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Complete Business Law and Ethics (BLE) Summary and Tutorial Answers (Full) - Grade 10
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Voorbeeld 3 van de 26 pagina's
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Tutorial Week 1Question 2 | Poland violates EU law by allowing the Disciplinary Chamber of the Supreme
Court – the independence and impartiality of which is not guaranteed – to take decisions
2a |Explain why the introduction of the Disciplinary Chamber that gives it powers to
directly affect the status of judges and the exercise of their judicial activities could be a
jeopardy to the checks and balances of the trias politica? Introduction of the Disciplinary
Chamber will interfere with the separation of powers since the Disciplinary Chamber will
have the both powers of execution and judiciary. Furthermore, they will also be able to
ignore the current legislation and act on their own decision. As a disciplinary chamber was
installed, judges didn’t feel free. They’re being punished/disciplined. Judges are not free to
judge since the Disciplinary chamber puts pressure on judges. This may make judges afraid
to rule in a certain way that opposes certain opinions. Being biased by fear -- they don’t feel
safe so they’ll act without taking responsibility in a way that they think it’s granting them
points/appreciated by the biggest stakeholders. Article 19 is not adhered to.
2b | Why does the European Union have the right to question any domestic law that
Poland declares to organize their own judicial system, since it concerns only the
accountability of the Polish judges? Is this not a matter of sovereignty of the Polish
government? There’s a social contract within EU member states. And law of the European
Union demands conformity with their laws in order for a company to stay within the union.
When something doesn’t comply with EU laws, the EU has the right to question. Therefore,
sovereignty is not a matter since Poland is part of the EU and EU has supremacy over the
country. A country can deviate but you still have to adhere to the treaty + you can
implement it in accordance with your own laws as long as they don’t drift away from the
intent of the treaty.
2c | Would it make any difference if Poland would have a monistic or a dualistic system?
Explain the difference. Poland is considered monistic. In a monistic legal system, the
international law is automatically a part of the national legal order, and any contradicting
national rules will – from that moment on – not apply. In this case, Polish judges won’t be
able to declare their own judicial system since some decisions conflict with the EU. Monism
is accepting EU laws. However, in case of Dualism international treaty and has to be
translated + implemented into national domestic law. Therefore, EU laws are not directly
accepted but still the intent of the treaty is valid and country’s law should not drift away
from that. In dualistic they would’ve been able to implement it differently. It applies only to
some extent. If you're a member of a treaty you have to adhere to the basic understandings
of the treaty. But you can’t deviate too much from the treaty and the goals of the treaty.
Article 19 should be adhered to and EU law has supremacy.
2d |Explain how the checks and balances is applied in a purest form of trias politica. With
checks and balances, each of the three branches of government can limit the powers of the
others. This way, no one branch becomes too powerful and the branches keep each other in
their best position and performance. All branches are different and an independent party
could be a judge/intermediate between branches. These branches are legislative, executive
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,and judicial powers. The legislature is responsible for law making, the executive branch is
responsible for executing the law in practice, while the judiciary is responsible in settling
legal disputes. Trias politica is the organization of a state by separating legislative, executive
and judicial powers.In a pure form of trias politica all branches have their separate rules.
what is legislative, what is execution,
3a | The underneath Judgement of the Court is a preliminary ruling. Under point 28 very
important principles of EU law is mentioned. Which principles are mentioned here?
principle of legal certainty + protection of legitimate expectations
3b | The principle of legal certainty is a function of law, what does this principle entail in
general? As a general principle in European Union law, it means that the law must be
certain, in that it is clear and precise, and its legal implications foreseeable, especially when
applied to financial obligations. Citizens should know the implications of their actions
beforehand to foresee what your actions will result in legally, therefore legal certainty is
necessary. For example, a citizen cannot be punished for something that wasn’t forbidden at
the time of his action. Also as a legislative, one should try to make the law as uniform as
they can be so there aren’t interpretations possible.
3c | Do the principles of EU law only need to be observed by the EU institutions, please
read the case to find the answer. No, the principles of legal certainty and of the protection
of legitimate expectations must be observed not only by the EU institutions, but also by
Member States in the exercise of the powers conferred on them under EU directives.
3d | The concept of legal certainty is recognised as one of the general principles of EU law
by the European Court of Justice since the 1960's. What does the principle of certainty
mean in EU law? The principle of legal certainty in EU law "requires that all law be
sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to
a degree that is reasonable in the circumstances, the consequences which a given action
may entail". As a general principle in European Union law, it means that the law must be
certain, in that it is clear and precise, and its legal implications foreseeable, especially when
applied to financial obligations. Everyone should know the legal consequences of their
actions beforehand.
3e | The court in this case formulated that something needs to be determined in order to
give a judgement on the question if the principle of legal certainty was correctly upheld,
what is it that needed to be determined? It is necessary to determine whether the conduct
of an administrative authority has given rise to a reasonable expectation in the mind of a
prudent and well-informed trader and, if it did, the legitimate nature of that expectation
must then be established. Something needs to be written down or stated and it should not
be open for interpretation and be able to act upon it. Administration falls under “executive”
so execution of law is in such a way that a normal well-thinking person can understand the
consequences and act upon it.
4a | What are the two approaches in legal philosophy traditionally distinguished regarding
the origin of law? The two approaches are Natural law and positivist law. Origin of law is
regarding when do we consider it law.With natural law, there’s legal uncertainty in there
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, because you can disagree with what is actually the law. Positivist law focuses on
formalization and legal certainty whereas natural law focuses on content and there is legal
uncertainty. Even if there’s legal certainty there might be inequality as an outcome. Highest
source of natural law is human rights. Positivist law’s highest standard and source is it’s
codified standards.
4b | What is the core principle of Natural Law? The core principle of Natural Law is the
principle of morality and therefore a close connection exists between the law and morality.
Highest source of natural law is human rights. Sense of morality is within the natural law.
4c | The Article expresses a relationship between Natural law and a certain category of
rights, please explain what category of rights is referred to and what makes there rights
and example of natural law? And what is the advantage of this natural law approach? The
article expresses a relationship between Natural Law and Human rights. These rights cannot
be given or taken away by any power of law or authority. Moreover, the right-holder cannot
surrender their rights or give them away. Human Rights are globale, everyone agrees up on,
and it’s clear. In addition, human rights are interrelated and cannot be considered in
isolation. “equal cases should be treated equally”. One advantage is that they don’t have to
be codified and they’re clear. It doesn’t matter where one’s born. It comes naturally.
Disadvantage is that with natural law, there is legal uncertainty due to lack of codified
standards.
4d | Is there a problem or a disadvantage you can think of the natural law approach
towards human rights? A problem that might rise is that humans don’t have the same moral
beliefs. Due to our different environments and cultures everyone has different definitions of
‘just’. Conflicts could arise because we perceive our virtues differently as good or bad. In
addition, one disadvantage regarding human rights is that they are limited in the way one
can interpret them. For example, different cases with the same words are possible. This
would possibly confuse people.
4e | What is the definition of positivist law? In a positivist law approach, it is assumed that
law comes forth from codification. This means that law is only law when it has been written
down first. The advantage of such an approach is that people know beforehand what the
rules of the game are (in line with the principle of legality). Legal positivism stands for: to
protect people against extreme understandings of natural law. (page 24 book)
4f|The article mentions the Universal Declaration of Human Rights, is this declaration
legally binding? The term “right” can be associated with the set of moral values as in natural
law and therefore have no legal implications. The term right can also refer to the laws
described in constitutions or treaties, some of them legally enforceable, and legally binding.
The issue is that the legal rights can be subjected to change or can be withdrawn by the
authority of the state. In addition, The Universal Declaration of Human Rights is not a treaty,
so it does not create legal obligations for countries. However, there is a nearly universal
presumption that certain core values such as dignity and equality are inherent to human
nature and therefore there is a moral basis for an individual to hold a set of rights by the
virtue of being human.
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