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Questions and Answers
What did Cicero define as the 'public thing'?
In the ancient world, was the public thing governed by religion rather than law?
True
According to Machiavelli, what is the most important thing for the state to do?
saving the state
Law is a complex of rules that regulate peaceful coexistence among members of a society, and at the core of every legal system is the notion of __________.
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Match the following legal theories with their descriptions:
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What is the term coined by Dicey that means 'hierarchy of the norms'?
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Under the Rule of Law, no one can be punished without having broken a clearly stated law.
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What are the main notions on which the Rule of Law is based?
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In private contracts, parties have freedom to decide ____________.
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Match the levels of courts in Italy with their corresponding description:
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What is the legal system defined as?
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The Chinese population, despite having ethnic differences, shares a common legal system.
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What are the three key elements of a state?
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Community refers to the group of individuals who make up the political community of a state and share common ________.
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Match the following types of citizenship with their meanings:
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What is one feature of pluralism mentioned in the text?
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Universal suffrage guarantees a democracy.
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Which of the following is not a key feature of a democracy according to the text?
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___________ is essential for a democratic state and ensures independence between the legislative, executive, and judiciary branches.
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Match the following terms with their meanings:
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What role does the judiciary play in protecting citizens, as mentioned in the text?
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What is a rigid constitution?
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Constitutions define the fundamental rights of citizens.
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What are civil rights?
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_______ rights like the right to private property were added later to constitutions.
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Match the following groups of fundamental rights and freedoms with their introduction in constitutions:
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In a parliamentary executive system, who elects the head of state?
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The President of the Republic in a Semi-presidential Executive system is directly elected by the people.
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What is the term duration for the 7 member Federal Council in Switzerland?
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In the European Union, the Cohesion policy aims to promote a better quality and distribution of resources among ______ states.
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Match the following issues with the EU's laws that can withhold funds from member states:
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What is the difference between Civil Law and Common Law?
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Judges in the Common Law system are bound by the decisions of higher courts, following only their official declarations.
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What is the main role of judges in adapting laws to specific cases?
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The law of trusts is an arrangement where a settlor transfers property to one or more trustees who hold it for the benefit of ___________.
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Match the following legal concepts with their descriptions:
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Study Notes
The Roman Res Publica
- Romans created a legal system to administer conquered territories around the Mediterranean Sea
- Goods were considered "things of the people" and needed to be subject to rules for the common good
- Cicero defined the "public thing" as what is common to all, requiring governance and laws
Ancient World, Medieval Era, Modern World, and Today
- Ancient World: public thing was governed by religion, not law; no distinction between private and public law
- Medieval Era: Christianity introduced a parallel universe that competed with the state; Machiavelli laid the foundation for the autonomy of politics
- Modern World: liberalism views public interest as a sum of private interests; republicanism aims to protect common interests, even at the expense of private ones
- Today: the concept of justice is central to every legal system; various theories, including utilitarianism, Rawls' social contract, communitarianism, libertarianism, and equality, aim to promote justice
Law and Society
- Law is a complex set of rules regulating peaceful coexistence in society
- Complexity of law increases with complexity of society
- Justice is at the core of every legal system
- Hobbes argued that law gives order, but requires surrendering natural freedom to legality
- Legal rules are collective, mandatory, and enforced by the state; religious and moral rules are individual and not enforced by the state
Policy and Legal System
- Policy is a tool to modify the legal system
- Legal rules have five key features: effectiveness, force, generality, abstractness, and sanctionability
- Legal rules reflect shared values of society and are influenced by cultural heritage
- Different legal traditions exist worldwide, such as Western, Asian, and religious laws
Public and Private Law
- Public law ensures order within borders and how to be protected outside of borders
- Public law is characterized by the exercise of power
- Branches of public law include constitutional law, financial law, administrative law, criminal law, international law, and rules of procedure
- Private law regulates relationships between individuals in society
- Private law is characterized by the avoidance of conflicts between individuals
- Branches of private law include contract law, tort law, property law, and company law### Sociological Perspective on Interests and Social Formations
- The essence of a social formation is to represent the interests of its members
- There are different types of interests:
- Private interests: based on individual personal views
- Collective interests: shared by members of a social group, resulting from the sum of different private interests
- Public interests: established by law
Private Law and Public Law
- Private law deals with private interests, aiming to equally protect the private interests of individuals
- Public law involves broader interests of society
- Private law is based on the consensual principle, where both parties must agree and express their will for a contract to have legal effect
- Legal effects only occur once parties express their will by signing a contract
Rule of Law
- The concept of the Rule of Law was coined by Dicey and means "hierarchy of norms"
- It aims to protect private interests while public law aims to protect collective interests
- The Rule of Law limits the power of the executive and legislative branches of government
- It ensures that the government uses its power to protect citizens and not arbitrarily
- Constitutions act as a check on government power by establishing fundamental rules that limit the discretion of those in power
Separation of Powers
- The principle of separation of powers aimed to prevent abuse of power
- It involves dividing power between legislative, executive, and judicial branches
- In the US, the concept of separation of powers was influenced by Montesquieu's theory
- The veto power and judicial review of statutes were key institutions that shaped the American concept of separation of powers
The Principle of Legality
- Public authorities should only exercise power according to pre-existing legal rules set by representatives (selected by citizens)
- There are specific legal rules that define the public interest and public authority aims to protect
- Public authorities must follow legal procedures and a decision-making process to exercise their power legally
Courts and the Judicial System
- Courts interpret laws and fill gaps in laws
- Judges weigh reasons from both sides when no applicable rule exists
- The right of appeal to higher courts is a fundamental right
- Common law courts follow the adversarial system, while civil law countries use the inquisitorial system
Lawyers and Alternative Dispute Resolution
- Lawyers are essential for trials and to assist citizens
- Article 6 of the EU constitution provides free lawyers for those who cannot afford one
- Alternative dispute resolution methods include mediation, arbitration, and negotiation
The Legal System
- A legal system is the totality of rules that a society applies
- The existence of a complex and organized society is the basis of a legal system
- Features of a legal system include:
- Shared common goals or values
- Presence of legal rules applied by individuals that govern relationships among those rules
- Authority to enforce the rules and resolve conflicts
- Means of cohesion to ensure the use of public power
Classification of Legal Systems
- Legal systems can be classified according to:
- Degree of community ties
- Territory
- Goals (general or limited)
- Relationship between legal systems (independent, sovereign, or non-sovereign)
State and International Law
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Each legal system is unique, but can share common features
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Public international law regulates relationships among states
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The state is the main legal system, both internally and externally### The Concept of the State
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A state is a legal entity that does not recognize any authority above it.
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Historically, the state arose after the Church lost its governing position in the medieval period.
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A state has three essential elements: sovereign power, specific territory, and subjects or participants.
Sovereignty
- Sovereignty refers to the supreme power of a state over its territory and people.
- Internally, sovereignty means that the state has the final authority within its borders and no other entity is above it.
- Externally, other states must recognize a state as sovereign for it to be considered a state under international law.
Territory and Community
- Territory refers to the land and water over which a sovereign power exercises supreme authority.
- A state's territory is determined by conventions.
- Community refers to the group of individuals who make up the political community of a state and share common values.
Citizenship
- Citizenship is derived from the state, as each state has the sovereign authority to determine its own citizenship requirements.
- Citizenship can be acquired through:
- Jus sanguinis (citizenship by descent)
- Jus soli (citizenship by place of birth)
- Jus connubii (citizenship through marriage)
- Jus domicilii (citizenship through naturalization)
International Law
- International law consists of two main parts: public international law and private international law.
- Public international law governs the relationships between states and is based on state consent and customs.
- Mutual recognition is a key principle of international law, where a state is recognized as such by other states.
Constitutions
- A constitution is a prerequisite for the creation of a new state.
- Constitutions set limits on sovereign power and establish the structure and functions of government organs.
- Constitutions can be classified based on:
- Flexibility (rigid or flexible)
- Origin (granted or voted)
- Form (written or unwritten)
- Length (short or long)
- Structure (single act or multiple acts)
Civil Rights and Freedoms
- Civil rights and freedoms are fundamental rights granted to citizens in constitutions.
- Examples of civil rights include:
- Personal freedom
- Freedom of assembly
- Freedom of press
- Right to private property
- Economic rights, social rights, and new rights have been added to constitutions over time.
The Constituent Power
- The constituent power refers to the power of a society to build a new legal system and enact a constitution.
- The constituent power can be exercised in various situations and by different groups historically.
Political Forms and Regimes
- Di erent political forms and regimes have arisen based on the social and moral values prevalent at the time.
- Examples of political forms and regimes include:
- Aristocracy
- Timocracy
- Oligarchy
- Democracy
- Tyranny
- The Patrimonial State (Middle Ages)
- Absolute Monarchy (Ancien Regime)
- Liberal State (modern)
- Democratic Pluralistic State (modern)
Democratic Pluralistic State
- A democratic pluralistic state is characterized by the rule of law, separation between the state and civil society, and protection of minorities and different opinions.
- Features of a democratic pluralistic state include:
- Universal su rage
- Protection of pluralism (minorities and different opinions)
- Representation and accountability
- Separation of powers
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Description
Learn about the Roman Res Publica, its legal system, and Cicero's concept of 'public thing' and its relation to common utility and society.
