Week 1 – les 1
what is “foundation of Law”?
Session 1: theoretical and historical foundations
Why is it important to know the foundations of law?
Understanding legal systems and their functioning
Critical evaluation of law
o Where does it come from?
Navigating legal practice
o Trying to understand different texts and constitutions etc.
Contextualizing Legal Education and Practice
o It does give more context
Global and Comparative Perspectives
What are the foundations of law?
Internal foundations
o Legal doctrines, reasoning, rules and structures
Without these, it’s difficult to imagine a legal system:
They don’t have to be the same everywhere
There are different shapes and forms
o Reasoning:
The process, the judges, how to come to a conclusion?
o You need the internal foundations to understand the law
o It is within the legal system
External foundations
o Historical, societal, philosophical influences
o Historical:
The legal systems are influenced by different big happenings
in the history.
Example: the common law
o Societal:
Laws respond to social change and cultural change
o Philosophical:
Why do we have a legal system?
What’s the origin?
o It is more a broader context
What kind of questions does help us to analyse why law works?
o What are the principals of law?
o What are the basic items that all legal systems have?
o Legal systems require some features that they need to
function/work
Historical foundations of Western legal systems:
Code of Hammurabi
, o Codification, written law
That’s a important term to stay transparent and stable
because everybody can see how the rules are written down
o This is the oldest legal code (1800 V.C.)
o Mesopotamia
o There are different punishments and that’s important fort he
foundation of law
Greek Law
o Plato, Aristotle: Natural Law
o An important development is the relation between law and justice
o The Greek people are worried about the origin of justice
o Law is not jus tan addition of different rules
Roman Law
o Civil Law vs. Law of Nations
o The Justinian codification
o Laws could be interpretative
Historical foundations of Western legal systems
Canon Law ( Religious Influence on Law)
o Religious influence is really important because it gavve a legal frame
work
o It play(ed) a very important role
o It’s not justice in the Greek sense but in the religious sense
Common Law (England: Case Law, Stare Decisis)
o Is developed and involved in England
o Star decisisa;
You do not deviate unless it is for a very important reason
o It’s more flexible
o They exported this system to a other countries like America
Enlightenment Thought (Social Contract Theories, Hobbes, Locke
o They focused on concepts
o Example; Locke and the natural rights “life, liberty and property”
o They changed the focus
o They see law more like a product of reason and consent
Constitutionalism
o This is about revolutions
American revolutions
The French revolution
Theoretical foundations of law
How can we bring harmony in these theories?
Natural law
Legal positivism
Legal realism
Critical Legal Studies
,Natural Law Theory
Laws are derived from inherent moral principles
o These are principles that exist independent from the human
influence
Aristotle, Aquinas and later thinkers like Kant
Aristotle; for a law to be valid, it need to be in accordance with the
morality
o Morality is an inherent part of law
o He thought that the natural law reflected the will of God
Valid law must align with morality or justice
Aristotle: the content of ‘natural’ justice (or universal law) is set by nature
o Which renders it immutable and valid in all communities
Legal Positivism
law is valid if created by proper authority and follows established
procedures
Important authors of L.P. are Hart, Austin
Separation of law and morality
There is a big difference with nature law
The existence of a law is one thing, Its merits or demerits are
another thing. Whether a law be, is one inquiry; whether it ought
to be or whether it agrees with a given or assumed test, is
another and a distinct inquiry.” – John Austin
Legal Realism
This lays the focus on how law functions in practice, not just in theory
o Natural law and legal positivism had more focus on
constitution/abstract concepts
It focus on how law actually works, so it is less abstract
o Judges, social context and institutional behaviour shape the law
Legal systems are influenced by social things the opinion of
the judge
Law is not logical because there are influences
The life of the law has not been logic: it has been
experience.” - Oliver Wendell Holmes.
Critical Legal studies
Law as a tool of power, reinforcing social hierarchies
Legal decisions often reflect the interests of dominant (social) groups
It questions the neutrality of law
This is a more recent and also more radical theory, but it’s very actual
Law is not neutral or objective, it is for power
Law can’t be independent of politics or ideologies
, Question “ which theory do you like more or less, what
are the positive/negative points”
Institutional Foundations of Law
Role of courts
o Judicial interpretation, precedent
o Courts are the institutions that are responsible
What does the court do?
o They have a crucial role
o It are the courts who ensure that the law is applicable correctly and
systematically
The government controls the courts
Legislatures and law-making
Legal Reasoning and precedent
Precedent:
o Once a supreme court makes a decision, the lower court must
respect and applicable that decision
o This means that the high courts have a big responsibility
Are the precedents unique fort he common law?
o No, we departed from the supreme courts
o It used to be unique, but it is more and more common in legal
systems
How legal reasoning evolves through case law and statutes
o They form the basis of how it is formed
You have to understand the institutional foundations
Globalisation and the Foundations of law
Interaction between national and international legal systems
International institutions shaping domestic law (UN, ECtHR, ICC)
Globalisation
o It influences the national legal system
How? by setting standards
What is a war? What is a crime against humanity?
o Legal systems are also entities so it has to interact with other legal
system
o This interaction between different legal systems is very important
o This interaction create different challenges and opportunities
As an example: which law do you need to applicable?
International law or national law?
You have extern legal systems
o The different systems need to interact
As example: the own foundations
Session 2: what is Law?
What is Law ( like Hart’s Perspective)
