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Law first year summary

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the topics are discussed with examples and sometimes with links in case of some harder topics

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  • June 1, 2022
  • 57
  • 2021/2022
  • Summary
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Constitutional law
Purpose of constitutional (public law)
3 types of rules
 Redefining the state (boundaries, anthem, flag)
 Recognition of rights of the citizens of that state
 Attribution (& limitation) of power to the state institutions

Public law compromises
= constitutional-, administrative-, tax-, and criminal law


The struggle for power

 To what extend is the interference of the authorities desirable?
Social contract -> starting point for organizing states in most European countries
= Social contract theory says that people live together in society in accordance with an
agreement that establishes moral and political rules of behaviour.


Constitutional law: regulates the distribution amongst
state institutions
 Trias politica
Judiciary = rechterlijke macht
Parlement = wetgevende macht
Executive government = uitvoerende macht




Language of CL

State structure
= the way the power is distributed amongst the entities of the state
Unitary state vs federation

Federation
= unites federated areas that are self-governing within the boundaries set by the federation
 Certain level of autonomy in legislation & government

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 Provinces, regions, cities, states
 Often: constitutional court
 strong central government. each level of governments has its own democratic
legitimacy, its own fiscal resources, and its own legislative and administrative
powers.
defence, monetary policy and foreign policy are usually performed by the federal
level.

Unitary state
= the legislative, executive & judicial branch are centrally focused and have the exclusive
power to ultimately deal with the adoption, execution & interpretation of law
= France, Italy, Japan…

Confederal government
 An association of independent states
 The central government gets its authority from the independent states. Power rests
in each individual state, whose representatives meet to address the needs of the
group.
 An agent of its members
 Its fiscal revenues, defense and foreign policy essentially rely on its member states



The government system
monarchy vs republic

Monarchy
 Highest power is vested in one person & transferred from generation to generation
 Appointed based on tradition (mostly family ties)
Republic
 The highest power is attributed to political bodies that rule within the boundaries of
a constitution
 Headed by a president
 Highest legislative power consists of a body that represents the people (democratic
level can differ)



Democracy
= a form of government in which the highest power is vested in the people that are
government
 Direct vs representative democracy
Direct: the people are involved in the decision-making process
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Indirect: the people decide who represent them in the decision-making process
 legislative and/or executive branch, not the judiciary




The head of state
 exact power can differ, see constitution
 especially in a republic the role of a president can differ



Legislature
 mostly composed of two houses
senate & house of representatives
 House of representatives
= makes and passes federal laws
 Senate
= acts on bills resolution, amendments, motions, nominations, and treaties by voting
Senators vote in a variety of ways; roll call votes, voice votes, and unanimous consent



Executive branch
 Government: mostly led by a prime minister and/or president
 Executes the law
 Mostly: margin of discretion
 Controlled by the legislator (budget laws)
 Sometimes: veto power over the adoption of law
 ‘principle of good governance’
 Legitimacy
 Accountability
 Fairness

Legitimacy
= the belief that a rule, institution, or leader has the right to govern.
Margin of discretion
= indicating some latitude (space to apply the rules) available to international and
municipal(more local) decision-makers in the application of particular international legal
rules.
Veto power
= A veto right is the right of a natural or legal person to prohibit a decision taken by majority
vote. If the veto right is exercised, it means that there is a prohibition on carrying out the
decision
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Judiciary
Common law (UK, USA, Australia…) vs continental law (Western Europe) or combination (S-
Africa)

Common law
 Primarily based on judicial precedents
 Look for previous precedential judgements and base their verdicts on them if there’s
a disagreement between the parties as to which law is applicable to their dispute.

Continental/civil law
 Codified statutes predominate




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