Intro to law-Workshop 1,2,3,4,5,6.7,9 2.docx

Workshop 1: Introduction to law The Historical Development of Law   The purpose of Fundamental concepts of law: Describe the unique characteristics of law 1: Summarize fundamental aspects pertaining to historical development of law 2: Explain what is law 3: Explain the interconnection between law a...

Workshop 1: Introduction to law The Historical Development of Law   The purpose of Fundamental concepts of law: Describe the unique characteristics of law 1: Summarize fundamental aspects pertaining to historical development of law 2: Explain what is law 3: Explain the interconnection between law and morality 4: List fundamental categories of legal subjects 5: Provide examples of the various aspects that the law may seek to establish Where there is society there is law Highlights: Code of Hammurabi - 1760 BC Divine power handed to King Hammurabi  Around 282 rules: family law, professional contracts and administrative law. Babylonian king is one of the first great written codes we know consisting of: The first code to come up with : innocent until proven guilty  Even providing the death penalty  Solon's Laws - 500 BC Extensive legal reforms Covered: private and public life  Goal: help repair the “morality” of Athens The Twelve Tables - c 449 BC - 529-534 AC The Romans also established laws that solve the dispute between the high ranks and the low ranks.  Justinians Corpus Juris Civilis (Codex,Digesta,Institutiones) Napoleonic Civil Code - 1804 & BGB (Germany - 1900) known today as the French civil code. More concise, accessible and comprehensive  Model for civil codes in other parts of Europe and the world Model for legal systems in China, Japan and Taiwan   The Nuremberg Trials 1945-1946 Prosecution of prominent Nazi leaders for their roles in the Holocaust Key point for the development of cases on war crimes, crimes against humanity, agression Brown v. Board of education - 1954 Segregation under schools was unconstitutional Helped establish separate school systems were not equal  Truth and Reconciliation Commission (South Africa) - 1996 Amnesty in return for a full disclosure of Apartheid crimes committed  Documentation of crimes, perpetrators held to account, empowering victims Restorative justice(rather than just punishment) Characteristics of law: Typically enforced by collective means (in particular, state organs) Accompanied by specific sanctions Punitive but also preventative and even restorative Stable and uniform but open to evolution Law has indeed been in at the center of many crucial events throughout history  Defining law: Definition 1: a set of universal moral principles in accordance with nature Definition 2: a collection of valid rules, commands, norms that may lack any moral content  Purpose of law: Creating a system to regulate human conduct by establishing standards, maintaining order, resolving disputes and protecting liberties and rights. Rule of law  Encapsulates the idea of a supremacy of law over arbitrary power Believed to represent a key characteristic of modern democratic society A proposed definition Principle of governance in which all persons, institution and entities, public and private, including the state itself are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights and norms standards  Kant: ‘law and right are the sum total of those conditions by which the free moral will of one person can be reconciled with the free moral will of another person according to a universal law of moral freedom.’ Hegel: law as a realization of the idea of freedom within society Arendts: 'an aggregate of rules which determine the essential relations of man living in a community’ Jhering: 'law is the total sum of constraining rules which obtain in a politically organized society / the system of purposes and interests secured by coercive means' Law and morality  Differences  Law: System of rules Deliberately changed by intities vested with the authority to do so Change entails respect for certain formalities Can develop quickly  Official sanctions are imposed for violation/ breach of Morality: System of values and principles  Cannot be changed intentionally Does not require formalities  Develops slowly No official sanction, but may be subject to censorship  The hart- fuller debate Refers to: natural law v. Legal positivism approaches to law Natural law  Specific rights/ values are inherent by virtue of human nature  Law has inherent morality  Can be universally understood through human reason  Legal positivism  Law = a collection of valid rules; may lack any moral content  Legal rules often coincide with moral principles, but a connection with morality is not necessary for ‘law.’ Starting point - case of the grudge informer in the Federal Republic of Germany  A woman in Nazi Germany turned her husband in for making a defamatory statement about hitler  Husband was sentenced to death After the fall of Nazi Germany, the woman was brought before a Court  The decision of the Court: The Nazi law in question ’’ offended the sound of conscience and sense of justice of all decent human being.’’ The woman was guilty of unlawful deprivation of her husbands freedom The hart-fuller debate  The grudge informer case triggered a debate: Professor Hart (positivist): The Nazi law = formally valid at the time Whether the law was moral or not was irrelevant The court erred in convicting the woman for denouncing her husband Professor Fuller (naturalist): The Nazi law = so morally wrong that it could not be considered valid law Eight principles identifying law ’internal morality’: Generality, promulgation(i.e published, non-retroactivity, clarity ,non-contradiction, possibility of compliance, constancy, congruence between rule and action  The court was correct in convicting the woman for denouncing her husband. Legal subjects. Content of legal rules Natural person= human beings E.g., yourself, members of your family, friends, etc. Legal person= entities (I.e., organizations) that have received the status of legal subjects, e.g., corporations, universities, municipalities, receive specific permissions, etc. Consequence: It can vary from one field to another. Essentially, it entails that the legal subject is/an be an addressee of the law CS: may hold certain rights, become duty bearers, receive specific permissions etc. obligation to perform a particular type of action sanctions may arise from failure to comply can apply generally, but sometimes, the entity/agent must have a specific status e.g., car drivers must turn their car lights on when it gets dark i.e., a prohibition entails an interdiction of doing something or an obligation to refrain sanctions may arise from failure to comply  e.g., anti-doping rules in sports law usually, the absence of a prohibition in law, what is not prohibited is usually permitted (e.g. stepping on the grass is OK if no rule states otherwise) sometimes, permissions are explicit (e.g., police officers performing body searches) interest protected by law (to do something/be protected from something), e.g., the right to be free from torture, inhumane and degrading treatment DEFINITIONS a statement of what a legal term entails (i.e., the conditions required for a factual situation to acquire a legal meaning) e.g., murder is 'the unlawful killing of a human being with malice afterthought'; 'every murder perpetrated by poison, lying in wait [...] is murder in the first degree.' inevitable further legal consequences may flow from them (i.e., whoever is found guilty of first-degree murder is to be punished by death or by life imprisonment) Workshop 2:  Branches of Law Do the mandatory reading laid out in the Course Description, i.e. Wacks, Law: A Very Short Introduction, 34-64 (3rd edition 35-65)   •What different types of law exist? •What are public law and private law? •What is European Law and what is International Law?    Public and private law •Law is about relationships : governs the relationship between one thing and another to regulate different types of relationships, different branches of laws exist  •The regulation provided by a law can bring benefits to a relationship •Different types of law regulate different relationships What is the main difference between private law and public law? Private law Private law covers the Relationship between individuals and groups in society Your relationship with another individual A company’s relationship with another company  When you buy and sell something  Main types of private law in society: •Contract Law •Tort Law •Property Law Contract law: •Agreements are important •Benefits to commercial agreements being legally enforceable •Basis of whole economic system  Tort law: Emerged from a gap in the contract law  •Donoghue v Stevenson – gaps in contract law •Not just about keeping promises, wide range of interests •Some sense that a wrong has been done to you that needs to be redressed •Negligence  •Libel Property law: •What is ‘property’? •Who owns what? •How do we decide ownership? •What rights do they have over something? Property law is the series of relationships of what you can and cannot do with something and the obligations are and it determines who owns what and what they can do with it. Public law: Public law covers the relationship between individuals and the state/ government  •Constitutional law : lays out the basics of how the government functions  •Administrative law •Criminal Law Constitutional law: •How do we decide who is in charge? •What powers should they have? •What should the state look like? •What basic rights should we possess? The relationships between the court and the parliament  Administrative law: •What powers do officials have? •How should they be exercised? •When can courts intervene in political decisions? Limits between law and politics when it comes to the basic administration of the state  Criminal law: •What acts does society deem so wrong, it demands significant punishment? •What sort of punishment? •How do we protect people? Determines a wide range of conduct that deem punishable by criminal law International and European law: transnational laws  •Globalized international world •Many relationships that exist function across borders •If those relationships need managing, then transnational laws are needed  Law for relationships across borders.  States are the primary actor Public international law: relationships between states  How does France interact with Germany? How does China interact with Australia  Private international law: private law relationships across countries How does a company in Spain interact with a company in France?   European law/ EU law •European Union – organization of states, new layer of governance •Other European laws like the ECHR – regional international law Summary: •Public law – relationship between individuals and the state •Private law – relationship between individuals and other individuals •Different types of law have different purposes •International and European Law In summary, private law deals with disputes and relationships among private individuals or entities, while public law focuses on regulating government actions and interactions between the government and individuals or entities. Understanding the distinction between these two branches of law is essential for navigating the legal system effectively. Workshop #3-Legal analysis: Questions for class discussion: What is the purpose of law? What makes a problem a legal problem? When you need the law to answer or solve the problem Did you ever encounter a legal problem?  Is speeding a crime? How do you know? Crime=a serious action that exists in the Penal Code, usually used in the context of Criminal Law Speeding=offense, misdemeanor Check the provisions, after we find the information there, we can decide whether it is a crime or not. How do we know which facts in a case are important? How do you convince the court that the alleged facts have in fact occurred? Provide evidence Provide legal analysis Analyze the facts linked to the case How do we know what law applies? How do you convince the court that a certain law applies to the case at hand? Case-solving exercise I In class, read the following fictitious case: On a rainy Sunday afternoon Alfred and Baker were in a room studying. While they were studying, Charlie quietly closed and locked the only door to the room so that Alfred could not get out and see preparations for a surprise birthday party. Charlie did not realize that Baker was also in the room, nor did he know that Baker sometimes suffered from anxiety attacks when being confined to small, enclosed spaces. Alfred soon fell into a deep sleep, which he often did while studying. When Baker tried to leave, he found the door was locked. He got upset and immediately called a friend, Denise. Denise managed to come over within half an hour and unlocked the door. Alfred slept the entire time and never knew the door had been locked. However, when he learned of the confinement he got angry with Charlie, being aware of Baker’s condition. Parties: Alfred and Baker Charlie Denise Events/facts: Alfred and Baker- study in Alfred’s room Charlie-locked Alfred’s room Charlie- organizes a surprise party for Alfred Baker- suffers from panic attacks (and Alfred was aware of his condition) Charlie- was not aware that Baker was in the room Alfred-fell asleep Baker-wanted to leave but could not Baker-called Denise Denise-came and unlocked the door in 30 minutes Alfred- slept the whole time, did not know about the door Alfred-got angry with Charlie Baker-did not suffer from a panic attack Read the following fictitious law (rule): Codes have definitions, when the words are vague they can be searched there. Book of procedure, the explanatory notes and other publishers commenting the Code. False imprisonment is established if someone intentionally or recklessly confines another person without that person’s consent within boundaries from which that person has no reasonable way of escaping, and that person is either aware of the confinement at the time of confinement or else is harmed by the confinement. Universal Criminal Code (UCC) 1900, Section 26 (1) Conditions : If someone(…) confines another person (Fulfilled) C1 :[either] intentionally Not fulfilled C2 :or recklessly Fulfilled C3 :without that person’s consent Fulfilled C4 :[and] within boundaries from which Fulfilled C5 :that person has no reasonable way of escaping Fulfilled And that person is C6 :either aware of the confinement at the time of confinement Fulfilled C7 :or else is harmed by the confinement Not fulfilled Questions for class discussion What questions does this rule trigger? If a statute is silent on the meaning of a term, where would you look for the authoritative definition? What would the legal problem(s) be in this case? Does the rule influence your reading of the case, and your selection of the key facts? Remedy=compensation Case-solving exercise II In class, read the following fictitious case and rule: Biff’s Bus  FACTS:  Biff was one meter eighty and weighed 130kg. After finishing his powerlifting practice one afternoon, Biff wandered aimlessly until he became lost in an unfamiliar part of the city. He reached into his pocket and discovered he only had 50 cents. He wanted to take a bus back to the city center, but the bus fare was €1.50. Biff was scruffily dressed and had not had a haircut in several months. He approached Mark, a slightly built man who was standing alone at the bus stop. In a gruff voice, Biff asked Mark: “Do you have any money?” When Mark replied, “Yes,” Biff said “Give me 5 euros!” Mark reached into his pocket and handed Biff a 5 euro note. Mark walked away from the bus stop and flagged down a police car. Mark told the police, “I’ve been robbed,” and pointed out Biff, who was still standing at the bus stop, eating his fourth protein bar of the day. Biff was arrested and charged with robbery. Biff says “I wasn’t trying to rob anybody. I was just trying to get money to get myself home.”  RULE:  The Universal Criminal Code, Section 4(1) reads: A robbery consists of a taking of personal property of another with force or intimidation, with intent to permanently deprive the person of it.     Instructions: Quote the relevant rule Apply the relevant rule to the facts  Conclude Workshop 4: Civil law v Common law Do the mandatory reading laid out in the Course Description, i.e. Wacks, Law: A Very Short Introduction, 8-18 (3rd edition 8-19)   What are the features of the civil law tradition? What are the features of the common law tradition? Main differences: Civil law is codified, common law is uncodified. Common law is cases, not texts. In the Common law, precedent is supreme. ‘Where there is a remedy, there is a right’ v where there is a right there is a remedy’ Role of judges and juries History of civil law: Roman Law Resurgence of interest in the 11th century French revolution in 1789 – rationalism, reason, separation of powers Importantly, limit of judicial powers Judges were seen as a symbol of the old regime, with judicial offices being bought, inherited, and sold. Napoleonic code 1804 – deeply influential throughout the world Civil law: Not so much a fact as an expression of ideology That laws are better organized in broad codes that establish clear and certain rules – different intent from a mere statute. Frederick II of Prussia took this to the extreme, and tried to make one single code covering all circumstances - that reached 17,000 articles. Texts, not cases The main source of laws is therefore large, broad legal codes. Germany: Basic Law; Civil Law Code; Criminal Code; Commercial Law Code; Social Law Code; Administrative Law code Also, statutes on specific things, where they want more specific coverage than the general code What do judges do? Apply the law (codes) to given circumstances, and do not legislate. Limitations of judicial power What does that look like? In civil law, the process is inquisitorial: the court (or part of the court) is actively involved in establishing the facts of the case. Rights and remedies: Where there is a right, there is a remedy Codes were created to lay out the legal rights possessed by individuals. Response to overreaching judicial power. Common law is essentially uncodified: A classic example is the UK – even the constitution isn’t codified. Most places have a more apparent constitution, but whole areas of law are still not codified. Tort law, for example: trespass, negligence, slander, and libel. Primarily determined by cases. History of common law: Gradual historical development Stems from royal justice, arguing traditions before the king. The feudal system of determining land rights became standardized. Gradual evolutionary development, no revolutionary moment Built up over time. Common law is cases, not texts. Donoghue v Stevenson Carlill v Carbolic Smoke Ball Company Roe v Wade Brown v Board of Education Precedent is supreme. In common law, there is an obligation to abide by the court’s previous decisions if the courts are on the same or higher level. Authoritative precedent – the most essential binding section of a case Persuasive precedent – essential relevant elements of legal reasoning that can be relied upon but are not necessarily critical. Much arguing in common law legal cases often concerns the extent to which past precedent applies. Are the facts similar enough? Are the legal points similar enough? If so, the Court will be bound to follow the higher court’s decision. Rights and remedies Historically, specific writs were required for particular actions. - each claim had its type of writ - habeas corpus - writ of debt - writ of right Different actions are available to individuals for other areas of the law. Role of judges and juries In common law, the process is adversarial – the court acts as a neutral referee between the lawyers working on behalf of the parties. Juries are also common in criminal trials – the jury decides whether the accused factually committed the crime, as explained to them by lawyers. What is an adversarial system? What is an inquisitorial system? What are the advantages and disadvantages of these systems? An adversarial system and an inquisitorial system are two different approaches to conducting legal proceedings, especially in courtrooms, to determine facts and render judgments. These systems have distinct characteristics, advantages, and disadvantages: Adversarial System: Characteristics: In an adversarial system, legal proceedings are structured as contests between opposing parties (plaintiff and defendant) who present their evidence, arguments, and legal positions to a neutral and impartial judge or jury. The judge's role is primarily that of an impartial referee, ensuring that the rules of the legal process are followed and making decisions based on the arguments and evidence presented by the parties. Advantages: Protection of Rights: The adversarial system emphasizes due process and the protection of individual rights. Parties have the opportunity to present their cases and defend themselves effectively. Legal Representation: It encourages the use of legal counsel, ensuring that parties have the opportunity to be represented by skilled advocates. Checks and Balances: The system relies on the parties themselves to uncover evidence and challenge each other's positions, promoting transparency and checks on potential abuses of power. Disadvantages: Resource-Intensive: The adversarial process can be time-consuming and expensive, particularly in complex cases. Focus on Winning: It can incentivize winning at all costs, sometimes leading to adversarial behavior rather than cooperation or truth-seeking. Inequality: Resource disparities and legal representation may influence each party's presentation's effectiveness. Inquisitorial System: Characteristics: In an inquisitorial system, the judge takes on a more active role in investigating and establishing the facts of a case. The judge presides over the proceedings and initiates inquiries, questions witnesses, and gathers evidence. The focus is on uncovering the truth rather than having parties compete against each other. Advantages: Efficiency: Inquisitorial systems can be more efficient and less time-consuming than adversarial systems because the judge proactively manages the case. Fact-Focused: The system prioritizes fact-finding and truth-seeking over strategic legal maneuvers. Equal Access: Parties may have more equal access to evidence and the court's attention, reducing the influence of resource disparities. Disadvantages: Risk of Bias: The judge's active involvement in the investigation may raise concerns about potential bias or a lack of impartiality. Limited Adversarial Input: The parties may have less control over the proceedings and feel marginalized if the judge dominates the process. Potential for Inefficiency: Inquisitorial systems might need to be more effective in handling complex legal disputes that require specialized legal expertise. It's important to note that no system is entirely adversarial or entirely inquisitorial, and there can be variations within each system. Many legal systems worldwide incorporate elements of both approaches to varying degrees. The choice between an adversarial or inquisitorial system often reflects a jurisdiction's legal and cultural traditions; each system has strengths and weaknesses. Ultimately, the effectiveness of a legal system depends on how well it balances the pursuit of justice, protection of rights, and efficient resolution of disputes. Workshop 5: Primer on legal sources, Hierarchy, and Norm Conflicts Read the mandatory literature mentioned in the Course Description (Wacksdoesn't cover hierarchy expressly, but you can find his comments on customary law on page 17 (p. 16 for ed. 2); the issue of the precedential value of court decisions appears on pages 30 and onward (p. 32 for ed. 2)). How do we know what we can, cannot, and must do? Where and how can a person find the rules that govern their behavior? What happens if some of the rules seem to contradict each other? A note on the term ‘law.’ The English language uses ’law’ to refer to both a legally binding rule (i.e., legislation) as it is used for the field of knowledge that deals with those rules. The Separation of Powers Power tends to corrupt; absolute power corrupts absolutely. Checks and balances are necessary for a democratic society to exist. Through these checks and balances, no single organ of the state wields complete power. Sources of law Refers to the origin of the rules that govern a specific legal community. Clarity about the sources of law is necessary to ensure legal certainty and the rule of law. What is or isn’t a source of law will depend on the specific jurisdiction or community (although there are significant similarities) Types of legal sources: Primary source: The rules themselves (legislation, regulations, etc.) They emanate from official bodies and are, therefore, binding. Secondary source: Background resources that analyze and interpret the rules. Although not binding, they can directly influence the creation of primary sources. Primary Sources of Law: Constitution: Establish the basic building blocks of the State. Legislation/ statutes: Rules that emanate from the respective legislative bodies (e.g., the US Congress in the US; the Parliament in NL) Treaties: International agreements in which two or more nation-states agree to be bound by specific rules. Regulations: Norms created by the administrative state as part of its functions (e.g., the US FDA issues rules about specific medications) Case law: Court decisions in which a legally established court applies the law to a specific case. Customary law: Binding uses, traditions, and customs within a specific legal community Constitution The Supreme Law of the Land In a nutshell, it lays out the rules according to which a nation is organized. All laws and regulations must comply with the Constitution. Legislation / Statues Acts of the respective legislative body. Their scope of application will depend on the respective body (e.g., whether it is a federal nation or not, etc.) They must comply with the Constitution and other higher laws (e.g., in a federal nation, state laws must comply with the Constitution and the federal laws) International Treaties Nations will routinely make agreements with other countries to produce legal harmony (e.g., Berne Convention) or to regulate their trade relations (e.g., NAFTA/USMCA) They are signed by the representatives of the national government and then ratified by the—respective legislative body. Where international agreements will be located in the legal system will depend on the specific country. Some nations consider them as equal to or above their constitutions, while others will only treat them as laws. Administrative regulations Rules issued by the administrative regulations (e.g., Ministry of Health in NL, FDA in the US) They are issued within the legal constraints established in the constitution and the respective laws. Case law: Court decisions issued by a legally established court apply the rules and regulations of a nation-state. Depending on the type of jurisdiction (whether it is a common law or civil law/constitutional system), the decisions have a precedential value. Customary Law in National legal systems: While most countries have moved away from customary law, several nations retain them as a source of law. A’ ’custom’’ is a use or practice generally accepted by the community, has been accepted for a significant amount of time, and is considered mandatory. Nations that accept customary law tend to restrict its application only to cases that do not conflict with existing regulations, laws, and their respective constitution. For example, under the Namibian Traditional Authorities Act of 2000: ‘Customary law’ means the customary law, norms, rules of procedure, traditions, and usages of a traditional community as they do not conflict with the Namibian Constitution or any other written law applicable in Namibia. Rules/ Norms conflicts With so many types of law, it can be challenging to determine which one applies to a specific case. This is especially true if there are apparent conflicts or contradictions. Though there are several ways in which apparent conflicts can be solved, the three principles to solve this problem are: Lex superior: Rules of a higher hierarchy (e.g., the Constitution takes precedence over statues and regulations). Lex specialist: More specific Rules take precedence over general rules (e.g., special rules on the transport of passengers by road take priority over rules about driving) Lex posterior: new rules replacing older ones will often expressly repeal the previously existing ones. However, if it still needs to be explicitly done, this principle dictates that new rules take priority over old ones. Workshop 6: Legal Authority, Legal Sources, and Legal Analysis • At the heart of a legal professional’s work is conducting legal analysis and developing an argument • The argument builds on authority • Question 1: How do you locate legal authority? Question 2: How do you establish that a source is good, reliable and authoritative? • Look for more than 1 source on the issue you’re researching • Your research should ultimately lead you to primary sources Quoting & Paraphrasing • When literally quoting from a source, indicate it in your text by ‘quotation marks’ • Then insert a footnote1 with the citation to the source When literally quoting from a source, indicate it in your text by ‘quotation marks’ Then insert a footnote1 with the citation to the source Limit quotations. Your deliverable should reflect your thinking, using your own words Exercise 1: paraphrase the following into your own words: In his famous treatise on the Wealth of Nations, the classical economist Adam Smith noted ‘It is the maxim of every prudent master of a family, never to attempt to make at home what it will cost him more to make than to buy.’ (Smith, 1776) Famous treatise = acclaimed/distinguished/notorious monograph/thesis/book Maxim = proverb, dictum, principle Prudent master of a family = careful/cautious/reasonable head/matriarch or patriarch of a family Make = produce, manufacture, generate Cost more = is more expensive, costly, or is cheaper, less costly Buy = purchase, acquire The Importance of Referencing • Question 3: what do you think ‘good academic practice’ entails? • Question 4: why would you need to cite your sources? −  Citationsservetransparencyandaccountabilitytowardsthereader. They fit with the general importance of being careful and specific −  Namethesourceinsuchawayitcanbetracedback −  Citationsprovidegroundsforyourreasoning −  Citations to authoritative sources support your writing’s persuasiveness. Your work can gain ‘authority’ itself −  To avoid plagiarism The Importance of Referencing • Question 5: so, when do you need to cite your sources? Choose from the following options: Only when literally quoting from a source, but not when paraphrasing text from a source or adopting an idea from a source When literally quoting from a source and when paraphrasing text from a source, but not when adopting an idea from a source When literally quoting from a source, when paraphrasing text from a source, and when adopting an idea from a source The Importance of Referencing • Question 5: so, when do you need to cite your sources? Choose from the following options: Only when literally quoting from a source, but not when paraphrasing text from a source or adopting an idea from a source When literally quoting from a source and when paraphrasing text from a source, but not when adopting an idea from a source When literally quoting from a source, when paraphrasing text from a source, and when adopting an idea from a source Exercises with OSCOLA Citations LAW uses the Oxford University Standard for the Citation of Legal Authorities (OSCOLA) − 4th edition (2012) for all citations, except international law sources • oscola_4th_edn_hart_2012.pdf (ox.ac.uk) − 3rd edition (2006): citations to international law only • OSCOLA 2006 (ox.ac.uk) − For all countries other than UK: use the citation system from that country, with minimal punctuation • However, see the examples in OSCOLA 2012, Rule 2.8 on p. 32 Exercises with OSCOLA Citations INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS QUESTIONS RELATING TO THE OBLIGATION TO PROSECUTE OR EXTRADITE (BELGIUM v. SENEGAL) JUDGMENT OF 20 JULY 2012 Exercises with OSCOLA Citations OSCOLA citation: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Merits) [2012] ICJ Rep 422 Workshop 7: Developing a legal argument TERMS & DEFINITIONS FOR PURPOSES OF THIS KNOWLEDGE CLIP "Legal argument" a rational construction tests legal rules against the operative facts in a case or situation aim = convincing a reasonable critic that a specific legal conclusion or standpoint is acceptable mainly based on 'reason' not emotions/suffering/unfairness "Signposting" (SPs) process of informing your reader (or listener) of what you are about to do, how you will go about it, the interconnection between various ideas, as appropriate helps articulate the structure of your legal argument achieved through specific key words/phrases WHAT MOST OF US ARE USED TO Introduction Body Conclusion Questions: but what does it mean? do things change for purposes of a legal argument? PURPOSE i.e. the aim that you are trying to achieve through this specific legal argument SPs: "the purpose is...", "the aim is ..." etc. e.g. "The purpose of the present memo is to assist the presiding judge in reaching a decision in the Prosecutor v. Biff" Legal question that you will answer i.e. the main legal issue that is being asked and that you will analyze SPs: "the main question addressed is whether...", "the main legal issue is:...", "the focus point is:..." e.g. "the main legal question is whether the accused has committed robbery by taking Mark's money" The structure you intend to follow i.e. the main legal issue that is being asked and that you will analyze SPs: "the main question addressed is whether...", "the main legal issue is:...", "the focus point is:..." e.g. "the main legal question is whether the accused has committed robbery by taking Mark's money" Purpose: e.g. oral argument, letter of advice/demand: introduce yourself & who you represent e.g. "your honor my name is X and I am representing the accused, Mr. Biff" Legal question that you will answer: oral argument/advocacy: may want to open with a relevant "hook" e.g. "your honor, it is often said that you cannot rob a robber!" The structure you intend to follow: various settings: conclusion that has been reached e.g. "the answer to this question is that, in the present case, Biff has not committed a robbery" various settings: statement of facts (i.e the main operative facts) The body of your legal argument: The rule: i.e. the rule/test/standard (e.g. a legal provision, a case, theory, approach) that you are applying identify it (i.e. cite or paraphrase it) but also... explain it where necessary SPs: "according to Art. ... of X", "Art. X of Y sets out that...", "the legal theory X establishes the following...: "the applicable standard is that ...." e.g: "According to Section 4(1) of the Universal Criminal Code a robbery consists of (i) a taking (ii) of personal property of another (iii) with force or intimidation, (iv) with intent to permanently deprive the person of it" The application: i.e. where you check operative facts against the legal rule, element by element SPs that emphasize sequence/new main ideas: "firstly", "secondly", "thirdly", "in addition", "furthermore", etc. e.g. "Firstly, there has been a taking because the facts show that Biff physically took the money from the victim. Secondly the taking concerned the property of another because Biff, the accussed took the money from Marc - another person..." other useful SPs: similarity: "identically", "likewise", "similarly", etc. contrast: "however", "by contrast", "conversely", "on the other hand" etc. Wrapping up: Conclusion: i.e. the answer to the legal question where the argument is lenghtier, this should be preceeded by the main take-aways never new information SPs: "accordingly", "in summary", "overall", "therefore", "to conclude", "as a consequence" etc. e.g. " In summary, while the accused may have taken the property of another, and has done so with the intention of not returning it, they did not use force or intimidation to do so. Accordingly, the accused's conduct does not meet all the required conditions set out in Section 4(1) of the Universal Criminal Code have been met. Therefore, the judges cannot find that the accused has committed robbery" Final tips: the above is the generally practice-based accepted set-up of a legal argument (but NOT necessarily universal!) master it and apply it, but be sensible to the context and target audience always stay flexible and logical and remember that, once you have mastered this: ... you can always experiment! , and has done so with the intention of not returning it, they did not use force or intimidation Workshop 9: How do you prepare for class? • Is your study style successful? Why? • If not, what would you need to reconsider, or do differently? 1. Study Strategies Some tips for successful studying: • Create a study plan–and use it • Complete the assigned readings before class • Briefeachcase • Aim for comprehension, not memorization • Engage during class • Take notes in class • Use keywords • Add mind maps • Review • Form a study group 2. Revision Techniques What revision techniques have you found helpful? Some tips for successful revision: • Plan your time − Make - and use – a timetable • Take breaks • Don’t work when tired • Work in good conditions • Don’t just re-read the book 2. Revision Techniques Don’t leave revision until the last minute Don’t just read and write notes over and over Don’t ‘force’ yourself to revise; stay motivated Don’tpanic.Worksteadilytosmallgoals; set achievable targets − Manage your time well (plan backward) Don’t overwork, take regular breaks Don’t over-learn; accept that at a certain point, you are prepared! 3. How to Sit an Exam Dos Know where your exam takes place, and arrive early Read the exam instructions carefully Read the entire question carefully before answering Be aware that each word carries a meaning Rely on your knowledge; no need to doubt yourself! Go with the answer you are convinced is correct, and avoid changing the answer later Remember that if you have participated in the module and studied, you will be able to pass the exam 3. How to Sit an Exam • LAW uses cumulative and aggregate MCQ exams in Years 1 and 2 −  The body-of-knowledgepartofeachmodulehas1 exam −  It consists of several exam moments, taking place at regular intervals during the module −  Each exam moment builds on the previous exam moment −  After each exam moment of the module, an exam review is held 3. How to Sit an Exam • If your exam result is not satisfactory, reflect on the cause(s), and how to improve −  Participate in exam review to consult the correct answers and their explanation −  Identify what caused your performance to be unsatisfactory −  Make(and use!)a plan to address the cause(s) of your performance.