Questions & explanations
1. What is the main idea of the 'equivalent protection' rule from the Bosphorus case?
The 'equivalent protection' rule says that a country can follow the rules of an international group (like the European Union) even if those rules might go against the European human rights treaty. The European Court of Human Rights checks if the international group gives human rights protection that is 'equivalent' (just as good) to what the treaty requires. If yes, the country is seen as following the treaty when it follows the group's rules. This rule helps balance a country's duties to both the group and the human rights treaty. It was first explained in the Bosphorus case about Ireland seizing a plane under EU law. The rule only applies if the group's protection is not clearly worse than the treaty's.
2. Compare the impact of codification on customary law in Africa and Asia.
In both Africa and Asia, codification aimed to unify and modernize customary laws. In Africa, colonial powers often wrote down customs to make them easier to administer, which sometimes distorted them. For example, in Kenya, codified customary marriage laws ignored some matrilineal traditions. In Asia, countries like Indonesia codified customary adat law for official use, but many local variations were lost. In both regions, codification made laws more certain but less adaptable. However, in Africa, codification was more linked to colonial control, while in Asia it was often part of nation-building. Both faced challenges of balancing written law with living traditions.
3. What did the North Sea Continental Shelf cases say about how a treaty rule can become customary international law?
The North Sea Continental Shelf cases (1969) said that a rule in a treaty can become customary international law if two things happen. First, many countries must follow the rule in their actions, not just in the treaty. Second, countries must believe they are legally required to follow the rule (this is called opinio juris). The cases were about how to divide the continental shelf between countries. The court said the rule of 'equidistance' (drawing a line equally between coasts) in the Geneva Convention was not yet customary because not enough countries followed it with a sense of legal duty. This case is important for understanding how custom forms.
4. What two elements must be shown for a treaty rule to become customary international law, according to the North Sea cases?
According to the North Sea Continental Shelf cases, two elements are needed for a treaty rule to become customary international law. First, there must be 'state practice': many countries must actually follow the rule in their actions. This practice must be widespread and consistent. Second, there must be 'opinio juris': countries must believe that they are legally required to follow the rule, not just doing it for convenience or politeness. Both elements must be present. The court said that even if a rule is in a treaty, it does not automatically become custom. Countries must show through their actions and beliefs that the rule is now a legal duty.
5. Explain why legal positivism separates validity from effectiveness, and give a real-world example where this separation matters.
Legal positivism separates validity from effectiveness to keep law clear and predictable. If validity depended on effectiveness, then a law would become invalid whenever people stopped obeying it, which would cause chaos. For example, consider a tax law that many people try to avoid. Even if many evade taxes, the law remains valid and authorities can still punish evaders. If validity depended on effectiveness, the tax law would disappear as soon as evasion became common. This separation allows courts to enforce valid laws even when they are unpopular or disobeyed. It also means that changing a law requires formal amendment, not just disobedience.
6. Explain the Stufenbaulehre (theory of the hierarchy of norms) in simple words.
Stufenbaulehre means "theory of the hierarchy of norms" in German. It says that legal norms are arranged in steps, like a staircase. At the top is the basic norm, which we assume. Below it is the constitution, then statutes, then regulations, then individual decisions. Each step gets its authority from the step above. For example, a judge's order is valid because of a statute, and the statute is valid because of the constitution. This step-by-step structure ensures that all laws fit together. If a lower step contradicts a higher one, it is invalid. The theory helps us see how a legal system is organized and how validity flows from top to bottom.
7. How do Buddhist monastic codes influence secular law in some countries?
In countries like Thailand, Myanmar, and Sri Lanka, Buddhist principles shape some secular laws. For example, Thailand's constitution requires the king to be a Buddhist and protect Buddhism. Some laws on morality, like those against adultery, reflect Buddhist values. In Myanmar, Buddhist monastic courts handle disputes among monks, and the state recognizes their decisions. However, secular law generally governs criminal and commercial matters. Buddhist concepts like non-violence and compassion sometimes inspire legal reforms, such as in restorative justice programs. But the influence is limited, and most countries have separate legal systems.
8. How does the equivalent protection rule compare to the idea that countries are always fully responsible for their actions under human rights treaties?
Normally, a country is fully responsible for any action that breaks a human rights treaty, even if it follows another international group's rule. The equivalent protection rule is an exception: if the group gives human rights protection just as good as the treaty, the country is not responsible when it follows the group's rule. This is different from the usual idea that a country must always follow the treaty first. The rule tries to respect both the country's duties to the group and to the treaty. But it only applies when the group's protection is truly equivalent, not just similar. The European Court of Human Rights checks this carefully.
9. What is a major milestone in the historical development of religious legal systems?
A major milestone was the compilation of religious texts into written codes. For example, in Judaism, the Mishnah (around 200 CE) organized oral laws. In Islam, the compilation of the Quran and later the Hadith (sayings of the Prophet) formed the basis of Sharia. Another milestone was the formation of schools of law, like the four Sunni schools between the 8th and 9th centuries. These schools systematized interpretation and made religious law more consistent. In modern times, the codification of personal status laws in countries like India or Egypt was another milestone. It allowed religious law to function within a state legal system.
10. Why has the Lotus principle been criticized in modern international law?
The Lotus principle has been criticized because it gives countries too much freedom and can lead to conflicts. For example, if every country can act unless forbidden, they might claim overlapping jurisdiction, causing disputes. Also, modern international law has many rules that limit what countries can do, like human rights and environmental treaties. The principle seems to ignore these limits by starting from freedom. Critics say it is outdated because international law now has many positive rules that require countries to act in certain ways. The International Court of Justice has moved away from the Lotus principle in recent cases.
11. Explain how a dynamic system relies on authorization, while a static system relies on content derivation.
In a dynamic system, a norm is valid if it was created by someone who has the power to make norms, as set by a higher norm. For example, a constitution gives the legislature power to make statutes. The statute is valid because of that authorization, not because its content is good. In a static system, a norm is valid if its content can be logically derived from a more general norm. For example, from the norm "all humans are equal," you can derive "no discrimination based on race." The derived norm is valid because it follows from the higher norm. Dynamic systems focus on who made the norm; static systems focus on what the norm says.
12. Give an example of strong legal pluralism in everyday life.
In many countries, religious courts handle marriage and divorce for their followers, like Islamic sharia courts or Jewish rabbinical courts. These courts operate alongside the state's civil courts. Under strong legal pluralism, both the religious and state systems are seen as separate legal orders that people can choose between. Even if the state does not officially allow religious courts, people still follow religious rules, which shows strong pluralism. For instance, a Muslim couple might get married in a mosque according to Islamic law, and later also register the marriage with the state. Both systems exist and have real effects.