Chapter 1 - Sandel - Justice: what is the right thing to do?
Justice, ideas;
Maximizing welfare
a Markets promote the welfare of society as a whole supply demand
b Higher welfare means that we’ll be better off we think
Respecting freedom
a Markets let people put their own value on things they exchange
b Laissez faire VS fairness camp
c Laissez faire free market libertarians respecting voluntary choices
d Fairness markets aren t just or free need for policies
Promoting virtue
a Moral standards are important rather than self interest in markets after hurricanes
for example
b But who decides what is a virtue and what is vice?
c In what context is justice presented?
Does a just society promote the virtue of its citizens? Or should the law be neutral; give people the
freedom to choose his or her own conception of the good life?
What wounds deserve the purple heart?
Soldiers with physical trauma get a medal in the US
Why don’t soldiers with psychological trauma get them?
Who determines what is right?
Bailout outrage
Executives of big companies got bonuses during the economic crisis
Companies got bail outs
Unjust? People thought so
Rewarding greed; because of bad investments to make more money we got into
the crisis, and now they get bonuses; it’s a vice, a bad attitude
Rewarding failure; companies get rewarded for failure with money from taxpayers
Three approaches to justice
Is society just? → how does it distribute things like income, duties, powers, opportunities?
A just society distributes this in the right way; it gives everyone their due right ; but what
are people due and why?
Political philosophy can’t resolve disagreements about welfare, freedom, and virtue but it can
shape arguments and bring moral clarity to alternatives.
The Afghan goatherds
Kill possibly innocent goatherds or let them go?
Let them go → they told the Taliban the American soldiers were there
American soldiers got killed
Should have taken another decision?
Think of the train track story
,Moral dilemmas
There are always multiple ways to look at something, people will have different opinions.
Arguments can however change minds.
Moral reflection consists of seeking a fit between judgments we make and principles we affirm
going back and forth, changing your mind, rethinking your beliefs
Plato → to grasp the meaning of justice and the nature of the good life, we must rise above
prejudices and routines of everyday life
Chapter 1 - Hage - Introduction to Law
What is law? A couple of characteristics;
Rules how to behave, definitions, etc.
Relative laws
Moral rules
A religion
Etiquette
Special organizations e.g. student association
Legal laws
Collec i e enfo cemen state organs
Specific sanctions when breaking the law
Creation of law by means of legislation or judicial decisions o i i e la
Certainty about the content of law
This offers legal ce ain easy to establish the content of positive law,
judges not always necessary
Law prefers a clear result over the uncertainty of the best result
Certainty that the law will be enforced
, Providing enforcement of legal duties state
Certainty that the law will be applied consistently
Roman Law
A history of law →
Tribal customary law
law of the people, comprised by a tribe Roman times
Shared culture religion, language ; nation
C oma la
guidelines for behavior created over time ; national rational
Immutable; it will never change, unwritten so small changes unnoticeable. It
adapts itself to circumstances of time
Not the result of legislation
P blic in e na ional la body of law that governs the relations between states
Codification
Writing down customary law; codifica ion; everyone can read the law for themselves; it
gives certainty of law. no taking advantage of anymore
Created by means of legislation
Law that was codified already existed before codification, while law that was created
through legislation did not exist before writing it down
Praetor and iudex
Legal solution depends on two factors;
Facts of the case
Content of the law
These are linked to the ea o advised by j i and the i de judge
The preator is responsible for establishing the content of the law, the iudex is responsible
for the determination of the case facts.
The corpus iuris civilis
Attempt to codify the existing Roman law.
Common Law
After the fall of Western Roman Empire, tribal law made a comeback. But then Roman law made a
comeback together with common la .
Royal justices
,Uniform application of the law started to become ‘normal’, that’s why common law became a
thing. The rules were the same everywhere and they had to be applied in the same way. England
wasn’t really influenced by Roman law because of its uniform legal system.
Differences resulting from this are;
Continental legal reasoning focuses on the creation application of statutory rules
Common law emphasizes on reasoning by way of analogy to previous cases
S a e deci i doctrine
Precedent
Customary rules come into being if they’re used by judges and legal decision makers
When a judge made a decision in a certain situation, it will function as a eceden for
future cases they base their outcome on this case . Two ways to interpret;
The decision of the judge is e idence of the law existing before the judge
gave his decision if it existed before, it applies now
The judge created a new rule in his decision making that didn’t exist yet but
will exist from now on
The nd interpretation is confirmed in the doctrine of a e deci i stand by your
decisions . If a court decides something, the same decision has to be made in the future in
similar cases
And so, common law has developed from precedents and case law
Common law is a major legal tradition US, UK, Wales, etc. side by side with civil law in
continental EU
Equity
Equity consists of a body of rules and principles that were developed to mitigate the harsh
results that may, in some cases, arise from the application of common law. focuses on
obtaining fair results
It differs from common law, but it is part of it too.
Distinction between what holds a la the common law , and in e i .
Ius Commune (European Common Law)
Canon law Roman Catholic ; internal organization of the church and civil affairs marriage,
contracts, wills
First local customary law was standard, but started to change to common law; the
reception of Roman law
Roman law was considered to be rational; a io Sc i a reason written down
Natural law law established by means of reason
,National states and codification
Peace of We halia; , sovereign nation states in Europe form with own territories
Na ional la ; laws became part of an own nation in own territory
In e na ional blic la ; laws between states
We halian d o; national law and international public law combined
Codification
Codification started after the French revolution;
Code civil private law
Code de commerce commerce law
Code de procedure civile law of civil procedure
Code penal substantive criminal law
Code d’instruction criminelle procedural criminal law
Several purposes
Legal unity in France
Legal certainty written down
Legal power of central law making agencies no local judges
Democratic organs have influence on legislative process peoples influence
Soon other countries followed, with an exception of Germany;
Von Savigny; Historical School; codification would fossilize the spirit of the people.
Codification should be preceded by historical research on the origins of law and the
reasoning behind it.
After all Germany got a civil code too.
Legal families
Common law judiciary VS Civil law
Civil law;
Influenced by french codification parliament and democratic input
Development of law by legal scholars
Transnational law
After WW , the Westphalian duo got challenged; national state law public international
law exhaust the kinds of law, to appear obsolete. human rights, development of EU,
revival of Les Mercatoria
Human rights are part of national law safeguarded by constitutions now taken over by
international treaties
European Union law; separate, autonomous legal system
‘overthrows’ national law
, Le Me ca o ia set of rules created by merchants to regulate their mutual commerce
trade relations It operates outside the traditional framework of national states and
provides counterevidence to the exhaustive nature of the Westphalian duo.
T an na ional la law that is neither made nor enforced by national states
transnational law is law that doesn’t belong to the Westphalian duo
Conclusion
Law takes different shapes over time
Customary law, Roman law, Case law, Transnational law, etc.
Codification
Westphalian duo
National law; citizens of a state
International public law; relations between states
Mutually exclusive and exhaustive of all law incorrect
Chapter - Hage - Introduction to Law
Fields of law
There are many different legal fields. Here we focus on the division between public and private
law substantive and procedural law.
Public law and private law
Public law is that part of law where the government plays a role
Private law is that part of law where the government does NOT play a role
P i a e la
Mutual relations between citizens property law, contract law, tort law; compensation for
damage when there is no contract, family law, law of commerce, private international law
P blic la
Criminal law, constitutional law, administrative law, public international law
,The division is not always clear
Substantive and procedural law
Substantive law consists of rules that give people rights and determine what people should
do it has substance
Procedural law provides rules for court procedures and for the organization of the judiciary
how proper legal procedures should operate; hen omeone b eak he la
There are then within these laws more laws e.g. criminal procedure, administrative
procedure, etc.
Functional fields of law
Functional fields of law are fields where all of the above mentioned laws aren’t ‘clear’ in use.
They rather fulfill a function than belong to a main area of law.
Legal subjects
Anything can be a legal subject. human beings, foundations, the state, a municipality, etc.
Under the law people are na al e on , organizations are legal e on .
Legal subjects have rights, and with these rights come duties. It doesn’t always make sense that
natural persons have the same rights as legal persons, so there are differences sometimes.
Rules, operative facts, and legal consequences
Rules prescribe behavior, give definitions, create rights and competences, define
procedures, and fulfill other functions
A lot have a conditional structure; condition part is the rule applicable , and a conclusion
part what the consequences are
A legal rule is applicable if the facts of the case satisfy the conditions of the rule
facts that match conditions are o e a i e fac the rule has to have legal
consequences
Duties, Prohibitions, and Permissions
If someone has a duty he is obligated to do it. elements;
The agent who has the duty
The kind of action which the agent is obligated to perform
Duties guide persons in their behavior, duty imposing rules are mandatory rules. They’re
rules for all agents with particular status car drivers, taxpayers, etc.
- Every duty has content; it indicates what the addressee is obligated to do.
, A prohibition is to abstain agents from doing something.
A permission means that an agent is allowed to do something and so not forbidden
permissive rules; for everyone
explicit permissions; just for one agent if told so
Difference competence permission
- Competence is a precondition for the intentional creation of a legal consequence by means
of a judicial act you have the ability to write a law because of your position
Permission has to do with what one is allowed to do
Competences and immunities
When acts are juridical acts normal persons lack the required competences to change stuff. So
legal subjects are immune to other legal subjects changing their position. someone can’t impose
duties on you . Public officers can.
Rights and Pincushions
Two characteristics many rights share;
Rights represent interests that are protected by law
Rights are like pincushions legal positions are grouped together; permissions, duties,
prohibitions, powers, immunities, rights
headings for different kinds of rights
Rights in personam rights against a person
Rights in rem rights on an object
Human rights
Claims and obligations
Personal rights belong to private law and are counterparts of obligations in a narrow sense
obligation that counterparts the claim .
Duties and obligations are similar, but for obligations, there are creditors for duties not. An
obligation is what a debtor is obligated to do in favor of another person.
Obligations are directed to someone
Duties are NOT directed to someone
There are no claims corresponding to duties someone can only claim when another
person is involved
A claim held by a creditor does not just involve an obligation of the debtor but also a
number of competences for the claim holder
Property claims
Property rights are the relations between the right holder and the object of the right property .
Only the owner can use, damage, or destroy the object. He has the competence to transfer this
property right to others. let someone else use the car
,Fundamental rights
Freedom, religion, expression, association, privacy, etc. Human rights found in the constitution.
Fundamental rights are rights against the government
The right holder does not have the competence to transfer his right to someone else, he is
immune to someone else taking it away bodily integrity case
Right to bodily integrity, freedom of expression, right to health care
All fundamental rights have different combinations of duties, permissions, competences,
immunities.
Rights protect an interest of the right holder and function as a point in legal space in which duties,
obligations, permissions, competences, and immunities are tied together in various combinations.
Logic for law students: how to think like a lawyer - Aldisert, et al.
The syllogism
Deductive reasoning with a conclusion compelled on known facts
If A and B are true, then C must be true
Socrates is a man, men die, Socrates dies
Major premise: Doing something violates the law.
Minor premise: The defendant did something.
Conclusion: The defendant violated the law.
Enthymemen
, Unfinished syllogisms
Used for efficiency
Polysyllogism
A series of syllogisms in which the conclusion of one syllogism supplies a premise for the next one
All men are mortal, Socrates is a man, therefore Socrates is mortal.
All mortals can die. Socrates is mortal. Therefore Socrates can die.
People who can die are not gods. Socrates can die, therefore Socrates is not a god.
Watch out for flawed syllogisms! look for certain words like some, a, certain, etc
Inductive reasoning
Inductive reasoning is when big principles are generalized from lots of small events. It’s never absolute and
certain. The more examples you find, the stronger your argument will be. as long as it’s from a
representative sample
Analogy (form of inductive reasoning)
A process of drawing similarities between things that appear different
This type of reasoning has a simple structure: A has characteristic Y; B has characteristic Y;
A also has characteristic Z; Because A and B both have Y, we conclude that B also shares
characteristic Z
Used to compare to precedent issues
Different from induction and deduction; here we compare no universal rules or generalizations
There has to be a similarity between the cases
The more comparisons with relevant similarities, the better
An argument that is correctly reasoned may be wrong, but an argument that is incorrectly reasoned can
never be right.
Statutory Lawlessness and Supra-Statutory Law - Radbruch
- Statute a written law passed by a legislative body
- Supra-statutory
Puttfarken informed on merchant Gotting for writing ‘Hitler is a mass murderer and to blame for
the war’
Puttfarken got sentenced to life in prison for having brought up the execution of Gotting
There is no obligation to denounce anyone, also not in Nazi Germany
Puttfarken knew Gotting would die, and so it is seen as premeditated murder, the judges knew too;
so is that acomplice to murder?
The judges said Puttfarken was an accomplice of murder, and so the judges were too
- Responsibility for inhuman judicial decisions e.g. Hitlers ‘enabling act’ that didn’t pass
constitutionally, but was an emergency act; judges judged in a criminal way and the precepts of
humanity weren’t followed
- Positivism with principle ‘a law is a law’, incapable of establishing the validity of statutes just
because it’s being used doesn’t mean it’s valid
