FOUNDATIONS OF LAW
WHAT IS ‘FOUNDATIONS 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
- Navigating Legal Practice
- Contextualizing Legal Education and Practice
- Global and Comparative Perspectives
WHAT ARE THE FOUNDATIONS OF LAW?
- Internal foundations:
• Legal doctrines: the established principles and rules that guide legal decisions
• Reasoning: the process by with lawyers and judges apply these doctrines to
reach conclusions
• Rules
• They provide the machinery of the law, without these it’s quite difficult to imagine
a legal system to function
- External foundations:
• Historical: historically legal systems are deeply influenced by specific times and
places in which they develop f.e. common law, indigenous legal traditions
• Societal: law reflects and interacts with values, norms and power structures of a
gives society and laws
• Philosophical influences: what is the nature of law, what is it supposed to
accomplish
HISTORICAL FOUNDATIONS OF WESTERN LEGAL SYSTEMS
- Code of Hammurabi: it has a systematic approach to law where specific punishments
where subscribed for specific offences
o It introduced the idea that laws could be codified and written down, codification
allows laws to be more transparent and stable
- Greek law
o There is a relationship between law and justice, philosophers were deeply
concerned with the nature of justice and the role of law to achieve a just society
o Law isn’t just a set of rules but should reflect moral and ethical principles
- Roman law
o It introduced sophistical legal reasoning and the idea that laws could be
interpreted and adapted to different circumstances
- Canon law: religious influence on Law
o Provided a legal framework for matters related to the church
o Played a very significant role in shaping European legal systems
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, - Common law
o Developed in England and became a central part of English tradition, based on
precedents
o Colonisation exported this legal system
- Enlightenment thought
o Introduced ideas that really shaped modern law, they focused on concepts of
individual rights and social contracts
o John Locke focused on natural rights, the focused shifted and they saw law as a
product of reason and of consent and individual rights
o It paved the way for the development of modern legal systems that prioritize
individual human rights
- Constitutionalism
o Became particularly important in the aftermath of revolutions (American and
French)
o Modern states began to codify these concepts that we’ve seen in the
enlightenment (equality…)
THEORETICAL FOUNDATIONS OF LAW
- Natural law
o The core idea behind it is that laws are derived of inherent moral principles
(principles that exist independently of human institutions) → outside element,
transcendental element (Plato’s metaphor of the cave)
o Aristotle, Aquinas, and later thinkers like Kant: they believed that law should
reflect a moral order that is universal and timeless
o Valid law must align with morality or justice
o Aristotle: the content of 'natural' justice (or 'universal' law) is set by nature, which
renders it immutable and valid in all communities → it cannot be changed
because it is based on fundamental truth
o More in Week 3: “What is justice?
- Legal positivism
o The most influential theory of the enlightenment
o Law is valid if created by proper authority and follows established procedures
o Important authors: H.L.A. Hart, John Austin
o Separation of law and morality
o 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
o Focus on how law functions in practice, not just in theory.
o Challenges the idea that law is a fixed objective system, it suggests that legal
decisions are often influenced by others thing f.e. personal views of judges…
o Judges, social context, and institutional behavior shape the law.
o “The life of the law has not been logic: it has been experience.” - Oliver Wendell
Holmes
- Critical Legal Studies (CLS)
o Law is not neutral of objective
o Law as a tool of power, reinforcing social hierarchies.
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, o Legal decisions often reflect the interests of dominant groups.
o CLS questions the neutrality of law
o It emerged in the 1970’s: Marx’ legal theories, feminist legal theories
INSTITUTIONAL FOUNDATIONS OF LAW
- How does law operate within these legal institutions and how do they function within a
particular society
- Role of courts (judicial interpretation, precedent)
o They do more than just settle disputes, they play a crucial law in maintaining the
rule of law (the principle that everyone is subject to the law, even the
government)
- Legislatures and law-making.
o They are law creators
- Rule of Law: Law must govern, not arbitrary power?
LEGAL REASONING AND PRECEDENT
• Stare Decisis in common law systems
o Tradition decisions are much more important and integral in common law
systems than they are in other legal systems
o Key example: higher courts (such as the supreme court) are the ones that set the
binding precedents for the lower courts
o This places a particular responsibility on higher courts
o In Belgium we kind of have the stare decisis in the ruling of the constitutional
court
o Court occasionally depart from precedents but they do it only because the
social, political or moral landscape has changed (for example think about cases
related to civil rights or gender equality)
• How legal reasoning evolves through case law and statutes
GLOBALISATION AND THE FOUNDATIONS OF LAW
• Interaction between national and international legal systems
• International institutions (UN, ECtHR, ICC) shaping domestic law
o It poses both challenges (national sovereignty, country might face pressure to
change their laws) and opportunities (introduced new legal standards)
o Problem: it lacks enforcement (police)
KEY TAKEAWAYS
- Law’s foundations are shaped by historical, theoretical, and institutional elements.
- Different legal theories offer competing views on the nature and purpose of law
- The next session will focus on applying these theories to real-world texts and societal
examples
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, SESSION 2: WHAT IS LAW?
WHAT IS LAW? (HART’S PERSPECTIVE)
- Hart’s Concept of Law: Hart defines law as a system made up of *rules*, not just
commands or orders backed by threats. He challenges earlier theories, like Austin's
command theory, which saw law as simply the orders of a sovereign enforced by
sanctions. Instead, Hart believes that law has a more complex structure that goes
beyond threats, providing rules that shape and guide social behaviour.
- Three Key Elements in Understanding Law:
• Law and Coercion: Although law may involve sanctions (punishments), it is not
purely about coercion. Laws apply broadly across society, operating as general
standards rather than one-off commands.
• Law and Morality: Law and morality often overlap (e.g., both prohibit violence),
but they are distinct; law is not simply a reflection of moral values.
• The concept of rules: Hart argues that law is best understood as a system of two
types of rules: primary rules (rules about conduct) and secondary rules (rules
about how the legal system operates).
- Did Hart answer the question?: Rather than giving a strict definition of law, Hart explains
how law functions as an organized set of rules that both governs behaviour and adapts to
societal needs. His approach provides insight into law’s role as an institutional system,
rather than just a tool for enforcement.
PRIMARY AND SECONDARY RULES
- Primary Rules: These are rules that govern basic behaviour by imposing obligations on
individuals (e.g., “Do not steal”). Primary rules set standards for acceptable conduct and
reflect society’s norms and expectations.
- Secondary Rules: Secondary rules provide the legal framework, defining how primary
rules are created, applied, and modified. They ensure the system’s stability and
adaptability.
• Rule of Recognition: This rule identifies the criteria for what counts as valid law
within a legal system, helping distinguish law from other social norms. It allows
society to recognize legitimate sources of law (e.g., legislation or judicial
decisions).
• Rule of Change: This rule allows for the creation, modification, and repeal of
laws, enabling the legal system to evolve as society’s needs change.
• Rule of Adjudication: This rule establishes procedures for resolving disputes and
enforcing laws, giving authority to officials, like judges, to interpret and apply the
law.
- How does Hart’s concept of law as a system of rules help us understand the internal
foundations of legal systems?: By introducing primary and secondary rules, Hart shows
that legal systems are built on structured rules that are widely accepted. This framework
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