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Summary Law and Security (Bsc Security Studies, Leiden University)
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A comprehensive summary of the course Law and Security that is taught in the second year of the bachelor Security Studies
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Law and SecurityLecture 1: Introduction - law and basic concepts
What is law and why do we have it? Law influences everything that you are doing and what you have done. It also
influences us unconsciously. Law is a system of rules that are created and enforced through social or governmental
institutions to regulate behaviour. It has been defined both as "the science of justice" and "the art of justice".
Thomas Hobbes’ social contract (1651): Thomas Hobbes was an important English philosopher. He is best known for
his book The Leviathan. Within his book, Hobbes states that you need to have one person, or a very small group of
persons, in charge ruling over all of us because life was dangerous in this period. He came up with the so-called Social
Contract Theory. This lead to monopoly of violence for the state and order and security by the state. All rights to exert
violence go to the ruler, which means that people have to give up their right to use violence. This also has negative
consequences, as he basically puts all power into one set of hands and rules out resistance.
John Locke (1689): He did not agree with Hobbes, as he did not agree with putting all power into one set of hands. He
thought that powers should be divided: “Should we, because we are afraid of foxes, submit to a lion?” Locke also
agreed that violence needed to be reduced, but he thought Hobbes’ idea was not the best idea. Locke’s theory was
that states should respect the legality principle (the principle that rulers cannot exert violence without a law backing it
up), equality, no arbitrariness and individual freedom rights and property.
Division of Power: The separation of powers is a model for the governance of a state. Under this model, a state's
government is divided into branches, each with separate and independent powers and areas of responsibility so that
the powers of one branch are not in conflict with the powers associated with the other branches. The best known theory
in order to keep an eye on the check and balances is the theory by Montesquieu (1689 - 1755) and his Trias Politica. He
divides the power into three branches:
- Legislative: deze macht bepaalt de wetten en regels in een land.
- Executive: deze macht voert de wetten uit.
- Judicial power: deze macht vervolgt mensen die de wetten overtreden.
What is the rule of law? Rule of law are the principles of governance. In a narrow sense, you can say that rule of law
means that law should govern a nation. Everyone is subject to law, including the king, queen, president, etc. There is
also no arbitrariness.
History of the rule of law
- Aristotle (320 B.C.): Aristotle advocated the rule of law: It is more proper that law should govern than any one of the
citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they
should be appointed to be only guardians, and the servants of the laws.
- Magna Carta (1215): This charter set out the feudal rights of the barons and stated that the king could continue to
rule but must keep to the established laws and customs of the land. It was the first written document compelling an
English king to act according to the rule of law.
- Albert Venn Dicey (1885): Albert Venn Dicey was a British jurist and constitutional theorist, who developed the
concept of rule of law in his book 'The Law of the Constitution' (1885). He states that regular law > arbitrary power.
He advocated for equality of all and enforcement by courts.
Access to justice is an element of the rule of law that cuts across civil, criminal and administrative law. It is a process
with series of steps towards benefiting from other rights. It is a goal to have your case heard. For example, access to a
translator is also access to justice. Another example is trial in absentia is a criminal proceeding in a court of law in which
the person who is subject to it is not physically present. Keep in mind that access to justice is not the same as access to
court. Three dimensions:
1. Access to law
2. Access to a legal institution (including physical elements)
3. Access to a fair and just solution
How to ensure access to justice on remote locations? This can be done through mobile courts, or e-justice. Mobile
courts are defined as formal courts that conduct proceedings in locations other than their home offices, usually in
remote areas where no justice services are available. This goes hand in hand with travelling judges. E-justice is assessing
the case fully online. How to ensure access to justice for the poor? This can be done through pro bono lawyers or free
legal advice. Free legal advice is mostly given by law students who offer advice for people who cannot afford it.
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, Where do we nd law? How do we as citizens know what the law is? Does the law need to be written down? Law does
not have to be codified in order to be valid. We can find different types of law:
- Constitution
- Legislation
- General administrative decisions
- International treaties
- Recognised custom
- Case law/ jurisprudence
- Religious texts
In uential codi ed law:
- Roman law (600): Justinianus, only civil law
- Code Napoleon (1804): Civil and criminal law
- Bürgerliches Gesetzbuch of Germany (1900): Civil law
Types of legal systems (predominant legal systems):
- Civil law: the system of law concerned with private relations between members of a community rather than criminal,
military, or religious affairs.
- Common law: law that is derived from custom and judicial precedent rather than statutes.
- Religious law: Religious law includes ethical and moral codes taught by religious traditions.
- Customary law: evolved rules and practices that enable community members to distinguish between acceptable and
unacceptable behaviour.
- Mixed systems: Mixed jurisdictions traditionally combine common and civil law elements in an obvious way.
Main differences between ciivl and common law:
Civil Law Common Law
Romano-Germanic (continental) Anglo-American
Codified Originally unwritten
Legal texts and scholars Case law and precedent: you can only offer equality when
you can show that two cases are dealt in the same way
Private law - citizen vs. citizen Public law - state vs. citizen
Family law Constitutional law
Property law Administrative law
Business law Criminal law
Trade law
Citizen State
Citizen Private law Public law
State Public law International law
Sovereignty is the power of a government to reign over its territory without any interference.
Criminal law is by all means different from country to country. Criminal law is so closely related to the political,
historical, cultural and religious identity of a country that it is different. Criminal law is about the punishment of criminal
behaviour. It is considered to be the harshest consequence there is. For that reason, it should be handled as ultimata
ratio: ultimate measure. It can only enter the picture if everything else fails.
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