Samenvatting Foundations of Law (cijfer: 16/20) ( KUL)

What is “foundations of law”?



A. What is “Foundations of Law”?
1. Theoretical and historical foundations
1.1. Why is it important to know the foundations of law?
 Understanding legal systems and their function
 Critical evaluation of law
 Navigating legal practice
 Contextualizing legal education and practice
 Global and comparative perspectives

1.2. What are the foundations of law?
 Internal foundations: Legal doctrines, reasoning, rules
 within the legal system
 External foundations: historical, societal, philosophical influences
 broader context

1.3. Historical foundations of Western legal systems
 Code of Hammurabi -> Codification, written law
 Greek law -> Plato and Aristotle, natural law
 Roman law -> Civil law vs law of nations
 Canon law -> Religious influence on law
 Common law -> England, stare decisis
 Enlightenment thought -> Hobbes and Locke, social contract theories
 Constitutionalism

1.4. Theoretical foundations of law
a) Natural law theory
 Laws are derived from inherent moral principles
 Aristotle, Aquinas, Kant
 Valid law must align with morality or justice
 Aristotle: ‘the content of natural justice (/universal law) is set by nature, which renders it
immutable and valid in all communities’
 See week 3

b) Legal positivism
 Law is valid if created by proper authority and follows established procedures
 H.L.A. Hart, John Austin
 Separation of law and morality
 See week 3

c) Legal realism
 Focus on how law functions in practice, not just in theory
 Judges, social context and institutional behavior shape the law
 See week 4, 5 and 6

d) Critical Legal Studies
 Law as a tool of power, reinforcing social hierarchies
 Legal decisions often reflect the interests of dominant groups
 CLS questions the neutrality of law




1.5. Institutional foundations of law
 Role of courts (judicial interpretation, precedent)
 Legislatures and law-making



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,What is “foundations of law”?



 Rule of law: law must govern, not arbitrary power?

1.6. Legal reasoning and precedent
 Stare decisis in common law systems
 How legal reasoning evolves through case law and statutes
 See week 4

1.7. Globalisation and the Foundations of Law
 Interaction between national and international legal systems
 International institutions shaping domestic law

Key Takeaways
(1) Law’s foundations are shaped by historical, theoretical and institutional elements
(2) Different legal theories offer competing views on the nature and purpose of law

2. What is law? (Hart’s Perspective)
 Law is more than just commands -> it’s a system of rules that guide behavior
o Primary rules: rules governing conduct (ex: “don’t steal”)
o Secondary rules: rules about rules (ex: how laws are made, interpreted, enforced)
 Emphasisnadruk leggen on law as an institutional system
 Hart didn’t answer the question about “what is law?”, he reforms the question. Rather
than answering it, he addresses what’s going on. So not “what is law?”, but “why is there
law?”.
2.1. Primary v Secondary Rules
 Primary rules: direct commands for behavior (obligations, prohibitions)
 Secondary rules: provide structure and adaptability
o Rule of recognition: determines what counts as valid law
o Rule of change: allows for laws to be updated or modified
o Rule of adjudication: establishes how legal disputes are resolved

2.2. The rule of recognition
 Central to Hart’s theory: defines valid law within a legal system
 Provides criteria for what is considered law
 Enables a legal system to function and evolve by giving authority to legal institutions

2.3. Hart’s impact on legal theory
 Shift from command theory to more flexible understanding of law as an evolving system
 Emphasis on the institutional nature of law = how it is created, interpreted, enforced
 Paved the way for debates on the relationship between law, morality and society

Debrief
(1) Internal and external interplay: both internal legal reasoning and external societal pressures
are essential to understanding how legal systems operate
(2) The shifting balance between internal doctrines (ex: precedent, constitutional interpretation)
and external factors (ex: political movements) influenced landmark cases




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,What is “the Rule of Law”?



B. What is “the Rule of Law”?
1. Rule of Law
1.1. Why is it important to understand the Rule of Law?
 Foundation of Modern Legal Systems
o Without rule of law there’s no legal order
o Legal predictability
 Protection of individual rights
o Equality
o All individuals have the same legal rules
 Economic stability and prosperity
 Global significance
 Prevention of tyranny and dictatorship

1.2. An introduction to Plato
 The Republic (380 BC)
o Book, written as a dialogue (Socrates and Plato’s brothers)
o Concept of justice and how to achieve it  best government: rule of philosophers
o He asks 2 main questions
 1: What is justice?
 2: What are the political limits to justice?
 Hierarchy of government
o He lays out 5 different sorts of government
 1: Philosophical aristocracy
 Rule of the best
 BUT not that likely, so he worked out lesser forms of government
 2: Timocracy
 Focused on the common good (peace, justice)
 3: Oligarchy
 Honor is replaced with a selfish love of men
 So not focused on the common good (irresistible draw to money)
 4: Democracy
 Not the same concept as now
 Government operated at the win of individual desires
 Not good for the common (greater) good
 Not every citizen was cut out for making decisions, decisions that
reflect on everyone should be made by smart people
 5: Tyranny
o Best government: philosophers will rule together (as kings)
o What was important? Temptation and corruption needs to be avoided, so no
income, no private property, share everything  this was the greatest chance to
experience the best justice  but not realistic
 “Rule of law”: law must reflect the ideal good and restrain the dangers of democratic
excess
 Philosopher-kings as the ultimate interpreters of the law, who understand justice beyond
politics
 Law must align with absolute truths to achieve the common good
 Laws that don’t guide toward justice contribute to tyranny
 Connection to the rule of law: a just legal system is one in which the law is rational,
reflecting universal truths and constraining political power

1.3. Aristotle’s
a) His Politics (350 BC)
 Aristotle’s focus on practical governance vs. Plato’s idealism
 Laws govern both rulers and citizens, securing justice and order
 Laws prevent the arbitrary use of power and help balance the interests of all
 Rule of law ensures rational, constitutional governance, rather than rule by decree


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, What is “the Rule of Law”?



 For the common interest:
o Monarchy
o Aristocracy
o Democracy
For the interest of the rulers:
o Tyranny
o Oligarchy
o Anarchy

b) His Constitutional Government
 Constitutions provide the framework for the rule of law
 Law serves the common good and guides citizens toward virtuous living
 The rule of law promotes stability by binding even the rulers to the law
 Laws are meant to be rational and objective, ensuring fair treatment for all

 Rule of law 2 important rules:
(1) Those who rule are bound by the same laws
(2) Serves the common good by ensuring a fair treatment to all

1.4. Montesquieu and the Separation of Powers
 Montesquieu’s Spirit of the Laws (1748): separation of powers is crucial to preventing
tyranny
 The rule of law operates best when power is distributed between executive, legislative
and judiciary branches
 Laws provide the mechanism for checking power and preventing one branch from
dominating
 Influence on modern constitutions

1.5. Rousseau and the Rule of Law
 The Social Contract (1762): laws must reflect general will of the people
 Rule of law means laws are legitimate only if they express the collective will and apply
equally to all
 Balance: Rousseau emphasizes that law balances individual freedom with collective
good
 The rule of law stems from popular consent, not the ruler’s will

1.6. Kant (1797): Autonomy and the Rule of Law
 Moral autonomy: laws should be based on universal rational principles that respect
individual freedom
 Rule of law ensures that individuals are governed by reason rather than arbitrary power
 Laws must promote justice, equality and protect human dignity
 The rule of law, for Kant, is moral: laws must align with moral obligations
 follow the law because it is the right thing to do, not just because it is the law

1.7. Hans Kelsen and the Pure Theory of Law
 Kelsen developed the Pure Theory of Law (1934), which sees law as a normative system
independent of morality or politics
 The rule of law means that the legal system is self-referential and must be internally
coherent and hierarchical
 Laws derive their validity from a higher Grundnorm (basic norm), not from moral or
political considerations
 Connection to rule of law: Kelsen offers a formalistic interpretation where the law’s
structure, not its moral content, ensures order and legitimacy
1.8. Raz’s Concept of the Rule of Law
 Raz emphasizes the formal aspects of the rule of law: laws must be clear, stable and
predictable


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