A summary covering all the course material, including example cases. This was my cheat key to get the highest grade of the year, so I wish you the best of luck with the course too!
Cluster 1: Introduction
Rights
Absolutes rights can be exercised to everyone.
Relative rights refer to rights that can be exercised to specific people.
Objective law/rights refer to the principles and foundations that exist independently of the application
of the principles. The rights are written into law.
Subjective law/rights refer to application of objective principles to a given situations, which may
differ from case to case. It refers to how the written laws are applied in practice.
Law
• Purposes and functions
The law consists of norms for regulating human behavior and rules that organize the state.
Moral norms: legal effect is not followed by legal norms.
Legal norms: legal effect is followed by legal norms.
Rule of law
Rule by law: refers to the situation in the past where the monarchs enforced their will by making rules.
Branches of functions:
- Judicial function:
Making the decisions on cases. (courts)
- Legislative function:
Makes law to get to decisions on cases. (parliament)
- Executive function:
Making sure the involved accept the decision on the case, and the consequences are
executed (government)
These branches have to submit to the constitution.
• Principles and rules
The principles operate at a higher level of abstraction then rules. They are the justification and the
background of the rules.
• Sources and hierarchy
Sources(in order of power):
- Treaties: they bind states that have signed and ratified them.
- Legislation (including the Constitution): imposes legal norms on those within the
jurisdiction
- Case law/ Judicial decisions: a lawyer looks at decisions made by judges in the past and
analyze to look at what they can take from that to the application to other situations.
- Customary law: In the absence of written law. It requires a two things: A habit of acting
in one way rather than another, so norm and a shared opinion about whether that habit or
norm is actually based on a duty to act in a such way.
• Legal domain
, Law can be split into these legal domains:
- Private law: refers to relationship between private individuals or legal entity companies
- Public law: refers to the area that governs the state and its relationship with people or
private entities.
Different actors play in different legal domains.
Different roles of same actor in different legal domains; active or passive role of a judge.
Private law: contract law, tort law, property law
Public law: criminal law, administrative law
• Interpretation and argumentation
Statutory interpretation methods:
- Grammatical/linguistic interpretation: literal meaning
- Historical interpretation: using the legislative history, to reveal the intent of the
legislator.
- Systematic interpretation: considering the broader context of the legal framework in
which a provision is listed.
- Teleological interpretation: focus on the purpose of the law.
A judge must provide argumentation of the verdict:
- Legal equality: similar cases should be treated in similar ways.
- Legal certainty: (e.g. you can't be convicted for a crime which wasn't a crime at the time
it wasn't committed)
Legal reasoning: can a certain solution be justified based on law?
If A, then B(legal norm). A is the case(facts). Conclusion is B(legal effect).
Analogy; a similarity in some respects between things that are otherwise dissimilar.
Contrario; from a contrary position.
• Legal systems and traditions
Common law:
Case law; laws are based on earlier judicial decisions of courts and similar tribunals. Judge makes
legal rules in verdict.
Civil law:
Statute law; laws are based on a codification of core principles. Legislator makes legal rules in codes.
• International and EU law
Jurisdiction:
The official power to make legal decisions and judgements. Scope or area within which law applies.
Cases can have different outcome depending on where the dispute arises. It is therefore important to
know which rules are applicable.
Not always easy in internet environment; dematerialization, internationalization.
, EU law:
- Primary law: treaties
- Secondary law: decision, directive and regulation. They are based on treaties.
Decisions are EU laws relating to specific cases and directed to Member States, companies or
private individuals. They are binding upon those to whom they are directed.
Directives lay down certain results that must be achieved but each Member State is free to decide
how to transpose directives into national laws.
Regulation have binding legal force throughout every Member State and enter into force on a set
date in all the Member States.
Council of Europe: leading human rights organization.
Law vs Regulation
Regulation is far broader then law, law is an aspect of regulation’s modalities.
Lawrence Lessig(four modalities of regulation):
Law, market, norms, architecture
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