Rule of Law and Legal Philosophy

1. What is the central tenet of the rule of law?

a) Laws should be flexible to suit powerful individuals.
b) Laws should prevent arbitrary decisions by those in power.
c) Laws should favor judicial discretion.
d) Laws should always align with cultural norms.
2. What lesson is emphasized in the story of King Rex?
a) Flexibility in laws
b) Constancy in laws
c) Arbitrary decision-making
d) Rapid law changes are effective
3. Which principle does Dworkin emphasize in legal interpretation?
a) Cases may remain unsolvable.
b) Global principles always provide a solution.
c) Individual judges have ultimate discretion.
d) Procedural fairness is secondary to outcomes.
4. What concept is central to Lon Fuller’s philosophy?
a) Unilateral governance
b) Bond of reciprocity between government and citizens
c) Judicial supremacy
d) Absolute neutrality
5. Chief Justice Roberts likened his role to:
a) Making the rules of the game
b) Enforcing the rules without participating
c) Playing the game of law
d) Changing the law

Substantive and Procedural Law

6. Substantive law addresses:
a) The processes for filing cases
b) The ‘what’ of legal rights and wrongs
c) Evidence rules in trials
d) Judicial discretion
7. Procedural law determines:
a) The ‘what’ of the law
b) The rights of individuals
c) The processes to enforce legal rights
d) Substantive justice
8. What is a key feature of jury trials?
a) Judges independently determine outcomes.
b) Judges explain the law and oversee proper procedures.
c) The jury ensures substantive fairness.
d) The jury applies procedural law.

Utilitarianism and Punishment

 9. Utilitarian theory of punishment justifies suffering if:
a) It reduces individual liberties.
b) It leads to public safety, such as lower crime rates.
c) It aligns with cultural traditions.
d) It removes voting rights.
10. The severe incarceration policies in El Salvador illustrate:
a) The balance between liberty and justice
b) Excessive punishment infringing on freedoms
c) An ideal application of utilitarian punishment
d) The elimination of innocent incarceration

Judicial Precedent
11. What weakens existing precedent?
a) Following procedural law
b) Distinguishing cases
c) Upholding existing laws
d) Judicial discretion
12. Overturning precedents raises questions about:
a) The authority of judges to interpret laws
b) Legislative supremacy
c) Public opinion on judicial decisions
d) Jury independence

Constitutional Law
13. What does a rigid constitution ensure?
a) Easy amendments
b) Rapid changes in law
c) Prevention of tyranny and protection of rights
d) Flexibility in governance
14. What case established judicial review in the U.S.?
a) Brown v. Board of Education
b) Marbury v. Madison
c) Plessy v. Ferguson
d) Lautsi v. Italy

International Law
15. Which is a primary source of international law?
a) Judicial decisions
b) Scholarly writings
c) Treaties and conventions
d) Political debates
16. What distinguishes public international law?
a) It governs individual rights.
b) It focuses on cross-border disputes between private entities.
 c) It addresses relations between states and organizations.
d) It includes only customary practices.
17. Private international law deals with:
a) War crimes and genocide
b) Peacekeeping and trade regulation
c) Cross-border disputes between individuals
d) Establishing treaties between nations

Case Studies
18. What principle was highlighted in Lautsi v. Italy?
a) Absolute neutrality in education
b) Passive religious symbols and cultural significance
c) Secularism as a universal rule
d) Removal of religious symbols from schools
19. In Hirst v. UK, the ECHR criticized the UK for:
a) Allowing excessive judicial discretion
b) Denying voting rights to prisoners
c) Ignoring international treaties
d) Implementing severe punishments
20. What was the significance of Brown v. Board of Education?
a) It upheld racial segregation.
b) It emphasized equality in education.
c) It introduced gender equality principles.
d) It strengthened judicial neutrality.

Legal Systems
21. Civil law is characterized by:
a) Flexibility and pragmatism
b) Top-down codified structure
c) Rapid adaptation to new challenges
d) Case-by-case interpretation
22. Common law:
a) Relies heavily on statutes
b) Is rigid and inflexible
c) casuistic → based on precedent and case-by-case decisions
d) Struggles to protect rights rapidly

Rule of Law and Legal Philosophy

1. Why is the rule of law considered essential for preventing arbitrary governance?

The rule of law is a principle that ensures that individuals are governed by a set of laws that
are consistent, reliable and not based on the arbitrary whims of powerful individuals. It
ensures that the rights of individuals are protected and that their duties and responsibilities
are outlined.

2. Chief Justice Roberts compared his role to an umpire. How does this metaphor
compare to judicial neutrality

It is my role to call balls and strikes, not to pitch and bat. This highlights his belief that judges
are mere mouthpieces of the law, with no authority nor power to interpret the law. He
believes in the complete neutrality of judges in legal proceedings while Shapiro believes in
the lie of neutrality and the belief that judges have some legislative powers due to their ability
to interpret the law when it is ambiguous. The lie of neutrality is in order to safeguard the
validity and legitimacy of the judicial system and thus maintain the trust of the public.

3. How do institutional constraints both support and undermine judicial independence?

Institutional constraints like public perception and political pressure undermine judicial
independence and the belief that judges are neutral because, whether deliberately or
unintentionally, judges are influenced by such external factors out of fear for instance of
societal condemnation or risks associated with personal work. At the same time, these
constraints may as well act as barriers to biases and lead to judges making just decisions.

Substantive and Procedural Law

8. How do substantive and procedural law differ in their objectives and applications?

There are several fields of law, one of the most important classifications is that of
substantive vs procedural law. Substantive law highlights the suits, rights and
obligations of individuals. It is the what of the law. It classifies behaviours as
being right or wrong. For instance, in the context of RIggs Vs. Palmer,
substantive law would be the illegality of murder, but at the same time, this
would also be the right to obtain a will. Procedural law is the how of the law. It
deals with how the law is understood and applied. Thus, in this context, despite
the right to obtain a will, the law is interpreted in a manner in order to prevent
an individual from benefiting from their own wrongdoings. Other fields of law
include public and private law. Public law looks at the relationship between the
state and an individual, and how the wrongdoings of one person has an impact
on the broader community. This is an example of why criminal law is considered
to be public rather than private. Other forms of public law include constitutional
and international public law → relationship between the state and international
organisations, such as how several European countries are binded by the
European convention of human rights. Private law on the other hand looks at the
direct relationship between individuals, thus disputes are internalised and
focused on resolving the problems related to contracts, marriage, divorce etc.

9. Why is procedural fairness considered a cornerstone of justice systems?

- Right to defence
- Innocent until proven guilty
- Unbiased judiciary
10. Lord Devlin described the jury as "a symbol of freedom." Do you agree with this
characterization? Why or why not?

Jury system is often used in common law jurisdictions. They are selected through a jury pool
that tends to come from public records such as voting registrations. Once selected, they are
cross examined by the different parties in order to guarantee that they are not excessively
one sided. The function of the juries is to examine the evidence of a case and offer a final
verdict based on this evidence. They do not interpret precedents as they are not legally
trained. A judge's role is to oversee the procedure, ensuring that the law is correctly
understood and applied. There are several benefits, however at the same time, there are
several drawbacks of using a jury in a legal system. One of the benefits is the fact that it's
democratic in that the voice of the people is reflected in the administration of justice.
Moreover, the fact that they have to be unanimous suggests that a careful examination the
evidence is necessary in order to reach such a decision, thus guaranteeing a fair trail and
that their innocence is paradigm. They are independent from the state and the judicial
system, thus ridding of systematic biases that could have risen as a result of the existing
legal authorities. However, this doesn't mean that juries do not have their own personal
biases. They could be more subject to corruption than official authorities and their own
personal experiences may impact their voting.

Utilitarianism and Punishment

12. How does the utilitarian theory of punishment justify the use of penalties that involve
suffering?

The utilitarian theory of punishment is a forward looking approach. This means that they aim
to prevent the crime from occuring again in the future. They justify punishments in order to
safeguard public safety and benefit the community through reduced crime rates for example.
To these theorists, a cost benefit analysis is conquered in order to determine if there would
be a marginal social benefit of imposing the punishment. The specificities of this theory
include individual deterrence, general deterrence and rehabilitation, which aims to integrate
the individual gradually ack into society after educational and psychological reform.

13. What are the ethical implications of severe incarceration policies like those in El
Salvador?

Highlights the tension between liberty and security that is brought to light as a result of
utilitarian theories of punishment. Severe punishment stripes individuals of their natural
rights, thus questioning whether this is valid for a supposed marginal benefit of public safety.
Ethical concerns include whether it is valid to imprison thousands of people as a result of
gang violence, to enhance public safety, but incur the cost of some innocent individuals
being imprisoned.

14. How does the removal of voting rights from prisoners affect their rehabilitation and
reintegration into society?

Removing voting rights from individuals negatively affects their ability to be

reintegrated into society because they feel a sense of exile as their citizenship
has been removed. Psychologically impacts them → disrupts their ability to
reform. No longer have a voice.

Judicial Precedent
15. What are the potential risks and benefits of overturning judicial precedents?
Overturning cases are beneficial in that they allow the law to evolve with societal changes as
well as solving legal errors that could have negatively impacted the administration of justice.
A disadvantage of overturning is that it undermines legal consistency and questions where
judges get the authority to overturn cases if they are supposed to be mere mouthpieces of
the law. If overturning does in fact fix a legal error, then this can actually create greater legal
consistency. This method does however reduce the public’s trust in the legal system as it
questions the extent to which their rights are safeguarded and consistent in the law if it is
always changing, moreover, lawyers will have a difficult time determining how to guide their
clients in cases.

16. How can the principle of proportionality in legal judgments create challenges
for consistency in decision-making?

The principle of proportionality in legal judgements suggests that the punishment fit the
crime must be in alignment with the severity of the crime. For example, this means that a
minor crime, such as parking in the wrong space should not be punishable by a removal of
voting rights. This principle creates challenges for decision making due to the subjectivity of
what a proportional punishment is. One judge may believe that one form of punishment is
more severe than another, thus questioning whether criminals would get the same charge
depending on the different judge of the case.

Constitutional Law
18. What are the advantages and disadvantages of a rigid constitution?

A constitution is a document, or documents that outline the rights, duties and

obligations of the state and of individuals. It highlights the structure in which the
government is organised in and its functions as well as limits on its power. It
includes the primary rights of individuals and tends to be the supreme form of
authority of the legal system, with all other sources of law being subordinate to
the constitution. A rigid constitution is one that is difficult to amend. For
instance, in the US, ⅔ majority in the senate as well as ¾ of state ratification is
needed for it to be amended. This means that difficult proceedings are required
for it to change. One strength of this is the fact that it guarantees legal certainty
as people are able to safeguard their rights, and be held accountable for
violations consistently. Moreover, it ensures that a branch of the state does not
hold unchecked power, thus guaranteeing the separation of government powers
→ democratic. Disadvantages include the fact that it may be slow to respond to a
demand of increasing liberties, thus making it more challenging for the legal
system to evolve in accordance to societal evolution. Moreover, a rigid
constitution doesn’t mean that amendments are rare. For example, while Mexico
is formally classified as being a rigid constitution, it has undergone hundreds of
amendments. Thus questioning the validity of the advantages associated with a
rigid constitution. Mention the American tradition in terms of constitutional
supremacy and the fact that the founding fathers believed that a rigid
constitution safeguarded by judicial review would guarantee the protection of the
rights of individuals in a constitution that is written and has the separation of
powers as well.

19. How did Marbury v. Madison established the concept of judicial review in the United
States?
Marbury v. Madison (1803) established the concept of judicial review in the United States by
affirming the Supreme Court's authority to interpret the Constitution and invalidate laws that
conflict with it.

20. In what ways can an unwritten constitution create ambiguity in the interpretation of
laws and rights?

An unwritten constitution is one that is characterised by several documents rather than

having a singular, cohesive document that is formally written and codified. For instance, the
UK’s unwritten constitution consists of documents such as the Magna Carta, the Bill of
Rights and the Human Rights Act. One of the major problems with this is the fact that the
interpretation of laws and rights are more difficult than a written constitution. This is because
it is more difficult to reference and source as there are several different interpretations based
on the different sources used. This can create inconsistencies in terms of laws and rights
and create complications when dealing with cases. This is especially the case given the
rapid societal evolution of our age, and documents such as the Magna Carta that were
published in 1215 may not be entirely relevant. Documents could also be taken out of the
context in which it was written at the time in order to twist it to suit the particular case, thus
questioning the extent of judicial powers and their ability to interpret.

International Law
21. What are the primary differences between public and private international law?

Public international law outlines the relations between states and international organisations.
Rather than being cross border disputes between individuals, this has to do with broader
entities and institutions. There are different kinds of public international law such as criminal
law and human rights law. Criminal law involves punishing individuals for war crimes,
genocide, crimes against humanity. Private international law involves determining which
countries hold jurisdiction for a cross-border dispute between individuals.

22. Why are treaties and conventions considered foundational sources of international
law?

Treaties and conventions are considered foundational sources of international law because
they are formal, binding agreements between states or international organizations that
establish specific legal obligations. These agreements are crafted through mutual
consent, reflecting the sovereign will of the parties involved, and serve as a primary
means of regulating IR.

Case Studies
25. How did the Lautsi v. Italy's decision to balance cultural significance and secularism
in education?
Holding was that the existence of crucifixes in schools did not violate articles 2 and 9 of the
European Convention of Human rights. Article 2 emphasised the right to education that
conforms with one’s own beliefs and article 9 that emphasised the freedom of religion and of
expression. Particularly, Ms. Soile, and her family filed an application to the convention as
they believed that this went against the state’s obligation of state neutrality in education.
Initially, the chamber unanimously voted in favor of Lautsi, however, the Grand Chamber
overruled with a majority of 15-2. Their legal reasoning was due to the educational context
and the cultural significance of crucifixes in italy. Moreover, they found that crucifixes are
evidently merely passive symbols and that there's no evidence of indoctrination. The
dissenting opinion argued that Italy's margin of appreciation should not override the state’s
obligation to guarantee state neutrality in education. Joseph Weiler’s argument is important
to take into account as well as he represented the third party interveners. He believed that
the case highlighted the tension between individual rights vs a collective identity. He
compared this to the UK having a picture of the queen, who represented the head of the
state and church, and how this is a representation of collective identity and not a violation of
individual rights. THe existence of passive symbols does not remove the religious freedoms
of individuals, in which all member states of the european convention must provide its
individuals.

26. What are the implications of the European Court of Human Rights’ decision in Hirst v.
UK for the voting rights of prisoners?

The UK had a ban of voting rights on prisoners, and the court criticised this, and since it was
binding to the UK as a result of the Human rights act, they needed to reconsider the
domestic legislation in order to adhere to the judgement thus showing how international
conventions can impact domestic legislation.

27. How did Brown v. Board of Education challenge the legal and moral foundations of
racial segregation in the United States?

Brown v Board of education highlighted that racial segregation can lead to feelings of
inferiority and as a result lead to them being unmotivated to learn. Education is one of the
most important obligations of the state and thus, chief justice Warren argues that racial
segregation in schools does violate the 14th amendment ‘= protection of the laws.’ it
overruled plessy v ferguson and laid the foundations of the civil rights act of 1964 that
outlawed segregation in restaurants, hotels and other public places.

More practice

Steps of the proportionality test, what criticisms can be made, solve the numenor
case, and what is a judicial anthology and why do judges find them useful

The proportionality test is a judicial methodology that is used to determine whether a law that
limits a constitutional right should be passed. It has a systematic, standardised process that
ensures procedural consistency in its determinants. The first step is determining what the
purpose of the law is. For it to be limiting a constitutional right, it needs to have a proper
purpose, such as public safety, public protection or want to enhance another conditional
right. The second step is the rational connection. This means that there must be a clear and
valid link between the goal wanted to be achieved and the law that's being passed in order
to achieve it. For example, in the chocolate candy case, completely banning the rice candy
would in fact be a rational connection to consumer protection because it ensures that
consumers will not be misled. The third step is necessity, and this looks at whether there are
any alternative measures to the law proposed that would be the least restrictive to individual
liberty. The fourth step is balancing. This is a cost benefit analysis that looks at what would
give the greatest marginal benefit to society: the passing of the law or the safeguarding of
the constitutional right. The general premise is that the constitutional right takes precedence
over the law, given that its goal, while important, is not equally as important as fundamental
rights protected in the constitution. It does however depend on the cultural, legal and political
culture of the state as this context will determine what will provide the greatest social benefit.
 - Alexy’s principle → The more one principle is affected, the stronger the
justification needs to be for prioritizing the other principle. It’s about
finding the right balance depending on the situation.

There are criticisms that can be made about the proportionality test, one of the most relevant
is that it blurs the lines of the separation of powers, thus questioning how democratic this tes
really is. It allows judges to play policymakers. This is highlighted in the necessity step for
example, where judges can give alternative measures rather than the proposed one in order
to solve a conflict between a law and a constitutional right. Moreover, questions have been
raised about whether the test should be conducted continuously or merely when the law was
enacted. Both of these questions pose weakened, one of which is burdening and the other is
that it risks leading to outdated conclusions. Another criticism is that the test is subjective.
What determines marginal social benefit. It's not quantitatively measured.

A judicial methodology revolves around the ways in which judges are able to understand and
apply the law in order to reach decisions. They are systematic and standardised, thus
ensuring consistency across the judicial system. There are several different kinds of judicial
methodologies such as stare decisis, the literal interpretation of the law and the
proportionality test.
- Methods provide a framework to balance competing rights and interests. Losing
parties understand the rationale behind the ruling.

The Numenor case: a military coup drove out an oppressive dictatorship, establishing a
democratic constitution. The dictatorship was characterised by severe violations of human
rights such as killing, torture and the suppression of political freedoms. The democratic
constitution that was created as a result increased rights such as that of due process,
freedom of speech, rights only limited by laws justified by the common good. In an attempt to
safeguard the impacted individuals, and serve a symbolic compensation, the memory law
was enacted. Any individual who undermined or denied the human rights violations of the
dictatorship would be sentenced to 5 years in prison. Legal issue arose in terms of the
tension between individual liberty and symbolic protection of the impact when Miriel’s book
was published. They suggested that the human rights violations were exaggerated and
necessary to suppress the rebels.
- Legal issue → is the memory law constitutional, esp in the light of article
54: freedom of speech and 31: dignity and 70: public interest/the common
good.

Canons of interpretation that favor a conservative, rejecting same sex marriage, and
then canons that favor a liberal, allowing same sex marriage.
- Man and women have the right to contract matrimony with full legal equality
- Law shall regulate forms of matrimony, age, capacity for concluding it, rights
and duties of spouses, causes for separation.
- Literal interpretation → man and women
- Golden rule → bear children
- Legislative intent → equal marital rights between men and women

- Cannot ignore the constitutional decision of 2012 because it weakens the court as an
institution because it undermines the authority of its decisions.
- Legislative intent → never intended to exclude homosexuals, merely
guarantee the rights of spouses, and extending the right to marry doesn't
change nor contradict heterosexual marriages, thus upholding the
integrity of marriage itself and protecting individual rights. Marriage will
have the same requirements, effects regardless of gender.
- Golden rule → considering morality and discrimination
Explain how the legal tradition impacts the question of judicial legitimacy
Common law → legitimacy derived from explaining the reasoning behind the
decisions. Built on transparency, accountability, and open debate as seen
through the fact that they publish dissenting opinions. They need to prove their
legitimacy everyday by making just judicial decisions based on precedent. Civil
law = unanimous, one voice, no dissenting opinions, often referred to as
incomplete because it tends to be short decisions that use heavy legal jargon not
meant for the public nor journalists to understand.

What types of sources of law, explain how the rule of law can be used to examine
riggs vs palmer
Statutes are the specific, codified laws that result from the process of legislation by
parliament or congress. In this case, there were NYC laws on the rights to obtain a will. The
literal interpretation of this statute without any other source of law would have resulted in
Elmer Palmer obtaining the estate. Other sources of law however were relevant in this case,
such as general principles of law and foreign law related to the fact that individuals should
not benefit from their own wrongdoings.

The rule of law is a principle that ensures individuals are governed by a set of laws that are
not based on the arbitrary whims of individuals, but rather are consistent, predictable and
ensure the protection of individual rights. Everyone is bound by and accountable under the
law. The idea behind the rule of law is to create a system of governance where laws are
applied fairly and consistently, preventing the abuse of power and ensuring justice.

Are judges legitimate? How?

Shapiro
Legitimacy is derived through the process: adherence to procedure, precedent, legal
reasoning even when interpretation is required. Institutional constraints provide a buffer to
interpretation thus ensuring that rulings shaping the law are legitimate and maintain public
trust.

Legitimacy through the process: adherence to procedure, precedent legal reasoning, even if
interpretation.

Chief justice roberts

Legitimacy through the law: if legislators are democratically elected, reflects societal values,
judges by applying this legitimate law are also legitimate. To him legitimacy is limited in that
the judge is a mere umpire, not an active interpreter of the law.

Regulation to appoint judges, retirement rules and justify

Judges for courts of appeal should be chosen by an indep committee, supervised by the
legis branch. This process would make the selection more democratic while reducing
political influence compared to systems like the USA, where judges are often appointed
directly by the executive or legislative branches. The independent committee should include
legal experts from fields like jurisprudence and ethics to ensure qualified decisions. It
should also work with institutions like the state department of justice to investigate the
judges' professional records. This method would strike a balance between two key
principles:

1. Accountability: Judges are chosen by representatives of the people and should be

answerable to them.
2. Independence: The process avoids partisan interests, ensuring that judges are
impartial.
To maintain fairness, judges should serve a single 20-year term with no reappointment.
This prevents judges from influencing the committee to secure another term and stops them
from gaining excessive power over the judicial system, such as swaying other judges or
consistently favoring personal agendas.

First before answering this question it's important to establish what the jury is, why it's
important, how they’re selected and why they’re legitimate. Firstly, a jury can safeguard the
presumption of innocence due to the rule of unanimity. This means that even a single person
who disagrees, as was the case with the film, would result in a more in depth analysis of the
evidence in order to reach a verdict. As seen in the movie, Henry Fonda defended the
innocence of the suspect despite him claiming that he didn’t actually know if he was
innocent, whereas the remaining jurors, most of whom had underlying biases, voted guilty
due to the surface level evidence of the prosecution. Only after careful deliberation did the
evidence become scrutinised and weaknesses were spotted in the prosecution's argument,
thus eventually resulting in a unanimous verdict of not guilty because they couldn't be sure,
beyond reasonable doubt, that the suspect was guilty. A jury can also be a tool for crime
control as they have the power to give the verdict in order to put a person in jail for their
crimes.

Criminal law has both a crime control function and a safeguard function in our democratic
society. In terms of crime control, this is a very essential role because it ensures that the
safety of the community is paramount. It's important to note that this function should be done
in an ultima ratio way because it strips individuals of their freedom, and thus conflicts with
the constitution, as a result, it is essential that the evidence is beyond reasonable doubt that
they are guilty. In terms of specific parties responsible, the prosecution has the burden of
proof of the guilt of the individual. Ultimately, it's clear how criminal law has the potential, if
not abused and fairly conducted, to make our society a safer one to live in, characterised by
order and security. At the same time, criminal law has a safeguard function in our democratic
society, particularly due to the presumption of innocence. In the movie, we see this
characterise in the form of henry fonda, juror 8, who presumes the innocence of the suspect.
What becomes evident is the fact that these two functions are interdependent. There needs
to be a delicate balance between ensuring order in society through crime control, while at
the same time ensuring that individual rights are safeguarded. Without safeguards, innocent
people would go to jail, and without crime control, order is at risk.

There are several democratic implications of picking one legal tradition over the other.
Firstly, it's important to consider the protection of individual rights. Common law jurisdictions
tend to be more adaptable in terms of their legal decisions due to the precedent nature and
lack of complete reliance on legal positivism. This means that it's able to respond faster to
increased demands of expanded liberties. With civil law jurisdictions, this may be more
difficult due to the rigid codified nature of law. For instance, there was a lot of deliberation
over legalising same sex marriages in Spain, and part of the reason was due to the written
constitution and the interpretation of this. Another democratic implication is highlighted
through the jury system. It is arguably more democratic because the people have a voice in
the administration of justice, thus upholding the democratic principle of representing the will
of the people. At the same time however, in common law jurisdictions, the fact that it follows
a bottom up approach means that judges have the ability to freely interpret the law, thus
suggesting that decisions are reached and they don't represent the will of the people
because judges aren't directly elected by them, whereas in civil law jurisdictions, legislators
are elected and they make the laws, thus representing the people.
Hayek’s approach favored an economy with minimal government intervention and allowing
the market to be free. In the road to serfdom, he criticised socialism, claiming that
centralised planning undermines the rule of law, weakens democracy and constrains the
economy.
Civil law provides all outcomes → not true and judicial interpretation is necessary
Civil law provides all concepts → what to do if its plaintiff’s negligence? → faute
commune, thus reflecting some flexibility and mirrors common law’s adaptability
in its decisions.
Universal commercial code
HArmonisation through international law

Article 1 → declaration of the will of the people

Article 3 → only the national congress can create and interpret the law
Article 5 → in the event of an ambiguity, the president must report to the
legislators and they work together to solve legal ambiguities
Article 19 → direct interpretation of the law
Article 24 → when the literal interpretation cannot be used, the general spirit of
the legislation is applied.

Revision session
To explain the rule of law in the williams vs walker thomas case
- First rule of law meaning is content thick vs content thin → the
requirements that legal systems must fulfill.
- What's the contribution of the decision of the broader understanding of the
law? What did we learn about contract law in the US? What knowledge is this
case adding?
- Related to the creation of the judicial doctrine: doctrine of
unconscionability. Procedural → lack of meaningful choice
and substantive → excessively one sided. The court has a
test to identify if it is unconscionable.
- We don't know if Ms Williams won the case or not. The court of appeal
took the case to answer the very specific issue of whether common law
jurisdictions have the power to void unconscionable contracts. The
Court of Appeal remanded the case to the lower court.
- The facts of the case are relevant because it could be possible to distinguish in
terms of bargaining power.

How does the jury system safeguard the presumption of innocence or become a tool
of crime control
- Control the biases that people can have:
1. Unanimity rule
2. Lottery method to select the jurors. The jurors individually can be biassed, but
these will be exposed eventually because there's a large selection of random
people and they are all supposed to work together to work unanimously. If it
cannot be made, then it's a mistrial, a hung jury. This is helpful for the
presumption of innocence, because you only need one juror to veto the rest.
When everyone needs to agree with each other, they must all contribute their
own perspective on the case, thus making the jury more likely to make the
right decision. This is merely theoretical, and if the jury is not sufficiently
diverse for example, then problems arise.
- Mention the difference between juries that vote then explain, or explain then vote.
- Jurors don't want to be there, it's mandatory. It's costly in terms of time for example
so this could affect the extent to how far the correct decision is made.
- Jury may be a way to control crime if the biases are paramount and public safety is
important, rather than the individual protection of rights.

What defines criminal law and what is its definition

In a civil law trial, your confession will produce enough evidence to get an unfavorable ruling,
this is not the case for criminal law. A confession is not enough. The standards of proof must
be so high that they should help to remove any reasonable doubt of their innocence.
Confession may be driven by a motive to protect someone else for example, due to this
possibility, it's not enough to get rid of the reasonable doubt.

Use the 14th amendment to solve the prison case and come up with alternative
solutions
- Exacerbates divisions and doesn't solve the underlying problem of gang violence
- Precedent of the Brown V. Board of Education is applicable. Similar facts of the case:
only division is racial.

What makes a judge legitimate

Martin Shapiro
- Why do judges need to lie? Judicial system is legitimate as long as it shows
impartiality. Courts risk undermining impartiality if courts make rules. If they told the
truth to the losing parties, then the judges won't be giving the appearance of
impartiality and their decisions will be less likely to be accepted in terms of authority
and complying with the decision. They therefore need to give the impression that
they are mouthpieces of the law. Lying is part of their function.

Michel Lasser
- In France, judges show their legitimacy by showing cohesion. Judges are the
mouthpieces of the law. They are merely implementing the decisions of the will of the
people, organised by the parliament, which is voted on by the people. Decisions are
presented anonymously.
- In the US, accountability matters a lot.. They provide reasons to support their
decisions.
Chief justice roberts
- Judges don't or should not create rules. It is my job to call balls and strikes, not to
pitch and bat.

What is the ratio decidendi in the Lautsi Vs Italy case

Dicta → reason not directly related to the case
Ratio Decidendi → passive symbol that is unable to indoctrinate children
U know the difference with intellectual exercise. If you remove this one, and the outcome
changes, then its ratio decidendi.
What matters are the possible effects that the symbol could produce in children. Because it
was a passive symbol, just hanging in the classroom, would not indoctrinate children.
Especially given that in a classroom they are taught about neutrality and pluralism.

Hart → judges can fill in the gaps in a legal system. He was a common
law professor.
Dworkin → Hart is not distinguishing between rules and principles. If
there's no rules to adjudicate the case, this doesn't mean that there
isn't a principle to adjudicate the case.

Kelsen believed that the legal system is coherent and hierarchical. As long as they
respect the substance and the superior norm then the law is valid. He was a civil law
scholar.

The founding fathers believed that constitutional supremacy was necessary in order to
protect the rights of individuals and prevent political tyranny. The only way this could be
achieved is through a rigid constitution characterised by a separation of governmental
powers. Like this, no single individual or governmental institution could amass an unlimited
imperium of power thus ensuring the fulfilment of a democratic government that prioritises
the interests and declares the will of the people. The only way this could be protected is by
writing it down in a constitution that's rigid and supreme. Kelsen proposed an alternative
school of thought regarding constitutional supremacy. He believed that the legal system was
valid as long as it adhered to the hierarchy that represented the levels of supremacy. The
highest supremacy comes from the grundnorm, also known as the basic norm, which is not
created by any legislators, but is what gives the constitution and the subsequent legal
system its authority and validity. He was a civil law scholar and so emphasised the
importance of a codified, written, formal law based on positivism. HIERARCHY ENSURES
PREDICTABILITY, CONSISTENCY, COHERENCE.

Pluralism occurs on an international stage when there are several legal jurisdictions working
under a single territory. While the separate disparate systems are all valid and have
authority, it can sometimes create problems in terms of dealing with cases. For instance,
pluralism highlights the tension between national sovereignty and following domestic law vs
adhering to international law. The council of Europe, with its 46 member states highlights this
tension as they are all obligated to follow the European Convention of Human Rights,
however it sometimes clashes with domestic law. This can be seen through Hirst vs UK for
example whereby a domestic law banning voting rights on british prisoners clashed with their
obligation under the convention to allow them the freedom to vote. This resulted in the UK
reconsidering their domestic law, showing the influence pluralism has on domestic legal
systems. It does have its advantages though, for example, it allows minorities the
opportunity to have political, cultural autonomy and recognition on a legal scale. Reverting
back to the problem of pluralism, a way in which this was solved was through the margin of
appreciation, which allowed individual nations to deal with cases specific to them using their
domestic law due to a lack of consensus on the matter on an international scale.

How well a country’s laws are functioning based on specific factors, assessing if laws
are applied fairly, transparently, equally, whether government officials follow the laws
they’re supposed to uphold. There are several sub categories.

V dem
Electoral democracy
Liberal democracy
Deliberative democracy
Participatory democracy
Egalitarian democracy

15 sub indicators
- Judicial accountability
- Justice for women and men
- Judicial corruption
- Executive corruption
- High, low court adherence to rulings
- High, low court independence

- Subjective
- Forged data
- Cultural differences in the way rule of law operates
Sources of international law there are primary and secondary sources. Primary sources are
treaties and conventions, general principles of law, customary practices.

Flexibility does not mean instability. There are several other factors that will determine the
stability in a nation such as POLITICAL CULTURE, INSTITUTIONAL INTEGRITY,
SOCIETAL CONSENSUS. Flexible constitutions do however require robust democratic
processes to prevent the potential misuse.

Williams vs walker thomas ratio decidendi was unconscionability

Proportionality tests can be criticised in that there's a debate about whether to do it

continuous;y or only when the law is enacted. Judges play policymakers in the necessity
step thus questioning the extent to which the test is democratic.
BALANCING RAISES QUESTIONS ABOUT CONSISTENCY, JUDICIAL OVERREACH,
SUBJECTIVITY, UNQUANTIFIABLE.

Losing parties understand why they lost. Judicial methodologies uphold consistency,
predictability and legitimacy of the judicial system. The systematic process ensures trust in
the legal system.

Ratio decidendi in the numenor case is upholding constitutional supremacy

Canons of interpretation are typically used in common law jurisdictions because its bottom
up, meaning judges have the ability to interpret the law when its ambiguous. There are
several different canons of interpretations that judges could use to solve a case. Firstly, the
literal interpretation of the law. Next is the mischief rule of legislative intent. There is also the
golden rule also known as the purposive rule which looks at moral implications and broader
impacts rather than just the direct implication of the legislators. There's also the role of
foreign law which could be used to interpret the case.

Locke proposed →
Revolution
Appeal to natural law
Remove consent from the social contract

Bottom up → common
Top bottom → civil
Adversarial → common
Inquisitorial → civil
Casuistic → common
Rights > remedies → civil
Remedies > rights → common
Precedent → common

Jury → democratic
Adversarial → separation of powers
Casuistic → more pragmatic, individual administration of justice
More flexible → economic growth
Precedent → upholds the rule of law
Flexibility and adaptability in terms of societal development

Article 1 → declaration of the will of the people

Article 3 → only national congress can create the law and interpret it
Article 5 → gaps are reported to the president
Article 19 → literal interpretation of the law
Article 24 → general spirit of legislation