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Midterm Study Guide - Chapter 1: Foundations of Law

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Midterm Study Guide - Chapter 1: Foundations of Law

  1. Characteristics of Law

    • Rules
      • Specify not only how people should behave but also creates definitions for certain terms (i.e. descrimination) etc.
    • Collective Enforcement
      • A way to enforce legal rules and distinguish them from other rules, often enforced by state organs.
    • Positive Law
      • Law that is created, or laid down, through legislation
  2. Differences between Law and Morality

    • In natural law, immoral laws cannot be considered binding.
    • Morality helps determine "good" or "bad."
      • Positive Morality
        • Moral standards widely accepted at a certain place or time, neither universal nor immutable.
      • Ciritical Morality
        • Moral rules that should be rationally accepted regardless of what positive morality states.
    • Moral laws and norms are considered essential in a society while not all laws may be.
    • Many moral rules have counterparts in law. This is so the state can enforce certain breaches of moraility.
  3. Legal Certainty

    • Certainty about content of law.
    • Certainty that it will be enforced.
    • Certainty that it will be applied consistently.
  4. Customary Law

    • Guidelines of behaviour that arise within a society in the form of mutual expectations which are accepted as binding over time.
    • Often experiences slight changes over generations which go unnoticed, keeping the image of being immutable and natural.
    • Codification of laws is the act of writing them down and putting them together as a system.
  5. Common Law

    • Stare Decisis ("Stand by your decisions" in Latin)
    • Uses precedents and case law to come to judicial decisions.
    • Mainly used in England and the Commonwealth/
    • Judges create new laws through the decisions they make in cases.
    • Equity
      • Originally meant to be an exception to Common Law, it was used to promote fairness. Individuals could ask for their case to be looked at again by the Chancery.
      • Now usually seen as a part of the law.
  6. Ius Commune or European 'common law.'

    • "Reception" of Roman law was the acceptance of Roman law into Europe.
    • Considered Ratio Scripta, or "reason written down."
    • Natural law was law that was established on the basis of reason.
  7. Human Rights

    • Originally conceived to protect citizens against their governments.
    • The adjustment/abolishment of human rights is usually outisde the control of the national state.

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