notes second year

Flashcards on Introduction to Law, covering concepts, theories, functions, legal principles, sources, subjects, statehood, human rights, and enforcement mechanisms discussed in the lecture notes.

Law (according to Immanuel Kant)

A measure of freedom that ensures Human Rights.

Positive Law (according to John Locke)

Ensure rights of the individual, such as the right to life, liberty and property.

School of Legal Positivism

Distinguishes and sees no direct link between law and morality; Law equals positive norms.

H.L.A. Hart's definition of Law

Law is a system of rules.

Sociological/Functional School of Jurisprudence

Law and society are interdependent, linked and influenced by each other in their development. Focus on the functioning of law, of law in practice, on the social context

Marxist Theory on Law

The instrument of the ruling class to maintain its powers, but will wither away in the future communist society.

Psychological School of Law

A phenomenon of human psychology and a manifestation of legal consciousness.

Main social features of law

Aimed to reflect the values of Justice, freedom, equality and humanism. An instrument to balance and regulate complex relationships.

Normative Character of Law

Universally binding provisions that define the rights and obligations of persons and the state.

Permission in Law

Granting someone their right to act at their discretion.

Order in Law

Determines how to act.

Prohibition in Law

Unconditional restraint from certain actions.

Formal Certainty

Ensures accuracy, clarity and predictability of law to determine what is legal/illegal.

Main functions of law

To regulate social relations, to protect rights and freedoms and to resolve social conflicts.

Natural Law

Inherent, does not depend on the state.

Positive Law

Produced by the state (e.g. legislation).

Private Law

Coordination => legally equal.

Hard Law

Legally binding.

Soft Law

Not binding.

Written Law

Legislation.

Unwritten Law

Compulsory as general custom.

Social determinants of law

Politics, Economics, Religion, Culture.

General Principles of Law

Basis, foundation, key idea of Law. A concentrated expression of the most important essential features and values inherent in a certain system of law.

Justice

Formal justice, Substantive justice and Procedural Justice

Legal - formal equality

Equality before the law, court, in rights and duties.

Discrimination

Direct and indirect discrimination.

Sources of law

Written laws, customs and general legal principles.

Material Sources of Law

Laws, traditions, religions, ideology and behaviour.

Formal Sources of Law

Written laws, customs, or legal principles and case law.

Most common sources of law

Legal statutes, Legal customs and Legal precedent.

Legal Statutes

Written law - passed by authorised subjects of law-making; published, and can take different legal forms.

Legal Customs

A long-standing legal rule recognised by the state that has been developed through its consistent, uniform application over time.

Legal Precedent

A rule made by a judgment of the higher court, that must be followed by the lower courts for deciding subsequent cases involving identical or similar facts, or similar legal issues.

Legal Precedent

Doctrine of stare decisis (stand by things decided) => same legal facts = same manner (also based on the principle of equality)

Legal Agreement

A multilateral treaty (2 or more parties), from which rules of law are established, changed or abolished.

Legal Agreement

Treaty, Convention, Covenant, Protocol and Statute.

Legal Doctrine

Conceptual ideas, theories and teachings of the most highly qualified scholars on the essence, scope and interpretation of legal rules.

Subjects of Law

Recognised rights and duties, in particular legal fields, that are legally enforceable.

Subjects of National Law: Natural Persons

Citizens and non-citizens.

Subjects of International Public Law

Sovereign states, international intergovernmental organizations and international NGOs.

Elements of Statehood

People, Territory, Sovereignty and Recognition.

Internal dimension of Sovereignty

Authority within the territory, Accumulation of all public powers and Exclusive power of recognition.

External dimension of Sovereignty

Principle of Independence, Principle of sovereign equality and Principle of free will.

Sovereignty and Jurisdiction

Territorial and extraterritorial jurisdiction.

Doctrine of effective control

The subject who is in control of the situation is the one who is responsible.

Forms of Governance

Republic, Monarchy.

Political Regime

Democracy, Authoritarianism and Autocracy.

4 founding instruments of Human Rights

UN UDHR 1948; ICCPR 1966; ICESC 1966; ECHR 1950.

Right

An entitlement to either perform an action or not to perform an action/to be in a certain legal state or not be.

Freedom

A larger space for choosing a behaviour option, at one’s discretion and under one’s responsibility.

Basic human rights

Universal, Inalienable, Indivisible and interdependent.

The states have under IL a three-fold obligation with respect to HRs

To Respect HRs, To Protect HRs and To Fulfil HRs.

States ensure HRs through

Legislative measures, Effective institutional mechanism and Human rights education.

Three categories of legal duty for Individuals -> State

Act; Refrain; Responsibility.

Way of enjoyment

Negative and Positive

Limitations types

Non-qualified and Qualified

First Generation of Human Rights

Basic Civil and Political Rights

Second Generation of Human Rights

Economic and Social Rights.

Third Generation of Human Rights

Solidarity/Collective Rights

Fourth Generation of Human Rights

Rights to Technological Innovations.

UN most important monitoring bodies on Human rights

UN Human Rights Council and UN Refugee Agency.

International/Universal courts

International Court of Justice and International Criminal Court.

Regional systems of HR protection

Europe, Latin America ,Africa and Arab Region.

European Convention on Human Rights

Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

ECtHR can consider allegated violation via

Inter-states applications and individual applications.