FoL people + concepts

Aquinas

legal theologician, defined law as “the ordinance of reason, for common good, made by Him, who has care of the community, and promulgated

1. As humans act upon reason, if the law does not make sense, it is not valid, and humans will not act upon it.

2. it must be for the common good, not just 1 person

3. the legislation creates a law for the community

4. people must know about the law for it to be enacted

He defines 4 types of law.

1. eternal law - as commanded by God

2. natural law - participation of rational creatures in eternal law, through reason

3. human law - codified rules which attempt to align with natural law

4. divine law - law revealed through scripture and rleigious teachings

What is a social contract?

An implicit agreement among members of society to cooperate for social benefit

Hobbes

• 17th century - Social contract theory

• a SC exisst to ensure peace and security

• revolt against govt is wrong unless SC concept defied (aka no social benefit)

• absolute soverign is needed to maintain peace and prevent chaos, cannot hold them accountable for anything

• consent of the people is needed for legitimacy

Locke

• 17th c - social contract theory

• consent of the peple is needed for legitimacy

• soverign power should be limited

• revolt against govt is ok when disagreement

• humans are rational and moral, they will thus maintain order (aristotle theory)

Hume

• 18th c - social contract theory

• humans cannot stay without an effective govt (having bad authority is better than none at all)

• revolt is ok if teh safety of people is at risk in tyranny

• promises cannot be the foundation of civil society bc they only become meaningful within an established social framework

• consent is not needed for legitimacy bc , historically, there was no consent → in pratice, people accept from natural consent

Hotman

• modern codification

• wanted to codify french customs bc those were the only legitimate source of law

• disappointed with codification because the customs were still influenced by roman law.

• the people who codified the law only kneow roman law, and how roman law was codified.

• he wanted to completely get rid of roman law in french law, but can’t

• criticises mos itallicus, the corpus was written by manu authors at many different periods, and mos italicus didn’t consider historical context (since different ideas at different times)

• the french method is the french way of codifying french local law, which is explained in Antitribonan

Bentham

• 18th - utilitarianism

• life circles around pain and pleasure

• pleasure is morally good and pain is morally bad

• he also believe that law shouldn’t eb mixed with natural law, that it mixed two seperate ideas

  1. describing the law as it is - called expository jurisprudence

  2. judging the law morally - called censorial jurisprudence

• he belived that mixing these two were dangerous bc he belived laws should be judged based on their utility, and not vague ideas abt natural rights

mill

• 18th

• pleasure has two types: higher (mind), lower (body)

act utilitarianism

• act is justified if it brings maximum utility (minimising suffering)

rule utilitarianism

• act is justified if it conforms to a rule, teh general following of which brings maximum utility

Kant

• deontology - 18th c.

• focus on the morality of the act itself, consequnces are irrevalant

• what is right is a categorical imperitive, meaning whatever follows from this, you MUST follow that, no exceptions.

  • conditions:

    1. act is only willing a maxim, which becomes universal → “would i want everyone, everywhere, to do what i’m abt to do rn?”

    2. act treating humanity as an end rather than a means → you don’t use people to your advantage (everyone is equal)

Hart

• 20th c. - legal positivism

• a law cannot exists if it doesn’t come from a valid legal source (origin)

• 2 types of law

  1. primary - imposes duties

  2. secondary - confer powers, regulate procedures

     • rule of recongnition defines what law is

       • accepted by officals → high authority

       • general acceptance → by the people

• judges have discretion, they can follow general principles in hard cases

Austin

• 19th c - legal positivism

• laws as commands by the sovereign → a sanction is imposed when its not expected

• law is laid down by a supreme legislative body

• judiciary: judges can’t make new laws - they only rely on rules

  in the case of hard cases, they simply may not solve the case

Dworkin

• natural law - 20th c

• legal principles come from natural law and that is what makes them legitimate

  • come from practical application over the years

  • they serve as huide lines, and you try to balance thm out

• rules apply in all or nothing manner

• in hard cases, judges can restory to principles to help interpret rules

Smith

18th c - economics

• the country who is the best at producing goods, should be the only ones producing that (this is called absolute advantage)

• belives that people act upon their own self interest

  • the invisble hand theory: the self interest unintentially contributes to the public good, through competition (in prices and quality, AND wages and productivity)

  • free market: the market is self regulating

• the govt’s role is limited to three

  1. protection against foreign attacks

  2. to establihsed admin. of justice

  3. provisions of public good (roads, schools, etc.)

     → essentially where private actors can’t profit from it

• intrustion fo teh govt distarts the function fo the invisble hand

Rawls

• economics 20th c

• promotion of equality

• guarantee of fundamental rights

• govt rule

  • promote quality if society

  • active role

• justice

  • veil of ignorance: decsion makers are not aware of theur socila position and natural talents

  • principles of justice:

    1. equal, basic rights and liberties for people

    2. fair equality of oppurtunity

       → or at least the inequalities benefit the least advantageous

• egualitarianism

  • veil of ignorance : every generatoin shoudl save and pass on the same amount of ressources as it recieved

    • criticism

      1. communications: cannot ignore individuals indentity, ambitions and indentities → it does not reflect their moral belief

      2. there is no guarantee that future generations won’t change institutional rules. We have diff values and politics between generations

      3. if there is a free market, it goest against the savings. If there is freedom on consumption and freedom of trade, how is saving possible

         -. no institutional restriction bc then the market isnt free anymore.

Malthus

• theory of population

• it is impossible for food supply to keep up with human growth (reproduction)

• preventive V. positive checks:

  • preventive checks are within societal control involving mainly moral restrains.

  • positive checks involve natural phenomena which increase death rates (i.e starvation) → non-intervention of society

• poor laws: the govt should not aid poor people, they should be able to sustain themselves or die, and naturally decrease the popluation rate

David Ricardo

• theory comparative advantage

  • a country has a comparative advantage in prodcing a good if it can do so at a lower oppurtunity cost than others → they give us less, they are more efficient

  • Comparative advantages are sufficent for mutual gains of trade

    • essentially not the best, but better than others in the market

Ohlin-Hecksher

19th c - economics

• introduced FoP as labour, land and capital as affectnig the efficieny in producing a good

• FoP = factors of production

• some goods require more capital (machinery), more labour (manual work), or land

  → nations then trade based on which FoP is more abundant to them

Dani Rodrik

• globalisation has gone too far

  1. eco-specialisation - if you specialise too much, you disregard other sectors, and then you’re vulnerable bc you rely too much on trade

  2. distributinal impact: so open to trade that you neglect domestic groups, and on one buys from them

  3. democratic erosion: policy making is dictated globalisation rather than domestic priorities

  4. geo-pol friction: flase assumption that building relations will liberate authority regimes

• trilemma of globalisation

• national sov., democratic policies, and deep economic integration (hyper-globalisation) → only 2 out of three can co-exist

  1. golden straitjacket - countries give up domestic policy flexibility, to remain competivite

  2. global federalism - countries give up natinal sov. to form a global democratic govt. or institutions that can govern over global markets freely (think of the EU)

  3. Bretton-Woods compromsise - countries maintain control over their doestic economics (sov. + democracy) but they limit globaisation to avoid losing control

• meta regime → for global order

  1. prohibited actions - clear harm like manipulation or unfair trde pratcices

  2. negotiated, mutually beenficial policies - trade agreements, tariffs, bargining, etc.

  3. indepentant actions - domestic policies taken without internatinal coordination

  4. mulilateral governance (towards public good) - urgent ssues like climate, pandemic, etc.

     • goals of the meta regime?

       1. encourage transperancy and trust

       2. allow flexibility while minimising conflicts

       3. build coorperation overtime

• thiner globalisation

  → a more limited, modest version of globalisation, one that respects national cov. and democracy decision making

  → “we don’t need to completely reject globalisation, but we must step back to a level that allows countries to maintain control over their social, economic, and political priorites

Friedman

• 20th c. economics, laissez faire

• limitied govt intervation - there is a need for a free society with limited govt.

  • individual responsibility to respect freedoms and acheive goals.

• the govt. plays a role as a total for goals, protecting freedoms, and maintaining order

  → it is not supposed to give things to people freely

• there is a need for a dispersed (decentralised govt) to avoid the concentration of power

  → this consituts a threat as a part fo an abuse fo power

Balkin

• He says that Law can limit the abuse of power, by setting rules and boundaries, while also enabling power by creating the structure, roles, and capacities that make coordinated action and governance possible.

Thomas Berry

anthoprocentrism is the main cause of teh ecological crisis, and humans must rethink about their place in this world → they shuld create laws for nature

In what context did the French want to codify law?

• France wanted to codify their customary law, since they estimated that Roman Law shouldn’t apply to them, as it’s different location and time (humanist times).

Why were the French King and Hotman disappointed?

• The King was disappointed because while, trying to codify customary French law, he wanted to gain more power, by distorting them. However, French customary did not talk about the King’s power, so there was - no law - for him to distort.

• Hotman was disappointed because teh customs were still influences by Roman law. the people who codified FCL only knew and studied roman law, and how roman law was codified. He wanted to get rid of Roman law in French Law, but he can’t, because of the lasting impression of it.

Consequentialism

• focuses on the outcomes or consq. of an action to judge its morality

• action is right if it produces the best overall results, such as happiness in utility

Deontology

• focuses on the morality of the action itself, independant of its outcomes

• actions are considered right or wrong on whether they adhere to morale rules, dities or principles.

Legal positivism

• Defines what makes law legitimate

• it says morality is sperate from law, it does not make law legitimate, the authority does.

Consumer surplus and Producer surplus?

CS: the difference between what a customer is willing to pay V. what they acc pay.

PS: the differnce between what a producer is willing to sell their product for V. what they acc sell it for

How does int. trade affect global welfare? How does it damage local producers?

In trade, there are home gains. consumer surplus increases because consumers are able to pay less for a product (in int. price), than what they orginally were willing to pay (at home price)

According to Adam Smith, individuals act upon self-interest. This self-interest unintentially increase welfare through competition (of price and quality, and wage and productivity)

In contrast, local producers lose, since their PS decreases in trade, as less people are willing to buy from them, hurting their profit gain. This causes (some) unemployment.

How are consumer surplus and producer surplus affected by tariffs?

• CS decreases, as the price consumers were willing to pay is lower than the market pric, which increases because of tariffs.

• PS increases, as the price producers were willing to sell their price are now lower than that of the products which were traded in, making their product “cheaper”, and consumers will be more inclinded to buy local’s products, increasing their profit gain.

Socialism (history + literal def)

• history: while in a capitalist system, in which the working class were at a disadvantage constantly. There were no compensation for work accidents, for exmaple. The industrial revolution arose.

• eco-pol system where the means of production are collectively owners, and administrated. Meaning the govt had an active role, unlike capitalism.

Capitalism

An eco-pol system in which a country's trade and industry are controlled by private owners for profit.

what are the three main theories of socialism?

• State socialism

  • the state is fully regulating the market

  • govt. ownership/foster & subsidising cooperatives

  • the state is an impartial power

  • beneficiaries

• marxism

  • there is an idea that the bourgeoisie opresses workers

  • the main goal is that the working class rule

  • profits and markets are no longer the main goal

• communism

  • goes beyond socialism

  • there is a presupposition that there is a superabundance of goods

  • govt over people when administring things

  • everyone gets what accords to their needs

what are the main characteristics in capitalism and socialism?

• capitalism

  • privtaely owners

  • decentrlsed control over market

  • goal = max profit

  • prioritise individual freedom, to the detriment of social good

• socialism

  • state/collectively owned

  • more centralised

  • goal : social welfare

  • prioritise common good > detriment of individual freedom

  • wealth distribution aims to be more equal

what is the republic position in constitutional democracy?

• democracy comes first, the will of the people

• too much power to unelected judges

• govt. should have the power

what is the liberal position in constitutional democracy?

• aim to balance democracy with the rule of law

• democracy must respect constitutional rights and limits

• democracy itself is not enough, there must be a check on govt. power

what is strong judicial review?

• matches liberal position

• const. court have the authority to annul a govt. act if it does not comply with the constitution

what is weak judicial review?

• matches republican positition

• constitutional court cannot invalidate a govt. act, even if it goes against the const.

what is intergenerational justice?

• relationship between present and future geenratoins, it aims to protect the right of huamns to ressources, environnemenet, etc. → moral responsibilities between differnet gens.

what are the main challenges of intergenerational justice?

1. uncertainty about future preferances

2. uncertainty about future effects

3. lack of reciprocity (they can’t give back)

what is utlitarianist persepective on intergenerational justice?

• Parfits Dillemma:

  1. non-indentity problem: the policies we choose affect the people who are born in the future

  2. repugnant conclusion:

     1. huge popluation, but 10.000.000 units of welfare OR;

     2. small population, but 100 000 units of welfare

     → the typical utilitarian woudl choose A bc of more units of welfare in results

what is discounting in intergenerational justice?

giving less value to the future complied to the present

What is Earth jurisprudence?

it’s an emerging legal philosophy that recognizes ecosys and natural entities have the rights to exist, thrive, evolve.

What is representation in Nature, and why are there problems in representation?

since Nature cannot speak for itself, it will need someone to speak for it (anyone, or an appointed guardian)

problems:

• not everyone has the financial means to go to court

• cannot be the govt. bc then it defeats the purpose of natural rights

  so then:

→ appointed guardian

• specifically connected to territory

• indigenous people, scientifc, activists (personal connections)

• guardian compensates if damage

why are there legal and political problems in allocating rights to nature?

• representation

  • not everyone has the financial means to go to court

  • cannot be the govt. bc then it defeats the purpose of natural rights

• formulation

  • if they (the laws) are formulated in an efficient way, it is bound to lead to counter productive result

    → if guardian is ineffective

• property right V. nature rights

  • nature is often seen as property, and within property rights, one has the right to do whatever they want, INCLUDING destory them

recepition of ius commune

• ius commune is a collection is canon law, feudal law, and roman law

• the reception was facilitated through:

  1. an establishment of a central court for all legal issues

  2. codification of local customary law (aka ius proprium)

     • conditions for the customary law to be considered customary law : lonstanding use, and consensus about use.

what are the different types of legal procedure through time?

1. legis actiones

   • from before 750 BC until mid-late Republic

2. formulae procedure

   • from 300 BC till dominate era in empire

3. cognition procedure

   • from 27 BC (edictum perpetuum) until 1453

what are the characteristics of legis actiones?

• established by priests

• included the oral procedure

• 5 solutions avaliable, to resolve disputes

• if none could be applied, then formula procedure was applied

what are the characteristics of formula procedure?

• types of law

  • ius civile → only roman citizens

    • sources of law: XII tables + unwritten customary law + codex (legislation)

    • if no solution, ius honorarium

  • ius honorarium

    • sources of law: formulae edicts (written by praetors (apparition in 367 BC)

    • 2 stages:

      1. in iure: dealing with question fo law (hearing of facts)

      2. apud iudicem: iudex → hearing of witnesses and considering other evidence

• context: there was an increase in number of cases wherevy disputes could not be settled via ius civile, so the praetor strated doing 2 things:

  1. extensive interpretation of existing remedies

  2. creation of new remedies

     → roman law was not applicable to non roman citizens, so a solution was to create a system whereby both Roman and non roman citizens could be heard

     1. praetor urbanus: jurisdiction over cases concerning roman citizens

     2. praetor peregrinus: jurisdictions over cases involving one non roman citizens

        → sources of law: ius genitum - a specific type of ius honorarium bc it is developped by a praetor and its subcategory

        → manages interaction between individuals of distinct communities (applies to alll)

        → customary principles shared amongst the communities.

        → since it’s more general, the praetor had more liberty to apply

what are the characteristics of cognitio procedure?

• edictum perpetuum

  → edicts do not change, since praetors are annual, so the dicts also went and came w the praetors. In this, the edicts did not change

• cognitio procedure was envisaged by Emperor Hadrian (117 - 138 BC)

1. a new praetor appointed annually lost the right to create new edicts

2. 1 stage

3. judge = imperial offical (used to be private individual)

4. praetors are replaced by group of juristis → gave responses

5. classification into seperate categories of (Gaius Institutes) - objects, persons, actions.

6. appeal is possible

7. development of legal concepts such as good faith

in what context in the rediscovery of Roman Law happen?

• Investiture Conflict (1075 - 1122)

  • the Bishops were highly influential figure, appointed by the pope only when the emperor saw a chance to get involved and acquire more power, the investitutre conflict started

  • the conflict marked the confrontation of secularism and catholicism to determine which authority was deemed superior within the Empire

    → neither Emperor nor pope position was justified as lack of ecclesiastical focus

  • the interest in legal justification motivate scholars and instritutre to search for legal texts. in essense, the Digest (the Corpus) was prob. deliberately brought forward by the people who had access to it.

  • in the 12th c., led by Bologna University, after discovering the Digest, and with the rise of learning centers, and the adoption of sholasticsm

    → Corpus has already arirve in Florence

What is Corpus?

• Corpus Iuris Civilus, by Emepror Justinian (Byzantine, east eu empire) aimed at recreating the former Roman Empire

• sources of law:

  1. Digest (40% Ulpian)

  2. Institues by Gaius

     → selectoin of the works of classical jurists

  3. Codex: imperial legislation of Justinian and his pre-decessors

• was seen as an absolute and irrefuteable law!

• Split law into three types: persons, things, and actions, which inspired other laws like Napoleon Code.

What is Scholasticism? (commentators + glossators)

• Scholasticism

  • once the scholars had reconstructed the Roman legal texts, they began studying them using a method called scholasticism

    → it was a method applied in science, philosophy and law when the main point was search and discovery of truth

  • belief that Roman texts has an underlying harmony, even if they seemed contrary, to was their job to find harmony, through 2 methods:

    • distincio → distinguish between fragments that appeared at first glance to be indentical

    • regula → uncover that rule that explained their consistency (figure out the general rule that explained those decisions)

• School of Glossators

  • Beginning of school of glossators, who made annotations on the Digest about the meaning of words and the interpretation of the Corpus

• School of Commentators

  • also focused on Corpus, but this time trying to explain its content, having much more fredom of interpretation, and focusing on the pratical analysis of Roman Law

when did ius commune first emerge?

• during the rediscovery of Roman Law

  1. canon law

     • sources of law: a forged collection of letters and decrees attributed to popes was used. many docus were invented to defend the church’s power against rulers

  2. feudal law - law between lords and vassals

     • feudalism: a multilayered system with minor lords as vassals of greater lords

     • feudal law: regulated on the relations between lords and vassals

  3. roman law

how was the law affected by christianisation?

• 590: Pope Gregory was in ‘power”

• Christianity was the official religion → crystalized the importance of the Church

• Where canon law was silent, they would rely on the Corpus Iuris Civilis (6th c.)

how did protestantism affect law?

• protestantism came about because protestants belived that the church had too much power, and they wanted to translate the bible (making it universal) into languages that everyone understood, rather than latin, which no one rly understood than priests

• they wanted to people to be able to pratice catholicism on their own, without a priest telling them how to understand the bible in a church

• they estimated that the catholic church was corrupt, since they would provide “salvation” to the rich (since salvation cost quite a lot), and left the poor to believe they would go to hell for their sins (bc they were too poor to afford salvation)

Rousseau

• the birth of society, not the state of nature, causes war and the original contract “eternally fixes the law of property and inequality”

• he believs the individuals intentionally place themselves under the will of a sovereign, and we view other members of society as an indivisble part of society.

• those are parties to the contract do not retain any of their rights → the sov. is absolute

Lilian Spies

• analyses the US constitution through the social contract theory by Locke and Hobbes

• argues that const. changes are an ongoing process initiated by socital needs and societal evolution

• The US const. is written vaguely to facilitate inevitable societal changes

• argues that consent is imprtant for legitimacy of SC, whether explicit or implicit