciary acts independently from the other branches
    • Courts resolve disputes; adjudicate between constitutional bodies
    • Judicial review ensures laws comply with the constitution
    • Different ways to initiate judicial review (e.g., individuals challenging laws or public officials referring matters)
    • Judicial review may blur power separating elements among branches

    Constitutional Law & International Law

    • Constitutional law defines how states relate to international law
    • The constitution identifies the sources of its law
    • Hierarchy of legal norms exists in constitutions (e.g., treaties, laws, and international law)
    • Constitutional courts decide disputes regarding law compatibility
    • EU laws and treaties affect national laws in EU member states
    • Specific articles from EU treaties and the German constitution concern international law

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    Description

    This quiz explores the fundamental concepts of Constitutional Law and Legal Positivism. It covers the origins of law, the principles of natural law, and the distinction between law and morality. Delve into the varying perspectives on authority and the limitations of legal positivism in understanding justice.

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