Comparative Legal Systems Midterm #1
Hans Kelsen's Pyramid
Constitution
Law (Legislative)
Decree (Executive)
Judicial Decision (Judicial) + Administrative Act (State) + Contracts (subjects)
As you move down the pyramid, laws become more specific / particular and the hierarchy of
these sets of laws decrease.
For example, legislative laws and anything below cannot trump the constitution, decrees
cannot trump legislative laws, and so on.
Law
a mandatory system of bilateral & eventually coercive rules of conduct dictated by men to
regulate social coexistence.
The law does not study human behavior; it is a discipline that stipulates the way people must
behave. True or False?
True
(Law doesn't determine conduct, but tells you the consequences of conduct)
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "dictated by men"?
Positive law (adopted by man)
Natural law (given to men; originated in nature & intrinsically just)
Jusnaturalism: natural law is above positive law, hence, legislators must adopt natural law.
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "to regulate social coexistence"?
Hobbes: permanent war; everybody against everybody (consequence: social contract)
Social coexistence without law would be total chaos.
1st purpose: peaceful coexistence
, 2nd purpose: introduce a certain degree of certainty in the social relationships to ensure
economic exchange between them.
3rd purpose: introduce & maintain justice in relationships
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "bilateral & eventually coercive"?
Differentiate law from any other moral rule of social practice (no sanction)
Right → Obligation Obligation ← Right
Bilateral & eventually coercive
Define Justice
the scale in which law is weighed; the sword which serves to make it effective.
Sword without scale: brute force
Scale without sword: impotent
Philip Morris v. Uruguay
Define Rule of Law
Every citizen is governed by the same laws, applied through a fair and equal judicial process
Legal Subjects
any entity considered by the legal system as capable of rights and duties.
two types: legal subject by birth (ex: human) and legal subject by fiction (ex: company)
Areas of Law
Public or private law
Public International Law
Constitutional Law
Administrative Law
Procedural Law
Criminal Law
Hans Kelsen's Pyramid
Constitution
Law (Legislative)
Decree (Executive)
Judicial Decision (Judicial) + Administrative Act (State) + Contracts (subjects)
As you move down the pyramid, laws become more specific / particular and the hierarchy of
these sets of laws decrease.
For example, legislative laws and anything below cannot trump the constitution, decrees
cannot trump legislative laws, and so on.
Law
a mandatory system of bilateral & eventually coercive rules of conduct dictated by men to
regulate social coexistence.
The law does not study human behavior; it is a discipline that stipulates the way people must
behave. True or False?
True
(Law doesn't determine conduct, but tells you the consequences of conduct)
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "dictated by men"?
Positive law (adopted by man)
Natural law (given to men; originated in nature & intrinsically just)
Jusnaturalism: natural law is above positive law, hence, legislators must adopt natural law.
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "to regulate social coexistence"?
Hobbes: permanent war; everybody against everybody (consequence: social contract)
Social coexistence without law would be total chaos.
1st purpose: peaceful coexistence
, 2nd purpose: introduce a certain degree of certainty in the social relationships to ensure
economic exchange between them.
3rd purpose: introduce & maintain justice in relationships
The definition of Law is a mandatory system of bilateral & eventually coercive rules of
conduct dictated by men to regulate social coexistence.
What is the significance of the line "bilateral & eventually coercive"?
Differentiate law from any other moral rule of social practice (no sanction)
Right → Obligation Obligation ← Right
Bilateral & eventually coercive
Define Justice
the scale in which law is weighed; the sword which serves to make it effective.
Sword without scale: brute force
Scale without sword: impotent
Philip Morris v. Uruguay
Define Rule of Law
Every citizen is governed by the same laws, applied through a fair and equal judicial process
Legal Subjects
any entity considered by the legal system as capable of rights and duties.
two types: legal subject by birth (ex: human) and legal subject by fiction (ex: company)
Areas of Law
Public or private law
Public International Law
Constitutional Law
Administrative Law
Procedural Law
Criminal Law
