Introduction To The Legal System Module 2- First Partial

Describe the four main characteristics of a legal system

1. Individuals coexisting

2. Shared criteria to evaluate behavior

3. Rules making some behaviors illicit and redrawing others

4. An authority exists with law making power and power to enforce rules

What are the two theories concerning the nature of legal systems

Normativism:

• Emphasizes the formal and state elements of a legal system

• Hans Kelsen

Institutionalism:

• Emphasizes the sociological element and depicts the legal system as an expression of that

• Santi Romano

What are the four key characteristics of a legal system , explain each

1. Fluidity

• Fluid vs. concentrated

• Fluid: There is no central authority, ex. International law

• Concentrated: Strong central authority, ex. The state

1. Specialization

• Specialist vs. general

• Specialist: Rules governing specific relations, ex. The church, WTO

• General: Pursuing general aims, all spheres of life, ex. The state, EU?

1. Voluntarity

• Voluntary vs. necessary

• Voluntary: Common will, interest, belief, ex. Political parties, associations

• Necessary: Cannot opt out, mostly territorial, ex. Town, state

1. Sovereignty

• Sovereign vs non-sovereign

• Sovereign: Self-sufficient, no external legitimation, ex. The state

• Non-sovereign: Requires authorization and legitimation by a sovereign, ex. Regions, government agencies, EU

Describe the state as a kind of legal system

1. Objective: General Aims

2. Concentration: Necessary and concentrated

3. Distinguishability: Original/ sovereign

List and characterize the elements of a state’s legal system

Territory: Geographically defined state borders

1. Dry Land

2. Territorial seas: full sovereignty, 12 nm

• Contiguous zone: Customs, immigration, 24 nm

• Economic zone: Mining and oil, 200 nm

• High seas: International waters

3. Continental shelf

4. Areal space

5. Subsoil

Sovereignty

1. External sovereignty: Each state has equal rights and no superior authority

2. Internal dimension: State has supreme authority over citizens, exercised through its law making power

What is the Montevideo Convention

A 1933 international treaty that defines the criteria for what makes a country a sovereign state

What are the first three articles of the montevideo convention

Article one: Definition

A state must have:

• Permanent population

• Defined territory

• Government

• Capacity to enter into relationships with other states

Article 2:

A federal state shall constitute a sole person in the eyes of international law

Article 3:

States are judicially equal, enjoy the same rights, and have equal capacity in the exercise of their rights

The rights of each state do not depend on power, but on the simple fact of its existence as a person under international law