FIL 312 Final Exam Study Guide

Usus

Consistent and recurring action

Opinio Juris Sive Necessitatis

States observing the practice must regard it as binding

Persistent Objection

Active objection of a customary practice from its first observance by other states. (The only time states can be exempt from customary law.)

Comparative Law

The study, analysis, and comparison of the world’s municipal law systems.

Patricians

The top 1% of Ancient Rome; aristocratic class

Plebians

The general class of Ancient Rome; Working class, farmers, merchants, artisans

Corpus Juris Civilis

The foundational collection of Roman Law, commissioned by Byzantine Emperor Justinian, later studied by scholars as the basis of civil law.

Jus Commune

The shared legal system that prevailed in continental Europe that blends Roman law, canon law, and legal scholarship; “Common Law”

Stare Decisis

Foundational doctrine for precedents; “let the decision stand”

Invisible Hand

The idea that individuals who pursue their own self-interests in a free market unintentionally contribute to the economy; “an invisible hand controlling the markets” (supply and demand)

Universal Jurisdiction

A government may exercise jurisdiction over conduct outside its territory if that conduct is universally dangerous to states and their nationals.

Self-Reference Criterion

The unconscious, automatic tendency to project one’s own cultural values, experiences, and knowledge onto others when making decisions.

State

A political entity that has a territory, a population, a government capable of entering into international relations, and a government capable of controlling its territory and people.

Dependent State

A state that has surrendered its rights to conduct international affairs to another state.

Independent State

A self governing political entity with a defined territory, permanent population, and a government that holds supreme authority free from external control.

Recognition

The formal acknowledgement or acceptance by a government of the independence and sovereignty of a state.

Territorial Sovereignty

The right of a government to exclusively exercise its powers within a particular territory.

Servitude

The right to use property. (In this case, a country’s property)

Merger Rule

The treaties in effect in a former state will remain in effect in its territory when it becomes part of a new state.

Moving Boundaries Rule

The treaties of a state absorbing a new territory become effective within the absorbed territory.

Intergovernmental Organization (IGO)

A permanent organization set up by 2 or more states to carry out activities of common interest.

Charter

A documentation outlining the principles, functions, and organization of an entity.

Organ

An agency that carries out specific functions within a larger organization.

Sanctions

Diplomatic attempts to protect peace and security interests, or international law, by temporarily imposing economic trade, diplomatic, cultural, or other restrictions on a state.

International Law

The body of legal rules and norms that regulates activities carried on beyond the legal boundaries of a single state.

Comity

The practice of courtesy existing between states of treating each other with goodwill and civility. Don’t enforce your state’s laws onto another.

Treaty

A legally binding agreement between two or more states.

Convention

Treaties signed between 2 or more states that act as an international agreement.

Customary Law

A long-established tradition or usage that is consistently and regularly observed, and is recognized by states observing it as a practice they must follow.

How do we determine whether something is customary enough to be considered “customary law?”  

1. Usus — It is a consistent and recurring action

2. Opinio Juris Sive Necessitatis — States observing the practice regard it as binding

What is the international law principle that we get from the case of UK v. Norway, otherwise known as the Anglo-Norwegian Fisheries Case? 

Persistent Objection — Active objection of a customary practice from its firs observance by other states. (Norway’s border)

What is the significance of the Nuremberg Trials with regard to the concept of international law? 

Established that “crimes against international law are committed by men, not abstract entities,” essentially stripped leaders of immunity allowing them to be held accountable.

What are the two most prevalent and important systems of law in the world? 

1. Anglo-American Common Law

2. Romano-Germanic Civil Law

What is the lex mercatoria?

A body of customary rules, trade usages, and principles that developed among merchants to govern international trade, independent of national laws; “law merchant".”

Which two national codes of Europe had the most widespread and lasting influence and are now seen as the basis of modern civil law? 

1. French Civil Code of 1804 (Napoleonic Code)

2. German Civil Code of 1896

What are some differences between the French and German Civil Codes? 

The French code is general and clear so that it can be interpreted and accessible, whereas the German code is extensively detailed, complex, and precise.

What major world event happened in 1066 and what does it have to do with the development of Common Law? 

Norman Conquest of England & the Battle of Hastings. King William I takes the throne which triggers the centralization of the government. This centralization is what leads to the development of Common Law.

What role did King Henry II of England play in the development of Common Law? 

He establishes a new unified legal court system in England with judges, which eventually evolved into common law.

How did the English Common Law system get spread around the world? 

Mainly through the expansion of the British empire, where eventually former British Colonies decided to hold onto the system after gaining independence.

Understand the conflict surrounding whether the United States should have a Common Law or a Civil Code system after independence. 

The main conflict surrounding which legal system the United States should adopt after it’s independence was how judges came into power. Figures like Thomas Jefferson believed judges should be elected, while the Federalists argued that by not being elected, they were free from public influence.

What is the adversarial process under Common Law? 

Both sides are represented by a strong, competent advocate with the goal of pointing out the holes in the others story/argument with cross examination. In this process, judges are there for due process while lawyers are the ones doing the heavy lifting.

What is the inquisitorial process under Civil Law? 

When a judge is doing most of the research, asking questions, and inquiring. They are the ones actively investigating the truth. Lawyers exist, but their role is more limited.

How does legal education differ in Common Law and Civil Law systems? 

In Civil Law systems, you go to university, study law, get your bachelors, and then can practice. In Common Law systems, there is a bigger emphasis on the steps you need to take to practice law; L-sats, law school, the bar, training residence, reading law, apprenticeships, etc.

What is Islamic Law called? 

Sharia Law

Understand how Sharia law can be interpreted in US courts. 

When a contract is formed on the basis of that law and a later dispute causes it to be taken to court. This then means that the religious law will be used as long as it does not violate the US constitution.

In the early 2000s, Oklahoma passed a law banning the use of Sharia law in Oklahoma courts. But this law was challenged and struck down. Why? 

Freedom of Religion—the court ruled that forbidding the consideration of one specific religious law while implicitly allowing others violates the prohibition on government favoring one religion over another.

What is the Foreign Corrupt Practices Act? 

Makes it illegal for American citizens and companies to offer, accept, or pay foreign bribes.

What were some high-profile examples of corporate corruption that led to the passage of the Foreign Corrupt Practices Act? 

1. Bananagate (1974) — United Brands Company (parent company of Chiquita) paid a $25 million dollar bribe to the Honduran president to reduce export taxes on Bananas.

2. Lockheed — Lockheed Aircraft Co. paid millions of dollars worth of bribes to Japanese government officials so that they would acquire sales contracts.

How has the US been a leader in anti-corruption efforts? 

They were the first country to make foreign bribes illegal, as well as make it so that a company can not claim tax deductions on them either. Historically, this has been enforced actively with targeted sanctions, settlements, and prosecution.

Understand how the process of containerization changed shipping. 

Lowered cost, worldwide shipping system, more things can be shipped at a time, seamless process built around the containers, intermodal, less risk.

What are exceptions to free speech under US law? 

1. Advocacy of crime or revolution

2. Commercial Speech

3. Obscenity

4. Defamation

5. Time, Place, and Manner