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Year 2021/2022Semester 1, Period 1
Notes (both lecture and tutorial)
History of Legal Theory
University of Amsterdam: PPLE
Lecturer: Marc de Wilde
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TABLE OF CONTENTS
LECTURE 1 3
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 1 7
LECTURE 2 13
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 2 17
LECTURE 3 30
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 3 34
LECTURE 4 41
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 4 43
LECTURE 5 46
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 5 50
LECTURE 6 54
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 6 57
LECTURE 7 60
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 7 63
LECTURE 8 66
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 8 68
LECTURE 9 73
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 9 78
LECTURE 10 81
A SHORT HISTORY OF WESTERN LEGAL THEORY CHAPTER 10 88
LECTURE 11 90
INVENTING HUMAN RIGHTS INTRODUCTION 96
INVENTING HUMAN RIGHTS CHAPTER 2 96
LECTURE 12 98
INVENTING HUMAN RIGHTS CHAPTER 3 103
INVENTING HUMAN RIGHTS …. 96
LECTURE 13 98
INVENTING HUMAN RIGHTS CHAPTER 4 103
LECTURE 14 98
INVENTING HUMAN RIGHTS CHAPTER 5 103
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LECTURE 1 NOTES (06-09-2021)
Date Content Literature
6.09 The Greeks Kelly, chapter 1
History of legal theory help us better understand law, as we can see where
law comes from
Civil law- EU countries (FR, NL, etc), common law- UK, US, this is judge
made law
In the UK Roman law had been thought, and know, but it never was
brought into practice
Civil law goes back to roman law, common law comes from the royal
courts
The Greeks: introduction
The Greeks where the first to look at the fundamental characteristics of
law and the relation between law and justice
Classical period 5th and 4th centuries BC. At this time Greece consistent of
independent city states that had their own government and their own
laws.
Athens was pre-dominant in the classical period, it was a democracy, this
meant that judges and governing officials were elected for a term of one
year. Also, the laws were democratically made in a popular assembly,
where all male citizens could vote. But several groups were excluded from
the democratic process, they could not vote or be voted in: women, non-
citizens (metoikoi) (in order to be a citizen, you have to have ancestry in
Athens), those who have been enslaved.
After defeat
in
Peloponnesian war with Sparta (431-404 BC): political decline of Athens.
But it still remains culturally dominant (Plato, Aristotle both thought in
Athens).
, 4
Greece was largely located in modern day Turkey.
Greek Law
There were no professional jurists in Ancient Greece, there were only hight
standing officials, who would give legal advice. This could be highlighted
by the fact that there are no legal writing from Ancient Greece. Main
sources of Greek law are non-legal: literary, philosophical, and historical →
emphasis on legal theory, not on practical legal science
There was no unified legal system, as there was no unified state, but there
were various codes of independent city states. But the codes had similar
fundamental ideas in them.
Gortyn- the only legal code that has survived from Ancient Greece
Age of Lawgivers
7th and 6th centuries: age of the lawgivers: Dracon and Solon (Athens)
and Lycurgus (Sparta) drafted the first legal codes. Before this period all
laws were customary laws. These customs had been recognized in
communities.
Customary law (unwritten) replaced by statutory law (written)
Legislation becomes the only source of law (customs are no longer
recognized as legally binding) Nomos = statutory law (written, generally
binding).
The last are cast in stone and bronze, and then made public in order to
make them accessible to all. . No longer subject to arbitrary statement of
a closed and privileged class (i.e., families of high social standing
providing magistrates and judges)
The Code of Gortyn I
‘Code of Gortyn:’ only Greek law of which an (almost) complete text has
survived (ca. 450 BC)
This was discovered by Federico Halbherr in 1884 in the small town on the
island of Crete
In consists of 12 columns of text on a wall written in Boustrophedon: “ox-
turning” (written bi-directionally).
The content (rules) of the law is mainly about private law, thus there are a
large number of rules relating to the following: family law, inheritance law,
property (esp. land and enslaved), contract (esp. sale), etc.
There is one characteristic that makes this code differ from modern legal
code, that is in the code of Gortyn there are legal distinctions between
social class (freeman/ enslaved, native/ foreigner, man/ woman). There is
no legal equality between social groups.
Example: adultery, which in this case is a part of private law: a free man
convicted of adultery receives a low fine; a foreigner receives a higher
fine, and a slave or serf the highest fine (with even higher fines if adultery
is committed in the household of the woman’s husband, father or brother).
Aristotle on Law and the State
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