Foundations of Law PDF

FOUNDATIONS OF LAW Session 1: Theoretical and historical foundations  Understanding Legal Systems and Their Functioning  Critical Evaluation of Law Navigating Legal Practice, questioning law, society roles and legal practices  Contextualizing Legal Education and Practice, inter...

FOUNDATIONS OF LAW Session 1: Theoretical and historical foundations  Understanding Legal Systems and Their Functioning  Critical Evaluation of Law Navigating Legal Practice, questioning law, society roles and legal practices  Contextualizing Legal Education and Practice, interpreting statutes, acts, case law  Global and Comparative Perspectives What are the foundations of law? Internal elements of law: legal doctrines – established principles that guide legal decisions, reasoning - applied by judges about specific cases, rules – institutions that enforce the law that we find within the legal system (machinery of the law, necessary for the system to work efficiently). Understanding the law requires more than the internal foundation; external foundations are also necessary: Historical – based on the roots, societal – based on power structures, values , philosophical influences – understanding the nature of law Where does law derive its authority from? What are the basic elements that require law to function? It requires certain structures and essential components. This type of question shape how we think of law during these days. Historical foundations of Western legal systems 1. Code of Hammurabi (Codification, Written Law) The Code of Hammurabi, originating around 1754 BCE in ancient Babylon, is one of the oldest known legal codes. This code is notable for being one of the first examples of codified law, where laws were written down for the public to see, ensuring transparency and stability in governance. The code established a system where specific offenses corresponded to specific, predefined punishments—this is known as lex talionis, or the law of retaliation ("an eye for an eye"). Codification, in general, allows for laws to be consistently applied, making the legal system predictable and fair by removing arbitrary judgment. 2. Greek Law (Plato, Aristotle: Natural Law) In Greek philosophy, particularly in the works of Plato and Aristotle, law was intertwined with moral philosophy and justice. For these philosophers, law was not merely a set of rules but a reflection of a higher moral order or natural law—the idea that certain rights and ethical standards exist inherently in nature and human reason, and these should guide the creation of laws. Plato envisioned laws as serving the common good, aiming at the moral improvement of the citizens. Aristotle emphasized justice as an essential virtue and believed laws should promote fairness and the well-being of society. Both saw law as a means to achieve moral objectives, not just as a mechanism for maintaining order. 3. Roman Law (Civil Law vs. Law of Nations) Roman law is foundational for modern legal systems, particularly civil law systems. Civil law in Rome referred to laws that applied to Roman citizens, while the Law of Nations (ius gentium) applied to foreigners and relations between different peoples and nations, reflecting a more universal approach. The Justinian Code (Corpus Juris Civilis), created in the 6th century CE under Emperor Justinian, is one of the most significant Roman contributions to law, consolidating centuries of legal principles and decisions. Roman law was adaptable to different circumstances and influenced the development of legal systems across Europe and the world, especially in its structured approach to legal reasoning and its distinction between private and public law. 4. Canon Law (Religious Influence on Law) Canon law refers to the legal framework established by the Christian Church, particularly the Catholic Church, which profoundly influenced European legal development. It regulated both religious and moral conduct and extended to areas such as marriage, inheritance, and ecclesiastical matters. Canon law introduced the idea that law should serve a higher purpose, reflecting transcendent justice—a concept of justice rooted in divine or religious authority. This religious influence shaped the ethical dimensions of legal systems in medieval Europe, promoting the idea that legal principles should reflect not just human authority but divine moral truths. 5. Common Law (England: Case Law, Stare Decisis) Common law developed in England and is characterized by its reliance on precedent, where past judicial decisions (case law) serve as guiding principles for future cases. The doctrine of stare decisis (Latin for "to stand by things decided") means that courts are generally bound by prior decisions unless there is a compelling reason to overturn them. This system creates a flexible, evolving body of law that can adapt to new situations without needing constant legislative changes. Common law was exported globally through British colonization, influencing legal systems in countries like the United States, Canada, and Australia. The reliance on judicial decisions rather than a strict code allows common law systems to be more dynamic but also more unpredictable than codified legal systems. 6. Enlightenment Thought (Social Contract Theories, Hobbes, Locke) The Enlightenment brought significant philosophical changes to legal thought, emphasizing reason, individual rights, and the social contract. Thinkers like Thomas Hobbes and John Locke developed theories that law should arise from a contract among free individuals, designed to protect individual rights and promote social order. Hobbes argued that individuals surrendered some of their freedoms to a sovereign in exchange for security and protection, while Locke believed that individuals have natural rights (like life, liberty, and property) that governments must protect. These ideas laid the foundation for modern democratic legal systems and inspired the creation of constitutions that balance governmental power with individual freedoms. 7. Constitutionalism Following the American and French revolutions, constitutionalism emerged as the dominant legal philosophy. Constitutions became essential frameworks for organizing modern states, providing written documentation of the rights, responsibilities, and powers of both citizens and governments. They were heavily influenced by Enlightenment ideas of equality, liberty, and the rule of law. Constitutions codified not only the structures of government but also protected individual rights, ensuring that governments are limited by law and accountable to the people. This marked a shift from laws being the expression of monarchs or religious authorities to laws being the embodiment of popular sovereignty and legal equality. Theoretical Foundations of Law -- > different perspectives even regarding the authority of law, understanding debates and conflicts between them to get the complexity. Natural law At the heart of natural law theory lies the belief that laws are derived from inherent moral principles that exist independently of human institutions. These principles are seen as universal, transcendent, and immutable, shaping the foundation of all legal systems. Plato’s allegory of the cave serves as an illustrative metaphor for this viewpoint, where humans often fail to perceive these higher truths, much like the cave dwellers who only see shadows of reality. Aristotle argued that the content of 'natural' justice, or 'universal law,' is set by nature itself, rendering it constant across all societies and communities. For Aristotle, law and morality were inseparable, as nature dictated a universal justice that transcended human conventions. Thomas Aquinas later expanded this idea, embedding it within a theological framework. He emphasized that natural law is part of divine law, with moral truths originating from a higher power, thus aligning legal validity with religious and ethical considerations. Later thinkers, like Immanuel Kant, reinforced the idea that law must align with morality and justice. Kant's categorical imperative insisted that actions (and by extension, laws) must be governed by universal moral principles. For proponents of natural law, a legal rule that is immoral cannot truly be considered "law" in a legitimate sense, as morality is a fundamental requirement for the law’s validity. Legal positivism Legal positivism offers a contrasting view to natural law by clearly separating law from morality. According to this theory, the validity of a law does not depend on whether it is just or moral but solely on whether it has been enacted through the correct legal processes by the appropriate authorities. Legal positivism focuses on the procedural aspects of lawmaking—so long as a law is created by a legitimate authority and adheres to established legal norms and procedures, it is considered valid, regardless of its moral content. John Austin, one of the early proponents of this view, famously stated: “The existence of law is one thing, its merits or demerits are another.” Here, Austin underscores that the question of whether a law exists is distinct from the question of whether the law is good or just. H.L.A. Hart, another major legal positivist, further developed this view by emphasizing the ‘rule of recognition,’ where the validity of laws depends on the system's criteria, not moral considerations. Thus, law’s authority is derived from its source and process, not from any alignment with moral principles. This approach highlights the independence of law from ethics and morality, focusing instead on the legality of its formation. Legal realism Legal realism shifts focus from abstract legal theory to how the law actually functions in the real world. While natural law and legal positivism often engage in theoretical discussions about what law ought to be or how it should be justified, legal realism takes a more pragmatic, empirical approach. Legal realists argue that law is not a fixed set of rules or principles but is instead shaped by various factors such as social context, judicial behavior, and institutional practices. This school of thought contends that judges’ personal experiences, biases, and perspectives inevitably influence their decisions, thereby questioning the supposed objectivity and neutrality of the law. Legal realism holds that the law is not an autonomous, logical system but a human construct, molded by the lived experiences of those who interpret and apply it. Oliver Wendell Holmes, a prominent legal realist, succinctly captured this view with his famous dictum, "The life of the law has not been logic: it has been experience." Realists argue that to understand the law, one must examine how it is applied in practice, including how societal factors, economics, and political power shape legal outcomes. This theory emphasizes the fluid and evolving nature of law, arguing that it is shaped by social needs and practical outcomes rather than abstract principles alone.  Critical Legal Studies (CLS) Critical Legal Studies (CLS) is often regarded as a radical critique of traditional legal theories. It challenges the notion that law is a neutral and objective system, arguing instead that law functions as a tool of power that reinforces existing social hierarchies and privileges. CLS scholars assert that legal institutions and doctrines reflect the interests of dominant social groups—typically those with political, economic, or social power—rather than promoting justice or equality for all. They critique the assumption that law can be separated from politics, positing instead that legal decisions often serve to maintain the status quo and perpetuate inequality. By highlighting how the law often reflects and upholds the interests of powerful elites, CLS exposes the law's complicity in the reproduction of social and economic inequalities. This school of thought is deeply skeptical of claims that the law is impartial or apolitical, arguing that the supposed neutrality of legal systems often obscures their role in maintaining power structures. CLS also contributes a valuable critique of the relationship between law and ideology, insisting that the law is a socially constructed phenomenon that reflects the biases and interests of those who wield it. It questions whether the law can ever truly deliver justice or social equality when its foundations are intertwined with societal power dynamics. Institutional Foundations of Law - How does the institution work. Role of courts (judicial interpretation, precedent) – courts are the institution responsible for interpreting and apply the law by resolving disputes and how law apply to specific cases. They maintain a crucial role in maintaining the rule of law, which is a principle that ensure the law is applied fairly and consistently. Legislatures and law-making; legislature make the law – interactions are central and essential. Rule of Law: Law must govern, not arbitrary power? Legal Reasoning and precedent Stare Decisis in common law systems – setting binding precedents, lower courts must apply the higher court sentence in their cases. Responsibility on higher course to consider the term and conditions of laws to be applied. Supreme courts are the one who bind lower courts to specific sentences. If a judge departed with all the likelihood the other party will appeal. How legal reasoning evolves through case law and statutes. Complex legal systems – courts do depart from supreme court occasionally – if the social political or moral landscape has changes, if 1 or more of this apply the court can the decide the precedent is not bound anymore – longstanding precedence found to be discriminatory and hence changed. They form the background on how law is created – fairly and predictably. Globalisation and the Foundations of Law -- > legal systems no matter how old, are no longer isolated, has to interact and this interaction btw national legal system represent an important layer in understanding foundations of law as well as within the international legal system (not just an interaction but important to understand how laws interact and shape each other). Legal system might face pressure to comply with treaties and human rights. Global legal culture in which every national legal system adjust. We cannot deny that globalization has impacted the national legal system and their sovereignty, actively influenced national legal systems; by setting standards, agreeing on definitions on what a crime or a law is and means. Contentious proceedings and advisory proceedings in EU scenario. Of course international legal system lacks enforcement structure. ----------------------------------- Discussion 1 What is Law? (Hart’s Perspective) Law is more than just commands—it’s a system of rules that guide behavior. Primary Rules: Rules governing conduct (e.g., "don’t steal"). Secondary Rules: Rules about rules (e.g., how laws are made, interpreted, and enforced). -- > Emphasis on law as an institutional system. Did Hart answer the question in the text? He did not answer the question, he transformed it he argued that we are seeking a solution for a very different question. Rather than asking a metaphysical question he has the aim to address what is going on. 1.How does Hart’s concept of law as a system of rules help us understand the internal foundations of legal systems? 2. In what ways does Hart’s theory allow for changes in law through the legal system’s internal processes (e.g., legislative reform, constitutional amendments)? 3. How do secondary rules (e.g., rules of recognition) play a role in creating a more sophisticated and adaptable legal system? Hart distinguishes between primary rules, which impose obligations, and secondary rules, which provide methods for creating, modifying, and interpreting those obligations. His theory enables legal change primarily through the rule of change, allowing legislatures to amend or repeal laws, and through constitutional amendments, guided by specific legal procedures. Judicial interpretation, facilitated by the rule of adjudication, also plays a role in evolving the law by resolving ambiguities. Overall, Hart’s framework shows how legal systems adapt through legislative, constitutional, and judicial processes. -- > Primary Rules: Direct commands for behavior (obligations, prohibitions). -- > Secondary Rules: Provide structure and adaptability: Rule of Recognition: Determines what counts as valid law. It is central to Hart theory bc it defines law within a legal system; it also provides criteria for what is considered law like constitutional provision. It enables a legal system to function and evolve by giving authority to legal institutions. Rule of Change: Allows for laws to be updated or modified. Rule of Adjudication: Establishes how legal disputes are resolved  Shift from command theory to a more flexible understanding of law as an evolving system. Focus: Emphasis on the institutional nature of law—how it is created, interpreted, and enforced. The theory paved the way for debates on the relationship between law, morality, and society (covered in later sessions). Example: Abortion – Roe v Wade 1973. One of the most influencial court cases worldwide. The Court held that the 14th Amendment’s right to privacy extended to a woman’s decision to have an abortion. The decision balanced this right against the state’s interest in regulating abortions. Dobbs v. Jackson Women’s Health Organization (2022). The Court ruled that the Constitution does not confer a right to abortion, overturning Roe. The decision emphasized a return to state authority to regulate abortion, rooted in an originalist interpretation of the Constitution. The same legal authority finding a completely opposite interpretation of the law. Where do we even start explaining it? What was different? Huge cases that need to be discussed. In Roe v Wade landmark decision, the U.S. Supreme Court held that the right to privacy under the Due Process Clause of the 14th Amendment extends to a woman's decision to terminate a pregnancy. The Court reasoned that the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy," thus making the ability to access abortion a constitutional right. However, the ruling did not grant an absolute right to abortion. Instead, the Court sought to balance a woman's right to privacy against the state's interests, which included protecting maternal health and "potential life" as the pregnancy progressed. To navigate this balance, the Court introduced the trimester framework: First trimester: The woman's right to privacy was deemed strongest, and the state had minimal ability to regulate abortion. Second trimester: The state could impose regulations related to maternal health. Third trimester: After fetal viability, the state’s interest in potential life became stronger, allowing more significant restrictions on abortion, though it still had to permit abortions to protect the life or health of the mother. This decision was groundbreaking not only because it legalized abortion across the U.S., but also because it framed the issue in terms of constitutional rights, setting a precedent for how the judiciary approached issues of reproductive autonomy and privacy. Roe v. Wade also sparked intense political, legal, and moral debates, with opponents viewing it as judicial overreach and a violation of moral principles regarding the sanctity of life, while supporters saw it as a triumph for women's rights and gender equality. Nearly half a century after Roe v. Wade, the U.S. Supreme Court revisited the issue of abortion rights in Dobbs v. Jackson Women’s Health Organization. This case involved a Mississippi law banning most abortions after 15 weeks of pregnancy, which directly challenged the viability standard set in Roe. In its 2022 decision, the Court ruled that the Constitution does not confer a right to abortion, overturning both Roe v. Wade and Planned Parenthood v. Casey (1992), which had upheld and modified Roe's framework. The Court's decision in Dobbs marked a significant shift in American constitutional law and the legal landscape of reproductive rights. Writing for the majority, Justice Samuel Alito argued that the right to abortion is not "deeply rooted in the Nation’s history and traditions," and that neither the 14th Amendment nor any other constitutional provision implicitly guarantees such a right. This reasoning reflects the Court’s adoption of originalism, a judicial philosophy that interprets the Constitution based on its original meaning at the time it was written. The Court concluded that because the Constitution does not explicitly protect the right to abortion, the authority to regulate abortion should return to individual states. The decision in Dobbs emphasized a rejection of the substantive due process reasoning used in Roe and Casey, asserting that the 14th Amendment’s guarantee of liberty does not extend to a right to abortion. By overturning Roe, the Court effectively removed federal protection for abortion rights, allowing states to regulate or ban abortion as they see fit. As a result, abortion access has become a patchwork of regulations across the U.S., with some states enacting strict bans and others reaffirming broad protections for reproductive rights. This ruling is significant not just for its impact on abortion rights but also for its broader implications for judicial interpretation of constitutional liberties. Critics argue that the decision could open the door to challenges against other rights established through substantive due process, such as contraception and same-sex marriage, while supporters praise it for returning the power to regulate abortion to the democratic process within individual states. Broader Implications of Roe and Dobbs Roe's legacy: Roe v. Wade established a framework for reproductive rights that was cited in court cases and influenced legal approaches to privacy, bodily autonomy, and women's rights globally. It became a touchstone in debates over judicial activism, women's health, and moral philosophy. Dobbs' impact: The Dobbs decision has reshaped the U.S. legal landscape, making abortion rights a matter of state law and intensifying political polarization. It represents a major shift towards judicial originalism and signals a potential reassessment of other constitutional rights not explicitly mentioned in the Constitution. --- > Internal foundations of law – legal interpretation although based on the same sources can lead to different outcomes. 1.Legal Reasoning:  In Roe v. Wade, how did the Supreme Court justify the right to an abortion under the 14th Amendment and the right to privacy? Roe argued that the concept of “liberty” outlined in the 14th amendment, and, by extension, privacy, includes the right to abortion. Additionally, the 14th amendment provides a “Due Process” Clause, explaining that the state cannot deprive a person of “life, liberty, or property” without due process of the law. Since it was agreed that privacy (including abortion) was a liberty, laws prohibiting access to an abortion would contradict this amendment.  How did the Court’s interpretation of stare decisis (precedent) play a role in Roe? The right to privacy in personal autonomy in itself was justified through precedent. While the decision in the case itself was “new,” its core argument was built on information and norms from previous cases. Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) are some of the cases used as precedence for aspects of Roe v. Wade. At the same time, the Supreme Court Justices did not create a new right related to abortion; they built on the pre-existing concept of privacy and expanded its scope.  In Dobbs v. Jackson, how did the Court’s reasoning change? Why did the majority argue that Roe was wrongly decided? The main argument in Dobbs v. Jackson was that the Constitution does not explicitly mention a right to abortion, nor is it implied under the 14th Amendment. They adopted an originalist interpretation of the constitution, looking at abortion through the lens of 1868, when the 14th Amendment was ratified. Another argument included the inconsistent use of privacy, claiming that the concept of privacy rights described in the precedence used for Roe v. Wade did not align with the context of privacy in the specific case. 2.Judicial Interpretation:  How did the justices in Roe and Dobbs interpret the Constitution differently regarding individual rights?  What role did constitutional interpretation (e.g., originalism vs. living constitutionalism) play in the decisions? In Roe v. Wade and Dobbs v. Jackson Women's Health Organization, the justices interpreted the Constitution differently regarding individual rights, focusing primarily on the right to abortion. In Roe, the majority held that the right to privacy, inferred from various amendments (including the Fourteenth Amendment's Due Process Clause), encompassed a woman's right to choose an abortion. The Court, applying a broad "living constitutionalism" approach, recognized a new right that evolved with contemporary views on personal liberty and autonomy. This interpretation allowed for the constitutional protection of abortion as part of a general right to privacy and personal choice. In contrast, the majority in Dobbs took an originalist approach, arguing that the Constitution does not mention abortion and that the right was not "deeply rooted in the Nation's history and tradition." The Court emphasized that rights not explicitly stated in the Constitution should only be recognized if they are historically grounded. Therefore, they rejected Roe, returning the issue of abortion regulation to the states, asserting that decisions on this moral issue should be made through democratic processes rather than inferred constitutional rights. 3.Precedent and Stare Decisis:  How did the principle of stare decisis (respect for precedent) factor into both decisions?  Why did the Dobbs court feel justified in overturning nearly 50 years of precedent? In Roe v. Wade the Supreme Court established the right to abortion, upholding it based on stare decisis. However, in Dobbs v. Jackson the Court overturned Roe, arguing that stare decisis should not uphold a mistaken legal precedent. This shift shows how stare decisis can both protect precedent and allow for its reversal when deemed incorrect. -- > The five factors that should be considered in deciding whether a precedent should be overruled support overruling Roe v. Wade and Planned Parenthood v. Casey: (1) they “short-circuited the democratic process,” (2) both lacked grounding in constitutional text, history, or precedent, (3) the tests they established were not “workable,” (4) they caused distortion of law in other areas, and (5) overruling them would not upend concrete reliance interests. -- > External foundations of law 1.Societal and Historical Context:  How did societal values regarding women’s rights, privacy, and bodily autonomy influence the Roe decision in 1973?  What social and political movements contributed to the push to overturn Roe, culminating in Dobbs?  How have cultural shifts over the decades (from 1973 to 2022) played a role in how these cases were decided? 2.Political Influence:  What role did political changes (e.g., the appointment of more conservative justices) play in the overturning of Roe?  How might the Court’s decision reflect broader political pressures or the influence of religious and social groups? The judges who overturned Roe were 6 and all of them were conservatives, ending the right to an abortion. We could include a flaw of the system; the fact that federal judges in the supreme court are nominated by the President and confirmed by US senate, as stated in the constitution. This goes against the democratic principle of the separation of power, based on which the judicial power shall be independent from the other states’ bodies. Prominent organizations such as Christian coalition and pro life groups have lobbied, funded judicial campaign and mobilized voters. Also conservative policymaker put overturning Roe as a priority to gain electoral consensus. 3.Historical Legacy:  In what ways did the legal reasoning of Roe v. Wade build on prior decisions regarding privacy and individual rights?  How does the Dobbs ruling reflect a historical shift in the interpretation of constitutional rights? The shift marks a return to stricter readings of the Constitution, leaving issues like abortion to be decided by individual states. Internal and External Interplay: both internal legal reasoning and external societal pressures are essential to understanding how legal systems operate. The shifting balance between internal doctrines (e.g., precedent, constitutional interpretation) and external factors (e.g., societal values, political movements) influenced these landmark cases Kafka – law’s language, importance of language used in law. Entrance to the law, the text did not say he wasn’t allowed , he had gatekeeper to say no. legal system is complex, and if you are a ordinary man you won’t even try. Inaccessibility of law. -------------- Session 2: Rule of law -- rule of law provides protection, legal predictability and effectiveness of government. A strong rule of law prevents concentration of power and ensure that leadership can be held accountable. Introduction to Plato: The Republic (circa 380 BC) is one of the most influential works in Western philosophy, authored by Plato in the form of a dialogue. The central conversation is between Socrates, Plato’s brothers Glaucon and Adeimantus, and other characters. The dialogue deeply examines fundamental questions about the nature of justice, its role in society, and how justice can be achieved through political structures. Plato also explores the broader purpose of government, which he argues is to cultivate and advance the essence of humanity. One of the key proposals in The Republic is that the best form of government would be led by philosopher-kings. According to Plato, philosophers are uniquely qualified to rule because they possess both the wisdom and virtue necessary to guide the polis (city-state) toward justice. This ideal form of government is centered on two major questions: "What is justice?" and "What are the limits of justice within the political sphere?" Plato goes further to outline a hierarchy of political systems, identifying five types of government, ranging from the ideal rule of philosopher-kings to more oppressive forms. The best form, according to Plato, is a government where philosophers, carefully selected from childhood based on their character and abilities, are trained in a rigorous environment that fosters intellectual and moral excellence. These rulers are expected to avoid the temptations of wealth and personal gain, as they are not allowed private property or personal wealth. Instead, everything is shared communally, and their service is rendered without financial reward to minimize corruption. This structure, Plato argues, would give citizens the greatest opportunity to experience true justice and happiness. However, he is also acutely aware of the challenges in realizing such an ideal state. Plato acknowledges the inherent difficulties in maintaining a just society and even admits that his vision may be utopian, not easily achieved in the real world. In the context of ancient Greece, philosophy was not confined to abstract thought but was a comprehensive study of all aspects of human life, encompassing subjects like mathematics, science, and politics. The philosopher’s role, therefore, was not only as a thinker but as a leader with the responsibility to shape society according to rational and just principles.  Hierarchy of government -- > In The Republic, Plato constructs a hierarchy of political regimes, placing a true philosophical aristocracy at the highest level. This ideal form of government is ruled by philosopher-kings, whose commitment to the common good transcends personal desires or material concerns. Below this ideal government, Plato identifies lesser regimes, each dominated by a different type of human character, reflecting a decline from the pursuit of justice and virtue. 1. Timocracy: This regime is led by individuals who prioritize honor and pride above all else. Although not the ideal, a timocracy is still somewhat focused on the common good, aiming for peace and justice. However, the devotion to honor is insufficient, as it does not reach the level of the philosopher’s pure dedication to the well-being of the polis. 2. Oligarchy: One of the dangers of timocracy is its potential to degenerate into oligarchy, where the love of honor gives way to the selfish pursuit of wealth. In an oligarchy, society becomes increasingly corrupt as the desire for money dominates. Power becomes concentrated in the hands of a privileged few, and the gap between rich and poor widens. For Plato, placing wealth and property above justice destabilizes society. Unlike today’s focus on economic growth, Plato did not prioritize material prosperity or celebrate individual freedom and equality in the way modern democracies do. 3. Democracy: Democracy ranks even lower in Plato’s hierarchy. He critiques it for operating on the whims of individual desires, many of which are unnecessary and driven by personal gratification rather than the common good. While democracy often emerges after the people, particularly the poor, overthrow an oligarchic regime, its emphasis on unrestricted freedom leads to disorder. In a democracy, according to Plato, not every citizen is suited for leadership, and the lack of guidance in distinguishing between necessary and unnecessary desires creates instability. 4. Tyranny: The final and most oppressive form of government in Plato’s hierarchy is tyranny. Tyranny arises when a democracy collapses into chaos, and a demagogue—masquerading as the protector of the people—seizes absolute power. The tyrant, Plato argues, is the antithesis of the philosopher. While the philosopher seeks the common good and is guided by reason, the tyrant is ruled by unchecked desires and self-interest, leading to the ultimate breakdown of justice and order. Plato’s analysis of the rise of tyranny can be seen as a critique of democracy, suggesting that unrestrained individualism and the failure to balance desires with rational governance can result in authoritarian rule. This is why he emphasizes the importance of the "rule of law"—laws must reflect the ideal good and restrain the excesses of democratic society. For Plato, the philosopher-kings are the ultimate interpreters of the law because they understand justice beyond politics and personal ambition, focusing solely on the common good. The law, in Plato's view, must be aligned with absolute truths to guide society toward justice. When laws fail to promote justice or reflect universal truths, they contribute to tyranny rather than restraining it. Thus, a just legal system is one that is rational, reflecting universal truths and effectively constraining political power to ensure the common good prevails. Aristotle’s Politics (350 BC) Aristotle's approach to governance is grounded in practicality, contrasting with Plato’s more idealistic vision of philosopher-kings. While Plato envisions an ideal state ruled by philosophers who prioritize the common good above all, Aristotle focuses on the real-world application of governance, emphasizing systems that can effectively maintain order and promote justice within existing human limitations. One of Aristotle’s key contributions is his belief that the law should govern not only the citizens but also the rulers themselves. He argues that justice and order are best preserved when everyone, from the highest rulers to the ordinary citizens, is equally subject to the law. This concept of the rule of law is central to Aristotle’s political philosophy. In his words, “He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.” This emphasizes the dangers of allowing human rulers to govern based on personal desires or passions, which can lead to irrational or unjust decisions. By subjecting both rulers and citizens to rational laws, the risks associated with emotional or arbitrary governance are minimized. Aristotle views laws as the rational foundation of a just society, as they prevent the arbitrary exercise of power. Laws, being impartial and based on reason, ensure that decisions are not influenced by the personal whims or desires of those in power. This helps balance the interests of all members of society and promotes stability. In this framework, the rule of law is crucial for ensuring a rational and constitutional form of governance, as opposed to rule by decree or personal will. Much like Plato, Aristotle also categorized different forms of government, but his focus remained on creating practical systems where laws govern rulers and citizens alike, ensuring that justice and order are upheld for the common good. 2 sides of the same coin; rule of the one (monarchy if common good, tyranny if interest of ruler, etc) Aristotle’s Constitutional Government: Aristotle viewed constitutions as essential frameworks for ensuring the rule of law and shaping the moral character of society. For him, a well-constructed constitution allows the law to serve the common good and guide citizens toward virtuous living. By promoting justice and fairness, the law not only maintains order but also encourages moral development within the population. A key principle in Aristotle’s thought is that the rule of law fosters stability by binding even rulers to the law. Everyone, regardless of status, is subject to the same legal standards. This ensures that power is not concentrated in the hands of individuals, even the most virtuous, preventing arbitrary rule. According to Aristotle, "It is more proper that law should govern than any one of the citizens." By placing the law above any single ruler, he sought to create a system where justice is objective and rational, promoting fair treatment for all. Aristotle’s framework is deeply ethical, linking morality, justice, and governance. However, it is important to note that his application of constitutional governance was limited to a small portion of the population, excluding women, slaves, and others from full citizenship rights. This reflects the social context of his time, but the core principles of the rule of law he advocated—ensuring fairness, rational governance, and the pursuit of the common good—have endured and evolved over centuries. Over time, different civilizations have developed their own interpretations of the rule of law. In ancient China, Confucianism influenced legal and moral systems; in India, legal principles blended religious and civil law; in the Islamic world, Sharia law became a comprehensive legal framework rooted in religious teachings. In medieval Europe, Christianity and theology shaped the development of law. Despite these cultural variations, the fundamental principles of the rule of law—originating with thinkers like Plato and Aristotle—remain influential. Over the centuries, philosophers have reexamined the relationship between law, governance, and justice, particularly with the rise of democratic governance. The rule of law continues to evolve as societies refine their understanding of justice, fairness, and moral governance. Montesquieu and the Separation of Powers Montesquieu’s The Spirit of the Laws (1748): In The Spirit of the Laws, Montesquieu builds on earlier ideas, including those of Aristotle, to argue that the separation of powers is essential for preventing tyranny. This principle is designed to prevent any one individual or group from exercising arbitrary power and to safeguard the common interests of society. Montesquieu believed that the rule of law functions best when political power is distributed among three distinct branches: the executive, legislative, and judiciary. No single branch should hold concentrated power, as this separation is crucial for preventing tyranny. Each branch has its own defined responsibilities, and the law acts as a system of checks and balances, ensuring that no branch dominates the others. Laws serve as the primary mechanism for checking power and maintaining balance within the government. Montesquieu’s ideas were highly influential in shaping modern constitutional systems, particularly in the creation of the United States Constitution and the French political system. His famous assertion, "There is no liberty if the judiciary power be not separated from the legislative and executive," encapsulates his belief in the importance of the division of powers. Without this separation, those who make the laws would also have the power to interpret and enforce them, leading to the inevitable rise of tyranny. Montesquieu’s framework for constitutional governance, with its emphasis on checks, balances, and the separation of powers, remains foundational in modern democratic systems. It ensures that power is not centralized in any one branch of government, providing a safeguard against the abuse of authority. Rousseau and the Rule of Law In The Social Contract (1762), Rousseau argues that laws must reflect the general will of the people, emphasizing the principle of popular sovereignty. According to Rousseau, the legitimacy of laws comes directly from the people, and laws are only valid if they express the collective will and serve the common good of society. For Rousseau, the rule of law means that laws are legitimate only if they represent the general will and are applied equally to all citizens, without exceptions. This ensures that the law is not an instrument of oppression but a reflection of the people’s shared interests and values. In this way, the rule of law protects both individual rights and the collective well-being. Rousseau stresses the need to balance individual freedom with the collective good, and he views the rule of law as the best mechanism to achieve this balance. While individuals must have freedom, this freedom is regulated by laws that ensure fairness and protect the interests of the entire community. Crucially, Rousseau argues that the rule of law stems from the consent of the people, not the will of any ruler or authority. In this sense, laws in a truly democratic society manifest the people’s collective will, and governance is an expression of democracy in action, ensuring that individual liberty coexists with the common good. Kant (1797): Autonomy and the Rule of Law Kant and the Rule of Law (1797): In his works, particularly in his writings on ethics and political philosophy, Immanuel Kant emphasizes the importance of moral autonomy. He argues that laws should be grounded in universal rational principles that respect individual freedom. For Kant, it is essential that individuals are treated as ends in themselves, never merely as means to an end. Therefore, the law must uphold the dignity and freedom of each person, ensuring that it is both rational and just. Kant contends that the rule of law guarantees that individuals are governed by reason rather than arbitrary power. People should follow the law because it is the right thing to do, not out of fear or coercion. This rational approach to law promotes justice and equality, creating a legal framework that protects human dignity. For Kant, the rule of law is inherently moral; laws must align with moral obligations and principles. He famously states, "The law is the objective condition of the will’s harmony with itself," suggesting that just laws contribute to the coherence and integrity of individual moral will. Thus, in Kant's view, the rule of law is not only a legal concept but also a moral imperative that fosters an ethical society where individuals can exercise their autonomy within a framework of justice and mutual respect. Hans Kelsen and the Pure Theory of Law In the 20th century, there was a significant transformation in the understanding of democracy, which led to a stricter connection between the rule of law and democratic principles. This evolution resulted in a more formalized and precise legal framework with more stakeholders involved in governance. Hans Kelsen developed the Pure Theory of Law in 1934, which posits that law functions as a normative system independent of morality or politics. According to Kelsen, this system possesses its own internal normativity; the legal framework is self-referential, meaning it is governed by its own rules rather than external ethical or political considerations. He conceptualizes the legal system as a coherent and hierarchical entity, where the validity of laws derives from a higher Grundnorm (or basic norm). In Kelsen's view, the rule of law requires that the legal system be internally coherent and hierarchical, with laws deriving their legitimacy from this higher norm rather than from moral or political values. He emphasizes a formalistic interpretation of law, arguing that it is the structure of the law, not its moral content, that ensures order and legitimacy within society. Kelsen famously states, "The law does not seek to realize moral or political goals but functions autonomously." This highlights his belief that the legal system operates independently and is primarily concerned with maintaining legal order rather than pursuing ethical or political objectives. Kelsen's Pure Theory of Law, with its focus on the internal coherence and hierarchical nature of legal norms, has had a lasting impact on legal theory and the conceptualization of the rule of law in modern democracies. Raz’s Concept of the Rule of Law Joseph Raz emphasizes the formal aspects of the rule of law, arguing that laws must be clear, stable, and predictable. His focus is on how law should function rather than its underlying concepts of justice, morality, or democracy. For Raz, the primary goal of law is to guide behavior through well-defined rules, thereby ensuring legal stability and social order. Central to his theory is the principle of procedural fairness. While the rule of law serves to prevent arbitrary power, it does not inherently guarantee justice or moral outcomes. This distinction is critical; the law's effectiveness lies in its ability to provide a framework that promotes order and predictability, but it does not ensure that all laws are just. Raz outlines eight principles that characterize the rule of law, including that laws should be prospective, open, and clear. He views the law as a tool that society employs to create a stable framework for governance, separate from moral considerations. This leads to his assertion that the rule of law is morally neutral, though vital for maintaining stability and preventing chaos in society. Raz also critiques the tendency to conflate the rule of law with democracy, justice, or human rights. He asserts, “The rule of law is not to be confused with democracy, justice, equality, or human rights,” emphasizing that the law itself can be unjust. His position signifies a shift in perspective from earlier theories that often linked the rule of law to substantive outcomes regarding justice and morality. Instead, Raz focuses on the procedural level of law, highlighting its function and importance in maintaining social order rather than assessing the justness or democratic nature of the laws themselves. This approach marks a significant divergence from prior philosophical frameworks that emphasized the relationship between law and ethical outcomes. Critiques of Formalism in the Rule of Law Critiques of formalism in the rule of law focus on the argument that formal theories, like those of Kelsen and Raz, are too limited because they overlook the substantive dimension of justice. Substantive theorists, such as Dworkin, assert that the rule of law must go beyond procedural aspects and incorporate moral values, protecting individual rights. This raises the central question of whether the rule of law should remain morally neutral, as Kelsen and Raz suggest, or integrate principles of justice and morality. The Rule of Law in Modern Systems In modern systems, the rule of law is a fundamental pillar of democratic governance and plays a key role in international human rights frameworks, such as the European Court of Human Rights and UN principles. However, globalization introduces new challenges, as transnational issues complicate the maintenance of stable and coherent rule-of-law systems across different jurisdictions. The obligation to obey the (rule of) law The obligation to obey the rule of law invites reflection on the intersection of law and morality. From a legal perspective, the question arises: what role does morality play in legal obligations? Conversely, from a moral standpoint, one might ask: what is the place of law in moral decision-making? Common arguments supporting legal obligation are based on principles like consent, gratitude, reciprocity, and consequential outcomes, exemplified in Brian Bix’s driving analogy. ----------------- Session 2 Texts THE RULE OF LAW AND ITS VIRTUE – Raz Hayez ideal of rule of law: government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of knowledge. -- > the government action must have foundations in law and authorized by it, if not the actions don’t have legal effect and are unlawful. The rule of law is essential but not the only virtue of a legal system. It shouldn't be confused with other ideals like democracy, justice, or human rights, and a system can conform to the rule of law while being undemocratic or unjust. The text warns against the tendency to expand the rule of law to include all political virtues, arguing that doing so renders the concept meaningless. Instead, the rule of law should be understood narrowly, as requiring that laws be general, open, and stable, ensuring they can guide people's actions. -- > The doctrine of the rule of law does not deny that every legal system should consist of both general, open, and stable rules (the popular conception of law) and particular laws (legal orders), an essential tool in the hands of the executive and the judiciary alike. = subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules. This principle shows how the slogan of the rule of law and not of men can be read as a meaningful political ideal. Two key aspects: (1) people must obey the law, and (2) laws must be such that they can be followed and understood. laws must guide behavior, meaning they must be public, stable, and predictable. This formal understanding doesn't dictate how laws should be made (whether by tyrants or democratic bodies), nor does it address issues like justice or equality. Despite its formal nature, this concept of the rule of law is substantial and underpins many traditional legal principles. The rule of law requires that specific decisions (e.g., judicial rulings) be subject to general, stable laws, illustrating how "government by law, not men" can be a meaningful political ideal. Principles: All laws should be prospective, open and clear – no retroactivity, not vagueness/imprecision and publicized Laws should be relatively stable – not changed very frequently The making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules Independence of judiciary must be guaranteed Principles of moral justice must be observed Courts should have review powers over the implementation of other principles Courts should be easily accessible The discretion of the crime-preventing agencies should not be allowed to pervert the law -- > Principles 1-3: require that the law should conform to standards designed to enable it effectively to guide action. Principles 4-8: designed to ensure that the legal machinery doesn’t deprive the law of its authority, while supervising conformity to rule of law and provide remedies in case of deviation. Rule of law is an essential virtue of legal systems but it is only one among many virtues a legal system should possess. The rule of law is contrasted with arbitrary power; while some forms of arbitrary rule can coexist with the rule of law, many common manifestations of arbitrary power violate it. Under the rule of law, governments are restrained from retroactively or secretly altering laws for their own benefit, and courts must adhere strictly to legal procedures. The rule of law also curtails arbitrary executive power, particularly in the creation of specific legal orders for personal gain, revenge, or favoritism. However, the concept of arbitrary power is subjective, based on the state of mind of those in power. Despite this subjectivity, any use of public powers for private ends is universally condemned as arbitrary, and the rule of law helps to curb such abuses. Beyond curbing arbitrary power, the rule of law serves additional purposes, such as creating a stable framework that allows individuals to plan their lives effectively. This stability is linked to individual freedom, often described as the ability to choose from a wide range of options. Most importantly, the rule of law is necessary for respecting human dignity. Violations of the rule of law, such as creating legal uncertainty or frustrating people's expectations, not only hinder their ability to plan but also disrespect their autonomy and dignity. The law can violate dignity through insults, enslavement (denying all options), or manipulation (altering a person's internal choices). While the rule of law does not guarantee against all such violations, deliberate violations of the rule of law—such as retroactive lawmaking—directly disrespect human autonomy. Adherence to the rule of law is not absolute or perfect, as some vagueness and administrative discretion are necessary; However, general conformity to it is highly valuable, as it helps to prevent arbitrary power, respect human dignity, and enable individuals to plan their lives. ---Lon Fuller argued that the principles of the rule of law are essential for the existence of law = necessary connection between law and morality. while deviations from the rule of law can occur, they cannot be radical or total because a legal system must conform to the rule of law to some degree; law is inherently moral in some respects. while some generality, clarity, and prospectivity are necessary for a legal system to function, these minimal requirements do not imply any moral merit. The rule of law is seen as a "negative value," designed to prevent the harm that law itself can cause, such as arbitrary power, instability, and violations of freedom and dignity. The author rejects Fuller's attempt to link law and morality on this basis, arguing that the rule of law is more of a functional necessity than a moral virtue. Conformity to the rule of law is essential for achieving the direct purposes of any law, as law must guide human behavior to be effective. This instrumental nature of the law means that the rule of law is its specific "excellence" or inherent value, much like sharpness is to a knife. While the rule of law is an inherent virtue of law, it is not necessarily a moral virtue in itself. However, it can take on moral significance when necessary for law to fulfill useful social functions, making it of great moral value in most cases. Thus, while the rule of law is a fundamental characteristic of law, it does not automatically confer moral goodness. Friedrich Hayek acknowledged that RoL does not fully guarantee freedom; obeying general, abstract laws makes individuals free because laws, unlike personal rule, are impersonal and non-arbitrary. However, he later modifies this stance, allowing for exceptions in cases like specific laws for particular groups (e.g., women or the elderly), claiming such rules can still be just if accepted by both insiders and outsiders of the group. Hayek's core argument focuses on governmental interference, particularly in the economy, which he sees as incompatible with the rule of law. He objects to government price controls and similar measures, which require arbitrary decisions that violate the rule of law's generality. Hayek's criticism is that these economic interventions lead to discretionary, unequal treatment, which conflicts with market functioning and the rule of law. The author critiques Hayek’s argument, noting that the rule of law is just one of many legal virtues and must be balanced against other values. Conflicts between the rule of law and other goals are inevitable. Conformity to the rule of law is a matter of degree and, while important, is often outweighed by other social goals. The rule of law is a "negative value" meant to minimize harm rather than directly promote good. Its role is subservient, ensuring law is an effective tool to achieve various goals. While pursuing some goals may be incompatible with the rule of law, one should not sacrifice major social aims solely in its name, as this could render the law ineffective or empty. THE RULE OF INTERNATIONAL LAW - Crawford Can we say that the international legal system is governed by rule of law? The features necessary to affirm it are that no one is outside the law, that the international legal system is democratic or at least accountable to others, the instituted authorities are subject to legal constraint, that there is a constitution of international society and society is not irremediably unjust. Thomson : rule of law as an unqualified human good that imposes process constraints on the powerful. (universally beneficial for human beings and ensuring that power is not used arbitrary). Joseph Raz – core elements :  Absence of arbitrary power General non-retrospectivity Subjection of governments to general laws Independence of judiciary Fuller: rule of law is a necessary internal virtue of any functioning legal system – true to a limited extent since there can be laws even without prevalence of rule of law (Gaddafi Lybia ex) Dicey: rule of law can be satisfied by a system of administrative law applied by separate administrative courts as in most EU or by ordinary courts as part of their general jurisdiction, as in common law. Is there an international rule of law? For some, international law is assumed to be modeled on analogies within internal law (especially private law). Treaties here are seen as contracts, state responsibility = law of torts, etc. when international law was just about states coexistence, one could argue that it was law for gaps btw states. -- > War was a condition or status in which rules were crafted to govern acts undertaken in its arbitration. Instead, now most major conflicts arise from distribution of wealth/power btw states – in this way IL is increasingly dealing with internal matters. IL reinforces and institutes rule of law internally. Question of applicability of international law standards to international judicial institutions, whether these institutions are bound by the same legal principles as national systems; The ICTY suggested that the principle of being "established by law" applies only to national courts, implying that international courts could operate without similar standards. -- > unacceptable for Crawford: international judicial bodies must adhere to fundamental principles of fair trial and judicial independence, even if they are created on an ad hoc basis. Features of rule of law in international sphere (UN): principle of governance in which all persons, public or private entities including state, are accountable to publicly promulgated, equally enforced and independently adjudicated laws, which are consistent with IHRL. Adherence to principles of supremacy of law, equality before law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision- making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. EQUALITY BEFORE THE LAW; Domestic sphere: individuals equal before the law International sphere: states equal before the law – formal equality (not regarding power, territory, etc) Art 2 UN Charter. The concept is based on sovereign equality (the internal competence and authority of the state cannot be annulled by other states and a state is responsible for the wrongdoing at international level – treaties can restrict internal competences of state) While formal equality ensures that all states have the same rights and responsibilities in law, in practice, stronger states often hold more sway, as noted by former U.S. Secretary of State Robert Lansing's remark that sovereign equality is an "intellectual creation" unless backed by force. Despite this, formalism plays an essential role in international law, providing a framework for equal rights and powers among states. One historical example is the Vienna Congress of 1815, which established a formal system of diplomatic precedence to prevent disputes, a system that still functions today. International rule of law generally applies only to states : gap for what concerns de facto powers -- > value of analogy, those entities as they become more established act and are treated as states. Also another critique of state equality is notably pronounced when examining the use of force in international relations, often described as a "rule of the jungle." Example of response to the 9/11 attacks and the subsequent invasion of Iraq in 2003: the U.S. claimed its invasion was justified under international law, the failure to secure Security Council authorization led some to see this as a serious violation of the rule of law. This situation illustrates the risk of powerful states treating international law as binding for others but not for themselves, which undermines the legal framework. Simpson argues that international law is practically divided (formal equality ≠ substantive equality) between an elite group of "Great Powers" and the rest of the world, where the Great Powers hold greater authority and intervene in the affairs of weaker or "outlaw" states. Examples of institutionalized inequality include the veto power of the UN Security Council's permanent members, IMF as voting power is tied to financial contributions. The notion of "enclaves" of justice illustrates that while pockets of legal order exist, they are surrounded by broader systemic inequalities in the international arena; enclaves = institutions, legal systems, or regions where laws are enforced fairly, and individuals have access to rights and protections, that exist within a larger context marked by systemic inequalities. The principle of human equality plays a crucial role in international law -- > Universal Declaration of Human Rights states that all humans are born free and equal in dignity and rights, underscoring the connection between individual equality and the rule of law. The increasing focus on human equality indicates its ongoing influence in shaping the international rule of law. Initiatives, such as the 2012 General Assembly Declaration on the Rule of Law, outline reforms needed to enhance the rule of law in areas like peace, security, and human rights. While judicial rulings may often come too late for victims, they serve to reinforce the principle of equality in societies marked by inequality, contributing to the overall progress of the international rule of law. ----------------------------------- Discussion 2 James Crawford’s “The Rule of (International) Law”: international legal scholar who became a ICJ’s judge and published as part of his Hague Academy Lecture series in 2014. It focuses on the tension between state sovereignty and the international rule of law. Argues that the rule of law is essential but works differently in a system without central enforcement. Accountability and Enforcement:  How can international law be enforced if states are not fully bound? Enforcement is weak (no central government with overarching authority) – authority relies largely in states and their compliance (diplomatic pressure, sanctions, as enforcement tools exists)  The role of treaties, international courts (ICJ, ICC), and customary law.  The rule of law at the international level is fragile, but mechanisms like sanctions and diplomatic pressure are often used. International Institutions and the Rule of Law:  UN: Central to global governance and peacekeeping  ICJ: Interstate dispute resolution  ICC: Prosecutes individuals for war crimes and genocide  WTO: Resolves trade disputes  These institutions aim to create a rules-based international order but are often challenged by political interests -- > Are these challenges different in domestic rule of law settings? The Future of the International Rule of Law:  Adapting to new global challenges (e.g., climate change, AI, cyber threats).  Strengthening international institutions for better enforcement.  The need for more multilateral agreements and global cooperation to tackle global crises.  Are these challenges different in domestic rule of law settings? Group exercise: International Crises and the Rule of Law -- > Each group will analyse one of the following crises: 1. Climate Change (e.g. Paris Agreement, global environmental law). 2. Humanitarian Crises (e.g. war crimes, natural disaster). 3. Global Health Crises (e.g. COVID-19). 4. Cybersecurity (e.g. international cyber-attacks). Use Crawford’s five features to determine whether there is a rule of law : 1. No one is outside the law, still less above it 2. The system is by some means/in some sense democratic 3. The system’s authorities are in principle subject to legal constraint 4. There is something like a constitution of international society 5. Society is not irremediably unjust  No one is outside the law, still less above it: Various international guidelines and frameworks related to cybersecurity encourage states to cooperate on these issues. For instance, the UN has passed resolutions that promote norms for state behavior in cyberspace. In this context, state actors are expected to adhere equally to cybersecurity guidelines and are not above them. However, the same cannot be said for non-state actors, who are often the main perpetrators of cyber-attacks and violations of international law. In the EU, advanced regulations on cybersecurity, such as the GDPR, impose stricter standards on Member States. Yet, while these regional solutions are robust, they do not address the global nature of cybersecurity threats, leaving gaps in protection beyond Europe. Thus, the rule of law in the EU ensures equality among Member States, but non-state actors can operate outside this legal framework, undermining its effectiveness.  The system is by some means/in some sense democratic: While international systems regulating cybersecurity are not as democratic as domestic legal frameworks, there are still some indirect forms of democratic governance. For example, the UN has mechanisms like the UN Information Security Special Interest Group (UNISSIG), which promotes inter-agency cooperation and collaboration on information security. These efforts reflect some level of collective decision-making, although the democratic nature is less direct than in national legal systems.  The system's authorities are in principle subject to legal constraint: International authorities are subject to certain legal standards, but in the realm of international law, legal constraints depend on state consent. For instance, the EU’s NIS Directive (and its update, NIS2) regulates cybersecurity at the national level, but enforcement and compliance rely heavily on the willingness of states to adhere to these standards.  There is something like a constitution of international society: While there is no single "constitution" for international society, we do have frameworks like UN regulations, international standards, and EU legislation. However, these lack the comprehensive authority and binding force of a true constitution. In the field of cybersecurity, the Budapest Convention remains the only binding international treaty on cybercrime, serving as a global benchmark for national cybersecurity laws. However, it dates back to 2001 and may be outdated given the rapid evolution of technology.  Society is not irremediably unjust: Although the system aims to promote a just society, the field of cybersecurity presents particular challenges. The anonymity of cyberspace, coupled with the fast pace of technological development, makes it increasingly difficult to regulate effectively. As a result, achieving justice in this domain is uncertain and remains a continuous challenge. Is a domestic rule of law better suited? Why yes, why no? In some cases, domestic rule of law may be more effective for specific issues, as enforcement tends to be more practical and immediate within a national jurisdiction. However, when it comes to cybersecurity, which is a global crisis, domestic legal frameworks lack the necessary reach and coordination to address the scope of the threat. Cybersecurity threats are not confined by geographical boundaries; attacks can originate from anywhere in the world and target anyone, regardless of location. As a result, solutions must be global. A purely domestic approach is inadequate because it cannot tackle the cross-border nature of cyberattacks, making international cooperation and global frameworks essential for effective cybersecurity enforcement. PART 2: UNESCO Guidelines on Rule of Law and AI; AI presents new challenges for the rule of law. UNESCO’s guidelines offer a framework for responsible AI governance. AI must be developed and deployed within the bounds of human rights, accountability, and fairness. UNESCO MOOC on AI and the Rule of Law. Six themes: 1. Transparency and Accountability 2. Bias and Non-discrimination 3. Privacy and Data Protection 4. Human Rights and Ethical Use 5. International Governance and AI 6. AI and Sustainable Development Goals (SDGs) -- > Each group will answer: How should the rule of law guide this theme, and what are the key challenges? Answer theme 3: In our everyday use of social media, we are constantly immersed in algorithms that capture our preferences and interests. Each time we navigate these platforms, we implicitly accept certain conditions. While we provide consent on one hand, there is often little transparency or clarity about what exactly we are agreeing to. As a result, when issues arise with these platforms, we face challenges in determining accountability, unsure of who is responsible. This lack of transparency and accountability—two key principles of the rule of law—presents significant challenges. Addressing these issues within the framework of the rule of law is a complex matter that extends to the international level. In the European Union, the GDPR aims to protect citizens' data and privacy, but on the global stage, such robust enforcement mechanisms may be lacking due to the fact that international law relies on the consent of states. -- example of theme 2 -------------- Session 3: What is justice? Why is it important to understand justice?  Justice is foundational to legal systems and society  Influences laws, rights, and how we address fairness and equality  Understanding justice helps shape moral and legal reasoning  Key to resolving conflicts and building a just society  Relevant to everyday decision-making in law, politics, and ethics  multi faces of this concept, it depends on which angle you start with in analyzing justice, always making clear form with angle you are discussion to understand the point of view. Concept of justice is central in the legal system. Can we have an unjust legal system? In law, justice is a guiding principle for making, interpreting and applying law. Justice and the Rule of Law:  Rule of law as a foundation for justice, essential mechanism  Procedural fairness in legal systems  Ensuring justice through the application of law, not just about having fair outcomes  (Allowing injustice through the application of law?) has justice always a positive meaning? Justice and the Foundations of Law:  Law reflects society’s sense of justice. Deeply intertwined with each other.  Law codifies fairness and equality. (unfairness and inequality?) – always a reflection of societal thought about society; different types of government, so this could be unfair, not homogeneous around worldwide legal systems  Ancient influences: Plato and Aristotle. Legal positivism and natural law: Early Legal Positivism: Utilitarian Doctrines : Law, according to early legal positivism, is essentially a command issued by the highest authority, who stands above the law itself. This understanding contrasts with Aristotle’s hierarchical model and emphasizes the distinction between law as it is and law as it ought to be. A purely analytical approach to legal concepts is regarded as equally important to understanding the nature of law as historical or sociological studies, taking a mechanical perspective that reflects where we are in history. A key element of this doctrine is the focus on law's separation from morality, ensuring that legal processes are analyzed without being conflated with moral considerations. Caution in Defining Positivism: Legal positivism is not a fixed, monolithic doctrine. Its meaning has evolved over time. Early positivists such as Bentham and Austin focused on law as a command, while later thinkers like Hart introduced more nuanced interpretations. Although positivism often emphasizes the separation of law from morality, it does not deny the potential influence of moral values on law. Rather, it takes a distinct approach to the relationship between law and morality. Utilitarianism (Bentham and Austin) : Bentham, often regarded as the father of legal positivism, saw law as a command issued by a ruler to whom society is obedient. For Bentham, the validity of law was derived from obedience, not from any moral criteria. Austin expanded on this by defining law as a command backed by the threat of sanctions, stressing that law consists of orders, commands, and punishments that are disconnected from moral or ethical judgments. For a command to become law, it must meet two criteria: it must apply to everyone (i.e., be general), and it must come from a recognized authority such as a ruler or sovereign, an entity that society typically obeys. Both Bentham and Austin insisted on the need to distinguish law as it is from law as it ought to be. As John Austin famously stated, “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” They recognized that the development of legal systems has been significantly influenced by moral opinion. Even if Bentham and Austin focused on separating law from morality, they did not deny that, historically, moral principles and legal systems have influenced one another. For example, biblical commandments have shaped penal codes, demonstrating how moral rules can become binding legal provisions. While legal provisions can reflect moral principles, a rule is not invalid simply because it violates morality, unless specified by law. Similarly, a rule being morally just does not automatically make it a law. Bentham and Austin also raised important questions about the nature of legal validity in cases where law commands something morally reprehensible. They explored the problem of when resistance to law is justified, particularly when the law that exists conflicts with what the law ought to be. This led them to adopt a strict interpretation of legal validity, raising the question of when, if ever, a law becomes invalid due to its moral failings. Hart’s Critique of Bentham and Austin : Hart argues that Bentham and Austin’s "command theory" of law is overly simplistic. Their model relies on a hierarchical relationship between those who issue commands (the rulers) and those who follow them (the commanded), suggesting that law is always imposed from a superior authority in a top- down fashion. Hart critiques this by noting that not all laws fit into this model, particularly modern legal systems. While criminal law typically follows this command structure (e.g., laws telling people not to steal), many other legal rules function differently. These rules provide individuals with opportunities to shape their legal relationships and create their own structures of rights and duties. For instance, legal provisions enable people to enter into contracts, allowing them to do certain things by providing guidelines on how to achieve those objectives. This, Hart argues, represents a fundamental difference from the command theory, as these laws offer tools rather than just imposing obligations. Hart points out that what is missing in utilitarian thought is an understanding of why rulers themselves are bound by the law. A complete understanding of how law functions within a social group, particularly what motivates rulers to accept the rules, is crucial to the science of jurisprudence. Hart introduces the important distinction between primary and secondary rules. He shifts the focus from viewing law solely as a series of commands to seeing it as a system of rules. This system-based approach underscores that law is not just about issuing commands but involves a more complex structure. He also highlights two dangers in artificially separating law from morality. First, blending law too closely with moral considerations risks weakening the authority of law if people confuse it with what they think law *should* be. On the other hand, making law the sole guide for behavior risks allowing it to completely displace morality, leaving no room to critique unfair laws. In Hart's view, criticizing unjust laws is not inherently in conflict with maintaining the separation between law and morality. In fact, this ability to critique laws allows societies to improve and change them over time. Hart’s Rule-Based Framework: Hart distinguishes between two types of rules in a legal system: primary rules and secondary rules. Primary rules impose obligations on individuals, governing their behavior directly. Secondary rules, on the other hand, are rules about rules. They provide the framework for the legal system by establishing how laws are made, changed, and adjudicated. These secondary rules deal with authority, legal change, and the mechanisms for resolving disputes. Hart emphasizes that the legal system is a dynamic structure, not merely a set of commands from rulers. It is a more complex system of rules that reflects both the need for stability and the capacity for flexibility within society. The balance between stability and flexibility is crucial for the legal system to function effectively, and Hart's framework allows for both. Hart’s Positivism and the Separation of Law and Morals : In his influential 1958 work, *Positivism and the Separation of Law and Morals*, Hart asserts that law is a system of rules distinct from moral values. He maintains that law and morality operate in separate domains, meaning that while laws can be unjust, they can still be valid if they conform to the rules governing the legal system. Law is not just a set of rules for governing behavior (the primary and secondary rules) but also a system that does not necessarily require moral content to function. The procedures of law do not have to incorporate morality, although that does not mean law is entirely devoid of it. Hart introduces the concept of the "rule of recognition," which asserts that a law's validity does not depend on its moral content but rather on whether it adheres to established legal procedures. This rule provides the standard by which legal rules are identified and upheld, focusing on the legal process rather than moral judgment. Hart’s Positivism and the Separation of Law and Morals II: Problems of the penumbra  Legal rules may have uncertain boundaries, leading to "penumbral" cases. Legal rules could have boundaries, this problem uses that to address situation when legal rules are not entirely clear creating uncertainty about how should they be applied.  These cases require judicial discretion and interpretation. This will need moral considerations. Emotional harm, psychological – all penumbra cases. Example of vehicles in a park; necessary to address the problem of interpretation of terms, not preempting everything. You cannot anticipate future situation, so the interpretation is fundamental to solve penumbra cases.  The intersection of law and morality is crucial for resolving ambiguous cases. For this type of cases, morality is necessary to consider otherwise arbitrary outcomes. Addressing disputes in a fair way.  Hart acknowledges that legal systems must account for moral considerations. While law and morality are distinct features they interact especially in unclear situation, that needs morality to address them.  Distinction between core legal rules (clear) and peripheral cases (ambiguous). But: “it is good to be occupied with the penumbra. Its problems are rightly the daily diet of law schools. But to be occupied with the penumbra is one thing, to be preoccupied with it another.” – HLA Hart. Penumbra is part of the framework. Hart’s Positivism and the Separation of Law and Morals III:  Third criticism is of a different character: “It consists of the testimony of those who have descended into Hell, and, like Ulysses or Dante, brought back a message for human beings. Only in this case the Hell was not beneath or beyond earth, but on it; it was a Hell created on earth by men for other men.”  One of the main voices in this appeal: Gustav Radbruch Radbruch’s Critique of Positivism: Initially a supporter of legal positivism, Gustav Radbruch dramatically changed his stance after World War II, particularly in response to the atrocities committed under Nazi rule. Radbruch formulated what became known as Radbruch’s Formula, asserting that extreme injustice invalidates law. He argued that legal systems should not remain entirely neutral; if laws, even if procedurally correct, violate human rights or fundamental principles of justice, they are invalid. This marked Radbruch’s "shift" from legal positivism to natural law after WWII. The horrors of Nazi Germany made it clear to him that laws can be procedurally valid yet morally abhorrent, and such laws should not be recognized as legitimate. Radbruch concluded that law without justice is void. A prominent example of this dilemma is the Grudge Informer case from 1944. In this case, a woman sought to get rid of her husband by reporting him to Nazi authorities for making derogatory statements against the government. He was sentenced to death, though ultimately sent to war instead. After the war, the woman was prosecuted for legally depriving her husband of his rights. During her trial, she argued that she had followed the law of the time and was, therefore, not guilty. However, the court found her guilty, reasoning that the Nazi system itself was contrary to human rights, thus invalidating the laws she had followed. This decision celebrated morality by rejecting the validity of Nazi laws. Hart, however, disagreed with this outcome. He argued that the woman was sentenced based on moral considerations rather than legal principles. According to Hart, she acted in accordance with the law at the time, and from a purely legal standpoint, she did nothing wrong. To punish her based on retroactively declaring the Nazi laws invalid was problematic in Hart’s view, as it involved replacing the law after the fact. Applying law retroactively, he argued, is not a just legal procedure. For Hart, the key issue was transparency. The dilemma in this case was not simply about replacing unjust laws; it was that the laws at the time were valid, regardless of their moral failings. Therefore, achieving justice based solely on ethical considerations without acknowledging the legal complexities of the situation is not transparent or honest. Hart stressed that what is unjust is not automatically void as law. If we fail to be clear about the moral and legal complexities, we risk undermining the integrity of the legal system. The challenge lies in being honest about these moral issues while respecting the validity of the law as it stood, even when its consequences were morally troubling. Hart’s Critique of Radbruch: Radbruch argued that legal positivism contributed to the atrocities of the Nazi regime by enabling the exploitation of laws for immoral purposes. He believed that fundamental principles of morality are an inherent part of legality (Recht), and that laws which contradict moral principles are not merely bad laws but invalid altogether. According to Radbruch, lawyers and judges should reject any statute that contravenes moral considerations, asserting that laws that are immoral, even if formally valid, should be deemed void. In his view, morality is embedded within the legal system, and when laws produce immoral consequences, they lose their validity. While Hart sympathized with Radbruch’s call for greater moral sensitivity in the law, he critiqued Radbruch’s stance as being somewhat naïve. Hart did not believe that recognizing the validity of laws, even when they fail to meet moral standards, necessarily leads to the abuses of state power witnessed under the Nazi regime. Instead, Hart argued that it is possible to maintain legal validity without requiring strict adherence to moral principles, and that the conflation of law and morality could lead to undesirable outcomes. Hart was particularly critical of Radbruch’s overemphasis on morality as a criterion for a law’s validity. He argued that simply declaring a law invalid because it contradicts moral standards raises complex questions about the nature of legal obligation and the stability of the legal system. Hart urged caution in confusing law with morality, warning that this approach could undermine legal clarity by conflating these two distinct realms. Post-war German courts applied Radbruch’s moral principles in several cases, demonstrating the practical impact of his critique. Many cases were decided based on Radbruch’s Formula, particularly involving individuals who committed crimes during the Nazi regime but claimed they were acting lawfully under Nazi laws. These defendants argued that their actions were legal at the time, but the courts, following Radbruch’s moral criteria, found them guilty because the laws they followed were deemed unjust and invalid. This showed the real-world significance of Radbruch’s shift from positivism to natural law, moving the debate beyond theory into practical legal judgments. Gustav Radbruch, a prominent German legal philosopher and a member of the Social Democratic Party (SPD), made significant contributions to legal theory, particularly after World War II. Before his shift in thought, he encountered the practical application of law through his work in statutory justice, having been active in both academic and political spheres. In 1933, Radbruch was dismissed from his position by the Nazi regime, but he continued to write, becoming one of the first legal thinkers to reflect on the legal and moral implications of the atrocities committed during the war. His philosophy is unique and doesn’t neatly fit into traditional categories, which makes it difficult for thinkers like Hart to classify or engage with it fully. Radbruch's Idea of Law : Radbruch’s legal philosophy revolves around three interconnected elements: justice (Gerechtigkeit), utility (Zweckmäßigkeit), and legal certainty (Rechtssicherheit). These three pillars represent what he saw as the essential purposes of law, each supporting and balancing the others. 1. Justice refers to fairness and equality in law. It touches on the moral foundation of legal systems and raises the question: Can there be law without justice? For Radbruch, justice was closely tied to morality, but he was not a straightforward natural law philosopher who believed that law and morality were inseparable. 2. Utility involves the practical effectiveness of law, how well laws serve societal needs. Laws must promote social order and achieve collective goals, and the utility of a law often reflects its ability to function in the real world. 3. Legal Certainty ensures that laws are clear, predictable, and consistently applied. Without this, Radbruch believed, the legal system would fail, as individuals must be able to rely on laws being stable and knowable. Radbruch’s philosophy, however, is more complex than Hart presents it. While he engaged deeply with the relationship between justice and law, he did not fully align with the natural law tradition, which insists that law is always tied to morality. Instead, he explored how law could operate with or without justice, especially in cases where formal legality clashed with moral imperatives, as was evident in Nazi Germany. Radbruch and Hart on Nazi Law Radbruch’s most famous critique of legal positivism came in the aftermath of the Nazi regime, where he argued that extreme injustice invalidates law. He claimed that laws which fundamentally violate human rights or moral principles, even if procedurally valid, should not be considered true laws. This became known as Radbruch's Formula, where he posited that laws so unjust that they contradict basic morality are void. Hart, however, took issue with Radbruch’s view, arguing that unjust laws can still be valid laws. He maintained that conflating morality with legal validity risks undermining the stability of the legal system. Hart believed that law, even when unjust, should still be followed to preserve legal order. This debate raises important questions: Can unjust laws be valid? Should they be followed simply because they are laws? Hart worried that allowing moral considerations to invalidate laws retrospectively, as in the case of post-Nazi Germany, could lead to instability and arbitrary judgment. Other historical examples, such as apartheid in South Africa or segregation in the United States, illustrate similar dilemmas. Both systems operated under laws that were considered unjust by many, yet these laws were valid within their respective legal frameworks. This raises profound questions about the intersection of morality, justice, and law. Can a legal system maintain its integrity if it allows fundamentally unjust laws to persist? Should citizens and legal professionals be morally obligated to resist or disobey such laws? The Intersection of Law and Morality From the perspective of law, morality can be viewed as external to legal validity—laws do not need to be moral to be legally binding. Hart would argue that the law’s function is to provide order and clarity, independent of moral considerations. For Hart, legal systems must separate law from morality to avoid moral subjectivity dictating what is valid law. From the perspective of morality, however, law is often seen as a reflection of justice. Radbruch believed that when laws fundamentally contradict moral principles, they should be rejected, even if they have legal force. This view suggests that morality can serve as a higher standard by which laws are judged. Brian Bix’s Driving Example Brian Bix offers a practical analogy to illustrate the intersection of law and morality. Imagine a society where there is a strict rule against speeding. Even though speeding laws might seem arbitrary, they exist to maintain order. If someone violates the speed limit to rush a critically ill person to the hospital, they have broken the law but acted in a morally justified way. This example demonstrates how law and morality can sometimes conflict, raising the question of whether legal rules should always be followed or whether moral considerations can override them. Ultimately, Radbruch’s critique of legal positivism and Hart’s response highlight the tension between legal validity and moral justice. This ongoing debate remains relevant as societies continue to confront legal systems that may sanction injustice while striving for a balance between law, morality, and justice. Personal example -- Abortion: today states approach to abortion in a differentiate way, since for some states it is legal and in other is not legal. The question of morality is entailed within the concept because, based on the approach taken, for some it is seen as an women’s right while for other it is totally immoral to kill an human being. In the cases in which abortion is legal, conservative people could argue that it is deeply immoral, while in cases in which abortion is not legal, supporters of this rights could think that the legal system should change the approach to this right, appealing to the freedom of decision of women on their body. Justice: the tension of the substance and the idea of law From command theory to Hart’s separation of law and morals "The law hath not been dead, though it hath slept," says Angelo ~ William Shakespeare, Act ii, 2, 90, Measure for Measure. ----------------- Session 3 Texts Hart - POSITIVISM AND THE SEPARATION OF LAW AND MORAL -- > contemporary legal thinkers argue for a closer relationship between law and morals, suggesting that these two realms are inseparable, contrary to the views of legal positivists who previously dominated the field. Eighteenth century and the beginning of the nineteenth the most earnest thinkers in England about legal and social problems and the architects of great reforms were the great Utilitarians. Bentham and Austin constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be, condemning natural law that blurred the distinction. Despite the criticism, Bentham and Austin’s work contributed significantly to liberal reforms in law and governance. They advocated for fundamental principles like: Liberty of speech and press, the right of association, clear publication of laws before enforcement, accountability of administrative agencies, no criminal liability without fault and the principle of legality; they align with modern concepts of rule of law and individual rights, demonstrating that their separation of law and morality did not make them indifferent to justice. Austin believed that confusing what law is with what morality demands (whether divine commands or social norms) leads to intellectual error. For Austin, morality was based on God's commands, with utility serving as a guide, while "positive" morality referred to socially accepted norms. Bentham also insisted on this separation but without grounding morality in divine commands. Instead, he focused on the principles of utility. For both thinkers, the purpose of this distinction was to help people recognize and analyze bad laws objectively and to understand the unique authority of legal systems, even when their laws were morally problematic. -- > "obey punctually; censure freely." This meant citizens should generally follow the law while also freely criticizing it when necessary. Bentham acknowledged the possibility of laws becoming so morally corrupt that resistance might be justified. Error recognized by Betham;  Anarchist Error: Some people, like anarchists, argue that if a law ought not to exist, then it is not truly law, and they feel free to disregard it entirely. This leads to a rejection of legal authority based on personal moral judgments.  Reactionary Error: On the opposite side, some reactionaries claim that because something is the law, it must be morally correct. This viewpoint stifles any criticism of the law, assuming that all existing laws are automatically just. Utilitarians, like Bentham and Austin, did not deny the influence of morality on law, despite their insistence on separating the two. They acknowledged that the development of legal systems had often been shaped by moral opinions, and that many legal rules mirrored moral principles. They accepted that moral principles could be explicitly incorporated into legal systems, such as through constitutional provisions or judicial decisions based on justice. Bentham even recognized that supreme legislative power could be legally restrained by a constitutio