Intro to Global Law I
Phrase the following law into an 'if-then' statement.
Art. 19:289 Sr: "He who intentionally and with premeditation kills another, is guilty of murder."
IF one intentionally and with premeditation kills another, THEN he is guilty of murder.
What are the charachteristics of human rights?
(Equal)
Universal
Inalienable
Minimal standards
Aimed at States
High-priority, mandatory norms
Independent from positive law
Constitutio Criminalis Carolina
Malleus Maleficarum
What must a claimant of medical negligence establish?
1. Existence of a duty of care
2. Breach of duty of care by doctor by failing to exercise reasonable care
3. Causal link between breach and injuries
What is the main judicial organ of the United Nations?
International Court of Justice (ICJ)
Explain the difference between inductive and deductive reasoning.
Deductive: general principle --> specific case
Inductive: special case --> general principle
Explain the state of nature under Hobbes and under Locke
Thomas Hobbes viewed the state of nature as violent and chaotic, where life is insecure. To escape this, people give up their freedom to an absolute sovereign for protection.
John Locke saw it as peaceful and governed by natural law, but lacking impartial justice. People form governments to protect their rights (life, liberty abd property), which they can reclaim if the government fails them.
According to the Malleus Maleficarum, how many witnesses are required for a legitimate sentence
2 reliable witnesses (ie not women)
What are the legal tests to establish a breach of duty of care?
Bolam - Did the doctor act in accordance with with a “responsible body of medical men skilled in that particular art”?
IF YES -> Bolitho - Is that body of opinion capable of withstanding logical analysis?
Who is the law school building named after? Who was he?
Montesquieu
a French judge, man of letters, historian, and political philosopher. He is the principal source of the theory of separation of powers.
Name the 3 methods of legal interpretation.
Linguistic approach
Purposive approach
Systematic/sytemic approach (how does it fit in with other laws)
Explain Hohfeld's first & second order incidents and what the difference is between the first and second order.
First order:
Right <--> duty
Liberty <--> no-right (CHOICE <--> e.g. a no-right to tell me to walk or not to walk in the park)
Second order: capability to change first-order
Power <--> liability ( i/you can change your/my position)
immunity <--> disability ( i/you cannot change your/my position)
What is the adequate basis for tuture specifically for sorcery according to the Carolina?
(1) a threat or offer of sorcery made by the accused;
(2) association with known witches or acts characterised as sorcery; and
(3) a bad reputation of the accused with regard to witchcraft.
(Article 44)
In a legal system there is 2 laws in different areas of the civil code:
- Shop owners are permitted to ban pets from entering their premises for safety and health concerns.
- Refusing access to certified service animals (such as guide dogs) is a form of discrimination.
Anna, who is the handler of a service dog in training, was not permitted to go on a bus with the dog.
Which rule applies to this situation and based on what principle?
The second - Lex Specialis - the more specific rule prevails over the more general rule
What is the difference between substantive law and procedural law?
Substantive law defines rights and duties; procedural law provides the methods and processes for enforcing them.
Name/explain Cassesse's 5 ways in which there is a globalisation of law.
The direct transfer or institutions from one national system to another
The imposition of a global legal principle upon national legal administrations
The imposition by a global judicial body of a common legal principle
Legal principles taken from national legal systems adopted at the global level
Rules and institutions spilling over and across boundaries at the global level
Explain Hannah Arendt's critique of universal human rights.
“the rights of man” as the rights of “naked” human beings: without the protection of their own state, human beings were found (in the context in which Arendt is writing, in the post-IWW Europe) to lack any possibility to effectively enforce their human rights. The moment human beings were nothing but
human, i.e. no longer citizens, their human rights protected them no longer – although this was precisely their promise
When is a judgement 'certain'?
When there are either:
- 2 reliable witnesses
- A full confession ('full proof')
- A ‘partial proof’ (circumstantial evidence) + confession
What is the first step in Fisher & Ury's getting to yes and what does it require?
Interests
Requires finding the underlying interests of the parties' positions (both your client and the other side):
What is the narrowest reasoning required to come to a decision, and what is all other discussion called?
Ratio decidendi
Obiter dicta
In the Lliuya v RWE case, who won and why
RWE won, because:
There is in principle civil liability for major carbon emitters, their arguments were not as well founded as the plaintiff's
BUT the specific causal link between their actions and the harm caused in not strong enough
What are the Neoliberals' 4 dichotomies and how does one of them reject nationalisation of resources as part of decolonisation?
Imperium-Dominium
Cosmos-Taxis
Nomos-Thesis
Isonomy-Autonomy
Who was Olaus Petri and what is his significance for the witch trials?
Olaus Petri was a Swedish reformer (under Martin Luther) and author of The Rules for Judges. His rules against using tortured confessions helped set legal standards that challenged the evidentiary basis of witch trials.
What are reasons to choose negotiation over a trial?
- A trial is a zero sum game -> negotiation can be mutually beneficial
- A way to process emotions and maintain relationships
- Make clients feel more involved in the process
What types of subjective rights are there?