Workshop 1: Fundamental Concept of Law

Study Notes

Law can be understood through two main perspectives:
- Natural law posits that laws align with universal moral principles and nature, with manmade laws lacking validity if they are cruel or inhumane.
- Legal positivism views law as a construct for protecting individual rights and facilitating justice, emphasizing human creation over moral standards.
The purpose of law includes:
- Establishing a framework to regulate behavior and maintain order.
- Resolving conflicts and safeguarding rights and liberties.
Historical context shows that structured law emerged around 3000 BC, transitioning from customary practices to written codes.
Hammurabi's Code, created around 1760 BC, is one of the earliest written legal documents, featuring approximately 282 rules.
Solon, a prominent Athenian statesman of the 6th century BC, reformed laws impacting various societal aspects, including economy and social class divisions based on financial status.
Roman law evolved significantly between the 1st century and middle 3rd century, culminating in the Corpus Juris Civilis (AD 529-534), a comprehensive codification considered definitive without requiring further interpretation.

Clear separation exists between legal institutions (e.g., courts and legislation) and other societal institutions, establishing the supremacy of legal authority.
Legal doctrine serves as the fundamental source of law and shapes professional legal training and practice.
Law is regarded as a coherent set of rules and principles, necessitating specialized legal training.

Law's supremacy is upheld over arbitrary power, ensuring legality above subjective interests.
All individuals, regardless of status, are treated equally under ordinary law, administered through regular courts.
Constitutional law stems from individual rights as defined and enforced judicially.

The Napoleonic Civil Code (1804) and the German BGB (1900) are notable for their conciseness and accessibility, influencing civil law codes worldwide.

Laws are enforced by collective means, particularly state mechanisms, and come with specific sanctions.
Legal systems aim to be punitive, preventive, and restorative.
Laws exhibit stability and uniformity while still allowing for evolution and change.

Compliance with the law doesn't always equate to moral behavior; legal systems often reflect societal moral standards.
The intersection of legal and moral practices can be illustrated through two overlapping circles:
- Shared space: actions like murder that are both legally and morally prohibited.
- Outside overlaps: areas where acts are legally wrong but not immoral (e.g., minor parking violations) and immoral behaviors that are not legally addressed (e.g., adultery).

Essential characteristics include:
- Generality: laws must apply uniformly to all individuals.
- Promulgation: laws should be published and accessible.
- Non-retroactivity: laws apply prospectively, not retroactively.