Intro to Law Systems Questions & Answers PDF

Summary

This document contains questions and answers about legal systems, including concepts such as positive law, natural law, and the goals of law. It also discusses the difference between legal rules and moral, religious, or social rules.

Full Transcript

1. What is the law? The law is the idea of norms and the system of rules which specify how a person should behave and can have definitions of terms and competencies It is important to comprehend a text based on what its author intended it to mean. It outlin...

1. What is the law? The law is the idea of norms and the system of rules which specify how a person should behave and can have definitions of terms and competencies It is important to comprehend a text based on what its author intended it to mean. It outlines rights, duties, and competencies and serves as a framework for resolving disputes, maintaining order, and protecting liberties. One prominent approach is Legal Positivism, which holds that the law is a set of rules created by human authorities, distinct from morality. Legal positivists, argue that laws are valid not because they are morally just but because they have been enacted according to specific processes or rules. Legal positivism is more concerned with what the law is rather than what it ought to be, separating legal validity from moral considerations. 2. What makes a rule part of the legal system? How can we distinguish between legal rules and moral, religious, or social rules? Legal rules greatly differ from moral, religious, and social rules and can be enforced through coercion. For a rule to be part of the legal system, it must be formally recognised by the legal authority and must be backed by and applied by state coercion. Very importantly, it also must be publicised as it must be made known to those subjected to it. Legal rules differ from moral, religious, and social rules as they are enforceable by the state through coercion or sanctions whereas moral rules are typically based on ethical beliefs but are not legally enforceable. Religious rules are based on religious teachings and social rules revolve around how one must behave within society, all of which are not legally binding. Can use different perspectives from the theorists to answer this 3. Explain the difference between positive law and natural law. Positive law is the law written and made by individuals or human authorities, such as governments or legislative bodies. Natural law, on the other hand, is the idea that there are some rules that are universal and that legislators are not creating laws, but discovering them. Positive law views the law as a system of rules created by human authorities, such as governments or parliaments, and its legitimacy stems from following prescribed procedures for enacting laws. According to Kelsen, the validity of positive law is determined by how it complies with higher rules, like those found in a constitution. Hart adds that legal validity also depends on the interpretation of laws by institutional elites or judges, making the law a form of social norm that reflects society’s structure. In contrast, natural law goes beyond written laws, seeking a higher authority or universal principles that are believed to govern human behavior. Proponents of natural law, such as Dworkin, argue that lawmakers do not create the law but rather discover these inherent rules, which are often tied to moral or ethical principles. Dworkin also believed that law and morality are intertwined, and the goal of the law is to find the best possible answer to moral questions, thus rejecting a strict separation between law and morals. 4. Explain the goals of the law. Order and Legal Certainty: One of the primary goals of the law is to create a stable and predictable framework within which individuals and institutions can function. Legal certainty ensures that people know the rules that govern their behavior, and can rely on the law to protect their rights and resolve disputes in a consistent manner. Predictable outcomes foster trust in the legal system, allowing society to function smoothly with minimal chaos or conflict. Monopoly of the Use of Force: The law centralizes the use of legitimate force within the hands of the state. This is crucial for preventing violence and anarchy, as it ensures that only the state can enforce laws, maintain public order, and address violations through institutions like the police and judiciary. This goal supports societal peace and reduces vigilante justice or the arbitrary use of force by individuals. Justice: The law seeks to achieve justice, which is often defined as ensuring that people receive what they are due. This includes protecting rights, distributing benefits and burdens fairly, and ensuring that laws are applied equally to everyone, regardless of status. Different theories of justice—whether distributive, retributive, or corrective—underpin the law’s goal of balancing individual and societal interests in a fair manner. 5. Can the law be unjust? What to do about it? Depends on the approach used Natural Law: there is no such thing as unjust laws because there are universal values part of the law, or must provide another interpretation of the law to make it just Positive Law: Can be unjust but is still the law and thus must be obeyed Natural Law Perspective: From the natural law standpoint, laws are inherently tied to universal moral principles and values. Proponents of this view argue that a law cannot be unjust if it aligns with these universal standards. In cases where a law appears unjust, natural law theorists would advocate for an interpretation that reconciles the law with justice. Essentially, they argue that laws must reflect moral truths, and if a law is found lacking, it should be interpreted or amended to align with these higher moral standards. Positive Law Perspective: Conversely, adherents of positive law recognize that laws can indeed be unjust yet still hold the force of law. According to this viewpoint, the validity of a law stems from its enactment by the appropriate authorities, regardless of its moral implications. As such, even unjust laws must be obeyed, as disobedience could lead to disorder and undermine the rule of law. However, this acknowledgment of unjust laws does not negate the need for reform. Positive law proponents may argue for advocacy and legal challenges to change such laws through established legal processes, emphasizing the importance of democratic mechanisms and civil engagement to rectify injustices within the legal framework. 6. Explain how the Pandora case (on Marihuana) brings answers to the question of legal certainty and justice? Legal Certainty: - Initially, the 2024 law legalised cannabis, giving businesses like the elves clear rules to operate within. However, the abrupt reversal in 2030, without a clear transition, created confusion. Judges interpreted this reversal as a return to pre-2024 laws, leading to prosecutions for actions that were legal at the time, undermining the predictability and stability of the law. Justice: - The elves, who operated legally under the 2024 law, faced retroactive punishment due to the unclear legal reversal. This outcome raised questions of fairness, as they were punished for actions that were lawful when committed. Thus, the case reveals how sudden legal changes can compromise both justice and certainty in the legal system. 7. Use King Rex’s story to identify the requirements for the rule of law. Generality - Laws must apply to general categories of behaviour or persons rather than targeting specific individuals or cases. Generality ensures that laws are impartial and not crafted to single out or discriminate against particular individuals or groups. - Rex's first attempt involved making laws that applied to individual cases rather than laying down general rules. By failing to generalise, Rex undermined fairness, as laws seemed arbitrary and discriminatory. Generality ensures that the law applies uniformly and predictably, supporting equality under the law. - Generality is crucial to prevent arbitrary power and favoritism, which would otherwise erode public trust in the legal system. Promulgation - Laws must be publicized and made known to the people who are expected to follow them. A law that is secret is impossible for people to obey, which defeats the purpose of having laws in the first place. - In another attempt, Rex enacted secret laws, making it impossible for his subjects to follow them. Without proper promulgation, the rule of law is meaningless, as citizens cannot comply with laws they are unaware of. - This principle reinforces the idea of legal transparency. For laws to be effective and legitimate, they must be known to the public. Promulgation ensures that people are informed and able to regulate their conduct accordingly. Non-retroactivity - Laws should not be applied to actions that occurred before the law was enacted. The principle of non-retroactivity protects individuals from being punished for behavior that was not illegal at the time it was committed. - Rex made laws that were applied retroactively, punishing people for actions that were legal at the time they were done. This caused confusion and fear, as citizens could not predict what actions might become punishable in the future. - Retroactive laws violate the principle of legal certainty and undermine trust in the law. People need to know in advance what is legally required of them so they can plan their actions accordingly. Clarity - Laws must be clear and understandable. If laws are vague or ambiguous, individuals cannot reasonably be expected to follow them, and authorities may apply them inconsistently, leading to injustice. - Rex wrote laws that were so confusing that even legal experts couldn’t agree on what they meant. This caused chaos and undermined the authority of the legal system, as people couldn’t reliably understand what was required of them. - Clarity in law ensures that individuals know what is expected of them and that the laws are applied consistently. Vague laws lead to arbitrary enforcement and erode public confidence in the legal system. Non-contradiction - Laws must not contradict each other. If two laws are in direct conflict, individuals cannot comply with both, making it impossible to follow the law - Rex issued contradictory laws, which meant that people were simultaneously required to do one thing and prohibited from doing the same thing. This left his subjects in an impossible position, as they could not obey the law without breaking it. - Non-contradiction ensures coherence within the legal system. When laws conflict, they create confusion and injustice, as individuals may be punished for violating one law while trying to comply with another. A legal system must be internally consistent for it to be reliable. Possibility of compliance - Laws must be possible to follow. If laws require individuals to do things that are impossible or overly burdensome, then the legal system becomes oppressive. - Rex made laws that were impossible for people to follow, such as requiring everyone to grow wings. This made his legal system absurd and illegitimate in the eyes of his subjects. - Feasibility is essential for the legitimacy of law. If laws demand the impossible, they will be seen as unjust, and compliance will break down. The law should be realistic and within the capacity of citizens to follow. Constancy (stability) - Laws should remain relatively stable over time. Frequent changes in the law undermine individuals’ ability to plan their actions and understand their legal obligations. Legal certainty depends on stability - Rex kept changing the laws so frequently that no one could keep track of what was legal and what was illegal from one day to the next. This constant change made it impossible for people to obey the law or feel secure in their rights. - Constancy ensures that the law provides a stable framework for society. If laws change too often, it creates confusion and uncertainty, making it difficult for people to comply with the law or predict legal outcomes. Stability in the law allows individuals and businesses to plan their actions with confidence. Congruence by the official rule and action - Congruence requires that the actions of government officials and authorities must align with the laws they enforce. There must be consistency between what the law says and how it is applied in practice. Officials should not act arbitrarily or contradict the law in their enforcement decisions. - In his final mistake, Rex failed to ensure that his officials enforced the laws consistently. Some people were punished while others, committing the same offense, were let off without any consequence. This lack of congruence between the written law and its enforcement led to chaos and injustice. - Congruence is essential to maintaining the integrity of the legal system. If there is a gap between the laws as written and how they are applied by officials, people lose faith in the legal system. It leads to arbitrary enforcement of laws, where decisions may be based on personal biases, favoritism, or corruption. A functioning legal system requires that officials consistently apply the law, ensuring fairness and equal treatment under the law. 8. Explain the problem of the Nuremberg trials and how they related to rule-of-law principles. The Nuremberg trials occurred post WWII which had the purpose of collecting evidence about Nazi crimes and convicting the surviving leaders and participants of these crimes. This relates to the rule of law principle of the retroactive nature of law since individuals were prosecuted for crimes that were not explicitly criminalised during this time. They were also criminalised for actions that were illegal solely from the Allies perspective and were only declared illegal once these actions were already performed. 9. Explain the different schools of thought regarding the rule of law according to Dworkin and give examples. Dworkin believed in natural law and he believed that the purpose of law was to find the best possible answer and we all bring our morality to these discussions - claimed that there was no separation between the law and morals In cases like Brown v. Board of Education, Dworkin would argue that judges should reject laws allowing racial segregation, not just because they are procedurally wrong, but because they violate the moral principle of equality. He believed there are 2 different approaches to law: First was content rich, meaning thick (adds a lot to the rule of law) or substantive and second was content free (narrow list of things). Dworkin preferred the thick approach to the rule of law which is connected to how he saw the law 10. Explain the idea of the “inner morality of the law.” How would you qualify Fuller’s account within the different schools of thought regarding the rule of law? Lon L. Fuller’s concept of the “inner morality of the law” refers to the idea that law must adhere to certain moral principles to function properly and achieve justice. Fuller identified eight principles that a legal system must follow: generality, publicity, non-retroactivity, clarity, consistency, possibility of compliance, stability, and congruence between official action and declared rule. These principles ensure that the law is fair, predictable, and understandable, enabling people to know what is expected of them and how they can comply with the law. Fuller’s account is often seen as a middle ground between natural law and legal positivism. While he doesn’t claim that law derives its authority from moral or divine principles, like traditional natural law theorists, he argues that law cannot be effective without an inherent moral structure. Thus, Fuller rejects strict positivism, which separates law and morality completely, and aligns more with the procedural aspects of natural law, focusing on how laws are created and applied, rather than the content of the laws themselves. 11. Explain the Pandora case and the implications for the rule of law. Initially, cannabis was illegal, leading to the rise of criminal gangs like the Orcs. In 2024, the government legalized cannabis, creating a regulated market where new businesses like the Elves flourished. However, when the law was abruptly reversed in 2030, judges prosecuted the Elves for actions previously legal under the 2024 law. This case demonstrates how unclear or inconsistent laws undermine legal certainty, as businesses and individuals can be punished for actions that were legal when committed. It also raises issues of justice, as retroactively punishing people or businesses like the Elves for past actions creates unfair consequences. Proper rule of law requires laws to be clear, stable, and not retroactively applied. 12. Refer to the indicators of the rule of law. What can they measure? Why are they limited tools? Indexes such as the V-Dem Index which measure 15 sub indicators which include compliance with high court, compliance with judiciary, high court independence, lower court independence, executive respects constitution, rigorous and impartial public administration, transparent laws with predictable enforcement, access to justice for men, access to justice for women, judicial accountability, judicial corruption decision, public sector corrupt exchanges, public sector theft, executive bribery and corrupt exchanges, and executive embezzlement and theft. They are limited because they can't measure all indicators as they are not always quantifiable, so we should thus take these indexes with a grain of salt 13. Describe the different fields of the law and provide an explanation for each of them. Public Law - Public law governs the relationship between individuals and the government, where in the government plays a central role in regulating society. It encompasses four main branches: ★ Criminal Law: This branch deals with crimes and punishments. It defines conduct that is prohibited and establishes penalties for violations. The government prosecutes offenders to maintain public order and protect society. ★ Constitutional Law: This area focuses on the interpretation and implementation of a country's constitution. It establishes the structure of government, delineates the powers of various branches, and protects individual rights against government actions. ★ Administrative Law: This field regulates the activities of governmental agencies. It governs the rules and procedures that these agencies must follow in their operations and ensures that they act within their authority. ★ Public International Law: This branch addresses legal relations between sovereign states and international entities. It includes treaties, conventions, and the principles governing issues like human rights, war, and environmental protection. Private Law - Does not involve the government and instead deals with the mutual relations between citizens ★ Property Law: This area governs ownership rights and interests in real and personal property, including issues related to sales, leases, and transfers of property. ★ Contract Law: This field deals with agreements between parties. It outlines the creation, enforcement, and breach of contracts, ensuring that promises made in agreements are legally binding. ★ Tort Law: Tort law provides remedies for individuals harmed by the actions or negligence of others, even in the absence of a contractual relationship. It seeks compensation for damages resulting from wrongful acts. ★ Family Law: This branch addresses legal issues related to family matters, such as marriage, divorce, child custody, and adoption. ★ Law of Commerce: This area governs business and commercial transactions, including regulations surrounding corporations, partnerships, and trade. ★ Private International Law: Also known as conflict of laws, this field addresses legal disputes involving private individuals or entities across different jurisdictions. European Union Law - Demonstrates that there is no strict division between private and public law - It encompasses: ★ Treaties Between Member States: These treaties are considered public law, establishing the legal framework within which the EU operates and governs relationships among member states. ★ EU Institutions: Institutions like the European Parliament and the European Commission create laws and regulations that affect both public and private aspects of law, illustrating the intersection of these fields. Substantive Law - Substantive law refers to the set of laws that provide individuals with rights and obligations. It outlines what people can and cannot do, establishing legal standards for behaviour. Examples include laws defining crimes, regulations on property ownership, and rules governing contracts. Procedural Law - Procedural law outlines the processes and rules that must be followed in legal proceedings. It comes into play when substantive law is not respected, ensuring that rights are upheld in court. It includes: ★ Court Procedures: Rules that dictate how trials and hearings are conducted. ★ Judicial Organization: Regulations concerning the structure and functioning of courts. ★ Enforcement of Judicial Orders: Procedures that detail how court orders and judgments are enforced. 14. What types of legal fields were relevant for the Riggs v. Palmer case? 1. Wills and Estates Law This field deals with the distribution of a deceased person's assets and the validity of wills. Riggs v. Palmer specifically addressed the interpretation and enforcement of a will, particularly concerning the rights of heirs. The case raised questions about whether a beneficiary (Elmer Palmer) could inherit under a will when he was implicated in the murder of the testator (his grandfather, Francis Riggs). 2. Tort Law While primarily a case of wills and estates, principles of tort law can be relevant, particularly concerning wrongful acts. The case explored whether a person who commits a wrongful act (in this case, the murder of the testator) should benefit from that act, which ties into the doctrine of unjust enrichment and the concept of in pari delicto (in equal fault). 3. Public Policy The case also intersects with public policy considerations, as it involves the moral and ethical implications of allowing a murderer to benefit from their crime. The court's decision reflected societal views on justice and fairness, influencing how laws are interpreted and applied regarding beneficiaries under a will. 4. Family Law Family law is relevant here, as it encompasses matters related to familial relationships, including inheritance and the rights of heirs. The case involved a grandson and his grandfather, highlighting the legal considerations regarding familial obligations and responsibilities, particularly in cases where wrongful actions impact familial relationships and inheritances. 5. Criminal Law Criminal law is directly relevant, as the case involves a crime (murder) committed by one of the heirs. The legal implications of Palmer's actions as a murderer had significant consequences for his right to inherit under the will. The court had to consider the implications of allowing a convicted criminal to benefit from their crime, which directly influenced its ruling on the matter. 15. Describe the sources of the law and the main differences you can identify across jurisdictions. Legislation Definition: Statutes enacted by legislative bodies to introduce or amend laws. Characteristics: ○ Statutory language is often imprecise, requiring interpretation. ○ Judges may question the ordinary meaning of terms or examine the legislation's purpose for a more liberal interpretation. ○ There is no universally accepted method for interpretation, leading to inconsistencies and challenges in predicting future legal outcomes, especially in rapidly evolving areas like technology. Common Law Definition: Law derived from judicial precedents and customs rather than statutes. Characteristics: ○ Based on the doctrine of precedent (stare decisis), which binds courts to follow previous decisions (ratio decidendi), promoting stability and predictability. ○ Common law is dynamic and evolves through new case decisions. Main Differences Across Jurisdictions - Common Law vs. Civil Law: Common law jurisdictions (e.g., U.S., England) emphasise case law and judicial precedents, while civil law jurisdictions (e.g., France, Germany) prioritise codified statutes, with judicial decisions carrying less weight. - Interpretation Approaches: Different jurisdictions may prefer varying methods of statutory interpretation—some may adopt a literal approach, while others lean towards a purposive interpretation, affecting legal outcomes. - Judicial Precedent Weight: The application of precedents varies; common law jurisdictions strictly adhere to stare decisis, while civil law systems may allow judges more interpretive flexibility. - Legislative Processes: The process for enacting and amending laws can differ, impacting how quickly legislation adapts to new issues. 16. Identify the relevant sources of the law that were relevant for the Riggs v. Palmer case. 1. Statutory Law Wills and Estates Statutes: The New York statutes concerning inheritance and wills were central to the case. Under statutory law, Elmer Palmer was named in his grandfather’s will as a beneficiary. The court had to interpret whether the clear terms of the will should be upheld, despite Elmer’s act of murder. Statutory law provided the formal rules governing wills and inheritance, but the interpretation of these statutes in the context of justice and public policy became the main issue in Riggs v. Palmer. 2. Common Law (Judicial Precedent) Common law refers to legal principles developed through judicial decisions over time. In Riggs v. Palmer, the court examined common law principles of justice, equity, and fairness. There was a longstanding legal maxim that "no one should profit from their own wrong," which derived from common law traditions. The court relied on this principle to argue that Elmer should not inherit his grandfather's estate after committing murder, despite the will's terms New York Statutes on Wills and Estates: These provided the legal framework for inheritance but did not explicitly address the situation of a beneficiary murdering the testator Common Law Maxims: The principle that "no one should profit from their own wrong" played a key role in the court’s reasoning. Public Policy: The court’s concern with upholding public morality and justice influenced its decision to prevent Elmer from inheriting. 17. Explain how the rule of law idea could be relevant to examine the case of Riggs v. Palmer Rule of Law generally means that laws are applied consistently and fairly, with no one above the law. In Riggs v. Palmer, the rule of law was relevant because the court had to balance the clear terms of a statute (the will) with broader principles of justice. While statutes are an essential part of the rule of law, the court’s decision highlights the importance of ensuring that legal outcomes align with fundamental principles of fairness and morality. Appropriate to refer to Dworkin: suggested this case study to make a point about how boundaries between legal and moral rules have no boundary 18. Describe the different canons of interpretation. The Literal Rule or Grammatical Interpretation Matches the literal meaning of the words in a rule The Mischief Rule or Legislative Intent is when a legal decision maker gives the rule of interpretation that suits the original intention of the legislator The Golden Rule: Purposive or Teleological Interpretation when one tries to determine the purpose of a rule themself and they may also revert the intention of the legislator who formed the rule it is the application of the mischief rule but one may also try to determine the purpose of the rule themself 19. Explain how the choice of the canons of interpretation can influence different outcomes in the Riggs v. Palmer case. Literal Rule Application: If the court had strictly adhered to the literal interpretation of the statute, it may have focused solely on the statutory language governing inheritance. Outcome: This approach could have led to a decision favoring Palmer's inheritance, as the statute may not explicitly prohibit a murderer from inheriting. Mischief Rule Application: This rule focuses on the original intent of the legislators when enacting the law. The court would consider the problem the law aimed to address, which in this case was preventing individuals from profiting from their wrongdoing. Outcome: By applying the mischief rule, the court would likely conclude that the legislature intended to disallow murderers from inheriting, leading to a decision that denied Palmer the inheritance based on the principle that one should not benefit from their crimes. Golden Rule (Purposive Interpretation) Application: This approach allows the court to consider the broader purpose of the law, possibly looking beyond the statute's text to the overall intent of ensuring justice and equity. Outcome: The court could interpret the law in a way that aligns with its purpose—preventing injustice by ensuring that those who commit egregious acts, such as murder, do not benefit from their actions. This may lead to a similar conclusion as the mischief rule, supporting the denial of Palmer's inheritance. 20. Explain the example of the “Chess rules” and how the canons of interpretation can be used in the case of one player “staring” at another one. - Scenario: Imagine one chess player is “staring” at another player, perhaps trying to intimidate them or distract them. The interpretation of whether this behaviour is allowed or considered unsportsmanlike depends on which canon of interpretation is applied to the rules of chess: Literal Rule: If taken literally, the rules may not explicitly state that staring at an opponent is prohibited. A literal interpretation could imply that this behaviour is acceptable, as it doesn't violate any written rule. Mischief Rule: An interpretation focusing on the intent behind chess rules might consider that the aim is to promote fair play and respect between players. If the original purpose of the rules is to ensure a positive playing environment, then staring could be viewed as unsportsmanlike and against the spirit of the game. Golden Rule (Purposive Interpretation): Here, the focus would be on the broader objective of maintaining the integrity of the game. If staring is deemed to create a hostile environment, this interpretation could lead to a ruling against such behavior, supporting a more respectful and fair competitive atmosphere. 21. Refer to Article 32 of the Spanish Constitution, and identify the canons of interpretation that can favor a conservative approach rejecting same-sex marriage. Article 32 of the Spanish Constitution states: "The Spanish Constitution recognizes the right to marry and to form a family. The law shall determine the forms of marriage and the conditions of its validity." Literal Rule: A literal interpretation of Article 32 may suggest that marriage is defined traditionally as a union between a man and a woman. If the text doesn’t explicitly mention same-sex unions, a conservative interpretation could conclude that same-sex marriage is not included. Historical Context: This approach involves examining the historical and cultural context of the time when the Constitution was enacted. The prevailing views on marriage may support a traditional definition, leading to the rejection of same-sex marriage as outside the original intent. 22. Refer to Article 32 of the Spanish Constitution, and identify the canons of interpretation that can favor a liberal approach endorsing same-sex marriage. Mischief Rule: Applying this rule, one would look at the purpose behind recognizing the right to marry. The intent might be to promote equality and family formation for all individuals, regardless of sexual orientation. Thus, this interpretation would support the inclusion of same-sex marriage. Golden Rule (Purposive Interpretation): This perspective emphasizes the broader purpose of Article 32, which can be seen as ensuring personal freedoms and the right to form a family. A liberal interpretation would argue that denying same-sex marriage contradicts these principles of equality and personal rights, thereby endorsing same-sex unions. Literal Rule: While the article does not make mention of gay marriage, it does not make an explicit prohibition either 23. Explain the differences between the common law and the civil law tradition I. Common law is essential unwritten, non textual law, it is an entrenched oral tradition while civil law is codified II. Common law is casuistic: the building blocks are cases rather than texts like in the civil law system - while civil law is a more theoretical approach III. Common law elevates the doctrine of precedent to a supreme position in the legal systems - previous decisions of similar cases should govern present cases and the judgements of higher courts are binding to those lower in the judicial hierarchy → promotes constancy, predictability, and objectivity IV. Common law precedes from the premise ‘where there is a remedy, there is a right. While civil law generally adopts the position ‘where there is a right there is a remedy’ - common law is essential remedial, rather that rights based → common law is more practical V. Oral tradition is important in common law while written argument is employed by civil law 24. Many argue that there is much convergence between common law and civil law countries. Do you agree? Why? Give examples Yes, there is significant convergence between common law and civil law systems, driven by globalisation, international law, and practical needs. ★ Codification: Common law countries increasingly codify areas like criminal and commercial law, resembling the civil law tradition of written statutes. ★ Use of Precedent: Civil law countries like France and Germany are using judicial decisions more frequently as persuasive authority, similar to the common law practice of precedent. ★ Statutory Interpretation: Both systems now allow judges greater flexibility in interpreting laws, especially when dealing with ambiguous statutes. ★ EU and International Law: Harmonization through EU law and international bodies like the WTO has imposed uniform standards across both legal systems. ★ Judicial Activism: Civil law countries are adopting more activist judicial roles, similar to common law practices in constitutional review. a. Civil law systems also have customs and precedents b. Considering the whys of previous cases in common law are also possible in civil law c. Law made by parliaments also exist in common law countries d. Globalisation: Efforts to achieve common regulation exists - exist in the EU e. Trend exists with more lawyers doing masters degrees in other countries with differing traditions: the way they communicate is affected by the system of law f. Convergence does happen, but with limitations 25. Which legal tradition is superior? Common law or civil law? Argue in favour of the civil law tradition. The civil law tradition is superior due to its clarity and predictability, as it relies on comprehensive written codes that provide clear legal guidelines. This codification reduces uncertainty and limits the influence of judicial discretion, ensuring consistency in legal rulings. Civil law promotes efficiency by streamlining legal processes, with less dependence on lengthy case precedents. It also adapts more easily to modern legal reforms, as legislatures can update the codes without waiting for judicial reinterpretation. Finally, civil law systems offer stronger protections against judicial activism, ensuring that laws are applied as written, reflecting democratic principles. 26. Which legal tradition is superior? Common law or civil law? Argue in favour of the common law tradition. The common law tradition is superior due to its flexibility and adaptability, allowing judges to interpret laws in response to new and evolving circumstances. Its reliance on case precedents provides practical, real-world solutions to legal disputes, ensuring that the law grows organically with societal changes. Judicial decisions in common law systems allow for more nuanced interpretations, taking into account the specific facts of each case. This system also encourages consistency through the doctrine of stare decisis, while still allowing for necessary legal evolution. Ultimately, common law empowers courts to deliver justice that reflects contemporary values without waiting for legislative action. 27. Explain the possible economic implications of picking one legal tradition (common law, or civil law) over the other. Choosing common law over civil law can promote economic flexibility and innovation, as it allows courts to adapt legal principles to new market conditions without needing legislative changes. This adaptability encourages business confidence, as companies can anticipate how courts will rule based on precedent. On the other hand, civil law's codified statutes offer predictability and legal certainty, which can reduce litigation costs and make planning easier for businesses. However, the rigidity of civil law systems might slow down the legal response to emerging economic trends or technological innovations. Ultimately, the economic implications depend on balancing the need for legal stability with the ability to respond to dynamic market environments. Can connect to the debate about rule of law Use Hayek 28. Explain the possible democratic implications of picking one legal tradition (common law, or civil law) over the other. Choosing civil law over common law can strengthen democratic control, as legislation—created by elected representatives—serves as the primary source of law, ensuring that laws reflect the will of the people. This codified approach limits judicial discretion, making judges interpreters of law rather than creators, which reinforces the separation of powers. In contrast, common law gives judges significant authority to shape legal outcomes through case law, which can be seen as less democratically accountable. However, common law's reliance on precedent ensures legal consistency and protects individual rights, often adapting faster to societal changes. The democratic implications hinge on balancing judicial independence with legislative accountability. 29. Use the example of the Chilean Civil Code to explain the political philosophy of the civil law tradition based on the codes The Chilean Civil Code is a clear example of the civil law tradition, where laws are created through a top-down approach. In this system, the government or legislature drafts detailed, organised rules that cover all aspects of life, ensuring clarity and stability. This approach comes from Enlightenment ideas, focusing on predictability and reducing judicial discretion. Judges have less power to change or interpret laws freely, which promotes uniformity and fairness. The main goal is to have a consistent legal system where everyone follows the same rules, reducing confusion and ensuring social order. By using a top-down method, civil law limits the risk of unfair or inconsistent decisions, relying on structured codes to maintain harmony. 30. If a judge working in a common law country wants not to follow a precedent, what can he or she do? What alternatives exist? A judge can choose to distinguish the current case from the precedent by identifying significant factual or legal differences between the cases, which would justify not applying the precedent. Alternatively, the judge could overrule the precedent if it's deemed incorrect, although this is rarer due to concerns about consistency in the law. A judge may also argue that the prior ruling is no longer in line with current public policy or societal values. 31. Pick any case or example explored in classes, and explain what an analogical argument engaging with precedent is and how it operates in practice. In K v. Landlord, the tenant used an analogical argument to distinguish the case from Globe v. Credit Bureau. The tenant argued that Globe involved financial loss between two business parties, whereas K v. Landlord involved personal injury between a landlord and tenant, thus making the two cases factually distinct. This shows how analogical reasoning works by comparing relevant similarities and differences between cases to justify different legal outcomes. 32. In the Ms. K. case, was the Global v. Credit Bureau precedent applicable? Argue that it was, in fact, applicable. Yes, Globe v. Credit Bureau is applicable. The principle of freedom of contract upheld in Globe applies equally in the K v. Landlord case. In both instances, the parties entered into a contractual agreement containing an exculpatory clause, meaning both parties accepted the risk of certain liabilities. Just as the court in Globe respected the autonomy of the parties to make their agreements, the same should apply in K v. Landlord, regardless of the difference between financial loss and personal injury. 33. In the Ms. K. case, was the Global v. Credit Bureau precedent applicable? Argue that it was not in fact applicable. No, Globe v. Credit Bureau was not applicable because the nature of the harm differs significantly. Globe dealt with financial harm in a commercial context, while K v. Landlord involves personal injury and the landlord’s duty to maintain safe premises. Personal injury cases invoke stronger public policy concerns, particularly regarding tenant safety, and thus require a different legal approach. Moreover, the bargaining power between the tenant and the landlord in K v. Landlord was unequal, unlike the commercial parties in Globe. 34. Compare the techniques of “overruling” and “distinguishing” and identify the pros and cons Overruling involves rejecting a prior precedent entirely, which can introduce uncertainty and disrupt legal consistency, but it allows the law to evolve with changing societal norms (e.g., Brown v. Board of Education overruling Plessy v. Ferguson). Distinguishing, on the other hand, allows the court to respect precedent while carving out exceptions based on differences in fact or context. The downside of distinguishing is that it may lead to fine distinctions that complicate the application of the law, while the advantage is that it maintains stability in the legal system 35. Refer to the Dobbs decision in the case of the US and explain how it treated precedent The Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade, serves as a prime example of overruling precedent. In Dobbs, the Court argued that Roe v. Wade was "egregiously wrong" and thus should not continue to be a valid precedent. The majority opinion used this reasoning to justify overruling, claiming that precedents which are fundamentally flawed should not bind future courts. The decision introduced significant legal uncertainty, as overruling a precedent of nearly 50 years shifts the interpretation of constitutional rights. However, the Court framed its action within the tradition of precedent by asserting that, when a prior ruling is deeply incorrect, overruling it becomes necessary to correct the legal course, even though it disrupts predictability. 36. Identify and explain the different types of courts and how judicial systems are normally organized Judicial systems are typically organized into hierarchical structures. At the top is the Apex Court, which is often the Supreme Court. Some systems, particularly in continental Europe, may have specialized apex courts, such as Constitutional Courts (for constitutional matters), Cassation Courts (for legal appeals that challenge the application of law), and Supreme Administrative Courts (for administrative law issues). Below these, there are Courts of Appeal, which handle appeals from lower courts. The first level of the judicial system consists of Judges of First Instance who preside over initial trials. There are also Specialized First-Instance Judges, focusing on areas such as family, criminal, administrative, or labor law. 37. What’s the difference between an adversarial and an inquisitorial judicial system? In an adversarial system (common in common law countries), the judge acts as an impartial observer, ensuring the trial follows legal procedures while the two opposing parties—prosecution and defense—control the presentation of evidence. The judge guarantees fairness but doesn’t lead the investigation. In contrast, in an inquisitorial system (common in civil law countries), the judge plays a more active role in investigating the case. The judge may order investigations, gather evidence, and question witnesses. The judge in an inquisitorial system is responsible for uncovering the truth rather than just overseeing the contest between parties. 38. Explain the trial by jury, identify its purposes, how they are elected, and how they could be legitimate. A trial by jury involves a group of ordinary citizens (typically 12) who are tasked with determining the facts of a case, especially in criminal trials. The purpose of a jury is to introduce community values into the judicial process and to serve as a check on government power, as the jury is seen as a democratic arbiter of guilt. Jurors are usually selected through random public draws from voter registration or other public records, and they must meet certain legal qualifications, such as being impartial and having no connection to the case. Despite criticisms—such as susceptibility to bias or emotional decisions—trial by jury is considered legitimate because it embodies the principle of community involvement in the legal system, expressing the moral compass of society. 39. Propose a regulation for how to appoint judges and retirement rules. Justify your answer. Judges should be appointed based on merit, legal expertise, and a commitment to judicial impartiality. A judicial selection commission could assess candidates' qualifications and recommend appointments, ensuring transparency and reducing political interference. Judges could be confirmed by a legislative body to maintain democratic oversight. In terms of retirement, judges should be required to retire at a set age, such as 70, to ensure that the judiciary remains dynamic while allowing for the preservation of judicial experience. However, they should be granted life tenure until that retirement to protect judicial independence by ensuring they are free from political pressures. 40. Are judges liars? Is impartial justice a myth? The legitimacy of judges and whether they truly apply the law impartially is a debated topic. Chief Justice Roberts argues that judges are merely applying the law, not creating it, emphasizing their role as interpreters rather than lawmakers. He likened judges to umpires who "call balls and strikes," underscoring their adherence to legal principles without engaging in lawmaking. This perspective reinforces the notion that judicial decisions are grounded in objectivity, maintaining the legitimacy of the judiciary. However, Martin Shapiro in Judges as Liars challenges this view, arguing that judges often shape the law through interpretation, thereby creating law while claiming to merely apply it. This raises concerns about whether judges are truly impartial, as their decisions can be influenced by personal or political factors, institutional pressures, and human biases. Despite this, the myth of judicial impartiality serves a crucial function. It fosters public trust in the legal system, as people are more likely to accept judicial decisions if they believe judges are neutral. Lasser's critique extends this by suggesting that judicial legitimacy does not rest solely on claims of impartiality. Instead, it depends on accountability, transparent procedures, and the justification of decisions. Judges gain legitimacy not just from the perception of neutrality but from their ability to explain and defend their rulings in a manner that is open to scrutiny. In sum, while absolute impartiality may be elusive, judges maintain their legitimacy through clear reasoning, fairness, and transparency, even as they navigate the complexities of interpreting and, at times, shaping the law. 41. Are judges legitimate? How? Judges derive legitimacy from their impartiality, independence, and the legal reasoning they apply. Though not elected, they are appointed to interpret and apply the law based on precedent, and their decisions are subject to appeal and scrutiny, reinforcing their authority. Judicial legitimacy is built on reasoned decisions, grounded in law and public policy, ensuring that rulings are justified. Chief Justice John Roberts argues that judges are legitimate because they apply the law, not create it, serving as neutral interpreters of statutes. This view emphasizes their role in maintaining legal consistency and certainty, reinforcing the perception of judicial impartiality. In contrast, Martin Shapiro, in Judges as Liars, contends that judges often shape the law through their interpretations, challenging the idea of pure impartiality. While they claim to simply apply the law, they also engage in judicial creativity, influencing future rulings. Shapiro sees the myth of impartiality as necessary to sustain public trust in the judiciary. Lasser adds that legitimacy also stems from the transparency and accountability of judges through written opinions and appeal processes, ensuring that their decisions are justified and open to challenge. Life tenure further strengthens their independence by removing political pressures. Thus, while Roberts views legitimacy as based on applying the law, Shapiro highlights judges’ role in shaping it, with both perspectives acknowledging that public trust and accountability are key to judicial legitimacy. 42. Explain how the legal tradition impacts the question of judicial legitimacy In common law traditions, judicial legitimacy is heavily tied to the idea of stare decisis (precedent). Judges are seen as legitimate because they follow prior rulings and offer continuity and predictability in the law. However, they also fill gaps in the law through interpretation, allowing them to adapt to new circumstances. In civil law systems, where written codes dominate, judicial legitimacy comes from applying the statutes created by legislatures, and judges are seen as interpreters rather than creators of law. This difference impacts how judges are viewed and how much discretion they are given in shaping legal outcomes. The degree of transparency and the process of reasoning they use in their decisions further solidify their legitimacy within their respective legal traditions. 43. Explain the facts of a case, who the parties are, what the issue is, what the “holding” is, and what the “rationale” is. Give an example. Facts summarize key events leading to the legal dispute. For example, in Williams v. Walker-Thomas Furniture Co., Ms. Williams bought household items from Walker-Thomas Furniture Co. on installment plans. The contract included a “cross-collateral” clause, allowing Walker-Thomas to repossess all items bought if she defaulted on any payment. When Ms. Williams failed to pay for a stereo, Walker-Thomas sought to repossess not only the stereo but all her past purchases, leading her to argue the contract was unfair. Parties identify those involved. In appeals, the losing party becomes the “appellant” (Ms. Williams), while the winning party at trial is the “appellee” (Walker-Thomas Furniture Co.). Issue is the main legal question. Here, the question was whether the cross-collateral clause was "unconscionable" (i.e., so one-sided as to be unenforceable). Holding is the court’s decision. The court held that contracts can be unenforceable if deemed unconscionable, though it remanded the case to the lower court for further analysis. Rationale is the court’s reasoning. The court explained that unconscionability involves two elements: (1) a lack of meaningful choice for one party and (2) unreasonably favorable terms for the other. This established that courts can void contracts with unfair terms or unequal bargaining power. 44. Explain the “rule of law” in the Williams v. Walker-Thomas case. Start by explaining the facts of the case. Facts of the Case: Ms. Williams, a low-income customer, had purchased items on credit from Walker-Thomas Furniture under a contract containing a “cross-collateral” clause. This clause allowed Walker-Thomas to repossess all items if she defaulted on any single payment. When Ms. Williams defaulted, Walker-Thomas attempted to reclaim all her purchased items, prompting her to challenge the contract’s fairness. Rule of Law: The court articulated that a contract may be unenforceable if it is found to be unconscionable. Unconscionability, as defined by the court, requires two conditions: (1) a lack of meaningful choice by one party, which may stem from significant power imbalances, and (2) unreasonably favorable terms for the other party, indicating an unjust advantage. The rule allows courts to deny enforcement of contracts that meet these criteria, even if the parties legally consented to the terms. This rule underscores that fairness is integral to contract law. Although legally valid, a contract may still be voided if it heavily favors one party over the other without fair opportunity for negotiation. This principle of unconscionability prevents exploitation in contractual agreements, ensuring balance and fairness in the legal enforceability of contracts. Gaps Filled by the Precedent:The decision addressed the gap between freedom of contract and the need for fairness. It recognized that consent alone is insufficient when power imbalances or predatory terms are involved. Before this case, courts rarely intervened in unfair agreements; Williams made fairness a critical factor in contract law. Lessons for Contract Law: The case teaches that contracts must balance equity and freedom. It protects vulnerable parties, like low-income consumers, from exploitative practices, and reinforces that fairness is fundamental to enforceability. By addressing power imbalances, Williams expanded contract law’s role in ensuring ethical and just agreements. 45. Explain the different types of constitutions Written Constitutions: Characteristics: A single, formal document, created to limit political power. Examples include the U.S. Constitution, created at the Philadelphia Convention. Written constitutions are often codified, meaning all constitutional rules are documented in one place. Advantages: Easier to identify as the "supreme law" within a legal system, as their codification helps clarify the superiority of constitutional law. This certainty aids in enforcing constitutional supremacy. Supporting Elements: Written constitutions are often supported by judicial interpretations, statutory laws, and academic theories, which enhance understanding and interpretation. Unwritten Constitutions: Characteristics: Evolve through tradition and practices over time rather than a single enactment event, seen in countries like the UK. They consist of various documents and unwritten practices, including the Magna Carta and conventions like the appointment of a Prime Minister. Challenges: Harder to pinpoint superior norms, making constitutional supremacy less clear. Their adaptability allows them to evolve but often lacks the definitive authority associated with written constitutions. Flexible vs. Rigid Constitutions: Rigid Constitutions: Require a stringent amendment process, often needing supermajorities, referenda, or approval from multiple governing bodies (e.g., the U.S. Constitution, which requires state approval). Flexible Constitutions: Amendable by regular legislative procedures, often found in countries with unwritten constitutions, where amending can be more straightforward. 46. Explain the schools of thought regarding constitutional supremacy in the context of written constitutions Kelsen's Theory Constitutional supremacy stems from the idea of a "higher law" to which all inferior laws must conform. A constitution serves as a coherent hierarchical system where laws derive their validity from superior norms. Kelsen’s approach is more prevalent in civil law countries. Tries to claim that every legal norm is valid as long as it respects its superior norm - disconnected with morality, history, etc American Tradition Constitutional supremacy in the U.S. is driven by a philosophy of limiting governmental power and preventing tyranny. The U.S. Constitution, with its checks and balances, was designed to restrict power through a rigid, written document. Its supremacy is essential for enforcing these limits, reflecting ideals from Montesquieu and Locke on republicanism and political liberalism. Political power should be constrain to protect people from the risk of abuses and tyranny (political power) 47. Explain the cases of Plessy and Brown Plessy v. Ferguson (1896): Issue: Plessy, a mixed-race man, challenged a Louisiana law mandating separate railway cars for Black and white passengers, arguing it violated the 14th Amendment’s Equal Protection Clause. Holding: The Court ruled "separate but equal" was permissible as long as equal services were provided, asserting separation did not imply inferiority. Implication: Plessy established legal segregation under "separate but equal," a doctrine that upheld racial separation for decades. Brown v. Board of Education (1954): Issue: Brown argued racial segregation in schools harmed Black children by instilling inferiority, violating the 14th Amendment’s Equal Protection Clause. Holding: The Court overturned Plessy, declaring "separate but equal" in public education inherently unequal as it violated equal protection rights, fundamentally reshaping civil rights law. Significance: Brown recognized the psychological and social harm segregation imposed on Black students, highlighting the Constitution’s transformative potential towards achieving equality. 48. Explain the Prison case (fiction America) and how you would solve it using the XIVth amendment Facts of the Case:In 2030, a violent gang war erupted in a Pandora prison between two racially segregated gangs: the “white supremacists” and the “black panthers.” Despite various interventions, including legislation and judicial orders, violence persisted, resulting in numerous deaths. In 2032, Pandora enacted a law mandating racially segregated prisons—one for whites, one for blacks, while Latinos, Asians, and mixed-race individuals could choose. This segregation aimed to restore order. Legal Issue:Does the Pandora prison segregation law violate the 14th Amendment’s Equal Protection Clause? Legal Framework:The 14th Amendment guarantees that no state shall deny anyone equal protection under the law. Racial classifications are subject to strict scrutiny, requiring the law to serve a compelling governmental interest and be narrowly tailored to achieve that interest without resorting to racial discrimination. Application of the 14th Amendment:The Pandora law creates a racial classification by segregating prisons, violating key principles of equality: 1. Inherently Unequal Treatment: Brown v. Board of Education (1954) established that racial segregation is "inherently unequal." This law institutionalized racial divisions and violated equal protection. 2. Less Discriminatory Alternatives Exist: Alternatives, such as enhanced security, gang interventions, or transferring violent inmates to specialized facilities, could address prison violence without resorting to racial segregation. Proposed Solution:I would seek a judicial review to declare Pandora's law unconstitutional under the 14th Amendment. The court should order the segregation to be dismantled and require alternative, non-discriminatory measures to address violence, such as targeted gang interventions, increased security, and rehabilitation programs. Outcome:The court should strike down the law, reaffirming the principle from Brown v. Board that segregation based on race is incompatible with equal protection. This case reinforces that racial discrimination cannot be justified, even for maintaining order, and that fairness under the law applies to all, including prisoners. 49. What is a judicial methodology? Why do judges find them useful? A judicial methodology is the process or systematic approach judges use to interpret and apply the law when resolving cases. It serves as a way for judges to demonstrate fairness, objectivity, and consistency in their decision-making, particularly when the law is vague or silent on specific issues. Judicial methodologies are not codified by statutes but are developed through judicial practice, often led by apex courts, and adopted by other judges to ensure coherence in legal reasoning. These methodologies are essential for upholding the rule of law and ensuring judicial legitimacy. By applying a structured approach that exists independently of the specific conflict, judges can show that their decisions are based on established legal principles rather than personal biases. This helps build a narrative that judges are impartial arbiters who objectively apply the law. Furthermore, judicial methodologies promote predictability and reduce judicialization. When strong precedents and settled methods are used to address conflicts, everyone can better anticipate how the law applies to their situation. This consistency reduces the need for constant judicial intervention, as it clarifies legal outcomes in advance. Overall, judicial methodologies strengthen trust in the legal system by ensuring fair, reliable, and transparent decision-making. 50. Explain the proportionality test. Use the example of the chocolate candy case cannot go to the 4th stage The proportionality test is a legal methodology used to evaluate whether a law or policy that limits constitutional rights is justifiable. Originating in Germany, this test is widely influential in many jurisdictions, excluding the United States. It is applied systematically in four stages to ensure the limitation of a right is appropriate, necessary, and balanced. Its 4 stages include: 1. Proper Purpose (Legitimate Aim) The law or policy must pursue a constitutionally sound and legitimate objective. For example, in the Chocolate Candy Case, the aim was to protect consumers from misleading packaging. 2. Rational Connection There must be a logical connection between the means used (the law or policy) and its stated purpose. In this case, banning chocolate packaging with potentially misleading labels was found to advance the consumer protection goal. 3. Necessity The measure must be the least restrictive way of achieving the goal. If a less restrictive alternative can accomplish the same purpose with less infringement on constitutional rights, it should be adopted. Here, the court determined that banning the chocolate was unnecessary because the goal could be achieved by relabeling the packaging, which would protect consumers without excessively infringing on the company’s economic freedom. 4. Proportionality Stricto Sensu (Balancing) This step involves weighing the social importance of achieving the law’s purpose against the social harm caused by limiting the constitutional right. However, in the Chocolate Candy Case, the court never reached this stage because the law failed the necessity test. Since a less restrictive means was available (relabeling), there was no need to proceed to balancing. Application of the test to the case: The court ruled that banning chocolate was incompatible with Article 12 of the German Constitution, which guarantees economic freedoms. Although the purpose of consumer protection was legitimate and the ban was rationally connected to that purpose, it failed the necessity test. Relabeling was a less restrictive alternative that achieved the same goal without unduly harming the company’s rights. This case highlights the structured logic of the proportionality test: if any stage fails, the limitation is deemed unjustifiable, and the analysis stops. Thus, proportionality ensures that rights are not limited arbitrarily and promotes a balanced, fair approach to resolving conflicts between public and private interests. 51. Explain the Numenor case (about the memory law) and solve it using the proportionality test Proper purpose or legitimate aim: Its aim is to prohibit the denial or justification of human rights abuses committed during the dictatorship which arguably has the aim to preserve democratic values and respect victims. This purpose is legitimate because it aligns with protecting public order and the dignity of victims. Furthermore, conserving accurate historical memory also supports democratic stability. Rational connection: It advances the goal of discouraging harmful narratives that may undermine democratic values and glorify abuses in the past, thus there is a rational connection between the memory law and its aim Necessity: Here, we must consider alternatives, and it can be argued that there are less restrictive measures that could potentially achieve the same outcome such as educational programs and the requirement of disclaimers. An absolute prohibition is more restrictive and can be seen as an infringement on freedom of speech and excessive if these alternative methods may achieve the same outcome 52. What criticisms can be made against the proportionality test? The proportionality test, while widely praised for its structured approach to resolving conflicts between constitutional rights and public interests, faces notable criticisms. One major concern is its inherent subjectivity, especially in the balancing stage, where judges must weigh societal benefits against individual rights. This reliance on moral and ethical judgments can lead to inconsistent decisions and undermine predictability. Additionally, the test often invites judges to act as policymakers by evaluating societal interests and determining the necessity of laws, which risks blurring the separation of powers and raising questions about judicial overreach. Another critique is the lack of clear, objective standards within the test, particularly during the balancing process, which depends heavily on a judge’s discretion. This imprecision can erode public confidence in the judiciary’s neutrality. Furthermore, while the test is a valuable tool, its dominance in constitutional adjudication may oversimplify cases involving complex cultural or moral considerations, sidelining alternative methodologies.Despite these criticisms, Aharon Barak defends the proportionality test, arguing that its systematic nature is necessary to prevent arbitrary judicial decisions. While imperfect, it remains the best available framework for ensuring fairness and consistency in judicial reasoning. However, careful application and refinement are essential to address concerns about subjectivity and judicial overreach. 53. Explain the difference between public and private wrongs and why criminal law should be used in an “ultima ratio” way. Public wrongs are offenses that harm society as a whole and are addressed by criminal law, such as murder, theft, or assault. In contrast, private wrongs, like breaches of contract or personal disputes, affect individuals and are typically resolved in civil courts. Criminal law is distinct because it involves the state intervening to punish behaviors that threaten public order and safety. However, criminal law should only be used as an ultima ratio, meaning it is applied as a last resort. This is because its consequences, such as imprisonment, are severe and can significantly impact individuals' freedoms. Resorting to criminal law only when other legal mechanisms are insufficient ensures proportionality and prevents excessive reliance on punitive measures. 54. Why, as the text suggests, “criminal law has both a crime control function (sword) as well as a safeguard function (shield) in our democratic society’.” Respond to this question using the movie as an example. Criminal law serves a dual purpose: it acts as a sword by controlling crime and maintaining public order, and as a shield by protecting individuals from abuses of state power. As a sword, it deters harmful behavior by punishing offenders, thus upholding societal safety and order. For example, punishing theft prevents further violations of property rights. At the same time, criminal law functions as a safeguard against oppressive state actions by ensuring that procedures like fair trials and due process are followed. In 12 Angry Men, this duality is evident. Initially, the jury leaned toward convicting the boy based on insufficient evidence, using criminal law primarily as a sword to protect society. However, one juror invoked the shield function by challenging biases and insisting on proper deliberation. This protected the defendant’s rights, highlighting how criminal law ensures justice in a democratic society. 55. Explain the utilitarian theories of punishment. Is there a tension between security and liberty? Explain Utilitarian theories justify punishment based on its future benefits to society. The primary goals include deterrence, which discourages crime by setting an example, and rehabilitation, which focuses on reforming offenders to reintegrate them into society. Deterrence operates on two levels: general deterrence uses the threat of punishment to discourage others from committing crimes, while specific deterrence prevents the same individual from reoffending. Rehabilitation, on the other hand, aims to address the underlying causes of criminal behavior by providing education or treatment, promoting societal improvement. However, utilitarian theories raise concerns about the balance between security and liberty. Harsh punishments or excessive surveillance may prioritize public safety at the expense of individual freedoms. For instance, policies aimed at maximizing deterrence may disproportionately harm offenders or infringe on basic rights, creating tension between the need for order and the protection of liberty. A balanced approach is necessary to uphold both security and personal freedoms. 56. Explain the retributive theories of punishment. Retributive theories focus on punishment as a matter of moral responsibility, emphasizing that offenders should be punished because they deserve it. This approach argues that individuals are accountable for their actions and must face consequences proportional to the severity of their crimes. Retributivism avoids using punishment merely as a tool for societal benefits, such as deterrence, and instead ensures justice by holding offenders accountable for their wrongdoing. In this framework, criminal law avoids a victim-centered perspective to prevent punishment from becoming an act of vengeance. Instead, the prosecutor represents the state’s interests, and the judge’s role is to ensure justice is achieved fairly. Retributivism underscores that punishment is not about retribution for victims but about upholding moral order and fairness within society. 57. Explain the debate about the death penalty and use the theories of punishment to justify (or not) that punishment. The death penalty is a deeply debated issue in criminal law, raising questions about justice, morality, and societal goals. Theories of punishment—utilitarian and retributive—offer contrasting perspectives. From a utilitarian perspective, the death penalty is justifiable if it benefits society, such as by deterring crime or permanently removing dangerous individuals. However, its deterrent effect is widely questioned, and it eliminates any chance for rehabilitation, conflicting with utilitarian goals of reform. High costs associated with death penalty cases also weaken its practicality. From a retributive standpoint, the death penalty is seen as a proportionate response to heinous crimes, serving justice by holding offenders accountable. However, its irreversible nature raises concerns about wrongful convictions, which violate the principle of fairness. Retributivism emphasizes that punishment must reflect justice, not vengeance, and requires strict safeguards to prevent errors and arbitrariness. The debate also touches on principles like fair trial and presumption of innocence. The risk of executing the innocent or decisions influenced by bias, as highlighted in 12 Angry Men, undermines the legitimacy of the justice system. Such flaws contradict democratic values and erode public trust in the rule of law. In conclusion, while the death penalty may align with retributive notions of proportionality in theory, its practical shortcomings—such as potential errors, lack of deterrence, and incompatibility with rehabilitation—challenge its justification. As such, it remains a contentious and polarizing issue in modern criminal law. 58. Explain the debate about removing the voting rights from convicted citizens and use the theories of punishment to justify (or not) that punishment. The debate over removing voting rights from convicted citizens centers on questions of justice, rehabilitation, and the role of punishment in society. Theories of punishment—utilitarian and retributive—offer different justifications for this practice. From a utilitarian perspective, disenfranchising convicted individuals may be seen as a tool for social control. Proponents argue that removing voting rights acts as a deterrent for crime and ensures that individuals who have violated societal rules do not participate in decision-making processes until they have demonstrated rehabilitation. However, critics argue that such disenfranchisement does not effectively deter crime and undermines the rehabilitative goals of punishment. Voting rights could be a part of the process of reintegrating individuals back into society, and denying them the opportunity to participate in democracy may hinder their rehabilitation. From a retributive perspective, disenfranchisement can be justified as a form of punishment for those who have committed serious crimes. It reflects the severity of the offense and holds offenders accountable by removing certain privileges. However, this view raises concerns about proportionality, particularly for non-violent offenses. Critics argue that stripping voting rights is an excessive punishment that disproportionately affects certain marginalized groups, raising questions about fairness and justice. Furthermore, retributivism stresses that punishment should be just and not vindictive, and permanent disenfranchisement may be seen as an unfair extension of punishment beyond the crime committed. The removal of voting rights also ties into broader principles of rehabilitation and reintegration into society. A democratic society should encourage reintegration and rehabilitation, not hinder it. By denying individuals the right to vote, society may perpetuate their exclusion and limit their ability to contribute to civic life. This could be seen as incompatible with the goal of rehabilitation, which seeks to reintegrate offenders as productive members of society. In conclusion, while disenfranchisement may be justified by retributive theories as a punishment for serious crimes, it conflicts with utilitarian goals of rehabilitation and social reintegration. The debate highlights the tension between holding individuals accountable for their crimes and ensuring that punishment does not perpetuate exclusion or hinder future reintegration into society. 59. Explain how the jury system can safeguard the presumption of innocence or become a tool for crime control. Refer to the movie. The jury system plays a critical role in safeguarding the presumption of innocence, a fundamental principle in criminal justice. This principle ensures that defendants are considered innocent until proven guilty beyond a reasonable doubt. A diverse and impartial jury helps uphold this right by thoroughly evaluating evidence and minimizing biases. Jurors are tasked with assessing facts objectively, ensuring that the verdict is based on the law and the evidence presented, not personal assumptions or societal pressures. However, if jurors allow personal prejudices or biases to influence their decisions, the jury system can become more about crime control than ensuring justice. In such cases, the jury may rush to a conviction without fully considering the evidence or may make judgments based on stereotypes or external pressures, leading to wrongful convictions. This risks undermining the fairness of the trial and the defendant’s rights. In 12 Angry Men, the jury initially leaned toward conviction due to biases and assumptions. Many jurors were quick to judge the defendant, relying on stereotypes and incomplete evidence. However, through deliberation, the jurors began to challenge each other’s assumptions and question the sufficiency of the evidence. The film shows how a diverse group of jurors, willing to confront their own biases and engage in careful deliberation, can ensure justice is served. 12 Angry Men highlights that when the jury system works properly, it serves as a safeguard for fairness and the presumption of innocence. Diverse perspectives and open discussion are crucial in ensuring that justice is upheld, and that verdicts are based on the law, not personal biases or societal pressures. 60. Explain the principles of fair trial and proportionality. Use an example. A fair trial is essential to ensuring that defendants are treated impartially, given the opportunity to present a defense, and judged based on credible evidence. It ensures that justice is served by providing individuals with access to legal representation and ensuring that the decisions made are grounded in facts, not biases or external pressures. The principle of fairness guarantees that the legal process respects the rights of the accused and upholds the integrity of the judicial system. Proportionality is another critical concept in criminal law. It ensures that the punishment for a crime is proportionate to the severity of the offense, preventing excessive or arbitrary penalties. This principle prevents the legal system from imposing unjustly harsh sentences that do not fit the crime committed, ensuring that the punishment is not more severe than necessary. In 12 Angry Men, the jury's deliberations centered around whether the boy should receive the death penalty. Given the lack of clear, reliable evidence, convicting him would have violated both fairness and proportionality. The fairness of the trial was in question, as the defendant's right to a thorough, unbiased trial was at risk. Similarly, proportionality was at stake because the extreme punishment of the death penalty would have been disproportionate to the uncertainty surrounding the evidence. In this way, fairness and proportionality work together to preserve public trust in the legal system by ensuring that justice is not only done but seen to be done. 61. Explain the sources and the subjects of international law and give examples The sources of international law include: Treaties: Binding agreements between states. Examples include the European Convention on Human Rights (ECHR) and the UN Charter. Customary International Law: Practices that have evolved over time and are accepted as legal norms by states, such as the principle of non-intervention. General Principles of Law: These are fundamental legal principles recognized by civilized nations. Examples include reciprocity and self-defense. Judicial Decisions: Precedents set by international courts, though their binding authority varies. Writings of Publicists: Scholarly opinions and interpretations that help shape international law, although they have less binding power than other sources. The subjects of international law are primarily states, but increasingly, individuals, international organizations, and non-state actors are also considered subjects. For example, Lautsi v. Italy involved an individual's rights under international human rights law, demonstrating the growing influence of individuals in international law. 62. What is the legal value of an international treaty from a domestic perspective? Give an example The legal value of an international treaty in domestic law depends on whether the country follows monism or dualism. In monism, international law is automatically incorporated into domestic law without the need for additional legislation, as in Argentina. In dualism, international treaties require domestic legislation to become enforceable within a country's legal system, as in the UK, where parliamentary sovereignty prevails. For example, the Hirst case in the UK showed how domestic courts may ignore international treaty obligations, like those under the ECHR, due to national legal supremacy. This reflects the tension between international obligations and the principle of parliamentary sovereignty. In dualist systems, a treaty's legal effect is limited until it is specifically adopted into domestic law, creating potential conflicts between international commitments and national legal practices. 63. Explain the types of international law and give examples Explain the differences between international public and private law and give one example of each If you can provide the map between the different subfields of international law and explain Public International Law: Governs relations between states and international organizations. Example: the UN Charter, which sets rules for the use of force and state sovereignty. Private International Law: Deals with legal issues arising from cross-border private disputes, such as contracts or family law. Example: international arbitration agreements in business disputes. International Criminal Law: Addresses crimes like genocide and war crimes. Example: the International Criminal Court (ICC) prosecutes individuals for war crimes. International Human Rights Law: Protects the rights and freedoms of individuals across borders. Example: the Universal Declaration of Human Rights (UDHR). International Economic Law: Regulates economic relations between states, including trade agreements. Example: the World Trade Organization (WTO) rules on trade practices. 64. Explain the problem of legal pluralism and use the example of the Council of Europe Legal pluralism refers to the coexistence of multiple legal systems within a state or international framework. This can create conflicts when different legal systems offer different interpretations of laws. For example, the Council of Europe includes countries with varying legal traditions, creating challenges when balancing national sovereignty with international human rights obligations. A pluralist approach may allow for diverse legal systems to exist, but this can lead to inconsistent application of human rights standards, as seen in the case of Lautsi v. Italy, where Italy’s cultural traditions clashed with the European Court of Human Rights' rulings. 65. Explain the Lautsi v. Italy case In Lautsi v. Italy (2011), the European Court of Human Rights (ECHR) ruled on whether the display of crucifixes in Italian public school classrooms violated the right to education and the freedom of religion. The case was brought by Soile Lautsi, a mother who argued that the crucifixes contradicted her children's non-religious beliefs. The Italian court argued that the crucifix was a cultural symbol, not a religious one. The ECHR initially ruled in favor of Lautsi, stating that the presence of religious symbols in classrooms could infringe upon a student’s freedom of belief. However, the Grand Chamber later overturned this ruling, citing that it was within Italy’s margin of appreciation to maintain such symbols as part of its cultural heritage. This case highlighted the tension between national sovereignty, cultural traditions, and international human rights law.

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