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Security & the Rule of Law - All Pre-Recorded Video's
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Security and Rule of LawPre-recorded videos
Seminar 1: Introduction – pre-recorded video 30-
01-2021
The mind map
1
,Part 1.2: Law & politics
In this part we’re going to address some of the key pillars of this course. Key
concepts and theories that you will need throughout the course. The clips of this
week are going to be essential throughout the course. Take down notes and
personal views that you have. Specifically in this clip we’re going to address ‘law
& politics’. In the following – what is so specific about the rule of law? Why do we
have to care about it? And why do we need it to understand security challenges?
Also, we’re going to see something about the legal principles.
Introduction to the course
1. Law
2. Rule of law & Relationship with security
3. Legal principles
What is law? Why do we need it to better understand security
responses?
● The law is a set of legal rules that governs the way members of a society
act towards one another
● Behavioral codes that guide people into actions that conform to societal
expectation
● Laws are norms supported by codified social sanctions
Law is that set of legal rules that governs the way members of a society act
towards one another. So, there is an individual element there. So, law that is
supposed to be general has some very evident individual consequences and
effects on each of us. So, we all feel the consequence in our individual behaviour
of law. Law is based on norms that are behavioural codes, that guide people into
actions that conform to societal expectation. By societal expectations we mean
what our society believes to be right or wrong/fair and just - so, what is the way
our society wants to represent ourselves? This is why we can have different
types of law – depending also on the different political regimes that exist around
the world – because we have different societal expectations, different cultural
heritage, different historical heritage, that make our collective understanding
different. These laws are norms supported by codified social sanctions – so, once
a society has a certain idea about what is good and wrong, they might also
develop the norms that somehow have to respond to the ‘wrong’. When you
don’t comply/follow what is expected from you, you might be facing different
types of sanctions.
Different sources of law
● Constitution
● Legislation (national&international)
● General administrative decisions
● International treaties
● Recognized custom
● Case law/ Jurisprudence
● Religious text
2
,A society can have different sources of law. Your legal principles might actually
be coming from different sources that developed in history and because of
certain political and social events. Constitutions – one of the most famous ones,
especially in Western Europe – because of our specific history of law. A big bill
that somehow contains all the basic founding falls. There are then developed
throughout legislation – basically laws – can be national or international. But you
also have at the regional/local/national level – you might have general
administrative decisions – so basically everyday societal needs. You can also
have international treaties that states are free to sign, they can have an impact –
like binding treaties where states have to confirm to that rules which they have
signed for. There is also a system based on recognized custom, something that is
not necessarily codified into written law but its customary. There is also the case
law/jurisprudence – the actual practice of law – that might become a source of
law itself. Finally, you also have religious text. On the basis of these different
sources and the role these different sources have in the development of the
different systems, of course, you might have a different legal system.
Different legal systems
Legal systems:
● Civil & common law
● Religious law
● Customary law
● Mixed systems
Throughout the world there are different legal systems. Again, here, it’s not
about what is better, which one is best or worst. It’s about the analysis. How we
can use the knowledge of these different legal systems to better understand the
rule of law system – which is the course core. This does not mean that we don’t
have to see how different systems work –
we need to have a comparison – comparty of mindsets. Not the normative ones.
3
,Here, the prof wants to be comparative and to understand similarities and
differences and why they are relevant to us.
Different systems in different areas of the world. See in this picture how these
varieties are spread throughout the world.
We are not legal experts but you need to understand the differences.
Customary Law Religious Law
By customary law we understand the type Religious law is that law that is integral to
of law that is unwritten – uncodified in religious sources. This means that
written text. But it’s mostly based on oral, religious sources as texts or teachings are
informal and flexible knowledge and really the sources of what is the legal
teachings. So, it’s very related to culture norm – the legal norm which governs the
and to specific cultural habits and society. Here we find the difference
traditions. between Islamic and Islamist (the prof
doesn’t want to say anything more about
it – we have to find it ourselves why it’s
important to us). Therefore, the sanctions
are also religious – we’re talking about
sanctionatory actions by the government
or society are based on religious
teachings.
Internet 🡪 Islamic law = Sharia law = a religious law forming part of
the Islamic tradition. It is derived from the religious precepts of Islam, particularly
the Quran and the hadith. Islamic 🡪 “of or like Islam”. Islamist is not a form of the
Muslim faith but a political ideology – “Islamist” interchangeably offends billions of
peaceful Muslims and lends legitimacy to terrorists’ claims that their actions are
justified by religion (Islamist Terrorism).
4
,Here the main difference, again, is about the codification of this law.
Civil Law Common Law
Is based on the Romano-Germanic Based on the Anglo-American tradition
(continental) tradition, basically and its originally unwritten case law – so
continental so let’s say Western Europe to different cases with different judges,
simplify. Mostly developed by the ancient judging according to different
Roman empire. This is why law has so understanding of the law. And based on
many Latin words. It’s based on codified precedents – again, different decisions
legal text but also the activity of many may become law themselves.
scholars and their interpretation, that
might be the source of this law.
But there is much more cross pollination today than it was before. There are
many civil law systems where precedents and what different judges have
previously decided, that are becoming more and more relevant in these systems
as well. Much more centrality(?) as well. Why there are common laws systems
where certain decisions/certain texts become more codified – the idea is that also
what is written has a certain weight.
Strict relationship between law and politics
● Development of societal relations: function to bring about justice and order
● Specificity of democratic rule & politics
● Balance between legal policy and political policy
We basically need all of this to better understand the relationship between law
and politics. A critical element for this course. As I said, one of the critical
elements of this course is to understand the relationship between law and
politics. This relationship has both a progressive function and a safeguarding
function. Law & politics both separately or together, encourage and suppress the
development of societal relations. While they both also function to bring about
justice and order – here we go back to the social pact. The essence is their being
5
,separated and connected – but it’s not integral existence, it’s to help each other –
they need each other. It’s an imminent characteristic of every law that it’s also
the means of certain politics – so this is true. However, law is never a poor
form throughout which the political content would be realized, since it is
the very nature of law to be relatively autonomous and independent.
Here, is where we find the specificity of democratic rule and politics,
because democratic politics cannot exist without law. Since the law
forms politics and keeps politics within certain limits. These limits are
dictated above all by the ideas of justice and social order. But law cannot exist
without politics, because politics gives law its driving force/its rough content/its
substance. It’s law that adapts to this driving force, it adapts it in its autonomous
framework and develops its final form expressing it in a specific normative
manner. Thus, one of the most demanding tasks of every society is the
continuous attempt to establish and maintain an appropriate balance between
politics and law. There is always the need for balance between legal policy and
political policy. This is definitely one of the most important elements of
democracies, but not necessarily in other political systems because in
authoritarian or totalitarian states the legal policy is definitely
subordinate to the political one. While in the democratic state, there is the
dynamic/partner/competitor relationship between these two policies, where
sometimes, politics prevails and other times the law prevails. Authoritarian states
do not work like this. The politics, the party/the personality in charge, decides
over the legal rule. They don’t have independent, fair, balance relationship.
But..why do we need it (Law) in the first place according to two main
theories?
● Social Contract - Thomas Hobbes
● Monopoly of violence for the state
● Order and security by the state
● We need it to survive – Homo Homini Lupos = "A man is a wolf to
another man"
How did we get here? The main authors that address this in the first place. The
general interpretation of the social contract by 2 main theories of this concept –
these are not the only ones, but they are usually preferred to better ailing the
differences in interpretation over the same concepts. Because they somehow
represent two connected, somehow overlapping but both are highly contrasting
theories. On the one hand we have Thomas Hobbes and on the other hand
John Locke.
Hobbes is one of the founding fathers of the realist tradition. Hobbes said that
we need a social contract in order to survive. We need it because we live in a
state of nature, where ‘Homo Homini Lupos’ – so where every man is a wolf to
each other. So we cannot trust anybody, we cannot rely on anybody’s help. And
we need therefore the state, the sovereign, to dispose of that power/that
authority to grant safety and security to all of us. Through the monopoly
violence or better the legitimate use of force or violence, the state can grant
order and security. So, we somehow give away some part of our freedom
6
,because we have to submit to the sovereign rules but in this way we can survive.
The state gives us back safety in exchange for our freedom.
But..why do we need it in the first place?
● Social Contract – John Lock (1689)1
● We need it to live better
● “Should we, because we are afraid of foxes, submit to a lion?”
John Lock states something similar, but essentially different in its
anthropological understanding of this. Meaning that we do need a social
contract for peaceful society but we need it to live better – so not
necessarily to survive. Because we do live in a state of nature, but it’s not as
bad as it sounds – Locke would say. He claims that there are some good elements
in human beings, there is definitely a more positive understanding of individual
nature/of human beings. But as it might be complicated to solve conflicts
independently/peacefully we do need the sovereign to do so.
What is very important to Locke is not to allow the sovereign to dispose of
uncontrolled unlimited powers, and he says: “Should we, because we are afraid
of foxes, submit to a lion?” – so, we do submit to a lion but this submission has to
have some limits. We’ll see how important it is later on.
So the state gets to be sovereign
● power of a government to reign
● over its territory
● without any interference
● internal & external sovereignty
So, the state gets to be sovereign, the state dispose of national authority and
sovereignty. And what does this mean exactly? It refers to the power of a
government to reign within a certain territory. So, important is also that we refer
to territories as polity – so the space of politics where the state can govern and
reign. And they can do so without any interference – so, there is no one else that
can challenge this authority. Once you get your internal sovereignty, you get to
be also external sovereign. We will see this and how this can be problematized as
well.
Internal Sovereignty
● Superiorem no recognoscens
o the state is the highest governing authority in a country
1
‘Hobbes - Leviathan - He is infamous for having used the social contract method to arrive at the astonishing
conclusion that we ought to submit to the authority of an absolute—undivided and unlimited—sovereign
power. State of nature = condition without government. ’
‘Locke used the claim that men are naturally free and equal as part of the justification for understanding
legitimate political government as the result of a social contract where people in the state of nature
conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable
enjoyment of their lives, liberty, and property. ’ source: https://plato.stanford.edu/entries/locke-political/
7
, ● State–society relations: how the government rules the domestic society
Internal Sovereignty refers to the fact that the state is “Superiorem no
recognoscens” – so, it doesn’t recognize any superior authority but the state is
the highest governing authority in a country. In a country, limited by certain
recognized borders. The state-society relations here are really about how
government rules this democratic society. This means basically that there are
different elements/ways for a government to rule its society. This means that
there are differences in the means of its powers and the sources of its
legitimacies. E.g. Elections – are they fair democratic elections or not? But it is
also about how the government deals with the demands and concerns of the
individuals and groups that compose that domestic society, is there any way for
organised groups to express their concerns? Or can they have an impact on the
legislation? But it’s also about how a government manages the national
economy. And in general domestic policies etc.
External Sovereignty
● both the government and the domestic society make up the state
● ‘juridical’ statehood
o Constitutional Independence (no external legal authority) +
Recognition
● ‘empirical’ statehood
External Sovereignty concerns the externality of it. This is where both the
government and the domestic society make up for the state. So the government
and the domestic society are part of a single unit and they are understood as
such on the national level. All the states are somehow single units. There are 2
different interpretations of sovereignty – ‘juridical statehood’ and ‘empirical
statehood’.
The juridical statehood = where the state is viewed as a formal or legal
institution and its really one independent actor that interacts with other
states. The state is an entity that is constitutionally independent of all
foreign states. It’s also recognized as such – meaning as sovereign and
independent by (if not all at least) most of these states – it enjoys membership
in international organisations and possesses values, international rights
and obligations. Here, two critical elements: (1) constitutional
independence (so there is no external legal authority over it) + (2) recognition
(no external legal authority, but there is an element of recognition – it has to be
recognized by its peers – the other states).
The empirical statehood = it refers to the extent to which states have
developed practically efficient political institutions but also a solid
economic basis and a substantial degree of national unity that is popular
unity and support for the state.
So on the one hand you have the juridical statehood, the legal recognized
‘written’ one, we also need to look at the empirical statehood – to what extent
the state is performing practically on the duties or practices of being that state
nationally. Bear in mind that the theory and practice are different and these are
8
,two examples of how you can test, let’s say, the statehood and therefore the
sovereignty of a state.
Here, it’s important to mention the relationship between the national and the
international law. Critical differences. We need to understand that we live in a
complex normative set of legal systems.
National Law – Overall we can say that national law is something that is
applied within national boundaries and applies to the individuals that live in that
territory and those corporate entities that act there. These individuals and
entities have various rights and duties they’re under. National law regulates and
governs the behaviour of individuals and it is concerned with the internal
domestic affairs of a state. At the national level it used a legislature to help
enforce and test the laws in matters concerning the legislature and the court
system. The national courts have law enforcement, which helps but also require
those individuals that live within those borders to follow the rules and if they do
not do that – they are required to attend court.
International Law – applies to the relationship between the slates but also to
other subjects of the international law – so it regulates and governs the
relationship of the sovereign and independent states and other institutions/ORGs.
So, it’s concerned with the external foreign affairs of a state. What is relevant to
us is that the international court system that exists, relies on a series of treaties
that states are free to sign or not, there is no legislature that there is at the
national level. But there is this international court system where all countries are
equal and understood as such. This international court system has no
international law enforcement system and therefore must rely on the willingness
of states/on the corporation of other country to uphold the enforcement.
Part 1.3 – Rule of law; this clip we need to know by heart!
And what is it so specific about the rule of law?
The rule of law
● Fairness
● Rationality
● Predictability
9
, ● Consistency
● Impartiality
The rule of law might be difficult to
define universally – as a universal
concept, but it’s one of the most
important concepts for our political
history. In the rule of law a key
principle is that it means that the law
applies to everybody, to everyone
equally and fairly. Where the
government or citizens, the rule of law
can also be used to support more
broadly things like fundamental
human rights, the separation of
powers (3 arms of government
separated).
The rule of law can be seen as the
underpinning factor to the existence
of human rights – so you can look to
the rule of law as the legitimate reason for fundamental human rights and for
their existence. We can also refer to other fundamental rights – and we will see
this throughout the course. There are rights like the right to security, right of
liberty, rights of freedom of speech – a number for rights we’ll deal with. The rule
of law can be interpreted in different ways universally. But generally speaking the
following concepts: Fairness, Rationality, Predictability, Consistency,
Impartiality are vital to the rule of law – that’s agreed upon.
If we look at fairness and rationality, basically these two concepts show us
that the rule of law makes the law apply to everyone. For the citizens but also for
the government. The government is not excluded by the rule of law. You have a
predictability that somehow refers to the certainty in law, and certainty also on
the outcome in case you break the law. So, you have to know the rules, whether
it’s a sanctional behaviour or not, but you also have to be sure and know that the
system is designed in order to give you a certain, established punishment in case
you don’t follow that rule. But then there is also ‘consistency’’ that refers to the
idea that we can trust the rule of law is being applied to everyone and its applied
to everyone the same – this is of course related to impartiality – meaning that
there is also an impartial body that makes a decision on any law issues and these
concepts that we associate with the rule of law – that their meaning can be
traced back historically to many centuries ago. Like the Aristotle idea for good
governance - so it’s not something that has been developed recently but it’s also
the product of certain political and social history.
● Special attention to:
o Separation of Powers
▪ Independence of the judiciary
o Access to Justice
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