BLE Tutorial 1:
1. To organize behavior to prevent chaos, keep order. It regulates what is just behavior.
3 basic values in society for Just behavior:
1) Justice
2) Opportuness (effectiveness/pragmatic law)
3) Legal Certainty (something must be known to be illegal)
2. A) S
B) F
C) S
D) F
E) F
3. When government acts as a company its private law.
Public Law.
4. A) FPublicL
B) FPublicL
C) FPrivateL
5. 2 approaches to legal philosophy:
Positivism <-> Naturalism
6A. natural law is from human rights. Like don’t kill. Laws emerge from nature, therefore it does not
need to be codified.
Natural does not generate discussion, but its very subjective (so little legal certainty).
6B.
Positivist law is when everything has to be codified. Like put a will at the notary.
8. Can you name and describe the two approaches in law regarding the effect of
international law in the domestic legal order?
Monism <-> dualism
A ratified treaty needs to be first domestic law be transformed (dualism)
Treaties need to be codified in domestic law.
A ratified treaty becomes law instantly, automatically part of the domestic legal system (Monism,
Swiss, Japan)
9. monistic
10. monistic, there the content of a ratified is auto part of national legal order, all legal people can
appeal to the rules of the treaty
11. NO, because it needs to implemented in domestic law first.
12, stare decisis is that courts have to side with what has been decided before. Case law and
precedents
13, in non-secular state government and religion are mixed. Secular
14. Ius Cogens is fundamental right, universally binding legal principles (like Natural law)
15. purpose of comparative law is gaining knowledge and evaluating better law. Substantiate the
application of law (compare law to make sure it is correctly applied, for example commonwealth
countries consider how other u.k. countries decided. Improve legal education and improve
unification of law.
16. legal family is legal systems that share basic characteristics.
Common law, civil law, socialist law, religious law, traditional law, mixed system
17. Civil law.
18. A) stare decisis and case law
B) judge makes decision on codified law
C) looks at the view/will of the party regiment.
D) interpret law in religious consistency.
19. Common law, more interpretation liberties.
20. Where macro comparison gives us insight in entire legal systems, micro comparison is focused on
a particular legal solution to a problem within different legal systems.
Samenvatting:
Wetten organiseren gedrag om orde te bewaren en chaos te verminderen. Er zijn 3
onderdelen van goed gedrag (Just behavior):
1 – Justice: de morele convicities van een maatschappij uitgedrukt in geschreven wetten
2 – Opportuness: de wetten moeten effectief en pragmatisch zijn
3 – Legal certainty: Het moet bekend zijn wat legaal is en illegaal
Substantive Law is de leefregels die we moeten navolgen,
Formal law is hoe de wetten worden uitgevoerd en wat de straffen zijn
Public Law: wetten tussen burgers en de overheid
Private law: wetten tussen burgers (Legal persons)
Wetten komen van 2 origine: de natuur en geschreven wetten
Natural law is reasonable to imply but vulnerable to perspectives and therefore to legal
uncertainty
Positive law is protected from extreme beliefs but is behind on reality and lacks
generalizability
Legal sources:
1. Codified Standards (geschreven wetten)
2. Application of Law (precedents; stare decisis)
3. Legal writings and teaching
4. Religious Writings and Teachings
5. Customary Law
6. Legal Principles
Monism:
Treaty laws are immediately “on top” of domestic law and old laws are invalid
Dualism:
Treaty laws are first transformed into the domestic law, so domestic law is changed to
accommodate the treaty
Uses for comparative law:
1. Gaining of Knowledge
2. Evaluating the better law
3. Substantiate the application of law
4. Improve legal education
5. Unification of law
Legal Families:
Common law (has solicitor and barrister)
Civil law
Socialist law
Religious law
Traditional law
Mixed law
The tertium comparationis is the shared social problem to which the compared legal
solutions answer.
The praesumptio similtudinis is the assumption that in essence each society faces the
same social problems.
Legal answers to social problems have the same function and are therefore functionally
equivalent.
Constitutional Law:
Social Contract — Citizens are Willing to give up some of their sovereignty (freedom and
individuality) to the power of the state. The state in exchange develops a safe and secure
environment for its citizens. 1f the state abuses the powers it was given, then the citizens
have a
right to stand up for themselves.
Freedom and power are interrelated, with freedom being a measurement of the interference
in the lives of citizens.
Negative freedom – NO interference
Positive freedom - YES Interference
The State structure determines the way power is distributed amongst the entities of the
state. Most common state structures are Federation (autonomous provinces) and unitary (No
autonomous provinces)
Government system determines the way power is distributed amongst political institutions. Most
common types are Monarchies and republics (republics institutions have more restrictions on the
power they wield)
Bi-cameral system has 2 legislative bodies (upper/lower), Unicameral system has only 1 legislative
body.
The executive branch has varying degrees of power but usually have some say in enforcing the law
and therefore its interpretation has effect. Its power can be taken away by the legislative branch but
usually executive branch has veto power.
Most countries have multiple court layers to free up time for the better judges. There are also courts
for the military, taxes, Constitution etc.