Law Summary and Legal Personhood

Flashcards for reviewing law summary and legal personhood concepts.

What is the negative function of law?

It removes the ability to do certain things.

What is the positive function of law?

It adds procedures for dealing with particular situations.

What is ethnocentrism in the context of Western laws?

The risk that contingent and relative features of Western societies’ laws are turned into necessary and absolute requirements of law as such.

What is traditionalism in the context of Western laws?

The risk that Western law is considered as the final stage of the history of mankind.

Is an institutional authority required to enforce the law?

Generally yes, but law is not necessarily incompatible with vengeance.

What requirement must institutional authorities meet?

Centralized power.

Name three different layers of law.

International, National, and European.

What is the purpose of comparative law?

To measure differences and similarities between legal systems, not to judge which is best.

What are the two approaches to measure differences and similarities in comparative law?

Functionalist and Historical-comparatist.

What does the functionalist approach focus on?

Practical problems and their solutions, independently of conceptual structures.

What does the historical-comparatist approach focus on?

The common Roman heritage of comparable legal systems.

What is micro-comparison?

Comparison based on operational solutions to individual practical problems.

What is macro-comparison?

Comparison based on different constitutional and institutional features of national laws.

What does private international law deal with?

Conflict of laws due to the plurality of autonomous jurisdictions.

What is the function of conflict rules in private international law?

To provide guidelines for choosing which legal system is competent to rule a case.

What is the procedural part of private international law?

Determining which court is competent and which law rules the proceedings.

What is the substantial part of private international law?

Determining which law rules the rights and duties of the parties involved.

What is the goal of uniform law?

To achieve uniformity of law through common interpretation of uniform legislation.

Give two examples of Civil law jurisdictions.

Russia, Quebec, Congo, EU member states.

Give two examples of Common law jurisdictions.

Ireland, US, UK, Australia.

What is the main source of law in Civil Law jurisdictions?

Statutory Law.

Name the three branches of power.

Executive, Judiciary, and Legislature.

Which branch of power executes the law?

Executive (Government).

Which branch of power enforces the law?

Judiciary (Courts).

Which branch of power writes the law?

Legislature (Parliament).

Who enacted the Napoleonic Code in 1804?

Napoleon.

What are the basic ideas of the Napoleonic Code?

Make law accessible, break feudal particularism, uphold equal treatment, apply law irrespective of social class.

Which German jurist advocated for immediately drafting a German code after the enactment of the French code?

Anton Friedrich Justus Thibaut.

Which German jurist thought it was better to first develop a stable corpus of doctrines before setting them out in a comprehensive codification?

Friedrich Carl von Savigny.

What is the structure of the BGB based upon?

The structure of the German Civil Code (Bürgerliches Gesetzbuch, BGB) is based upon a modified pandectist structure, derived from Roman law. This means it organizes private law into a systematic and logical framework, moving from general principles to more specific areas.

What was the Codice Civile of 1865 basically comprised of?

A translation of the French Code Napoleon.

When did the new Codice Civile enter into force?

The new Italian Codice Civile entered into force in 1942, marking a significant revision that integrated elements from both the German BGB (Bürgerliches Gesetzbuch) and the French Civil Code (Code Napoléon). This comprehensive legal overhaul sought to harmonize Italian civil law with contemporary European legal thought, blending the systematic and doctrinal rigor of the BGB with the accessibility and liberal values of the French Civil Code, thereby updating and modernizing the legal framework in Italy.

What are the differences between French, Italian and German Civil Codes?

• The French Code Napoléon in 1804 was the pioneering code, emphasizing accessibility, equality, and key liberal values, blending different French legal traditions

• The German BGB, developed later in 1896, was more academic and systematic, strongly based on Roman law and featuring a unique General Part with abstract concepts

• The Italian Codice Civile evolved from an initial imitation of the French model (1865) to a later version (1942) that deliberately integrated elements and advantages from both the French and German codes.

What is a mixed jurisdiction?

Where a splinter of civil law coexists within a wider state context dominated by common law, ex Lousiana within the US.

What two clauses make up legal rules?

IF clause and THEN clause. Generally, IF a ‘state of affairs’ occurs THEN someone will be burdened by a ‘sanction’.

What is normativism?

The concept that law consists essentially of rules.

What is the Protasis (IF-clause)?

State of affairs, any occurrence, natural event, or human act.

What is the Apodosis (THEN-clause)?

Sanction, punishment meted out by an official.

What are the two elements of the scope of the law?

Generality and Abstractness.

What is the difference between mandatory and default rules?

Mandatory rules cannot be set aside by agreement, while default rules can.

What are primary rules?

Rules that directly regulate the conduct of individuals.

What are secondary rules?

Rules that govern the entire legal system, conferring sovereignty and the power to change and enforce primary rules.

What three things do secondary rules ensure in a legal system?

Certainty, dynamism, and efficiency.

How do civil law jurisdictions authorize judges to create new rules?

Secondary rules authorize judges to extend the scope of existing rules.

How are conflicts of norms settled?

Conflicts of norms are resolved through the application of several criteria:

• Hierarchical Criterion: This principle dictates that if norms are ranked hierarchically, the higher-ranking norm prevails.

• Content-Based Criterion: Where one norm is more specific than another, the more specific norm should be applied.

• Time-Based Criterion: The newer norm prevails over the older one, based on the principle that laws evolve over time.

Name three functions of principles in law.

Principles in law serve to:

• Interpret: Guide the understanding of legal rules.

• Supplement: Fill gaps where rules are lacking.

• Correct: Mitigate harsh outcomes from strict rule application.

What is the difference between public law and private law?

Public Law regulates vertical relationships, while Private Law regulates horizontal relationships.

What characterizes the Law and Economics Movement?

Subjecting the law to an analysis based on economic methods.

What is the focus of Coase Theorem?

How parties can efficiently resolve conflicts over property rights and externalities. The fundamental idea is that negotiation and clearly defined property rights can lead to a mutually beneficial solutions without need of government intervention.

What did the European Coal and Steel Community (1951-1952) concern?

Supranational control over the areas of production of coal and steel between France and Germany.

What was the purpose of the Rome Treaties (1957)?

Two primary purposes: the creation of the European Economic Community (EEC) to establish a common market among member states, and the establishment of the European Atomic Energy Community (EURATOM) to promote cooperation in the peaceful use of atomic energy.

What did the the Single European Act (1986-1987) do?

Revised the Treaty of Rome to facilitate the transition from a European Common Market to a single market, ensuring the freedom of movement for people, services, capital, and goods without fees or discrimination.

What did the Maastricht Treaty (1992-1993) establish?

• Economic and Monetary Union (EMU): This paved the way for the introduction of the euro and established the European Central Bank.

• European Citizenship: It introduced the concept of EU citizenship, granting additional rights to the nationals of member states.

• Three-Pillar Structure: This divided the EU into three pillars: the European Communities, Common Foreign and Security Policy (CFSP), and Justice and Home Affairs (JHA).

What did the Lisbon Treaty (2007-2009) do?

EC and EURATOM were absorbed into the EU. 3 pillar structure abolished and community method was extended to all EU competence.

What is the history of the European Union

• It pursues economic and social integration through legal frameworks and policies.

• Unlike a typical Federal State, the EU is not founded on a unified constitutional state population but operates as a supranational organization.

• Exhibiting characteristics of a Confederation of States, the EU possesses certain sovereign rights, enabling it to engage in international relations and agreements.

What is the structure of the European Union

Legislative power

• Council

• European parliament 

• European Council

• Commission
  

  

Judiciary power

• Court of Justice

What does the principle of conferral entail when dealing with the European Union?

The EU acts on the competences delegated to it by the Member States through Treaties.

What does the principle of subsidiarity entail when dealing with the European Union?

The EU acts in circumstances where action is preferable at the Union level rather than by Member States.

Give the three requirements of the principle of proportionality when dealing with the European Union.

Suitable, necessary, and not imposing an excessive burden.

What are the primary level sources of European Union Law

Primary level:

• Founding treaties

  • Treaty on the European Union (TEU)

  • Treaty on the Functioning of the European Union (TFEU)

• General Principles 

  • General principles of civil law to fill the gaps of EU law (e.g. compensation for loss, good faith and restitution of unjust enrichment)

• Charter of Fundamental rights of the European Union 

  • The EU is bound to recognize the rights, freedoms and principles set out in the Charter

Protection of human rights based on international treaties binding for Member States, such as: European Charter of Human Rights.

What are the secondary level sources of European Union Law

Secondary level:

• Regulations

  • Binding for Member States in their entirety

  • Directly applicable to Member States

    • No need for Member States to adopt any national measure to transpose or implement them

  • General application

    • Abstract and general provisions

• Directives

  • Binding as for the result to be achieved but Member States are free to choose the forms and method of their action

    • Implementation through national laws

• Decisions

How are Regulations applied in the EU?

Binding in their entirety, directly applicable, and do not require national transposition.

How are Directives applied in the EU?

Binding as to the result to be achieved, but Member States can choose the forms and methods.

What happens if a State fails to implement a directive in accordance with EU law, or implements a directive inaccurately?

That State is in breach of EU law and thus is obliged to pay damages to its citizens who could have benefited from the rights granted by it.

What is meant by “Supremacy of European Union Law”

ECJ and national courts are bound to apply EU law - In case of doubts regarding the interpretation and application of EU law.

What does the Preliminary Ruling (Art. 267 TFEU) entail?

Establishes the procedure by which national courts refer questions to the Court of Justice of the European Union for interpretation of EU law or assessment of the validity of EU acts to ensure their uniform application across Member States. EU law must be directly applied by the national judge. (Simmenthal case – 1978)

Even if the second piece of legislation is enacted after the first, what legislative act takes precedence?

EU legislative act. This was seen in Costa v Enel (1960).

Name one of the three key conditions that must be met for a private citizen to be compensated for damage arising from an infringement of EU law by a Member State.

Directive should grant rights to the individual, Identification of the content of the rights on the basis of the provisions of the directive, and Causal link between the breach of the State’s obligation and the loss and damage suffered.

What is minimum harmonization in the context of EU private law?

Leaving Member States the option to provide for a stricter protection of their citizens and maintain national differences.

What is maximum harmonization in the context of EU private law?

EU legislature has turned to a Maximum harmonization. EU private law traverses the single sectors of the common market where the call for regulatory intervention of the EU is more stringent (vertical approach). 

What are the two parts of European Union Contract Law?

• General part: sets of rules that apply to a contract irrespective of its type (sale, loan, etc.)

• Special part: sets of rules addressing contracts relating to goods or services that, due to the difficulty and technicality of information needed to evaluate them, are purchased on the basis of credence given to the supplier - Typically, financial services (banking, investments and insurance contracts)

What is fundamental economic freedom?

• Free movement of goods (e.g., customs duties, quantitative restrictions, or measures having equivalent effect);

• Freedom of establishment and to provide services (e.g., nationality-based authorizations or unjustified licensing requirements);

• Free movement of persons (e.g., discrimination in employment or social-security rules based on nationality); and

• Free movement of capital (e.g., restrictions on cross-border investment or money transfers).

Which two TFEU Articles form the core of EU antitrust law?

Article 101 (prohibition of restrictive agreements) and Article 102 (prohibition of abuse of a dominant position).

What did the Cassis de Dijon ECJ decision of 1979 establish?

If a product is lawfully produced and sold in one EU member state, it should be allowed to be sold in any other EU member state without additional regulations.

Give an example of a secondary level component of the European Private Law.

Labor law, Intellectual property law, Company law, or Contract law (business-to-business or business-to-consumer).

What governs European Private International Law?

Unified through EU Regulations.

What is the general rule of European Private International Law?

Grants the parties the freedom of choice of the law applicable to their relationship.

What are the exceptions to the freedom of choice?

• In contract law: Consumers cannot be deprived of the protection afforded to them by the law of the country where they have their habitual residence 

• In tort law: Acts of unfair competition 

  • provided that the professional either (a) pursues commercial or professional activities in the country of habitual residence, or (b) by any means directs such activities to that country or to several countries including that country

What is Principles of European Contract Law (PECL)?

A set of model rules drafted by the Commission on European Contract Law to harmonize and guide the interpretation and application of contract law principles across Europe. The most successful project of a European and scientific private law (based on the CISG).

What is Principles of International Commercial Contracts (PICC)?

A set of non‐binding guidelines drafted by UNIDROIT to offer a balanced and widely accepted framework for the formation, performance, and interpretation of international commercial contracts.

European Civil Code Creation

1. Early push for a “European civil code.”

   • The European Parliament kept asking for a single, unified civil code (a comprehensive book of private‐law rules) that would apply across all Member States. The European Commission agreed it was worth looking into.

2. Consultation shows it’s not realistic.

   • When the Commission asked stakeholders for feedback, the general response was “No, this isn’t workable.” So in a 2003 Action Plan, the Commission decided a full‐blown civil code wasn’t feasible at that time.

3. Common Frame of Reference (CFR) instead of a code.

   • Rather than writing a new code from scratch, the Commission proposed creating a Common Frame of Reference: basically, a set of shared principles and vocabulary for contract law.

   • Academic experts then drafted the Draft Common Frame of Reference (DCFR) in 2008/2009. Originally, DCFR looked like a traditional 19th‐century civil code—but eventually it was treated more as a “toolbox” of optional rules and a common legal language, not a binding code.

4. Turning DCFR into a sales‐law option (CESL).

   • After shelving the idea of a full civil code, the Commission took the DCFR’s rules on sales contracts and packaged them into a draft Common European Sales Law (CESL) in 2011.

   • The idea was to let businesses and consumers across the EU choose this “opt‐in” sales law instead of their own national rules. The European Parliament approved it in 2014.

5. CESL meets resistance and is withdrawn.

   • Many Member States—and parts of business and legal communities—strongly opposed creating a parallel sales‐law system. They worried it would fragment the market or clash with existing national laws.

   • Because of that pushback, the Commission ultimately pulled the CESL proposal in 2014.

Legal Facts vs Legal Acts.

Legal Facts are events or actions that are legally relevant and trigger legal effects, while Legal Acts are expressions of will intended to produce legal effects. Legal facts and acts have specific consequences that are enforced by the legal system.

Do all events trigger legal effects and fall within the scope of law?

No, not every event triggers legal effects and falls within the scope of law.

How are events and actions that carry legal effects identifiable?

By recognizing all norms at a given time and ascertaining which states of affairs such norms provide for.

What are legal facts?

All events and actions that are legally relevant.

Give two examples of classifications across different legal systems.

German Conception, French Conception, and Italian Conception.

Describe the French bipartite taxonomy.

Actes Juridiques: expressions of will intended to produce legal effects. Faits Juridiques: actions or events to which the law attaches legal effects.

What is voidness?

A wholly or partially ineffective legal act, due to illegality, indefiniteness, vagueness, or lack of formal requirements, not time-barred.

What is avoidance?

A voidable act is effective until avoidance, aggrieved party has power-right to disaffirm an avoidable act, time-barred.

What is the focus of civil law systems when dealing with legal positions?

Predicated on a specific person or group of specific persons, scope clings to relations between legal subjects.

What is the focus of common law systems when dealing with legal positions?

Actions - ‘Remedies precede rights’

What is the entitlement relationship?

Based on entitlement. Position of advantage: position of can/may do something. Position of disadvantage: position of shall/must do something.

What order of relations do rights apply to?

First-order relations.

What order of relations do powers apply to?

Second-order relations.

Give one example of a freedom.

May-do: Allows a certain person or group of persons, to do something or to abstain from doing something with no duty to do or not do that ‘something’.

What does can-do entail?

Enables a specific person or group of specific persons to expand, reduce, or otherwise modify, in particular ways their own entitlements or those of another.

Define authorization.

The power to change someone else’s entitlements may arise either from the command of the law or from a previous legal act of the liability-bearer themselves.

What principle must the exercise of powers align with?

The general principle of good faith.

What does immunity negate?

Immunity negates a liability.

What are subjective rights?

Subjective rights are the legal entitlements or claims that individuals or legal entities have under the law, allowing them to act in certain ways or to demand certain actions from others.