FOUNDATIONS OF LAW-2 PDF

Week 1: What is “Foundations of Law”? To do: readings Multiple choice questions + Open question on a case You can bring the reader Session 1: Theoretical and historical foundations Learning objectives Why is it important to know the foundations of law? ​ To understand the functioning of lega...

Week 1: What is “Foundations of Law”? To do: readings Multiple choice questions + Open question on a case You can bring the reader Session 1: Theoretical and historical foundations Learning objectives Why is it important to know the foundations of law? ​ To understand the functioning of legal systems, structure & underlying procedure ​ Start critically evaluating foundations of law, questioning law and legal practices (not just legal issues involved but society issues too, see AI for instance) ​ Start navigating legal practice, not just thinking as a lawyer but improving the legal thinking ​ Contextualizing legal education and practice → foundations of law provide context & shows how social & philosophical ideas influence law (lawyers rely to foundations of law when defending) 1  ​ Global & Comparative Perspectives (e.g. common vs civil law) → as law evolves in response to globalization, understanding foundations of law will help understanding the changes due to this phenomenon What are the foundations of law? What forms the essential bedrock of known legal systems? 1.​ INTERNAL foundations -​ Legal doctrines = established principles that guide legal decisions -​ Reasoning = process by which lawyers and judges apply these doctrines -​ Rules & institutions that enforce the law = courts, legislature, administrative bodies, enforcement bodies → Machinery of the law, without which we could not imagine a functioning legal system (enforcement, guidelines to resolve disputes). Of course, different in different countries. 2.​ EXTERNAL foundations -​ Historical influence = historically legal systems are deeply influenced by specific times, moments and places in which they develop -​ Societal influence = values, norms of a given society + Law evolves in response to social change as political movements. -​ Philosophical influence = what is the nature of law, what should it accomplice? FOUNDATIONS OF LAW 2 questions always in the background: 1.​ Where does law derive its authority? Does it derive its authority from a deeper, moral, religious, customary principle OR because it is imposed by the state? 2.​ What are the basic elements that all legal systems require to function effectively? 1st HISTORICAL foundations of Western legal systems ​ The Code of Hammurabi (800 B.C.) is considered the oldest legal Code recorded in Mesopotamia. Important because of systematic approach to law, where specific crimes were punished with specific sentences. It also introduced the idea that law could be codified. Codification allows law to be more transparent and stable. The Code was taken from Iran and now can be found in Paris (Louvre). ​ Greek Law shows that there is a relationship between law and justice, which is deeply concerned with the idea of wanting to achieve a just society. Plato and Aristotle were concerned about achieving a just society through the rule of law. Law should be based on reason and promote the common good. Law is not just a set of rules, but it should reflect a set of moral principles = see Plato and Aristotle’s idea of Natural Law. 2  ​ Roman Law had the most influence on Western legal traditions, with a focus on fairness. Sophisticated legal reasonings and law that could adapt to certain specific circumstances. ​ Canon Law (religious influence of law) played a significant role in blending religious authority and the legal order → Justice in the religious sense is transcendental = externally. ​ Common Law → Primarily based on precedent, Stare Decisis = you don’t deviate from a past judicial decision, unless an extremely urgent reason comes up. It’s more flexible = fewer rules and judicial decisions guiding it. Although common law in England is not as big, due to the British Empire and colonization it has expanded throughout the World (US primarily). ​ Enlightenment Thought shaped modern law because they focused on concepts of individual rights = Social Contract Theories with Hobbes and Locke. They focus on concepts of individual rights and social contracts. -​ Locke’s theory of natural rights = Individuals have inalienable natural rights: property, liberty… -​ They shifted the focus to see LAW more as a PRODUCT of reason, of consent, of individual rights, which is a transformation that paved the way to the development of modern legal systems that prioritizes individual rights and freedoms. ​ Constitutionalism became important in the aftermath of the American and French Revolution, two important revolutions that brought to form the first two constitutions (American Declaration of the rights and duties of men, French Declaration of the rights of men). These documents codify Enlightenment principles such as the separation of power, protection of individual rights. 2nd THEORETICAL Foundations of Law 1.​ Natural Law 2.​ Legal Positivism 3.​ Legal Realism 4.​ Critical Legal Studies (CLS) Natural Law ​ Core idea = laws are derived from inherent moral principles which exist independently of an institution (outside, transcendental element), it is timeless -​ Plato’s metaphor of the cave = We only see the shadow, morality is always more that yourself -​ Aristotle, Aquinas and later thinkers like Kant = law should reflect the moral order = if the law is immoral is not a law even if the government enacted that (morality is an integral part of law). Valid law must align with morality and justice. -​ Aristotle = the content of “natural” justice (or “universal” law) is set by nature, which renders it immutable and valid in all communities = cannot be changed because of its fundamental values. Legal Positivism ​ Validity of a law does not depend whether it is just or moral but on whether it has been properly enacted by the appropriate authority following established procedures → As long as that is the case, it is valid 3  -​ Important authors: H.L.A. Hart, John Austin. -​ Separation of law and morality → The validity of a law does not depend on its morality, but if a proper authority established those procedures (whether it has been properly enacted, by a proper authority and by the proper procedure). If that is the case, it is valid. Difference between what law is and what law ought to be: "The existence of a law is one thing, Its merits or demerits are another thing. Whether a law be, is one inquiry; whether it ought to be or whether it agrees with a given or assumed test, is another and a distinct inquiry." — John Austin Legal Realism Great Hall of Justice in De Haag = where the ICJ delivers its decisions and cases ! Natural law & legal positivism focus more on abstract concepts wHILE legal realism takes a more pragmatic approach to law, focusing on how law actually functions in practice, and not just how we theorize it or write it down in constitutions. It challenges the idea that law is a static and objective system, providing that law is also influenced by personal views of judges, actors in the legal system, and the social environment. It suggests that law is deeply embedded in the society in which it operates. There is more emphasis in individuals, contexts and behaviors. “The life of the law has not been logic: it has been experience.” - Oliver Wendell Holmes. -​ It highlights the idea that law evolved through real world events and experience of those who apply law, particularly judges = law is not just shaped by rules, but also actions. Critical Legal Studies (CLS) ​ Law as a tool of power, reinforcing social hierarchies This is a more recent and radical approach to understanding law, where the current debate has evolved. Core idea = law is not objective, not neutral, but is rather a tool of power to reinforce social hierarchies RATHER than promoting true justice and true equality. ​ Legal decisions often reflect the political, economic interests of dominant groups. !!! Cannot separate law from politics, legal decisions influenced by the political and economic interests of those who have power ​ CLS questions the neutrality of law → Marxists legal theories, feminist legal theorists, challenging the traditional view of the law, are examples of CLS ideas. 3rd INSTITUTIONAL Foundations of Law → How does law operate within legal institutions and how do these institutions function? We’ll focus on structure and processes that make the working foundations of legal systems ​ Role of courts = Courts are responsible for interpreting and applying the law in practice (judicial interpretation and precedent). By determining how law applies to certain 4  circumstances. Additionally, they have a crucial role in maintaining the rule of law (Rule of law = Everyone, also the government, is subjugated to the law). Legal Reasoning and Precedent Importance of legal reasoning and precedent = how legal reasoning evolved through case law and statutes = judicial decisions are much more important in common legal systems than in other systems. ​ Stare decisis in common law systems → Once the Supreme Court decides on a certain principle, then lower courts must apply that principle as well: hierarchy ensures that law remains consistent. ​ In Civil law countries, the system is similar: if a lower court departs from that principle, it must have a good reason for that. Still, it is likely that one of the parties would appeal. ​ How legal reasoning evolves through case law and statutes. Globalization and the Foundations of Law As in today’s World everything is connected, legal systems are also no longer isolated entities, but they interact with others. This interaction between legal systems is important to understand, in order to discover a new layer of interaction that is with the INTERNATIONAL legal system. Actually, international legal systems and institutions shape how domestic law is understood and applied. ➔​ Interaction poses: -​ Challenges → In case of a conflict between the two, which one prevails? It depends on the type of conflict – ex: fundamental human rights – but also on the political structure. how do you reconcile, who decided the duties within international obligations, what about the clashes between national and international law, what about a country not able to stand to international principles = how does all this relate to not just the law but to its foundations -​ Opportunities → International law has improved legal standards such as human rights, climate obligations, but are these really an improvement or a product of colonization? ➔​ The more globalization, the more legal systems have to balance their foundations with the global principles and values. Few tangible ways in which globalization changes foundations of law 5  -​ International institutions shape national legal systems by setting standards (defining what is the law, war crime, crime against humanity, genocide) and by setting binding judicial decisions that states must follow (see the work of the ICJ through contentious proceedings where the decision is binding on the state). -​ The European Court of Human Rights sets binding decisions, but not all international institutions provide for that (some do, but with consent of the Sovereign States). PROBLEM → International legal systems lack enforcement (at least in the classical sense) which can be instead found in national legal systems. -​ UN established treaties and conventions that help shape national law usually on human rights and governance -​ ICC prosecutes individuals for certain crimes therefore can enforce international law into domestic legal systems. Key Takeaways Before this afternoon ​ How do these foundations influence modern legal systems? ​ Which theory resonates most with you? Session 2: What is Law? Hla Hart is not the first to ask this question → He starts with the question “What is law?” ➔​ Law is more than just commands: it’s a system that guides behavior. ​ Primary rules: rules governing conduct (e.g. “don’t steal”). ​ Secondary rules: rules about rules, procedural rules (e.g. how laws are made, interpreted and enforced). -​ Emphasis on law as an institutional system. 6 In the chapter, Hart did not answer the question, but he transforms the question, arguing that when we ask the question, we are seeking a solution to a different question, therefore asking ourselves the wrong question → A philosopher (Ludwig Wittgenstein)) said what he aimed was a type of therapy: rather than answering the question, he is trying to address why we are asking that type of question and understand what is really going on. Group exercise 1.​ How does Hart’s concept of law as a system of rules help us understand the internal foundations of legal systems? Hart's concept of law as a system of rules distinguishes between primary rules, which impose duties and govern behavior, and secondary rules, which address the structure and function of primary rules (including rules of recognition, change, and adjudication). This framework highlights how laws operate as integral parts of social life rather than mere external constraints. The interaction between primary and secondary rules illustrates how legal systems evolve and adapt to changing social values, emphasizing the significance of legal interpretation and institutions in upholding the rule of law. 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)? Hart's theory allows for changes in law when new societal norms appear. Judges and legislation can adapt law in response to the current needs of society. - Hart’s theory allows for changes in law through secondary rules as societies’ values change. Legislature makes new rules and abolishes old ones, while the judges can interpret law by the needs. 3.​ How do secondary rules (e.g., rules of recognition) play a role in creating a more sophisticated and adaptable legal system? Secondary rules provide the structure for recognizing, changing, and enforcing laws, making the legal system more organized and systematic - No single person is the same, different views on how rules should be interpreted can derail a system. Secondary rules help guide this mismatch of interpretations into one coherent system which is applicable to all people in the same way. Primary v. Secondary Rules 1.​ Primary Rules: Direct commands for behaviour (obligations, prohibitions). 2.​ Secondary Rules: Provide structure and adaptability: ○​ Rule of Recognition: Determines what counts as valid law ○​ Rule of Change: Allows for laws to be updated or modified. ○​ Rule of Adjudication: Establishes how legal disputes are resolved. RULE OF RECOGNITION (central to Hart’s theory) = what defines valid law within a legal system. ​ Provides criteria for what is considered law (e.g., constitutional provisions). ​ Enables a legal system to function and evolve by giving authority to legal institutions. 7 Hart’s impact on legal theory ​ Shift from command theory to a more flexible understanding of law as an evolving system. ​ Emphasis on the institutional nature of law—how it is created, interpreted, and enforced. ​ Paved the way for debates on the relationship between law, morality, and society (covered in later sessions). What are the foundations of law -​ Internal foundations = within the legal system -​ External foundations = broader context Roe v Wade (1973) This is one of the most influential court cases in the world. ​ 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. BUT → Roe must go = the ruling was overturned in 2022 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 had found a complete opposite interpretation of the case. 14th amendment No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ⇩ 8 Internal Foundations of law 1. Legal Reasoning: a.​ 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. b.​ 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. c.​ 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: a.​ How did the justices in Roe and Dobbs interpret the Constitution differently regarding individual rights? In Roe v. Wade, the Supreme Court ruled that a woman's right to abortion falls under the constitutional guarantee of privacy but allowed states to regulate abortion after the first trimester. The Court issued a press release along with its opinion emphasizing that it does not promote "abortion on demand." On June 24, 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization. Writing for the majority, Justice Samuel Alito opined, "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." The dissent noted that "rescinding an individual right in its entirety and conferring it on the State," is "an action the Court takes for the first time in history." b.​ What role did constitutional interpretation (e.g., originalism vs. living constitutionalism) play in the decisions? Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. In the first case in Roe v. Wade the interpretation used was the living constitutionalism. The fourteenth amendment was interpreted as comprehending in the "life, liberty or property" also the right of abortion. Whereas in the second case Dobbs v Jackson originalism was at the heart of the interpretation, contending that the constitutional text was not explicitly comprehending abortion and therefore not allowing it. 9 Analysis of the composition of judges COMPOSITION OF JUDGES (Roe) -​ Blackmun = republican -​ Stewart = republican -​ Douglas = democratic -​ Burger -​ Brennan -​ Marshall -​ Powell COMPOSITION OF JUDGES (Dobbs) The composition of the Supreme Court changed over time with the appointment of more conservative justices. This shift began in earnest during the presidencies of Ronald Reagan, George H.W. Bush, George W. Bush, and Donald Trump, each of whom appointed justices with more conservative judicial philosophies. By the time of Dobbs, the Court had a solid conservative majority, which played a crucial role in overturning Roe v. Wade. Key justices like Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were known for their conservative stances, including skepticism towards the Roe decision. 10  -​ Despite the presence of a multitude of republican judges that ruled the Roe v Wade case, this shows a shift in extremists view on the side of Republicans (1973 republicans were not as conservative/extremists as today’s). 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 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? 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? DISCUSSION !!! → Unique role of the precedent (due to colonialism, the common law system has spread across the world. Still, it is approached in a different way by different countries → A different interpretation within the same legal system might lead to a different decision and outcome). !!! → If we don’t look at the external foundations, we can’t fully understand the differences in the two cases. ​ In 2022, a multiple of the Supreme Court judges had just been appointed (by Trump). 11 Debrief ​ 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. And what about Kafka? There is an interesting connection between law and literature. Was the man allowed to go in? He was not specifically prohibited to go in, but simply warned about the possible consequences of its action Metaphor: law in legal systems can be very complex and, as an ordinary man that comes to see the law, it is still very difficult to enter (even if the door is made for you). Metaphor for complexity of legal systems and complexity of law. Therefore, you are allowed to go, but it is not very easy. “The logic of this story is that of a dream, or a nightmare”. Week 2: Rule of Law Recommended by the teacher: have a look at the reading before, we’ll discuss about them during class and then have another look on thursday/friday. Session 1: Rule of Law Why is it important to understand the Rule of Law? ​ Foundation of Modern Legal Systems The rule of law is a foundation of many modern legal systems → It ensures that laws instead of arbitrary decisions govern society. Without a rule of law, you don’t have a legal order (still, the rule of law is not democracy). Rule of law provides legal predictability. ​ Protection of Individual Rights The rule of law provides protection from abusive power, so that government actions are accountable as well to legal standards. Equality before the law, which does not necessarily mean that everyone is equal. ​ Economic Stability and Prosperity 12 A strong rule of law has fostered an environment where contracts can be reliably enforced, leading to trust and stability in the market. ​ Global Significance The rule of law underpins (is foundational to) international human rights. To address global challenges, you need to understand what rule of law is. ​ Prevention of Tyranny and Dictatorship Fine line between law and politics: a strong rule of law addresses concentration of power, so that people and leadership can be held accountable. Learning Objectives 1.​ Understand the Concept of the Rule of Law 2.​ Trace the Historical Development of the Rule of Law 3.​ Analyze the Relationship Between the Rule of Law and Government Power 4.​ Distinguish Between Different Theoretical Perspectives 5.​ Apply the Rule of Law to Contemporary Issues A (very brief) introduction to Plato ​ The Republic (around 380 BC) The Republic is one of the foundational text of Western philosophy and political thought. It was written as dialogue between Socrates and Plato's brothers and many others. In the book, he provides an explanation of the concept of justice and what may be achieved or not politically to reach that. According to Plato, the purpose of the government is to advance human excellence and human virtue. So, for Plato, the best form of government is the rule of philosophers (the concept of “philosopher” had a different meaning than today’s, it's a broader concept). To arrive at this idea, he poses two questions. 1.​ What is justice? 2.​ What are the limits of justice, politically? ​ Hierarchy of government In order to examine justice, he lays out five types of government, from the most ideal to the most oppressive. Philosophy (meaning at the time) = full study of human things (mathematics as well, or politics). If society was to be ruled by philosophers, then they had to be chosen carefully. In the ideal State, they were already selected from childhood, for their moral character and physical talent, then they were schooled and trained in a specific setting. Afterall, they would rule together as kings. !!! Important that temptation and corruption had to be avoided, therefore they would not receive any income. They would not own private property. According to Plato, such society was the greatest 13 chance for citizens to experience true happiness, true justice, true virtue. In reality, Plato already knew it was not realistic, but he still put it on top of the pyramid. ➔​ Each of the regimes, were dominated by different types of human characteristic (human flaws) 1.​ ARISTOCRACY = the rule of the best, the rule of the philosophers. 2.​ TIMOCRACY = a form of government in which rulers are motivated by ambition or love of honor. Nothing wrong in striving for honor above anything else, but it is not ideal, it is not enough. At least timocracy, compared to the following, is focused on peace and justice for all. 3.​ OLIGARCHY = one of the most dangerous aspects of timocracy is how easily it can turn into an oligarchy. Honor becomes replaced with selfishness, as the irresistible draw to money and corruption becomes extremely problematic. When wealth and property is placed above anything else, it means that power is concentrated in the hands of few, who will never stop wanting to acquire more. Plato did not celebrate freedom, liberty, equality as concepts of a just society as it would be today. One of the challenges of human conditions was to choose between necessary and unnecessary desires. In aristocracy, philosophers would use their superior ability to only design those things that would result in the common good (energy towards what is necessary), even in timocracy and oligarchy. 4.​ DEMOCRACY. The problem with democracy though, is that the government operates at the whim of society, therefore on what is unnecessary, deviating from the common good. Also, Plato was not fond of equality, Definition of Democracy = When the poor grow tired of injustice, they would overthrow oligarchy, using their tools to remove wealth from the government and distribute it among the people. But this mentality (mob mentality) will easily turn into a tyranny 14  5.​ TYRANNY = a government in which all power is in the hands of a single ruler. How does the tyrant come to power? By masquerading as the protector of the people. -​ Quote from Socrates REG -​ Philosopher ruler and tyrant are the opposites: While the philosopher is in control of those unnecessary desires, the tyrant is in no control. ​ “Rule of law”: law must reflect the ideal good and restrain the dangers of democratic excess that can lead to tyranny ​ Philosopher-kings as the ultimate interpreters of the law, who understand justice beyond politics. Plato’s critique: democracy can lead to tyranny, because it’s without guidance. Who should then be those who interpret the law? Of course philosophers rule. Because they understand justice beyond unnecessary desire, beyond politics, for the common good. ​ Law must align with absolute truths to achieve the common good (law must align with the good). ​ Laws that don't guide toward justice contribute to tyranny. ​ Connection to the rule of law: A just legal system is one in which the law is rational, reflecting universal truths and constraining political power. Aristotle’s Politics (350 BC) Plato emphasized ideal forms of government, while Aristotle focused more on real world application of rules, on the structure of government that could effectively maintain order and promote common good. ​ Aristotle's focus on practical governance vs. Plato's idealism. Kay Aristotle’s idea: Law should rule both government and citizens. Justice and order are secured when both rulers and citizens are subjected to the same laws. "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." When we allow laws guided by reason to govern, we avoid the risk that comes with human emotions/desire/personal ambitions (Plto’s unnecessary desires). Laws are rational, preventing arbitrary and tyrannical approaches on the use of power. Rule of law ensures that rulers and ruled appear in front of the same God. ​ Laws govern both rulers and citizens, securing justice and order. ​ Laws prevent the arbitrary use of power and help balance the interests of all. ​ Rule of law ensures rational, constitutional governance, rather than rule by decree. Just like Plato built a hierarchy of governments, similar did Aristotle: 15 These forms of government are two sides of the same coin (common interest vs. interests of rulers). 1.​ Rule of the one = monarchy (common interest), tyranny (interest of the ruler) 2.​ Rule of the few = aristocracy (common interest), oligarchy (interests of the ruler) 3.​ Rule of the many = democracy (common interest), anarchy (interest of the ruler) What can build security? → Idea of a constitution Aristotle’s Constitutional Government ​ Constitutions provide the framework for the rule of law. A constitution is the framework establishing enforcement to the rule of law. It's not just a legal document, but what shapes moral and ethical structures of society (what makes it just). The guidelines he provides are on how the common good can be achieved through/constraint by law. ​ Law serves the common good and guides citizens toward virtuous living. In this type of government, the rule of law plays two important roles: 1.​ The rule of law promotes stability by binding even the rulers to the law (rulers and ruled are bound by the same laws). 2.​ Laws are meant to be rational and objective, ensuring fair treatment for all (same treatment for all, not just for few) "It is more proper that law should govern than any one of the citizens. " → Law is placed above even the most virtuous rulers (philosophers). !!! → We are in a different era, the rule of law is not merely legalistic, but it is a deeply moral framework (justice, virtue are part of the rule of law). Still, not everyone was meant to be part of the rule of law (conditions of women, slaves). 16 Neither legal nor political theory stopped in the West nor with Aristotle. Actually, many political changes had occurred → EX: other civilizations (China: Confucio legal tradition; India: legal principles outlined in the manus sur riti; Islamic world: religion developed its own legal framework; Sharia had integrated rule and law; Christian theology). The core principle of “law should govern” remains the core concept of the rule of law. Philosophers continued to reframe the concepts of law governance and power. Just because this course is focused on Western foundational law, it does not mean that the rule of law did not develop across the world in different ways. Montesquieu and the Separation of Powers ​ Montesquieu's Spirit of the Laws (1748): Separation of powers is crucial to preventing tyranny. Montesquieu developed the idea of a separation of power as such, a mechanism aimed at preventing tyranny and to protect modern interests.  ​ The rule of law operates best when power is distributed between executive, legislative, and judiciary branches. Montesquieu argued that the rule of law operates most effectively when in political power. This ensures that no single branch is left without a check and balance system. ​ Laws provide the mechanism for checking power and preventing one branch from dominating. ​ Influence on modern constitutions (e.g., US, France). His idea had a profound influence in the formation of modern constitutional systems -​ US: division of power across the President, Congress. "There is no liberty if the judiciary power is not separated from the legislative and executive." The same people who make the law and enforce them, also have the power to interpret them → It opens the door to arbitrary power. 17 Rousseau and the Rule of Law ​ The Social Contract (1762): Laws must reflect the general will of the people. (popular sovereignty). The source of law’s legitimacy comes from the people → Laws are valid only if they reflect the general will. ​ Rule of law means laws are legitimate only if they express the collective will and apply equally to all. ​ Balance: Rousseau emphasizes that law balances individual freedom with collective good. Again, the rule of law for R is the best mechanism to balance the needs of individual freedoms and the collective society on the other hand. Comparison to Plato’s necessary and unnecessary desires. ​ The rule of law stems from popular consent, not the ruler's will → Democracy starts to manifest itself Kant (1797): Autonomy and the Rule of Law Where Rousseau focused on the general will, Kant is concerned with individual autonomy and how law must respect the individual freedom of each. ​ Moral autonomy: Laws should be based on universal rational principles that respect individual freedom. Rule of law is the way we govern ourselves according to universal rational princopes. Individuals should be treated as ends themselves and not just means. ​ Rule of law ensures that individuals are governed by reason rather than arbitrary power → Law must respect the dignity and freedoms of each individual. ​ Laws must promote justice, equality, and protect human dignity. Kant demands that law is justice and equal. We don't follow it because it's the law, because it is the right thing to do. ​ The rule of law, for Kant, is moral: laws must align with moral obligations. 18 "The law is the objective condition of the will's harmony with itself." Kant’s work was published just after the French Revolution. 20th Century → New challenges for the rule of law arise 1.​ Growth of complex legal systems 2.​ Transformation of democratic: many more people could vote (particularly women). This forces theories of law to be more precise, because of new characters coming into play. Hans Kelsen and the Pure Theory of Law ​ Kelsen developed the Pure Theory of Law (1934), which sees law as a normative system independent of morality or politics. The system becomes normative (system of rule of law = shape of society, mechanism, normative). There is a normativity in the system itself, which has nothing to do with morality and politics. ​ The rule of law means that the legal system is self-referential and must be internally coherent and hierarchical. The legal system is an entity as such, it must be internally coherent and hierarchical. The hierarchy is found among laws. ​ Laws derive their validity from a higher Grundnorm (basic norm), not from moral or political considerations. ​ Connection to rule of law: Kelsen offers a formalist interpretation where the law's structure, not its moral content, ensures order and legitimacy. It seems artificial because it is a formalist interpretation to say that the structure of law is what ensures legitimacy, rather than the concept in itself. "The law does not seek to realize moral or political goals but functions autonomously." → The rule of law is something objective, something that is not subject to desires. Raz's Concept of the Rule of Law (Reading) ​ Raz emphasizes the formal aspects of the rule of law: laws must be clear, stable, and predictable. He emphasizes how law should function rather than its content. ​ Procedural fairness is key: the rule of law prevents arbitrary power but does not guarantee justice or moral outcomes. ​ The law must guide behavior through clear and stable rules to ensure legal stability and social order. We should not expect the rule of law to deliver democracy, human rights, equality → But, legal stability is what we should expect. 19  ​ Raz provides eight principles for the rule of law (e.g., laws should be prospective, open, and clear). People should be able to grasp what the law is. Stability = law won’t change easily, but also that the law making process remains stable. This means that law is an instrument that society uses to create the framework that it’s in. But, again, it is not inherently tight to moral goodness. ​ The rule of law is morally neutral but important for stability, ensuring that society functions without chaos. ​ Raz critiques those who conflate the rule of law with democracy, justice, or human rights: "The rule of law is not to be confused with democracy, justice, equality, or human rights." It’s possible to have a strong rule of law and morally questionable laws, because that is not the end goal of the rule of law itself. → This creates a new system from what we saw so far: 1.​ Rule of law on a procedural level (Raz) 2.​ Rule of law as justice, outcomes (Plato, Aristotle) Critiques of Formalism in the Rule of Law ​ Critics of Kelsen and Raz argue that formal rule of law theories are too narrow and ignore the substantive aspect of justice. ​ Substantive theorists (e.g., Dworkin) argue that the rule of law must reflect moral values and protect rights. Moral values come from Plato and Aristotle (integral part of society); protection of rights comes from recent times. ​ Should the rule of law be morally neutral (Kelsen/Raz) or integrate justice and moral principles? The Rule of Law in Modern Times ​ The rule of law as a cornerstone of modern democratic systems. ​ Application in international human rights law (e.g., European Court of Human Rights, UN principles) → The UN has a rule of law program. ​ Globalization and challenges to maintaining a stable rule of law in the face of transnational issues. The obligation to obey the (rule of) law ​ From the perspective of law, what is the place of morality? → Next week ​ From the perspective of morality, what is the place of law? Is there a moral obligation to obey the law? 20  ​ Brian Bix's driving example: reaching a red traffic light at 3 AM, no risk of fine, no risk of harming anyone or yourself (100% survival). Are you passing? We stop for two reasons: 1.​ Consent, gratitude 2.​ Reciprocity, consequences. This example is exactly the type of situation that gives most trouble. There is no danger that you could get caught. There is also no risk of harming someone else or ourselves either. Still, some of us would not do so and would obey the law, even though in this case the law would not be undermined. If there is a general/moral obligation to obey Thomas Hobbes: the law is to be obeyed even when unjust, because no law would create chaos. Is it because it is the law or because I feel a moral obligation? ​ Arguments based on consent, gratitude, reciprocity and consequences are common. Key Takeaways Is it just a procedure, or is it more? Conclusion ​ How should the rule of law balance formal legal procedures with moral principles? ​ Can the rule of law without justice, or must it always serve substantive justice? → Both will be discussed next week ​ This afternoon: is there something such as an international rule of law? 21 Session 2: An International Rule of Law and Artificial Intelligence PollEverywhere Learning Objectives 1.​ Understand key themes from James Crawford's chapter on the (international) rule of law. 2.​ Explore how the rule of law addresses global crises. 3.​ Apply the rule of law principles to modern challenges such as AI, climate change, and cybersecurity. 4.​ Collaborate in groups to analyze practical legal issues about the rule of law. 1st Part: James Crawford's "The Rule of (International) Law" James Crawford = international legal scholar who became a judge at the ICJ (Chance, order, change). Issue about international law: how to make States comply with international obligations and how to enforce them. ​ Published as part of his Hague Academy Lecture series in 2014 ​ 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. Is the international rule of law all encompassing, is it a mechanism, is it strictly procedure, is it moral? Is it true that the international legal system is governed by the rule of law? 22 Five features of an international legal system “governed” by the rule of law 1.​ No one is outside the law, still less above it → All encompassing, equal. 2.​ The system is by some means/in some sense democratic → There is an explicit link between the political system and the rule of law. 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 There are unjust elements that need to be remedied. The international rule of law creates a framework for countries to operate within → But, challenge = enforcement is weak. There is no overarching authority that holds such power to hold States accountable (at least not in the same way as national authorities can). Accountability and Enforcement ​ How can international law be enforced if states are not fully bound? If there is no international enforcement mechanisms? ​ The role of treaties, international courts (ICJ, ICC), and customary law. Again, authority here relies on States and compliance, and the only instruments that can be used are sanctions. ​ 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? What does it mean that these challenges are different? Are they non-existant or are they simply different? 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 → Maybe more agreement/global cooperation. ​ The need for more multilateral agreements and global cooperation to tackle global crises. 23  ​ Are these challenges different in domestic rule of law settings? Group exercise: International Crises and the Rule of Law ​ Each group will analyze 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 ​ Groups submit their answers on Toledo for all to review. Five features of an international legal system “governed” by the rule of law (Cybersecurity) 1.​ No one is outside the law, still less above it No one is outside the law, still less above it → There are indeed various international guidelines and frameworks related to cybersecurity trying to encourage states to cooperate in this issues. UN actually passed some resolutions including the development of norms for state behavior in cyberspace. In this sense state-actors are all equal before the cybersecurity guidelines and not above them. We cannot state the same thing for non-state actors since they are usually the main protagonists of cyber-attacks and violations of IL. In the EU there are advanced regulations on cybersecurity (see for instance the EU GDPR), thus EU MSs have more strict regulations although this does not help the fact that cybersecurity is a global crisis and not just a European one. 2.​ The system is by some means/in some sense democratic The system is by some means/in some sense democratic → We cannot say is as democratic as in the domestic legal systems, but still some less direct ways of democracy are present in the international framework when regulating the issue of cybersecurity. See UN regulations, EU acts… 3.​ The system's authorities are in principle subject to legal constraint The system's authorities are in principle subject to legal constraint → There are some international standards regulating system’s authorities but since we are in the field of international law, legal constraint is based on consent. 4.​ There is something like a constitution of international society There is something like a constitution of international society → There is not something as a constitution, we have UN regulations, international standards and EU acts but not with the same value and power as a real constitution of international society. For this topic regulations are yet to be expanded. 5.​ Society is not irremediably unjust 24 Society is not irremediably unjust → The system tries to take society to a just one, but in the topic of cybersecurity we do not have that certainty since it’s based on anonymity and with the rapid development of technology it becomes even more difficult everyday to regulate the society. ↓ Is a domestic rule of law better suited? Why yes, why no? Could be better suited for a stricter issue since the enforcement is more practical. But when talking about cybersecurity, which is a global crisis, domestic rule of law does not have the necessary means in our opinion. 6.​ Is a domestic rule of law better suited? Why yes, why no? Submit and Reflect ​ Choose one of the other crises ​ Read and discuss other groups’ answers ​ Questions, remarks? Concluding discussion ​ Common challenges across crises: ○​ International vs. National Rule of Law ○​ Sovereignty vs. International Cooperation ○​ International institutions vs. Lack of enforcement ○​ What is the interaction between national and international rule of law? 2nd Part: UNESCO Guidelines on Rule of Law and AI UNESCO developed guidelines on the rule of law and AI. ​ Al presents new challenges for the rule of law. ​ UNESCO's guidelines offer a framework for responsible Al governance. ​ Al must be developed and deployed within the bounds of human rights, accountability, and fairness. ​ https://www.unesco.org/en/artificial-intelligence/rule-law These guidelines were considered important enough to be turned into a mooc. Analyzing UNESCO Guidelines Each module gathers opportunities and flaws regarding the topic. ​ 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 25  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? Example theme 3: in the everyday use of social media, we are immersed in algorithms capturing our preferences and interests. We are also accepting some of these conditions, every time we navigate through these platforms. On one hand, there is the consent we give, but on the other there is small transparency and clarity on what we are accepting. Thus, in case of problems with these platforms, we encounter accountability issues, not knowing to whom we have to refer to. Therefore, the accountability and transparency, which are two of the main features of the rule of law, result to be the most imminent challenges. How the rule of law can deal with them, it is a broader issue that involves the international plane. In the EU, there is the GDPR, aimed at the protection of Europeans’ data and their privacy. Yet, at the international level, there could not be such a strong enforcement mechanism due to the fact that international law is based on State’s consent. Example theme 2: Bias and non-discrimination ​ Imagine an AI system being used to help judges make bail decisions in criminal cases. The AI assesses whether a defendant is likely to commit a crime if released on bail. However, studies show that the AI has been trained on historical data that contains racial biases. This means the AI is more likely to classify defendants from certain racial or socioeconomic backgrounds as high-risk, regardless of their actual individual circumstances. The Rule of Law and Bias in AI: ​ Equality before the law is a key principle of the rule of law. It demands that all individuals be treated equally, without discrimination based on race, gender, or socioeconomic status. But if the AI is introducing or perpetuating biased outcomes, it’s violating this principle. ​ Accountability is also crucial here. If the AI is producing biased outcomes, who is held responsible—the developers, the judges who use the system, or the government that procured the technology? → If the AI made certain decisions, can I appeal? And where do I appeal? ​ By applying the rule of law, we emphasize fairness and non-discrimination, which are vital for the integrity of the justice system. Laws and regulations can mandate transparency and accountability mechanisms to ensure AI systems comply with these principles. Concluding group reflection on AI themes ​ How does the rule of law need to adapt for AI governance? ​ Where would you identify gaps in the current legal frameworks and propose improvements? 26 Key Takeaways ​ Strengthening Institutions: Effective enforcement of the rule of law requires cooperation and reform of existing bodies ​ Balancing Sovereignty and Collective Action: The tension between national interests and global cooperation remains a core issue. ​ What’s Next? How do we see the rule of law evolving to meet future crises (e.g., AI, climate change, health pandemics). ​ Next week: What is justice? Conclusion ​ "Technology is a useful servant but a dangerous master." – Christian Lous Lange ​ Nobel Peace Prize Winner 1921 The Rule of Law and Its Virtue by Raz Hayek: “Rule of law means that 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 this knowledge”. The rule of law is not to be confused with democracy, justice, quality (before the law or otherwise), human rights of any kind. A nondemocratic legal system, based on the denial of human rights may, in principle, conform to the requirements of the rule of law better than any of the Western legal systems. It will be a worse legal system, but it will excel in its conformity to the rule of law. THE BASIC IDEA In its broadest sense: people should obey the law and be ruled by it. In political and legal theory: the government shall be ruled by the law and be subject to it (“government by law and not men”). Actions not authorized by the law cannot be the actions of the government as a government, but they would be without legal effect and often unlawful. But we should look at the difference between the professional and the lay sense of “law” to fully understand its significance. For lawyers the law is the constitution, parliamentary legislation, ministerial regulations, while for the layman the law is essentially a set of open, general and relatively stable laws. But, the doctrine of the rule of law does not deny that every legal systems should consist of both general, open, stable rules (the popular conception of law) and particular laws (from the executive and the judiciary) → How to conciliate the two? The making of particular laws should be guided by open and relatively stable general rules. 2 aspects of the literal sense of the “rule of law” (literal sense = layman interpretation = general rules): 1.​ People should be ruled by law and obey it 27  2.​ The law should be such that people will be able to be guided by it (must be capable of being obeyed) → How? By guiding the behavior of its subjects. SOME PRINCIPLES 1.​ All laws should be prospective, open and clear. 2.​ Laws should be relatively stable. 3.​ The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules. 4.​ The independence of the judiciary must be guaranteed. 5.​ The principles of natural justice must be observed. 6.​ The courts should have review powers over the implementation of the other principles. 7.​ The courts should be easily accessible. 8.​ The discretion of the crime-preventing agencies should not be allowed to pervert the law. The eight principles listed fall into two groups. Principles 1 to 3 require that the law should conform to standards designed to enable it effectively to guide action. Principles 4 to 8 are designed to ensure that the legal machinery of enforcing the law should not deprive it ofits ability to guide through distorted enforcement and that it shall be capable of supervising conformity to the rule of law and provide effective remedies in cases of deviation from it. THE VALUE OF THE RULE OF LAW Conformity to the rule of law is a virtue, but only one of the many virtues a legal system should possess. The Rule of International Law by Crawford Week 3: “What is justice?” Session 1: Legal Positivism and Validity Why is it important to understand justice? 1.​ Justice is foundational to legal systems and society 2.​ Influences laws, rights, and how we address fairness and equality → Sometimes we understand as just that we are not exactly equal. 3.​ Understanding justice helps shape moral and legal reasoning 4.​ Key to resolving conflicts and building a just society 5.​ Relevant to everyday decision-making in law, politics, and ethics Learning objectives 28  1.​ Define and explore the concept of justice and its role in legal theory 2.​ Understand how justice relates to the rule of law and the foundations of law 3.​ Examine positivism and natural law theories of justice 4.​ Analyze H.L.A. Hart’s critique of the relationship between law and morality 5.​ Explore Radbruch’s challenge to positivism and the link between justice and legal principles. Defining justice Justice is a multifaceted concept, with different sides depending on which perspective you are looking at it. It is tricky to defend because it depends on the angle you look at, inevitably arrowing the concept. It is important to make clear which angle you are looking at it from, especially for the reader. ​ Philosophical definitions of justice ​ Justice as fairness ​ Justice as central to legal systems → When it comes to law, the concept of justice is crucial. Justice is a guiding principle, aimed at creating, interpreting and applying law. We also aspect citizens that are judging, to have a sense of justice. Justice and the Rule of Law ​ Rule of law as a foundation for justice → Essential mechanism for applying justice ​ Procedural fairness in legal systems = not just about moral outcomes, but also procedural fairness (same circumstances for everyone; same clear consistent rules) ​ Ensuring justice through the application of law ○​ (Allowing injustice through the application of law?) Justice and the Foundations of Law Foundations of law are deeply intertwined with the concept of justice. ​ Law reflects society’s sense of justice (on what society believes is fair and just). ​ Law codifies fairness and equality. ○​ (unfairness and inequality?) → What space to we give them in our current society? ​ Ancient influences: Plato and Aristotle. ○​ They saw justice as an embedded part of their theory on society Two theories we’ll look at today: ​ Legal Positivism ​ Natural Law Early legal positivism: Utilitarianism doctrines ​ Law is essentially a command 29 Bentham → Father of Legal Positivism (utilitarianism): law should be understood as command: sovereign to whom society is obedient. That’s what makes law valid. Validity has nothing to do with its moral content, but rather with they in which it is made (procedure). John Austin → Developed Bentham’s idea further -​ There is also the threat of sanctions applied to the disobedience of commands -​ Law is made of commands and punishments → Still nothing to do with morality -​ Commands become law if: 1.​ They must apply to everyone (general in that sense) 2.​ They must come from a particular source (the ruler, the sovereign) and this entity has to be the one most people in society regularly obey. They don’t obey everybody, but that source only. -​ ! Laws are created by the ruler (highest authority in society) = are above the law – Hierarchy. ​ A purely analytical study of legal concepts is as vital to our understanding of the nature of law as historical or sociological studies. Historical considerations = Peak of enlightenment and industrial revolution (mass production, labor becomes more important than labor rights). Mechanical approach to law = should analyze analytically the concept ​ Focus on law’s separation from morality ​ Caution in defining Positivism: ○​ Legal positivism is not a single, fixed doctrine—its meaning has evolved over time. ○​ Early positivists like Bentham and Austin focused on law as a command, but later positivists, such as Hart, offered a more nuanced view. ○​ While positivism often stresses the separation of law and morality, it doesn’t necessarily deny that moral values can influence law. ! This is not the only way to define legal positivism ! This is specifically what utilitarians considered to be legal positivism. Legal Positivism is not one single fixed doctrine. Moral values can still influence the law, despite the strictly stressed separation. Utilitarianism (Bentham and Austin) ​ Insist on the need to distinguish law as it is from law as it ought to be. ​ “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.” – John Austin ​ They recognised that the development of legal systems had been powerfully influenced by moral opinion → Moral standards have been influenced by law on the other way. ​ Legal provisions can contain moral principles ​ So: ○​ A rule is not invalid just because it violates morality (unless specified by law). ○​ A rule being morally just does not automatically make it a law. What if the laws commands are so evil that the question of resistance to those arises. What if the law as it is is not as it is ought to be? So when does it become invalid, if not when it violates morality? 30 cerca nel testo Now → Dive into the text Hart’s critique of Bentham and Austin ​ Bentham and Austin’s "command theory" is overly simplistic → SImple hierarchical relation between who issues commands (rulers) and those who follow the law (ruled). It seems that the rulers are outside the law, they do not follow it (imposed top-down and not the other way around). First, not all laws fit into this model → EX: criminal laws generally follow this command structure, telling what people can or cannot do (direct commands = you either obey them or you don’t). BUT, many other rules do not work like this: they provide opportunities for individuals to shape legal relationships between people (wills, trusts, contracts). Unlike criminal law, this type of law rather enables you to act (and shows you the way to do it). They provide people with tools. Hart: What is really missing in the utilitarian thinkers is this analysis: what is it for social groups and its officials to accept such rules? How is it that works? Keys to the science of jurisprudence is understanding how rulers and ruled subject themselves to the law. ​ Hart introduces the distinction between primary and secondary rules. ​ Hart’s focus on law as a system of rules, not just commands. As law is a system of rule, this is also how we should view the relation between commands and morality. There are two dangers in strengthening the separation between law and morality 1.​ We risk weakening the law and its authority (if we blend it too much with how it should be) 2.​ Risk of allowing the law to completely replace morality as an ultimate guide to behavior. That would prevent us from criticizing unfair laws. Important because criticizing unfair laws is not in conflict with the separation (depending on which legal positivist you follow, you will either follow that rule or disobey it). Hart’s Rule-Based Framework ​ Primary rules: Obligations for individuals. ​ Secondary rules: Rules about rules (authority, change, adjudication) → They provide a framework for the legal system. ​ The legal system as a dynamic structure → Complex system that allows flexibility and stability: tension between the two and a balance needs to be found Hart’s Positivism and the Separation of Law and Morals I ​ Law is a system of rules, distinct from moral values ​ Laws can be unjust but still valid → Law and morality are separate domains, therefore law can be valid even if unjust. Laws govern behavior and this set of rules can exist without a moral content 31 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 (“ No vehicles in the park”). Situations in which legal rules are not entirely clear, creating uncertainty in how it should be applied. ​ These cases require judicial discretion and interpretation → Hard to interpret the law without taking into account moral considerations. “We prohibit harmful conduct” = is emotional harm, psychological manipulation considered harmful conduct? (Penumbral case in which it is hard to interpret the law in certain circumstances). “No vehicles in the car” → maybe at the time in which the rule was made, bikes did not exist yet (therefore, bikes were not taken into consideration when making the rule). When making a rule, you cannot anticipate every future situation. Because of this, the intersection between law and morality is crucial to resolve these penumbral cases and morality has to be taken into account (otherwise, you would have arbitrary decisions). ​ The intersection of law and morality is crucial for resolving ambiguous cases → Morality to resolve disputes in a fair and stable manner. ​ Hart acknowledges that legal systems must account for moral considerations. ​ 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 He emphasizes that we would be misguided as well if we only would consider this separated framework, because in 90% of the cases the law is clear and we should not lose sight of this. 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 R initially supported legal positivism → Post WWII he developed a formula: ​ Radbruch’s Formula: Extreme injustice invalidates law → Legal systems should not be morally neutral, even if procedurally correct, but extremely unjust then they should be considered invalid (developed following the atrocities of Nazis) ​ “Shift” from legal positivism to natural law after WWII. ​ Law without justice is void. 32  ​ The Grudge informer dilemma. 1944, a woman seeks to get rid of her husband and report him to the Nazi for making remarks about the regime He was sentenced to death, but not executed. In 1949, a woman was prosecuted for illegally depriving her husband of its freedom. She claimed not guilty because she had followed the law at the time. BUT the appeal court found her guilty. reason: she was contrary to the moral principles of individuals. Victory of natural law and the importance of morality → Valid law at the time (established under nazi) is rejected in favor of morality. Hart does not agree, because her condemnation was achieved by declaring a statute as not having any legal force → Either you allow woman to escape punishment (because she acted according to the law at the time), either you condemn her because she acted so morally wrong (by declaring the existent law void and apply retroactively a law). Applying laws retroactively is considered a very unethical principle. Hart: important to focus on the transparency of what actually the dilemma is: the dilemma is that perhaps the law at the time was valid, so how do we still get justice despite the immorality of the valid law at the time? How can we combine a valid law and a morally correct law (he shifts the point of focus of the dilemma). If you are not transparent about the dilemma, you are not clear about the moral complexities of the law. You have to be honest about what the moral issues are. Hart’s critique of Radbruch ​ Radbruch argued that positivism contributed to the Nazi regime's atrocities. Radbruch: Nazi regime exploited a blind obedience to law (law is law). The german legal profession failed to challenge the moral failures if the law (more and more laws were created, which could be stopped). ​ He believed basic principles of morality are part of legality (Recht). ​ Laws contradicting morality are not valid, regardless of formal criteria → Lawyers and judges should reject any statutes that contravene any moral considerations. Judges should not just label these laws as immoral, but there should be a legal consequence (declare this law legally void). As morality is inside the law, the consequence of an immoral law is not just declaring it immoral, but also acting towards it and declaring it void. ​ Hart sympathizes with Radbruch's call for moral sensitivity in law. German tradition had shortcoming in the law following WWII. Hart criticizes R for being naive: suggesting that the notion of valid law, even if it fails to meet moral standards, should not have led to extreme state power as it happened in Germany. 33  ​ Hart critiques Radbruch's overemphasis on law’s validity as a moral criterion → LEgality is not the same as morality ​ Post-war, German courts applied Radbruch's moral principles in legal cases. Many court cases have been decided based on this formula → Practical impacts on future judges (actions legal under nazism = they actually obeyed the law as a good citizen should do…) Gustav Radbruch ​ German legal philosopher. He was a member of the SDP (Social Democratic Party) and a minister of justice ​ Statutory justice. He was one of the first after WWII to reflect on the war, with two widely claimed essays: ○​ Five minutes of legal philosophy and Statutory Lawlessness and Supra-Statuatory Law His legal philosophy does not fit him clearly into one of the two legal categories (legal positivism and natural law), but he rather developed an independent theory called Idea of Law. ​ Radbruch’s Idea of Law: These three elements are interconnected, but also individual. ○​ Justice (Gerechtigkeit) = is justice morality? He leaves the question open? ○​ Utility (Zweckmäßigkeit) ○​ Legal certainty (Rechtssicherheit). ​ → Without utility and legal certainty you cannot have the idea of law (similar to natural law theories). Radbruch and Hart on Nazi Law SUMMARY: Hart argues that procedural laws are valid even if deeply immoral. If you decide for another direction, then you have to be transparent about which dilemma you are facing. Radbruch, on the other hand, believe d that laws which violate core principles of justice should be considered void despite their procedural validity ​ Final question: Can unjust laws be valid laws? Can law exist without justice? ​ Think of other examples? Segregation, Apartheid. ​ Should unjust laws still be followed? Morality – Justice – Law ​ From the perspective of law, what is the place of morality? ​ From the perspective of morality, what is the place of law? Is law a command? ​ Brian Bix’s driving example Try to think of another example and think why is it unjust or just? Death Penalty = 34 KEY TAKEAWAYS ​ Justice is essential for understanding and applying the law. ​ Legal theories of justice provide different approaches. ​ Hart’s legal positivism separates law from morality but focuses on clarity and predictability in the law. ​ Radbruch argues that justice must sometimes override legal certainty, especially in extreme situations. ​ Understanding these debates helps us critically evaluate the role of justice in modern legal systems. CONCLUSION ​ Justice: the tension of the substance and the idea of law ​ From command theory to Hart’s separation of law and morals ​ This afternoon: Fuller’s response and much more! ​ "The law hath not been dead, though it hath slept," says Angelo ~ William Shakespeare, Act ii, 2, 90, Measure for Measure. Session 2: The Nature of Law and Justice Learning Objectives ​ Recap key points from Hart’s legal positivism ​ Examine Fuller’s critique, focusing on the “inner morality of law.” ​ Explore Rawls' Theory of Justice and its concept of fairness. ​ Go beyond the 20th century. ​ Engage in a case-based exercise applying these theories. Recap of Hart’s Legal Positivism ​ Law is separate from morality. ​ Rule of recognition: legal rules are valid based on established social rules. ​ Penumbra problem: judges may need to apply moral reasoning when legal rules are vague ‘A response to Professor Hart’ - Fuller HART: LEGAL RULES DO NOT HAVE TO BE MORAL TO BE VALID → FULLER CHALLENGES THIS: LA DN PENSALITS ARE ENTIRELY SEPARATED FROM MORALITY: VALIDITY DEPENDS ON WHETHER LAW SERVES A MORAL PURPOSE. Moral purpose is defined by procedure. Fuller is less concerned with the content of law, but rather on how laws are made and applied. ​ Law’s legitimacy depends on serving a moral purpose. ​ Eight principles of legality: Generality, Publicity, Non-retroactivity, Clarity, Consistency, Possibility of compliance, Constancy, Congruence between official action and declared rule. 35  ○​ Generality = laws must be general → They apply to a broad range of people and actions rather than targeting specific individuals. ○​ Publicity = laws must be made public, so that people are aware of what to expect (secret laws are impossible to follow) ○​ Non-Retroactivity laws should not play to actions that have taken place before the law has taken place. ○​ Clarity = laws must be clear and understandable ○​ Consistency = laws cannot contradict themselves → If inconsistent, they could not be applied regularly ○​ Possibility of compliance = laws should be realistic and achievable; laws must not set impossible goals for citizens. ○​ Constancy laws should remain stable ○​ Congruence between official action and declared rule = officials must apply and enforce the law as it is written, not as they interpret it. ​ These principles are procedural safeguards. ​ Law and morality are intertwined – procedural justice is essential = procedural justice creates a system that allows citizens to pursue their interests in a just society ○​ Laws that fail to adhere to this principle lack legitimacy Hart: whether a law is technically valid Fuller = Process of making and enforcing the law → Creates a bridge between law and morality Fuller’s Critique in Practice – The Grudge Informer Case Fuller responds to Hart by using the same case ​ Grudge Informer Case: Nazi-era laws were legally valid but morally repugnant. ​ Fuller’s critique: Laws that fail to meet moral standards lose their legitimacy → These laws, while they were formally valid, they did not meet the moral standard of legality. He grounded the critique of Hart in his own theory (he did not simply disagree). Remember Raz? ​ Raz’s eight principles for the Rule of Law ​ Fuller focuses on the moral purpose of law through his eight principles, while ​ Raz is more focused on how law operates as a check on power. ​ Both stress the importance of clarity, predictability, and fairness → They both developed a system to check if the legitimacy of law is fulfilled. While Fuller and Raz focus on how laws are applied (procedural fairness), John Rawl focuses on how laws are made. A Theory of Justice – John Rawls THE theory of justice (1971) → Not about procedure, but about substantive fairness 36  ​ Justice as fairness: law should guarantee equal rights and opportunities. ​ Two principles: 1.​ Equal basic liberties for all. → Freedom of speech, of assembly, of religion (non-negotiable principle). 2.​ Inequalities only if they benefit the least advantaged. → Inequalities are sometimes inevitable, but they are only justified if they benefit the least advantaged (Difference principle) ​ Veil of ignorance: designing a just society without knowing your own status or privileges → One of Rawls’ most important contribution to legal and political theories Hart – Fuller - Rawls ​ How does Rawls’ focus on fairness challenge or complement Hart and Fuller’s views on the relationship between law and morality? ​ For example, Fuller might argue that fair procedures are necessary for justice, but Rawls would say that fair outcomes are just as critical. Is it enough for a law to be clearly stated and applied (Fuller), or must the law also produce just results (Rawls)? Applying Hart, Fuller and Rawls ​ Scenario 1: Discriminatory Voter ID Law ​ Scenario 2: Retroactive Punishment for Environmental Violations ​ Scenario 3: Wage Disparity Based on Gender Scenario 1: Discriminatory Voter ID Law A law is passed requiring citizens to present a specific form of government-issued ID to vote. However, obtaining this ID is disproportionately difficult for economically disadvantaged and minority communities. Questions for Analysis: 1.​ Hart’s Positivism: Is the law valid according to Hart's rule of recognition? What would he say about its moral implications? 2.​ Fuller’s Inner Morality of Law: Does the law meet Fuller’s eight principles (e.g., publicity, clarity, possibility of compliance)? Would Fuller argue that this law undermines the legal system's legitimacy due to its disproportionate impact? 3.​ Rawls’ Theory of Justice: Would this law be considered fair under Rawls' veil of ignorance? Does it meet the two principles of justice, especially the second principle that inequalities are acceptable only if they benefit the least advantaged? Scenario 2: Retroactive Punishment for Environmental Violations A new environmental law is passed imposing heavy fines on companies that exceed pollution limits. However, the law is applied retroactively, fining companies for actions that were legal at the time they were taken. 37 Questions for Analysis: 1.​ Hart's Positivism: Is the law valid under Hart's positivism, even though it is applied retroactively? Does legal validity depend solely on the law's proper enactment? 2.​ Fuller's Inner Morality of Law: Would Fuller argue that this law violates the principle of non-retroactivity? How would Fuller critique the fairness and procedural justice of punishing actions that were legal when taken? 3.​ Rawls' Theory of Justice: Would this law pass Rawls' test of fairness? If you designed the law from behind the veil of ignorance, would you agree to retroactive punishment? Does it unfairly disadvantage certain groups? Scenario 3: Wage Disparity Based on Gender A country's minimum wage law stipulates that men and women are paid equally for the same job, but companies are allowed to pay employees based on their "expected family responsibilities." As a result, men are consistently paid higher wages, assuming they are the family breadwinners. Questions for Analysis: 1.​ Hart's Positivism: Would Hart's positivism focus solely on the legal structure and the social rule validating the law, regardless of the gender-based outcome? Is the law valid despite its controversial nature? 2.​ Fuller's Inner Morality of Law: Does the law meet Fuller's standards, such as clarity, congruence, and non-discrimination? Would Fuller critique this law as violating the inner morality of law due to its gender bias? 3.​ Rawls' Theory of Justice: Would this wage law be seen as just under Rawls' principles? How would it stand up to the veil of ignorance? Is the wage disparity consistent with Rawls' second principle, which permits inequality only if it benefits the least advantaged? PART II: BRINGING LEGAL THEORIES ON JUSTICE INTO THE 21ST CENTURY CLS ​ Critical Legal Studies (CLS): law is not neutral; it reflects power structures. ​ Law can reinforce inequality - we must assess its social impact. ​ Modern application: Who benefits from current legal systems? Is law truly serving justice? 21st Century Justice: Linking Theory and Practice ​ How can legal theory inform modern justice reforms? ​ How to critique modern justice issues: substance of law and legal system itself. ​ Explore contemporary justice movements (e.g., #MeToo, Black Lives Matter). ​ Rethinking law’s role in promoting substantive justice, not just formal fairness. 38 Justice in Modern Society: Criminal Justice Reform ​ Criminal justice reform. ​ Use Fuller, CLS, and natural law to analyze. ​ How can law be reformed to promote justice, not reinforce inequality? ​ Group discussion: Identify key challenges in achieving justice in the 21st century. Guided Group Reflection ​ Group 1 (Fuller’s Principles): How do Fuller’s eight principles of legality apply to the current state of the criminal justice system? Identify areas where the system fails to meet these principles and propose reforms to enhance procedural justice. ​ Group 2 (CLS Critique): In what ways does the criminal justice system perpetuate racial inequality? How do laws reflect and reinforce existing power dynamics? Propose reforms that could disrupt these dynamics and promote justice. ​ Group 3 (Practical Reforms): What specific reforms could be implemented to ensure that the criminal justice system serves all members of society fairly? Consider the recommendations from Fuller and CLS in shaping these reforms. KEY TAKEAWAYS ​ Justice is essential for understanding and applying the law. ​ Legal validity is based on rules, separate from morality. ​ Law must be tied to morality to serve justice. ​ Justice is fairness – laws should protect the least advantaged. ​ Law is not neutral; it can perpetuate social inequalities. Week 4: “What is a trial?” Session 1: Exploring Trial, Judgement, and Performance Why is it important to understand a trial? ​ Trials are the cornerstone of justice systems ​ Trials reflect society’s values and legal principles ​ Trials can show clashes between societal values and justice ​ Trials play a role not only in determining guilt or innocence but in reflecting and shaping public morality ​ Understanding trials helps evaluate fairness, legal systems, and justice delivery TRIAL AS SUCH: society’s commitment to resolve a case through law rather than violence. Trials reaffirm trust in the legal system and demonstrate that it applies to all individuals encountered 39 during a trial. Understanding trials can help us understand society as a whole: clashes between societal value and justice, playing a role in shaping public morality. Learning Objectives 1.​ Understand the concept and role of a trial in different legal systems. 2.​ Explore Plato’s Apology and its relevance to modern legal thought. 3.​ Compare trial procedures in different legal systems 4.​ Discuss the significance of judgment and its role in legal procedures. 5.​ Examine the theatrical aspects of trials as public performances of justice Trials in foundations of law, rule of law and justice How do trials fit into the larger picture of “foundations, rule of law, justice”? → Tial is the place where the abstract notions of legality, fairness and justice meet with real life conflicts and issues. So, in a trial the rule of law is tested. Without being able to test things in front of a judiciary, can we still say that we have a rule of law in a legal context? If there is no place to enforce rights, it is difficult to conceive a comprehensive rule of law. Rule of law also means that everyone is subject to the law and that the law itself must be public, clear and applied fairly. Without fair trials, the rule of law crumbles. They lose faith in the system of stability to deliver justice. Thus, if trials can happen fairly, then it is a good starting point to define a country as healthy. Parliament approves a law, which is then put into execution → If court considers it unlawful, then it can bring the State to trial and test its lawfulness (Balance of powers). The Principle of Legality ​ Principle of legality: laws must be clear, public, and applicable (actions can’t be punished unless they are clearly defined → People cannot be punished under a law that did not exist at the time – Retroactivity). ​ Criminal law principle: nullum crimen sine lege ​ A core part of any trial (and law itself!) 40 The judge has to decide in favor or against the law: if there is a violation, the principle acts as a safeguard, ensuring the law is predictable and fair. ​ Acts as a safeguard ​ Ensures the law is predictable and fair Plato’s Apology – Trial of Socrates ​ Socrates was at trial for 'corrupting the youth' and 'impiety’. Socrates, even though he was dreading a trial (he did not initiate it), it is the core of any trial (normally one part does not want it). Still, he uses the trial as a platform for philosophical inquiry, rather than legal argumentation. He does not try to deny the charges, but challenges the basis of how the court and the law behaves in Athens. ​ Defense of philosophy and questioning authorities Important because it shows how trials can be more than legal arguments and judgment → Serves as a moment to question the foundations of justice itself. ​ What is the meaning of Socrates’ Trial? ​ A trial of ideals: ○​ Justice as the search for truth → How should society deal with philosophers lije him ○​ The role of persuasion and rhetoric (“Language is law, law is language”) David – The Death of Socrates (1787) At the end, Socrates gets convicted, he is guilty and, thus, sentenced to death by drinking poison. But rather than simply dying, he turns it into a lesson: rather than fleeing when the opportunity arises, he faces his fate. Socrates’ trial does not end when the trial ends: difference between the legal process and the trial → After the trial is concluded, people shall move on together with the consequences of the trial. 41 Theories of the Trial: our justice theories ​ Fuller’s Procedural Morality: ○​ Law must follow moral principles of clarity, consistency, and fairness. If we argue that law and morality are deeply intertwined, a trial cannot just then apply rules mechanically, but the outcome should include both (legal and morally good). Natural law: trial is about finding justice, not just applying the law. ​ Hart’s Legal Positivism: ○​ Law is valid if it follows procedural rules, separate from morality. A trial is about applying legally, valid rules and less about their moral content. This changes the view of the trial's purposes. ​ Critical Legal Studies (CLS): ○​ Law is a tool of power, often reinforcing inequality. Trials seem to offer justice, but they can actually reinforce social hierarchies, biases. → Thus, depending on the view we assume, the function of trials changes. Trials in different legal systems ​ Civil Law ​ Common Law ​ Other legal systems Let’s take a look from a comparative legal point of view Comparative Law – Civil and Common Law Trials ​ Common Law Trials → Winning the case ○​ Adversarial system: lawyers control the narrative The two parties present their cases and the judge serves as an impartial referee. Often, the jury is involved in choosing the outcome. The judge serves as a referee, basing its decisions on precedents (previous case law) ​ Case law (precedent). ​ Civil Law Trials → Uncovering and finding the truth ○​ Inquisitorial system: judge as investigator. ○​ Codified law. The judge takes a more active role in investigating the effects of the case, gathering evidence, and questioning the witnesses. less about contesting the two parties, but more as an investigation of the court itself. The judge bases its decisions on statutory laws. 42 Comparative Law – Other Global Systems Not all trials are based on the same procedural framework ​ Islamic law: the role of divine authority. Trials are deeply intertwined with religious principles and divine authority can take precedent over statutory law. ○​ Judges not only as legal authorities but also interpreters of religious texts. ○​ The approach to evidence and legal procedure can differ greatly from Western trials. ○​ Prioritizes reconciliation and forgiveness Their role goes beyond solving disputes → Rule of admissibility of evidence, number of witnesses can vary across legal systems. Rater than just a process of justice, important role for reconciliation and forgiveness ​ Customary law: community-centered justice. ○​ Trial can take a different form: it may not resemble a courtroom as expected to be. It could happen during a community gathering, the judge might not even be present. ○​ Focus is often on restoring harmony within the community, rather than retribution or deterrence. ​ Hybrid systems: blending of common, civil, and customary/religious law. ○​ These systems often arise in former colonies, where colonial framework emerged with local laws (South Africa) The concept of trial in a hybrid system might be a mix of everything → We cannot assume that trials will look the same across the world, just because we had learned it in our legal system. When does a certain difference starts to conflict with the rule of law, principle of legality of abusive power? How can we tell when a trial is wrongly conducted when there are such differences among legal systems? Comparative Law: Trials across legal systems ​ The idea or concept of a trial can take different forms in different legal systems ​ The purpose or object of a trial can differ in different legal systems Only if we understand the trial in the specific legal system, can we then evaluate the idea/concept and purpose/object of the trial itself. Why Trials Matter Globally ​ International Criminal Court 1998 → After the World Wars, the International Community decided the