Comparative Law Exam Flashcards

Flashcards for reviewing key concepts from the comparative law exam notes.

In David’s account, the process of distinguishing judicial decisions is a distinctive feature of which countries?

Common law countries

In the years immediately following the enactment of the French Code, what happened to legal writing in France?

Went through an unfruitful and positivistic stage, merely expanding the text of the code grammatically and logically.

The Court of Exchequer developed from Curia Regis in the 12th and 13th centuries and had what jurisdiction?

Had jurisdiction over all the debts owed to the King.

How many chambers does the French Court of Cassation have today?

6

The original French CC was the law book of ?

The bourgeoisie

What is the most important of the great codifications of the Age of Reason for the Prussian states?

The general land law.

In David’s account, in the Romano-Germanic family, what is the great basic division?

Public and comparative law.

The theory of legal transplants has been developed by

Alan Watson

In the Kelsenian model

The power of constitutional review should be concentrated in a single court.

legal teachings in the inn of Courts

Treatment of law dominated by precedent and analogy.

In David’s account, what is an important factor which explains the existence of a Romano-Germanic family of laws?

The common formation of jurists

Who is the legal scholar who divided comparative law into “comparative Nomoscopy” “Comparative Nomothetics” and “Comparative Nomogenetics”?

Wigmore

Writs were issued in the name of?

The King

For A. Watson, Comparative law as an academic discipline is what?

Superficial and scarcely systematic.

When did comparative law start?

In Paris in 1900.

In the Middle Ages, what were “attorneys”?

Experienced men of business who advised the parties on the law.

The stare decisis requires a rule from case A to be given binding force in case B when?

THREE CONDITIONS ARE SATISFIED A. THE RULE WAS NECESSARY TO THE OUTCOME OF THE CASE (RATIO DECIDEDI) B THE DECISIONS OF THE COURT IN CASE A ARE BINDING, AS A MATTER OF HIERARCHY C THERE ARE NO RELEVANT DISTINCTIONS BETWEEN CASES A AND B.

English legal history traditionally begins in what year?

1066

For Zweigert and Kotz, what is one of the most important aims of Comparative Law?

To discover which solution is the best.

For Zweigert and Kotz, which is the primary aim of comparative law?

To attain knowledge.

In David’s account, which country has attained the highest degree of development in administrative law?

France

In David’s account, in the Romano-Germanic family, what is the scope of judicial lawmaking?

Very limited.

In David’s account, what is one of the most particular developments in private law?

The general part of the BGB.

Savigny and his followers turned what into what?

The Roman law in the form of ancient Roman law as it appeared in the Corpus Iuris Civilis.

Today, magistrates' courts in England are mainly staffed by whom?

Magistrates educated by the Inns of Court.

In the jurisdiction of Equity, the defendant was called by what special writ name?

Writ of subpoena.

The High Court of Justice in London consists of what?

The Queen’s Bench Division, the Chancery Division, and the Family Division.

What was the aim of the 1900 Paris International Congress of Comparative Law?

To reach a “Droit Commun de l’Humanité Civilisée”.

What does the Australian constitution NOT contain?

Does not contain a catalog of fundamental rights.

Which of the following countries has not been influenced by the Common Law tradition?

Brazil

According to Michael Troper, what does constitutional identity result from?

Constitutional identity results from a process of extraction of certain principles which can be asserted as essential and as such distinguishable from other constitutional norms.

According to Justice Antonin Scalia

The use of foreign materials in constitutional cases were neither legitimate nor useful.

The post-war Japanese Constitution, the German basic law, and the post-colonial constitutions in African nations are good examples of what?

Involuntary transplants.

According to Rosenfeld, where does India fit within?

India fits within the post-colonial model.

A global survey of the function of preambles shows what?

The growing trend toward its having greater binding force.

Which of the following constitutions has no formal preamble?

Italian Constitution (1948).

Choose the correct option: constitutional identity be constructed on the basis

of sameness or selfhood.

Choose the correct option: What do countries that do not have a formal preamble often include?

include introductory articles that may be regarded, in substantive terms, as a preamble.

In the US model constitutional review is dispersed

through the judicial system, every federal court has the power to find primary legislation unconstitutional.

What did the 1991 Romanian Constitution borrow?

The 1991 Romanian Constitution borrowed the French mixed regime of the Fifth Republic.

instances of constitutional borrowing

Instances of constitutional borrowing are today everywhere.

According to Rosenfeld, how is the German constitutional model built?

The German constitutional model is built upon the concept of self-government by and for a single homogeneous group.

the classic case establishing the nonbinding nature of the preamble to the United States constitution

is Jacob v Massachusetts, 197 U.S 11 (1905).

In the Kelsenian model, where should the power of constitutional review be concentrated?

The power of constitutional review should be concentrated in a single court.

In the famous article by Duncan Kennedy, when did the so-called “First Globalization” occur?

During the second half of the nineteenth century.

the current preamble of the US Constitution is

is different from the original introduced in 1787 at the Philadelphia Convention.

CONSTITUTIONAL IDENTITY IS AN ESSENTIALLY

contested concept as there is no agreement over what it means or refers to.

The power of a court to determine the constitutionality of legislation can be defined as

Constitutional review.

The style of teaching which is prevalent in American legal education IS BASED

Is based on the idea that the rules of law should be presented to the student in the context of actual decided cases.

the Anglo-American judge starts his process of decision

With the individual precedents which counsel for the parties before him have adduced as being most in point.

the practice of “prospective overruling” means

That in the judgment in which a new rule is laid down for the first time, judges state that it is to be effective only in the past.

What did David Dudley, a New York lawyer, do?

Drafted a code of civil procedure and New York adopted this code in 1848.

When was the Declaration of Independence of the USA?

In 1776.

Does the French Court of Cassation ever quote its own previous decisions?

Does not even quote its own previous decisions.

In the Anglo-American civil trial

Proceedings take place in a single session and all the facts, as well as questions of law, are orally presented.

When was the whole of the Indian subcontinent under English control?

At the beginning of the twentieth century.

How were English statutes originally?

Sporadic, narrowly construed, and applied.

In the USA, the so-called “Restatements” have been produced for…

For all important areas of American private law except family law and the law of succession.

What did an act of 1925 give the judges of the USA Supreme Court?

Discretion to decide which cases were important enough to justify an appeal being heard by the highest court of the land.

Under the Constitution, what legislative competence does the United States Congress have?

Has legislative competence only in specified areas.

the Statute of Westminster II (1285) allowed

Allowed the Chancellor or his officials to issue a new writ if the facts were “in consimili casu” with a situation for which a writ already existed.

one of the characteristics of “legal centralism”, the legal ideology of modernity is

That a single legal system can correspond only to a single geographical area.

According to Zakaria

Illiberal democracy is a growing industry.

On what does constitutional identity depend?

Constitutional identity depends not only on the constitutional model involved, but also on the type of constitution-making that led to its adoption.

there is no difference between the freedom of expression and the freedom of speech

FALSE

some freedom of expression provisions explicitly can be censorship and press licensing

TRUE

Choose the correct one: What elements does Presidentialism incorporate?

Presidentialism incorporates some elements of a monocratic tradition.

Choose the correct option: When did comparative constitutional law scholarship emerge as an academic discipline?

Comparative constitutional law scholarship did not emerge as an academic discipline until after the Second World War.

Choose the correct option: When was the model of rationalized parliamentarism reintroduced in multiple European constitutions?

After WW2, the model of rationalized parliamentarism was again introduced in a series of European constitutions.

Presidentialism as a form of government was born in the USA in 1776, The US Model was later adopted and adopted by other newly independent countries, whether in 19th Century Latin America or 20th Africa.

TRUE

ACCORDING TO FRANKEMBERG, what has happened in Islamic states regarding democracy and theocracy?

According to Frankemberg, Islamic states, though using the firm of democracy or republic, have advanced, during the last decades, a fundamental critique of Western-style, secular democratism and established theocratic governments.

Choose the correct option: What is the essence of parliamentarism in modern constitutions?

The essence of parliamentarism in modern constitutions is that power is exercised by both the prime ministers and other ministers, who have the confidence of the legislature. If the confidence is withdrawn, the prime minister loses authority to govern and must either advise the head of state (monarch or president) that a general election be hold, or must resign so that a different can be formed.

Choose the correct options: What is the opposite of constitutionalism?

Absolutism is the opposite of constitutionalism.

According to Zakaria without a background in constitutional liberalism, the introduction of democracy in divided societies has actually fomented nationalism, ethnic conflict and even war.

TRUE

Choose the correct option: What did the 1993 Constitution of the Russian Federation establish?

The 1993 Constitution of the Russian Federation established a strong presidency, the 1993 Constitution of the Russian Federation but it ultimately entrenches presidential supremacy.

Choose the correct option: What was the legitimating principle of the modern constitution?

The legitimating principle of the modern constitution was popular sovereignty instead of monarchical one (or parliamentary sovereignty as written in the textbook)

Choose the correct option: What forms the constitution of Israel according to a landmark decision of the Supreme Court?

Israel has various basic laws that, according to a landmark decision of the Supreme Court, form the constitution of the country.

Choose the correct option: When unwritten constitution are mentioned, which constitution is being referred to?

UK British Constitution

According to Frankenberg the theories of deliberative democracy do not contain a republican element because they intend to reactivate the citizens

FALSE

ACCORDING TO DIETER GRIMM

According to Dieter Grimm, while the adoption of the US Constitution brought the revolutionary process to an end, the adoption of the French Constitution of 1791 set a revolutionary process in motion.

Choose the correct option: When was a parliamentary system established in continental EU?

It was only under the Third Republic in France (1875-1940) that a parliamentary system was established in continental EU.

Choose the correct option: Is there an agreement over what constitutional identity means or refers to?

Constitutional identity is an essentially contested concept as there is no agreement over what it means or refers to.

According to Frankemberg, what has been the effect of democracy’s triumph and global proliferation on non-democratic regimes?

According to Frankemberg, democracy’s triumph and global proliferation has left non-democratic regimes without strong arguments in support of their legitimacy and attractiveness.

Choose the correct one: How is the chief executive chosen under a parliamentary system?

In a parliamentary system, the chief executive (the prime minister) and sometimes other executive officials (cabinet ministers) are chosen by-and in some systems may be drawn from the membership of the legislature.

the South Africa Constitution

The South Africa Constitution provides that the freedom of expression does not extend to war propaganda.

Under parliamentarian there is no separation between legislative and executive powers?

FALSE

Choose the correct option: What does the term ‘horizontal structuring” refer to?

The term ‘horizontal structuring” refers to the constitutional system for allocating power among government actors at the dame geographical level of organization.

According to the US Supreme Court, what fell outside the scope of the First Amendment?

The US Supreme Court used to take the view that commercial advertising, and some other kind of speech, notably libel, fell wholly outside the scope of the First Amendment.

Which model can be included in Spain according to M.Rosenfield?

According to M.Rosenfield, the Spain can be included PACTED TRANSITION MODEL

According to Zakaria the tension between constitutional liberalism and democracy centers on the scope of governmental authority: constitutional liberalism is about the limitation of power, democracy about its accumulation

TRUE

According to Zakaria the Magna Charta, the fundamental orders of Connecticut, the American Constitution, and the Helsinki final act are all expression of constitutional illiberalism

FALSE they are expression of constitutional liberalism

Choose the correct option: Which traditions does Presidentialism incorporate?

Presidentialism incorporate some element of monocratic tradition.

Choose the correct option: What happened at the end of WW2 regarding the decolonization process?

At the end of WW2 the decolonization process in Africa the Middle East, and Asia brought forth the establishment of new states and the re-emergence of the old new period of extension of presidentialism began.

What does representitive democracy is identified as according to Frankenberg?

According to G.Frankenberg REPRESENTATIVE DEMOCRACY IS GENERALLY IDENTIFIED WITH LIBERAL DEMOCRACY

What has been the enemy of liberal democracy according to Zakaria?

According to Zakaria UNCHECKED CENTRALIZATION HAS BEEN THE ENEMY OF LIBERAL DEMOCRACY

Under which guise did Direct democracy survived and resurged according to Frankemberg?

According to G.Frankemberg THE IDEA OF DIRECT DEMOCRACY SURVIVED AND RESURGED UNDER THE GUISE OF POPULAR ASSEMBLIES IN SWISS CONTONS

Under which argument did the US Supreme court based its endorsement of segregation between whites and blacks?

The US Supreme Court based its endorsement of segregation between ‘blacks’ and ‘whites’ on a ‘separate but equal’ doctrine in Plessy v Ferguson, claiming that a separation was not unequal treatment.

According to Kelsenian model, where should the power of CONSTITUTIONAL REVIEW be?

THE POWER OF CONSTITUTIONAL REVIEW SHOULD BE CONCENTRATED IN A SINGLE COURT

According to Frankemberg, on what basis do political extremists operate?

ACCORDING TO FRANKEMBERG, IN SHARP CONTRATS TO THE LOGIC OF DEMOCRATIC COMPETITION, POLITICAL EXTERMISTS OPERATE ON THE BASIS OF A SCHMITTIAN ENEMY/FRIEND DISTINCTION

Choose the correct option: When was the model of RATIONALIZED PARLIAMENTARISM reintroduced again?

AFTER THE WW2 THE MODEL OF RATIONALIZED PARLIAMENTARISM WAS AGAIN INTRODUCED IN A SERIES OF EU CONSTITUTIONS