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25 Cards in this Set
- Front
- Back
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3 kinds of methodologies in Theory of State and Law |
●General scientific methodology ●Private scientific methodology ●Special methodology |
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*Metaphysics and dialectics |
Metaphysics: it is not dependent on individual’s personal needs/wants but instead it is constant/long-lasting and self standing situation. Its formation/creation is related to individual’s consciousness and inner stimuli. Dialectics: it is based on the development/evolution of human/public thinking and general principles of human life span. It analyzes economical, political, and cultural developmental aspects of state and law public life span |
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*Sociological methodology of studying law and state theory |
In this methodology the nature of State and law is studied/analyzed using public events/happenings of that particular society. Society's opinion about the State and law is learned using statistical analysis. |
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*Define state and government |
State controls and regulates the behavior of the human beings by protecting weak against the strong, maintaining peace and order, and serving common good life of all individuals. Government is the particular group of people, the administrative bureaucracy that controls the State apparatus at a given time. -States are immaterial and nonphysical social objects, governments are groups of people with certain strong powers. |
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List factors which led to the formation of states. |
●Production development in agriculture and herding ●Division of labor in those production fields (agriculture and herding…) ●Property rights within communities ●Increasing population ●Stratified societies (ruling class, middle class, and lower class) ●Legal regulation to control centralized communities by ruling class |
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Force Theory of State formation and highlight its cons. |
According to this theory, state came into existence by a result of force applied by strong to weak. Socially and economically well people came into power by applying force to the weaker members of the society. Theory claims that this exertion of force created the state. This theory is somewhat true, indeed, force played an important role in the formation of state. Some of the great empires (roman-egypt) in history were established using blood and fist. Theory is criticized a lot due to a reason that it promotes war and fighting. |
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Five factors played crucial role according to the Historical/Evolution Theory. What are they? |
●Kinship ●Religion ●Property and defense ●Force ●Political consciousness(awareness) |
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*3 main theories on the origin of law |
1) Historical theory: based on the historical regulations used in the society, and the most effective of those regulations were kept for the future. 2) Contractual theory: was used in tribal negotiations and peace talks. 3) Regulatory theory: was used in the establishment of legal regulations in the transfer of universal values of the law. |
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List 4 requirements of being state |
●Territory ●Permanent population ●Management government system ●Sovereignty |
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3 ways of state recognition |
●De jure – according to the law. It is the recognition of state and its government by other governments/states. It is announcement/declaration of new state formation by its president/ruler/governor. ●De facto – in practice/in reality. Other states don’t officially recognize the formation of new State. It is the recognition of newly formed state through economic, political, and cultural relationships. ●Ad hoc - for a particular purpose. This is not a common way of state recognition. It is the formation of new state under special circumstances (war, political conflicts, and etc.) according to the agreement between the conflicting parties with or without the involvement and/or consent of the state itself. (Case of North and South Korea) |
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*Social state and Secular state |
Social State ●State protects its own people by providing residence, work, and personal development. ●Protection for mothers, children, seniors, and disabled. ●Providing security for people and paying doles (posobiye) to disabled, children, and seniors. ●Provides all necessary amenities/conditions for its people. Secular State ●State provides religious freedom for its people ●State and religious matters are separate and they don’t interfere with each other ●State does not allow religion to affect/influence state matters and the education system of the state is not shaped by the religious matters ●Education system is secular and modern, no religious affiliation |
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Pluralistic Democracy party |
Pluralistic Democracy: according to this theory social structure of public is formed from various groups of people based on their interests, commonalities, and etc. |
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*Formational way of classification of state |
The theory of state and law classifies historically formed states using this method. (Formational way) ●Slavery state ●Feudal state ●Capitalistic state ●Socialistic state |
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Explain structure of state apparatus |
Legislative- higher legislative organ-parliament; Secondary legislative organ; Executive- central state ruling institutes; central state managing institutes; local ruling institutes Judiciary- general judges, special judges |
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*What is confederation state? |
It is a state which if formed temporarily(for a time being) to protect common benefits/outcomes of legally independent states. Example: European union
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What is fist law and its three branches? |
In history, feudal law is known “fist law” since it was always protecting the landlords. ●Law of the strong-made sure that strong farmers were under complete control of landlords. ●Law of the city-determined the law of traders, manufacturers, and other people on the land. ●Canonic law-established a communication/relation between religion and society. |
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What is monarchy and its types? |
Monarchy is the form of ruling where only monarch (king, prince, queen, sultan, khan, cesar, khnyaz, shah, sheikh) holds the absolute power and the management/ruling of state continues by inheritance. Types of Monarchy ●Absolute monarchy ●Restricted (parliamentary or constitutional) monarchy ●Senyoral monarchy ●Layered-representative monarchy ●Dualistic monarchy ●Theocratic monarchy |
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*What is theocratic monarchy? |
Theocratic: believed that monarchy is given to monarch by god and monarchs are representatives of god. |
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Explain Parliamentary republic |
It is a method of governing/ruling state where parliament acts as the head of state, whereas president is more symbolic. ●Parliament is formed by elections ●Parliament is the tip institute of government and powerful than president ●President is chosen by parliament but his/her duty is more symbolic and protocol |
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Types of government structure |
●Unitary state ●Federation ●Confederation |
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*Types of unitary state |
●Simple unitary: local governing institutes don’t exist and the state is ruled by the central institutes of the state. ●Complex unitary: states have autonomy governing institutes. ●Centralized unitary: local governing institute rulers/directors are appointed by the central government. ●Non-centralized unitary: local institutes are ruled/managed without interference of central government |
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Explain contractual federal state |
Contractual: formed according to the contract signed between multiple states to create a new federation |
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*Types of functions of state: |
●Types of legal system: 1) Formation of legal system 2) realisation of legal system 3) providing of legal system 4) control and protection of legal system ●Organization types: 1) Regulation of organisation 2) Public aspect of organisation 3) Conscious of organisation |
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Explain ways of realizing state functions |
●Encourage Encouraging people by providing materialistic and moral support to realize functions needed for the State ●Suggest Recommending/suggesting actions to be action to perform functions of State for the good of society ●Convince To influence and convince people/public about the importance of state functions to execute those functions ●Compel Using legal system to force people/public perform work needed for the State. Done by the executive branch of State to ensure protection of State and its people |
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List of external functions of state |
●Defense function, ●foreign economic function, ●diplomatic function, ●world peace keeping, ●solution of global affairs functions. |
