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Summary - Law and politics (FY)
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Week 1: Trias politica, rule of law, and political question doctrineSources of Law
Rules:
- Substantial part: rules (how people should behave, definitions of terms, article 1 of the
international convention, etc.)
- Morality and moral rules (religion, etiquette, special organizations)
Collective enforcement:
- Collective means
- Specific sanctions
- Or less specific/non-legal rules (liars are not punished by laws but by moral rules)
Positive law:
- Means of legislation/judicial decisions
- “laws that are valid here (meaning the whole territory) and now”
- But what abt non-state rules?
Legal certainty:
- Positive law = certainty
- Parties can foresee judge’s decisions -> sometimes, court gives more certain or expected
decision rather than the “right” one
- Legal certainty = source of collective support
- Consistent application of laws
- Three aspects: 1. Certainty is about the content of the law. 2. Certainty that the law will
be enforced. 3. Certainty that the law will be applied consistently.
Roman law:
-law is a result of historical development (roman law -> legal system)
- started as a tribal customary law
Tribal customary law:
- Public international law -> European law
- Roman law is the law of the roman people
- Law can also be connected to religion
- Larger group of ppl -> new ties; shared culture, language, etc.
- Customary laws change slowly over times and typically not the result of legislature
Codification:
- Origin is unwritten laws
- Roman law was partially written in 451 BCE (12 tables) = it excludes “benefits” from
interpretation of unwritten laws
- Written = codified
- Roman law: want to sue -> go to the praetor -> praetor reviews the case and decides
whether to send legal instructions to the judge.
- Modernity: laymen decide on the facts of the case. Criminality: judges decide whether
the convicted is guilty or not.
- Jurist had a great influence on the roman law
- Codex: imperial legislation
- Digest: writings of jurists
, - Multiple wars finished by the treaties of Westphalia -> Europe = national states -> law
became national one + international public law (westphalian duo)
- French revolution: private law, commerce law, etc.
Common law:
- Europe rediscovered the roman law
- England tho adhered to the common law
Royal justices:
- Unification of English law (William I in 1066)
- Common law of England
- Same laws are executed across England
Precedent:
- Judge’s decision = precedent for future cases
- The decision is the evidence of law existing already or the rule was created after posting
the decision
State decisis:
- Second variant ^
- One court made a decision -> similar procedure will be applied to other similar cases ->
other courts will also adopt this procedure
Case-based reasoning:
- English legal reasoning
- Taking into account similar cases to the one being reviewed
- Traditionally a common law
- Arguable less important in England after EU membership
Common law tradition:
- Adopted by all members of the commonwealth (England, Ireland, Wales, some states in
the US, Canada, Australia, etc.)
Equity:
- 14th century
- Petitions to the king originally but then to the chancery
- Aims: achieve fairness through re-reviewing cases
- Originally, an exception to the law, but now is a part of the common law
Canon law:
- Diverse law in Europe due to customary law
- Europe rediscovered the roman law (digest, roman catholic church’s law = canon law)
, - Roman law and catholic law were studies together -> spread across Europe
- European law was still a standard but eventually declined = reception of roman law
- Roman law -> rationality -> laws established by mean of reason -> natural law
- Hugo Grotius (international law/private law), Samuel von Pufendorf (basis of
reasoning/private law), Christian Wolff (natural law)
Civil law family:
- French family: France, Belgium, Spain, Portugal
- German family: Switzerland, Germany, Austria
Transnational law
- increase in administrative law
- regulated relations of the state and citizens
- end of westphalian duo probably
- lex marcatoria
- human rights as international treaties -> no more exclusive domain of national law
- European law (autonomous legal system but not a world gov)
- Vienna convention 1980 -> soft law
Constitutional law
- Regulates the state
- Restricts arbitrary power
- Responsibilities of the state: provide peace, order, stability. Also. Infrastructure and
education: clean environment, roads, etc.
- How changes are made is up to constitutional law, its outcomes are politics
- Sources: written constitutions, basic law, charter, regulation of the state (rigid), but can
be changed through entrenchment but some constitutions are non-amendable. Side
note, UK does not have a written constitution
Case law
- The uk doctrine of parliamentary sovereignty
- When courts interpret the meaning of constitution / lay down rules of constitutional
relevance
- Customs -> internal proceedings of parliament (its composition, etc)
Treaties:
- As the international law important for domestic constitutions in some states
- Monist system: treaties are a part of domestic law (France, Netherlands)
- Dualist system: international law is transformed into domestic law (Germany, uk)
Statehood
- Conditions: 1. Recognition from other states (by international community) -> acceptance
into international organizations (UN) (unrecognized: Taiwan, Kosovo). 2. Secession:
states exercise domestic control and has power to stop revolution/disruption of
unity/etc.
Sovereignty
- Normative consequences
, - Internal: a constitutional issue -> authority of the state is defined in constitution;
sovereignty is the source of authority in particular territories. The right to implement
the rule.
- The people: legitimization of state authority lies with the people
- External sovereignty: mutual relations between the states. The sovereign state is
independent from other states and other states cannot intervene into domestic affairs
of the sovereign state.
Nation states
- Nations/nation-states: common traits among people living on the same territory
The European union
- Many features of state (internal/external powers)
- High representatives for foreign affairs and can conclude treaties with non-eu states
- Lack in defense and police powers
- International affairs also must be agreed unanimously
- Cannot be a nation state by many and not a sovereign (not mastering its own
constitution)
- Treaties = international agreements
State power constrained:
- Weber: only state may use violence against individuals to ensure safety
- Absolutism: an absolute ruler is free of law -> Hobbes
- Constitutional law = constrains
Territorial division:
- Unitary states: central gov authority (NL is decentralized but unitary state)
- Federations: power is divided between parts of the central state (federal levels) and
organs of subunits (regional level)
- Confederations: participating entities are sovereign. No supremacy of federal law
(contrary to federalism).
State functions
- Montesquieu:
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