Midterm Study Guide - Chapter 1: Foundations of Law

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.