VU - Law in Society - Philosophy of Law and Security - Study Notes
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Course
Philosophy of Law and Security
Institution
Vrije Universiteit Amsterdam (VU)
These are notes I made for philosophy of law and security for the course Law in Society at the VU in Amsterdam. It covers all lectures and includes the seminar questions with answers.
1. Justice – to promote equality in society.
2. Legal certainty – to promote relationships between individuals and relationships between
individuals and the state.
3. Expediency/purposiveness – to promote social welfare.
Justice
The goal of justice is to promote equality within a society. Following Aristotle, Radbruch equates justice
with (relative) equality, i.e., distributive justice. This demands general rules that are applicable to all
equally. Relative equality is commonly compared to public law, and involves a third party, usually a
judge or legal representative. Relative equality is treating people differently based off their contributions
and needs, and prevails over absolute equality, also known as commutative justice. Commutative
justice, on the other hand, is justice between individuals and private groups.
Critiques:
- Who is equal to whom? Equality is always only an abstraction from given inequality.
- What treatment is needed? Justice remains formal, i.e., it does not say anything about the
content of the treatment.
Natural law theory - Law is what is invariably good and just. Human law is an elaboration of natural law
according to both time and place. It applies directly. Natural law prevails over human law, so an unjust
human law is not valid. Natural law is usually related to religion. It has a defined origin. Comes from
God, higher power, or reason. Source of natural law is human reason.
Constructivism - There is more law – underlying values, ideals, and principles are part of the applicable
law. Law is a dynamic phenomenon: the ideals of society unfold in the changing world/law. The judge
does the unfolding. Judges are actively involved in the development of law; they interpret from the
intent of rules and underlying principles. Judges do not make political decisions. The judge starts/relies
on the principles and ideals that inherent in the justice system.
Legal certainty
(Legal positivism)
Legal certainty is one of the values of law which requires it to be positive. In other words, it has to be
stated in a limited number of authoritative sources such as written statutes or binding case law. Positive
law is enforced by an authority, and if necessary, through hard power/force. Regardless of morality and
ethics, what must be followed is the law. A judge must answer objectively and following the law,
regardless of what his subjective opinions or morality says. Thus, there is a division between morality
and law. Lower rules derive their validity from higher rules – hierarchy. Highest norm is called a
constitution.
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, One purpose of legal certainty is to end conflicts and disagreements, since what ought to be followed is
what is positive law, which is undisputable.
Critiques:
- Leaves no room for social change/ development of laws.
- The law cannot always deal with situations, certain situations are extraordinary and cannot be
dealt with accordingly. (Law tends to deal with normal situations and not abnormal ones).
Purposiveness
(Expediency)
The law should be suitable to achieve a certain goal or purpose. In other words, it is what achieves the
most goals and what would create the most desirable consequences for society. In this value, law is
viewed as a political instrument for social engineering, where the judge must make an effective decision
based on the needs and desires of the society.
For radbruch, the law can achieve three different purposes, also known as the three absolute values,
individual, collective, or work values.
Legal Realism - Aims of law is something that political party’s program. (For example, in the US you vote
every four years) If we achieve power, the content of our laws will be in terms of the political party in
power. The content (law) is achieved from politics. Law is a political instrument to build a society (social
engineering). Law is what one can predict from what judges do, based on what they find useful to
society in a case. The correct decision is the one that ultimately yields the most suitable consequences
for society. The judge makes an efficient decision in view of future necessities and interests of society. It
looks at the future of society.
Critical legal studies (CLS) Law is politics – the outcome of ongoing battle between opposing ideologies,
views, parties. Skepticism about correct decisions, considering law is characterized by radical
indeterminacy. The judge takes a political decision, protecting the ones in power, the state, interests of
the status quo.
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