Foundations of Law

Ius genitum (Praetor peregrinus)

Ius genitum:

- Universal system fit for any person (private law)

- Adopted legal principles shared by all humans e.g. good faith

- Embody natural law

For law in general - preator publish edicts (list of remedies he would accept) cusotmary to accept edict of predecessor.

Ius honorarium/Ius Praetorium (cognitio and formulae procedure)

137 CE: Edictum Prepetuum

- Emperor Hadrain told jurists - record and fix praetorium edict

- "Perpetual edict" - ius honorarium set in stone

Ius honorarium: body of case law not logical or coherent

- consisted of edicts

- classification into separate categories (Gaius Institues: Law of persons, Law of things (including obligations), Law of actions (actions available to litigants))

- Development of legal concepts

- Invention juridical instruments (legal presumption)

Christianity regarding roman dispute settlemments

Extends roman citizenship to all residents of empire so distinction between non-romans and romans within roman empire, ius genitum now only for people outside of Roman empire

3. University of Bologna

1088: New group of intellectuals - PAN-EUROPEAN environment formed and stable.

- Latin as lingua franca

- International community of students and professors

- scholastic method

11-12th century - emergence of schools for higher education

Studium generale. At least one "higher faculty"

- theology, roman/civil law, canon law, medicine - Bologna and Paris (1150)

4. School of Glossators

Late 11th-13th century --> Rpgerius taught Glosators methodology, Glosses = annotations between lines interpet c.ic. + explanatory.

- AIm of Glossators to intepret roman law, systemized and treated roman law in a way that brongs out truth of inherent coherence (belived it was rational, perfet and never quesitoned validity)

Commpilation of Glosses in large bodies = apparatus

- Scholasticism

- First generation of ius commune scholars

7. School of Commentators

14th-15th century:

Practical application to real disputes of roman law - develop doctrines (content development original) - added to text of corpus iuris by writing commentaries (essay's on the side) - combination of corpus iuris is auctoriats - so did not question its internal consistency and validity - used scholastic method:

1st technique - distinctio (show differences of fragments although may seem similar),

2nd technique - equiberazio show similarity of fragments although may seem distinct

- Had more autonomy because could come up with own applications

- Method - Scholasticism - harmonize and prove coherence of c.i.c

"Four Doctors of Bologna"

12th-century Italian jurists + leading glossators at the University of Bologna. Students of Irnerius who solidified the study of Roman law—specifically Justinian's Corpus Juris Civilis—reviving its influence across Europe and influencing Emperor Frederick I in 1158

Diet of Rongcaglia - assembly convened by Holy Roman emperor - 4 doctors came and interacted with emperor - the diet's content was to re-establish political authority of emperor through the intellectual authority of Doctor's. Emperor issued decree (privilegum scholasticum) which allowed doctors to move freely between kingdom's/feudal territories where the universities were, to reside there, learn there, attend the uni's etc

Why focus on c.i.c. after 12th cent. renaissance?

Message of Corpus iuirs fitted the plans of Popes, kings and regional princes well, was full of unlimited power of emperor who not bound by law - axioms applied to medieval kings. Also creation of first law schools, writing of first legal treaties and ordering of huge mass of legal materials

Corpus iuris favoured centralized hierarchical state and organized streamline bureaucracy.

Strenght of Roman law that led to its further following

Roman law had universal character no belonging to particular time or place. Based on logic and reason - and was widely applied to interpret other authoritative legal sources and wiritngs.

Corpus iuris, language clear formulated

Law could be replicated - universal character

Political strength - support leaders.

Thomas Aquinas

1225-1274:

Born in Sicily, studied in Paris and Germany, Author of one of the most representative doctrine of Scholasticism and famous Summa theologiae. Italian philospher

Aquina's concept of law

Law = a) ordinance of reason b) for common good c) made by him who has care of community d) and promulgated (cumulative)

Concept covers 4 laws (all following the concept)

1. Eternal law = divine providence God as lawgiver, governance by God. a) eternal law is logcial and directed at rational prupose of leading/guiding his followers to good Chrisitan lives, b) for common good as leads to good Christian lives and path towards heaven c) community = everything, d) promulgated in divine word and wiritng of book of life (not hte bible)

2. Natural law (part of eternal law) = moral compass. a) ordinance of HUMAN REASON for natural law and community that is humanity b) moral compass c) applies to raitonal creatures - all human beings d) promulgated as instilled in human law/hearts - god makes natural law

3. Human made law = a) ordinance of deliberate reasoning b) specifies and adpats to concrete contexts and cultures. c) applies to humans part of a poltiical entity --> certain state/city d) promulgated by written laws

4. Divine Law = a) ordinance of god's reason b) guide human's toward ultimate purpose, perfection virtue c) applies to community of believers d) promulagted by bible and canon law - revelation

Aquina's Natural law theory:

Rationalism + Realism

Aquinas argues that the universe has a rational, objective structure (Realism) and that human beings possess the built-in mental tools to understand it (Rationalism).

John Locke - social contract theory

Conext: Influenced English Revolution 1679-1680, wanted to support it through his legal theory.

Nature:

Individuals born with inalienable natural rights to life, liberty and property. State of nature: state of peace, good will, assistance characterized by absence of judicial authoirty (war not necessary but possible). Man free to dispose of himself or possession but not detstroy him or anything created in his possession unless required for nobler purpose. People moral beings who live peacefully through reason.

Why does contract arise?

PPl resigned their power to hands of government to protect natural rights to life, liberty and property and adjudicate disputes. Property rights insecure, remedied by giving some of their liberty to sovereign whose purpose to protect subject's entitlements. Community acts according to the will of the majority, sovereign power for the preservation property. Should government exceed the limit of its power, can be altered or removed by people for a breach of trust. → 1632-1704, Legal theory to underpin English revolution

Between whom contract?

Between subjects and government. Government is accountable to people.

Content of contract?

Protection of fundamental rights. Constitutionalism limits the government. Locke social contract established that the constitution should protect fundamental rights. (More content than in hobbes)

Role of contract in legtimizing law:

Legitimacy of law comes from social contract -> consent. Locke = TACIT consent (those who do not explicitly consent, agree implicitly but can be argued against - e..g language, culture.

Possibility of disobedience?

Can disobey to quite a large extent - can remove people

Thomas Hobbes - Social contract Theory

Context: Leviathan 1561, inspired by English civil war - breakdown between Royalists and Parliament. Wrote Leviathan to advocate for absolute authority - was a monarchist.

Nature: inclination of all mankind = restless and perpetual desire of power after power that ceases only in death. Men drievn by passions and desires which end up inevitably in conflict with each other

Why contract arise?

Social contract arises to leave state of violent nature of men. Natrual law in background and want to get out of state of nature so social contract. Believed required powerful central authority to enforce social covenant

Between whom contract?

Contract only between subjects, the sovereign is not bound or part of it.

Content of contract?

Sovereign's vague duty protects citizen's safety and internal cohesion of state.

Ensure stability and political order + protection in exchange for submission to the sovereign. Hobbes ' social contract simply gives authority to the sovereign.

Role of contract in legtimizing law:

Legitimacy of law comes from social contract -> consent.

Disobedience?

No Disobedience due to absolute power - if subjects accept the sovereign must also accept his law

Canon law Christianity - social contract theory

Context: 312 BC permitted in Rome. God + Emperor, Did not have right to be heard in fair trials, religious fair practices convinced.

Why contract arise?

NO social contract

Between whom contract?

NO social contract - only believers in God

Content?

No social contract so content = only content of canon law

Legitimacy of law?

Legitimacy of law comes from God. E.g ordinance of reason under Thomas aquinas is most of the time the reason of god.

Disobedience?

If disobey law = no living virtuously so no reach happiness. Ecclesiastical courts. Thomas Aquinas and Aristotle.

Secondary v Primary law accoridng to Hart

Primary rules - rules of obligation, Regulate conduct, establish standards, and govern behavior. e.g. cirminal laws

IMPOSE DUTIES + CREATE OBLIGATIONS

Secondary rules - Rules about rules, power conferring, dictate how primary rules are created, recognized, modified, and enforced. Provides the criteria for primary rules to be regarded as binding + also specify sources of authority empowered to enact and alter new primary rules

e.g rules of adjudication, rules of change, rules of recognition

Important according to Hart = rule of recogniton - ultimate standrad to identify which rules legally VALID. Every legal system contains rule of recognition to which can identify fundamental sources of law. Establish content of rule of recognition as rule is accepted by OFFICIALS - dipustes solved by always referring to certain sources - regard rule of recognition as a standard to be complied with.

Whatever judges establish through use of morality cannot be considered a law because of rule of recognition. Hart

Adam Smith (1723-1790) - context and thoery - social philosopher

Context: participated in Scottish enlightenment. Lived during heavy mercantilist time (large government interference). Term capitalism not invented yet during his time

Theory:

Revolt against Mercantilism:

Distinction producitve and unproducitve labour - defence of FREE TRAE and markets as real source of naitonal wealth. Economic liberty free from porvincial mercantilism - reduce government interference

The Wealth of the Nations or Moral Sentiments:

Sympathy justice and prudence = foundations of society; self-interest can only work in moral order that you have yourself.

Division of Labour --> Pin facotry:

Made possible a more efficient form of exchange as in famous example of pin-maker: no one person can efficiently make a pin :input of several workers each performing specialized tasks.

Increase efficiency by dividing labour of product. Specialization - became less creative so asked for universal public education to balance out this loss of creativity

New Society --> 3 classes:

1) Capitalists 2) workers 3) landowners (capital, labour, land)

Self-interest - collective good:

central role of self-interest in modern society over common good → Individuals who occupy different social positions pursue different interest and in doing so collective advantages as result

Mind self-interest --> Greed:

Self-interest as he described not reducible to instrumental gain or greed but is a product of a societal specialization that comes from the division of labour. Butcher, baker operate according to own dictates not greed. Within moral and legal order to correct greed

arl Marx (1818-1883) - theory part 2

Exploitation - appropition - immiseration:

exploitation is endemic to capitalism. Capitalism also requires exploitation in seeking to extract more surplus value by forcing down cost of wages and an increase in working day leading to immiseration of workers. Appropriation - capitalist take profit for themselves privately, immiseration unhappy and powerless workers.

Abstract labour - subsumption:

Workers are treated as interchangeable parts of the economic system rather than individuals. Growth of abstract labour achieved through subsumption - work or particular labour is incorporated into capitalism and then further transformed to meet requirements of capitalism. Subsumption describes process by which Capital becomes dominant force in society, a process of absorption and transformation.

Alienation - objectification:

Workers become alienated from the objects produced by their labour which have lost their "use value". Worker sees only wage as the product of work through abstract work. Abstraction through subsumption produces commodification. Objectification - treated as tool rather than a person.

State - sreve capitalism:

state serves needs of capitalism where true source of domination rests. State not neutral in its actions compared to Adam Smith but does not specify what state should do

Conflict - transformation - socialism:

Capitalism crises, overproduction, inequality, class conflict - systemic which will cause demise

Once capitalism fails - communism/socialism will rise

Present relevance:

Capitalism, class separation as well as systemic crises that occur.

Heckscher-Ohlin Model (endowemnet thoery) - (models of comparative advanatge)

Comparative advantage arises from relative abundance or non-abundance in each country of various factors of production → e.g. more arian countries higher advantage in agriculture.

Comparing the availability of materials

Modern product cycle theory - Raymond vernon

Theory based on patterns of technological diffusion. Comparative advantage initially with tech advanced innovator countries and then shifts to less advanced countries that copy tech.

Where global governance is really needed: Rodrik

- Beggar-thy-neighbor policies → Measures that intentionally harm other countries e.g. tariffs that are not to protect domestic interest but intentionally harm another country.

- Global public goods → e.g. climate change - affects all countries equally so need to deal with it on a global scale.

Aristotle (384-322 BCE) on human nature

Human nature: By nature a social and political animal. Man is moral and ethical being destined to live life of justice which means to reach eudaimonia.

Eudaimonia

Greek concept - translated in direction of "happiness", "flourishing" "contentness" etc but not precise translation. Allegedly best to leave untranslated.

Aristotle (384-322 BCE) on an ethical life

To live an ethical life, men should strive to reach eudaimonia. Reached by living according to virtue in society, virtue is an objectively right/just act, done for the right reasons.

Virtuous = acting for sake of doing something good not to gain something out of it. Virutous act would correspond to the GOLDEN MEAN. Do not do too much and not too little, just right → in the middle is where virtuous excellence lies under Aristotelian theory. Acting somewhere between doing injustice and suffering injustice = the golden mean = virtue of justice

As human being is born with aim to reach eudaimonia, so if you do not practice virtue will feel bad

Ethics of virtue is under the Aristotelian school

Eudamonia is not only for individual but for the individual that lives as a SOCIAL ANIMAL IN COMMUNITY

If you want to live ethically, you need to live by virtue, one of the virtues is by justice. The government's purpose is to enable citizens to reach this state of eudaimonia.

Main Periods European (Western) History

Classical Antiquity - 8th century BCE - 476 BCE (yr western roman empire fell)

Middle Ages - 500-1500

Early Modern Period - 1500-1789

Modern Period - 1789-present

(1945 onwards - period of post-modernity by some historians)

Roman (+ Greek) Antiquity

Kingdom c. 750 BCE

Republic - 509 BCE (2 annually elected consuls)

Empire - 27 BCE (emperor as princeps inter pares - emperor as the principate empire). Dominate empire - Emperor as dominus at Deas (started 284)

Greek antiquity:

650-550 BCE - Greek cities began to publicly display legislation

Nomos (Greek Law)

1. Law by gods: Basic rules of life, enforced by kings, though given by Zeus. Or human law as parallel to the will of gods.

2. Law Invented by human lawgivers: Attributed to legendary lawgivers. Law was entirely product of human intelligence - similar Idea show's up in Anitgone's Ode to Man line 355. Chorus alludes to power of state to make law and insisting laws made by city be in accordance with divine justice. Two basic ideas 1) breaking the law hurts you, only if you are caught 2) law is a product of agreement among humans further developed by Plato. Ancient Greeks had anti-positivist tendency to hold that law is legitimate only insofar as actually and not merely by agreement in accordance with dike (justice/custom)

3. Developed by nature: Concept of unwritten law seems to imply commitment to the existence of law of nature. Law as a natural to human beings. Contrast of law based justice v natural justice.

All three together = Nomos all connected to concept of legitimacy

Nomos v Dike

Nomos = written legislation

Dike = non-written legsilation --> oral dynamic process for dispute settlements (flexible so cannot be fixed by tyrannical leader)

Greek law developed into fixed written legislation + oral dynamic process for settlement.

Emergence written laws (Greece)

Year: 650-550 B.C.

Cities all over Greece used writing to publicly display legislation. Wrote laws on stones and displayed them in prominent public places i.e. religious sanctuaries. Writing down and publicising laws =

a) Differentiation between certain rules of community so that they could be identified as laws.

b) Sense of stability and permanence of rules conveyed

c) Assured laws were available to members of community

d) Conveyed idea of special set of rules with special authority: the rules that are written (ta grammata) or that are laid down (boi thesmoi)

e) Implied rules backed by an authoritative political body causing their enaction

Citizen by nature v citizen by law

Citizen by nature (is absolute and undeniable for every person), citizen by law (as state says you are citizen of state, if you violate state then cannot be citizen of state Creon's idea)

Greek law and the idea of a social contract vs. when only comes from contractual source

Social contract - between person and the state - if contract between state and society = law is valid. But this is current version - Greece did not have a social contract legitimizing government.

When law only comes from a contractual source, not from nature or god, it cannot be legitimate law and it is okay to violate it (in Greece → idea of the sophists)

Emergence of written Roman law and first dispute settlement procedure

BEFORE 450 CE - Early Republic

Ius civile:

1) Only unwritten customary law (mos maiorum) - for and of Roman citizens, as interpreted by Priests (pontifes)

Legis actiones procedure:

- Limited number of remedies (actiones) that could be invoked

- Strict Ritualistic/Religious character

- Oral Procedure

Looked at procedural, private and criminal law

FROM 450 BCE ius civile:

1) Unwritten customary law (mos maiorum) - for and of Roman citizens, as interpreted by Priests

2) Law of XII Tables

3) Legislation (limited for private law)

Roman Settlement procedure (2) (Praetor) Check if this is needed because emma only mentioned legis actiones, formulae and cognitio

367 BCE: Praetor (Early Republic)

- Praetor authority over conflict resolution

- Appointed for 1 year + no legal background

Replaced priests in first stage of legis actiones

1. Oral procedure consisting of 2 stages

a) In iure - preator establish whether remedies available in ius civile applicable (highly ritualistic and rigid - ONLY 5 remedies)

b) Apud iudicem - iudex or private judge hears evidence + renders jugdemnt

c) NO APPPEAL

Issue: Over time more dipsutes ius civile could not account for (no remedy) - rigid formalism and lack felxibility of procedure.

Late Republic:

1) Praetor extensive interpretation exisitng remedies (actiones )

2) Creation new remedies (formulaes)

Roman Settlement procedure 2 (Formulae - late Republic)

242 BCE: office praetor divided into

1) Praetor Urbanus: Jurisdiction over cases with only Roman citizens - applied ius civile (so custom, XII Tables, and leg for priv. law)

2) Preator Peregrinus: Jurisdiction over case with at least 1 non-roman citizen involved - could not apply ius civile but developed new source of law (ius genitum)

Formulae procedure:

- Gradually replaced legis actiones & WRITTEN

- 2 stages

1. In iure - prateor

a) Formula in consultation with parties

b) Identifying legal issue and appropriate remedy, appointment iudex

2. Aput iudicem - Iudiex or private individual

a) Hear witnesses and conisder evidence establish fact sof case

b) Establish whether conditions of formulae fulfilled

c) Render judgement

NO APPEAL

Can have iurisconsulti - called upon for legal guidance upper class in formulating formulae (self-trained experts)

Later on ius honorarium developed and used in formulae procedure still during late Republic. Ius honrarium developed before cognitio procedure.

Roman dispute settlement 3 (cognitio)

Cognitio Procedure: uses ius honorarium (supplements ius civiles): Applicable to Romans and non-romans

Cognitio replaced fromulae procedure after emerged in 27 BCE

- new civil procedure emerging at start of principate

- intially reserved for specific cases - replace formulae gradually

Main characteristics:

- 1 stage

- Judge = imperial offical

- Appeal possible

- Edictum perpetuum: formulae procedure disappears during 4th century CE - basis of roman canonical procedure

Jurists

Men engaged in normative order as part of public duty - work of praetors accompanied by deliberations by group of intellectuals identified as jurists (nowadays)

Role of Jurists in Creating Law

Invented terminology, coined principles e.g. good faith. Typified range of activities and social relations into list of preset categories (e.g contracts, obligations, "acts of will", "acts of knowledge".

Consequence:

- New model of thinking

- Jurists abstracted and systemized legal categories - operate abstractly and adopt procedure indifferent and indepedent of particular people, time or place.

With Praetor and iudex would have just been concrete cases!

- Add codes, digest, insitutes and novelle

Jurists and Emperors

50 BCE - 250 CE: roughly coincides with principate

- Professional class of jurists became a driving force behind legal innovation using ius honorarium as a system of law.

- Emperors tried to centralize jurists; Justinian = only emperors could interpret jurists.

- A System of Licences established by emperor Augustus to give advice: right to respond under authority of emperor

a) Jurists salaried as employees of the imperial bureaucracy e.g. judges in cognitio procedure or advisors of the emperor.

- Emperors

- Instructions on which authors allowed to be cited in courts:

Constantine, Law of citations (426 CE): Only Papinianus, Ulpius, Gaius and Paulaus can be cited.

- If opinion clash, in Augustus ' time, opinion credited by emperor will prevail. Other time, Ulpian was most authoritaitve in 426 CE with Law of citations.

- Attempts to codify law e.g. Corpus iuris civilis (Byzantine emperor Justinian)

Emperors in chronological order:

- Augustus

- Constantine

Justinian

Corpus Iuris civiles

Corpus Iuris Civiles: compilation of codification of law

1. Code (Codex): first edition 529 CE , outlined texts of imperial legislation. Sought to fuse selectively three preexisting compilations (Gregorianus, Hermogenianus, Theodosianus), adding most recent imperial legislation and omitting what was considered obsolete or contradictory. Sec ed. Included the decision by Justinian on how to solve certain conflicts and promote reform.

2. Digest (Pandects): Finalized 533 CE, reproduced extracts from writings of some of most infleuntal Roman jurists working between 1st bCE and 4th century CE. Dealt with important private law areas (family, property contract, inheritance) Divided into fifty books following arrangement of Code. 40% of work from Ulpian

3. Insitutes: promulgated 533. Mainly based on manual for students authored by Gaius in second century CE + containig elements from other student's manuals. Justianian's Insitutes described principles of Roman law dividing into law of persons, things and actions.

4. Novelle - Supplemental ordinances, new laws, and constitutions that Justinian enacted after the original code was published, serving to continually update the legal framework

Canon Law

Church leader always legislated but after Western fragmentation and dissolution empire 5th century - no longer sancitoned by emperors so church authority alone.

Normative system resulting = canon law --> based on spiritual authority by virtue of baptism or citizenship

- contains ecclesiastical decrees, body of laws,legal pricniples governing administration, clergy and operaitons of Chritisan Church especially Roman Catholic church.

Ecclesiastical/Episcopal courts + law used in courts

Specialized judicial bdy conducted by church to apply canon law, morality and spiritual matters i.e. church, wills, hearsay - resolve disputes and matinain discipline (manage legal issues)

Roman law = supplementary function to canonl law in church HOWEVER, roman law taugh in cathedral schools and such an authoritative source that if canon law silent one can referr to roman law.

Expansion Chrisitanity and influence in rome

312 CE Constantine recognized Christianity as a permissible religion

383 CE Theodosius I declared Christianity the official religion of the empire

603 CE was last time in former western empire roman law (Justinian code) was referred to

Commonitorium (canon law)

Letter of instruction that pope would write to warn or instruct people in doing something.

1. Investiture Conflict

1076-1122 (late 11th century) --> Pope Gregory reform including denying German emperors' right to nominate bischops. 1076 - investiture question tested Emperor Henry IV ignored palpal nominee and appointed someone else. Core Dispute over who had supreme authority to appoint (invest) church officials.

--> triggered search for roman legal sources and separate secular roman legal orders. Look for relevant sources to sustain emperor above pope and vice versa and came across DIGEST.

Resolution: 1122 - "Concordat of Worms" - recognized election of bishops = papal privilege but allowed emperor to preside over them and intervene in dispute cases.

2. Re-discovery Digest

11th century - disocvered in Tuscany and then reached Bologna. - aim of reconstruciting of Corpus iuris civilis.

Climate of obedience to ancient authorities

- Medieval dwarfs sitting on shoulders of Ancient gianst - aucotoritas

5. Gratian

12th century:

Collected and systemized sources of canon law - named: Decretum Gratori, use of Roman law methods by canon law jurists created Corpus iuris canonici (compilations of collected canon law)

6. Libri Feudorum

12-13th century:

Collection of feudal - legislation, writing, judicial decisions to study later on - gradual romanization of feudal law, systemized law and extracted doctrines not necessarily present in roman law.

Idea of packt - proper SOCIAL CONTRACT (not from god or nature as in greece) came from FEUDAL LAW

8. Bartolus Saxoferrato

1313-1357:

Was jurist (taught and acted as jugde) was a leading commentator, redefined key principles (property rights).

Ius Commune

3 Pillars: 1) Roman law 2) Feudal law 3) Canon Law

The law studied at university

Synchornized ius commune with ius propium (law specific to community or place)

Rather than understand ancient roman law medieval jusirst deevloped methods to synchronue and integrate various legal regimes coexisting in Europe.

Concept Auctoritas

Distinctio and equiberazio sustain auctoritas because corpus was not really coherent to create ius commune but to support auctoritas and find the truth needed methods to make it coherent while not undermining auctoritas of old corpus iuris. E.g. if two passages contradicted each other, they used either disticntio or quiberazio to shows that it was actually "coherent" as to not undermine the auctoritas of the corpus.

It had authority and therefore cannot be undermined

"Giants From Antiquity"

"Renaissance of 12th century" - fascination for ancient sources i.e. c.i.c or Greek sources that held immense authority. Legal and intellectual authority did not flow from democracy but ancient authoritative sources.

Roman law focused as it support centralized authorities whereas Greek supported demorcacy - emperors wanted sources supporting their aims.

Holy Roman Emperor

Elected head of state of Holy Roman empire - crowned by Pope and started with Charlemagne. Function as secular leader of Western Christendom + defender catholic church. Justinian Emperor is another type of emperor.

Why encouraged to study law?

Uni's produced the "intellectual" = new career opportunities and allowed advancement of middle classes - new nobility whose prestige based on intellectual achievements rather than bloodline. Some intelelctuals would become jurisits - individuals dedicated to studying and advising law. 12,13,14 the jurists became coveted councelors. Provides systematic reasoning.

What is studied in Uni of bologna = ius commune (as opposed to jura propia - national law) - Students in Bologna pan-european

Aquina's best form of government

Between different forms of the kingdom (capciyt to create unity)

General or absolutely, best form is mixture of all (kingdom, aristocracy, oligarchy etc). (capacity to temper king, provide wise law and make people participate in ruling) Participation generates peace of ppl, and love such an order and guard it.

Aquina's on Evil laws

Evil law is law that goes against natural law. It is in reality no law

If human law deflects law of nature, no longer la but perversion of law.

Judge not being legislator but obliged to disapply human law contradictory to natural = VIRTUE OF OBEDIENCE (golden mean - based on aristotle)

natural law preferred to human ordinance that contradicts divine law:

Human ordinance unjust if:

- laws are ordained to private good

- laws enacted by someone who has usurped authority

- Laws that unjustly distribute benefits and burdens

Law relates to the world in rich and different political and moral ways

Human beings, the world and universe are fundamentally constituted and guided towards good through law.

Homologation of Law (europe) + 2 responses and result in france

1454 - French King Cahrles VII enacted Ordonnance de Montilz les Tours (first of several royal campaigns during 15th and 16th century) aiming at WRITING DOWN numerous CUSTOMS.

1. Crown in support of homologation: wanted to standardize customs across regions + specifically select which ones fixed (prevent custom evolution for ultimate control and dependency). - Drawback = Not full legal unification was achieved, though, because different customary regimes continued across regions and homologation was very slow.

2. Protestant legal scholars (Humanists) enocuraged homologation: wanted to systemize and reform romna law - wanted to record authentic French law which had germanic origin. Disappointed as jursits that noted down the customs are trained in medieval ius commune (c.i.c. and corpus iuirs canonici) so homologaiton was based on ius commune + disappointed as it was epxolited by royals to centralize more power.

Homologation in France:

North of France:

Pays de droit coutumier (governed by unwirtten law)

South of France: (closer to Italy - Roman law)

Pays de droit écrit

→ governed by written vulgar Roman law

Both customary law.

Humanism as third legal school

Product of Renaissance - 14th century it began in Italy and spread.

- Humanists believed law always a product of particular circumstances of the society that created it, to understand need historicization of law and contextualization. Ius commune jurists mostly interest in hamronizing different Roman law pieces, Scholasticism (coherence). Corpus iuirs civilis was very contradictory, so methodological assumptions of ius commune jurists could no longer hold water.

- Emergence of new legal method = mos gallicus (French manner) to distinguish from existing method (now baptized as mos italicus).

Antitribonain - Francois Hotman + cirtique against glossators

Anti-Tribonian (1567) → argued in favour of purging French law of the influence of canon and roman law (considered them foreign elements). Advocated educational reform, insisted teach french law rather than roman law.

Criticizes of Glossators, ciritques form of Roman law in Jusitanian is not complementary with French Monarchy (students leave university with as little "experience" as they entered with), teaching is just adding more confusion to students that even Justinian would not recognize it anymore.

Critique:

- Believes the continuous addition of glosses by later glossators etc, brought forth so much confusion that the original law compiled by Justinian has been lost and that judges have begun adjudicating by chance due to being overwhelmed, rather than on the certainty of the law.

French Method (mos gallicus)

Mos Gallicus (16th century):

- Practiced primarily by french legal humanists

- Legal Humanism - antiquity but man AT CENTER!

- Reconstruct authentic roman text as various methods of analysis - not use to solve actual disputes.

- Believed the contradictions encapsulated disagreements, proved the development of law over time and showcased regional differences. Studied non-legal methods too + greek texts and antiquity. Made contradiction consequential.

- Historical re/de-construction of corpus iuris civilis

- Did not believe anymore that it is the absolute truth valid universally through time → but, say it was valid then and c.i.c is now mess of glossators and commentators, so no more absolute truth → NO more AUctoritas, Contextualize

C.I.C should be understood in its historical context, before studying it, study history!

- Philology also applied = historical study of language (gloss and comm would interpret according to their own latin not exactly complemetary with latin of c.i.c) - so they studied language to better understand

Exisitng Method (mos italicus)

Mos italicus:

Both used Scholastic Method to support aucotritas

- Equiberazio: show two distinct fragemtns similar

- Distinctio: Show two similar fragments distinct

1. Glossators (1088-1263, 1363 Accursiu's Glossa Ordinaria (compilation glosses) - after this commentary)

Initial theoretical explanations in from of Glosses - 2 explanatory fragements to harmonize work

2. Commentators (1263-1500)

- more autonomy in explaining or using concepts to adapt them to the discourse of time, their commentaries are physically autonomous as write outside of corpus (not within line) and autonomous in content, practical application

Composition of Dutch Supreme Court

- 10 Judges (1 = president) appointed by states of holland.

- 3 candidates Zeeland, 7 holland - candidate lists where usually top chosen.

- Holland candiates usually came from local oligariches while zeeland candiates could introduce new men who had suffcient money to buy place in court.

- Formally no UNi study required but in practice everyone did

- Appointment for life - could dismiss but not in practice

Sources in Dutch Court and what law was applied

Sources:

Local customs and ius commune - Customary law had so many gaps that Roman law filled them and because judges were trained in universities and universities taught ius commune

Law Applied:

Theoretically if there was a clear local or customary law, it had to be applied but as soon as there was a lacuna, Roman law would be applied. Practice was the other way around: Roman law = basis of jurisprudence and positive law unless there was an explicit local law. This local law was interpreted narrowly and in a civilian way.

Law applied in court called ROMAN-DUTCH law (strong in South Africa) - called this way as such a strong mix between dutch and roman law.

Dutch Supreme Court and Conrnelius van Bijnkershoek

Cornelius van Bijnkershoek = some judges collected judgements given. Court registrar kept records of opinions, voting and reoslutions etc. Resoluties were not easily accessible and dependent on registrars summary. Therefore more usual for judges to keep their won collections, some kept them secret others published them later on.

Wrote down decision by the Supreme court (given without reasoning) and the discussion that took place

Willem Pauw (Cornelius's son) = after death, published his reports on every court session and discussion

Social contract

mechanism to justify the existence of a government. In all the forgoment to be legitimate, social contrast prosits legitimacy relies on consent of those who participate in community. ONly if this agreement exists and certified can that particular political community can be considered legitimitae, have reasons to endorse laws to community and comply with them

David Hume - Social contract theory

Context: 1711-1776. Influenced by scientific revolution - Issac Newton - apply experimental method of reasoning to moral subjects, Scottish Enlightenment, and part of empiricism.

Hume is Historical and empirical - summed up in terms of conventionalism. Historical evidence is more based/facts on observations of how governments came about. Social contract nice ideally, but in practice does not explain government realities as does not coincide with facts from the past - this is conventionalism

Nature:

societies established through development over time of a sense of common interest. Creates a convention - human society and its necessary rules arise (a) as result of human interaction but (b) not from promises

Why contract arise?

NO social contract - historical and empirical reasons.

Between whom contract?

No social contract only common interest.

Content?

No contract - only content of law

Legtimiacy of law?

Legitimacy of law comes from common interest/convention/habit and fear of disorder brings you to gradually accept the government. Tacit consent is unrealistic as people may be bound under a system by other reasons (language, culture loved ones) - what matters is if person believes government legitimate.

Disobedience?

Hume recognized right resistance but only as a last resort - extreme cases of tyranny and unsafety. HUme does not deny social contract but says in practice not successful or used. Think of history, a lot of governments formed without consent but violence and usurpation.

Greece and the Sophists - Social contract theory (Antiquity)

Context: Kings chosen by the gods - divine law. Nomos - divine, natural and human made law.

Why contract arise?

No social contract

Between whom contract?

No social contract

Content?

No social contract = only content of law

Legtimiacy of law?

When law only comes from a contractual source, not from nature or god, it cannot be legitimate law and it is okay to violate it (in Greece → idea of the sophists). Legitimacy of law comes from nomos (3 sources of law) that are harmonious with each other. Greek say social contract deligitimzes the law

Disobedience?

God punishes, no eudaimonia reached so usually not available

Positivism v Natural law

Positvism - law enacted by authorities, depends on source not content - view law and morality as distinct and separate from one another. LAW = SOCIAL CONSTRUCTION - mand made

Whether rule is legal rule depends on whether laid down in statute or court case.

Natural law - law derives from universal reason independent of legislature.

Hart on law and morality (positivism)

1. Law is such because it is positioned, independently of morality (rule of recognition)

2. Hard cases → Discretion - not law of morality (no more positve law judges exercise judical discretion - only law no principles, reaching beyond law for other standard to guide him in manufacturing or suppplementing a law. Operate outside of law when judging according to natural law standard, not applying it.)

3. Do not deny morality influences content of law. But a rule does not become law until it has been laid down in source such as statute. Legislator → authority x morality, can use moral principles to decide content of law

4. Do not deny there may be moral obligation to obey law. Argue the question of what the law is and whether to obey law are to separate questions. MORAL obligations are DIFFERENT from legal ones.

5. Law can be criticized based on morality

6. legal obligation depending on legislator's use of morality for definition of content, can also be a moral obligation or not.

Legal obligations not necessarily moral.

When No positive law = legal gap

Judge following role = exercise discretion (make law)

Source of law = from rule of recognition - social facts (morality not truly part of law)

Hart v Dworkin on validitly of law

Hart - rule is valid once it is created by a legislator and promulgated under rule of recognition the rule of the source. Natural lawyers believed validity of law depend on its morality as well - if immoral can disregard that. Positvist its separate, can have immoral valid laws.

Dworkin - legal principles legitimized through sense of appropriateness developed in profession.

Hart - legal principles do not work with test of pedirgree where origin of valid law lies with source.

Dworkin on law and morality (naturalism)

When no more positive law in "hard cases" - judges are also bound by LEGAL PRINCIPLES that need to take into consideration.

Law and morality are intertwined and work together.

When principles conflict/intersect need to consider weight.

Judges must view law as an interpretation of best moral justification of legal history so not to invent law (discretion) but to discover the best fit for legal principles.

When No positive law = resort to legal principles

Judge following role = interpet principles (find law)

Source of law = principles (morality can be incorporated in from or principles)

- LEGAL PRINCIPLED OF LEGISLATIVE SUPREMACY - courts pay deference to acts of legislature

Principles v rules:

Different in character: rules applicable in all or nothing fashion. Principle such as "No man may profit from his wrongs" does not even purport to set out conditions to make its application necessary. ONly states a reason that argues in one direction. Need to be considered when looking into different directions

E.g principle:

Equal cases should be treated equally

No one shall be permitted to take advantage of their own worng/criminal behaviour

Nulla poena sine lege - no punishment wihtout law

Deontology (Kantian Ethics)

- Morality of action depends on conformity with moral law (categorical imperative). What makes an action wrong is not the results but act itself - the end does not justify the means.

- Kant believed to determine morality one had to look at reason rather than emotion

- Categorical imperative FORMULATION 1: Act according to maxim whereby it would become universal law = universalization of maxim birngs forth 2 contradictions:

1) Contradiction in contraception (logic) --> perfect duties (e.g no lie) - imagine everyone acts on maxim and result often counterproductive/illogical

2) Contradiction in will --> imperfect duties (beneficence - spending charity) - imagine everyone acts on maxim but wanting it is irrational as contradicts rational agent's goals such as relying on help for survival. if no one help then why would you want that nobody has to help.

- Categorical imperative FORMULATION 2: Act in a way that you treat humanity always as an end never as means to an end: can still use people as means so long as ALSO treated as an end. Respect their individual autonomy - must be respected, fully informed and allowed to consent to action

Utilitarianism (Bentham and Mill)

1) Claim goods is utility - defined as pleasure, happiness or satisfaction of desires or of interest.

2) Morality concerned with maximising utility

Action with best consequences is the right or moral one (consequentialism) - sufficiently strong interest of minority can outweigh majority.

- Requires strict impartial behaviour between ones own happiness and that of others

Act-utilitariansim

Every individual action is evaluated based on the utility this individual action creates in the moment it takes place - aims to maximize overall happiness.

- "Which specific action will produce most good RIGHT NOW?"

- The right act is the one which creates the maximum utility, regardless if one may go against behavioural norms (such as the prohibition to steal) as long as the end sufficiently justifies the means.

Rule-utilitariansim

Focuses on applying the utility principle not to acts themselves, but to possible moral rules to find the ideal set for society to follow

- If these general rules are followed, utility in an overarching sense is maximised.

- One is placed under an obligation to follow these general rules regardless of whether breaking them in a specific circumstance would create a better solution.

Assesses morality of action on its conformity to general rule that if followed universally would maximise happiness.

Adam Smith (1723-1790) theory part 2:

The "invisible hand":

Invisible hand = Markets coordinate supply and demand without anyone being in charge → self-regulation of market, market create wealth and establish conditions for common good but only works if underpinned by appropriate morals. Price defines itself by individuals pursuing own interest. Surplus of production - excess is special - so price will be lowered. Seller - make profit out of activity not longer considered special and high prices, competitors with lower prices will win so reduce prices. Productivity will lead to mechanisms that will regulate prices and goods. Idea of equilibrium that exists on its own in markets.

Use value -> exchange value:

With capitalism, use values decline and are replaced by exchange values. Water = essential high use value, diamonds not useful but rare so high exchange value.

Laissez-faire capitalism:

Necessity for state to regulate certain things e.g. taxation and banking but opposed accumulation of wealth in hands of few - no state interference econonmy

Role of governments:

Recognized the necessity of state to regulate economy, as in taxation and a banking system - benevolence as central to function of state. National defence and property rights and contracts + public works and education.

National defence, legal system, public works and universal public education. Education is controversial as can impact the market.

Present relevance:

Indivisible hand, economic freedom does correlate with higher living standards, the economy grows faster to lift all classes to a new level but still huge inequality. Self-interest does not fully work today.

Karl Marx (1818-1883) - context + theory - philospher

Context: Germany philosopher, economist and socialist. Lived during the industrial revolution 19th century + division between bourgeois and working class.

Commodification:

Commodity = something that can be produced in exchange for money. capitalism was bringing about commodification, which is what exchange values generate. Exchange economy based on production of commodities, not simply generation of wealth.

Class conflicts:

demonstrated that class relations are real source of power in modern society. 2 classes - bourgeois and workers (proletariat - sell labour for wages) in conflict

Inequality:

Workers rewarded for labour by wages, the capitalist class appropriate profit - resulting inequality is structural feature of capitalism that cannot be alleviated since endemic. Capital accumulated = inequality compared to workers

M-C-M:

Capital = normally the assets of society, but for Marx it = use of money to produce commodities to make more money generally summed up in Marxist economics as M-C-M. M-C-M → general formula for capital - the transformation of money into commodities and the re-conversion of commodities into money: buying in order to sell. Profit realized in the M-C-M privately owned - exploitation.

Constant v variable capital:

constant capital (in essence, raw materials and machinery) and variable capital (basically labour). Latter was the source of profit of him. Variable capital is variable because of the costs of wages.

Surplus value - Profit:

Difference between how much product is worth and the wages of the workers who are exploited - wages reduced - reinforce inequality. Workers produce more value than they receive - private profit for employers.

Classic Liberal v Social liberalist

Classic liberal - Friedman: Focuses on limited government - non interference, private property and individual liberties. Role of state is to project natural rights nothing else.

Social liberalist - Rawls: Government should address societal and economic inequalities (more active role) such as poverty and discrimination. They advocate for respect of individual liberties.

Friedman - view on wealth and redistribution (more likeminded with Smith)

- Does not mind inequality --> If you preserve inequality, you can preserve diversity in the sense of what people can contribute

- Healthcare and education as private institutions. Not only public. Privatization of institutions i.e. education and healthcare

- Tax system - LOWER/minimal taxation - people would be less motivated to work if they do not see the rewards of their work. Taxation = intervention of state

- Free market and private enterprises allow their own choices therefore economic propensity.

- Law, contract and national defence is sole state obligations - similar to Smith.

- Freedom more important than welfare, but wanted people below income receive money from government.

- 3 reasons. Reduced incentives - cannot keep rewards of work, freerider problem - encourage independence, government inefficiency - slow and ineffective and vulnerable to politics.

- Government power must be dispersed (if do not like law in community can move to different one) and scope of government limited -its major function = protect freedom both from enemies outside and from ciitzens to perserve law

Rawl - view on wealth and redistribution (more like-minded with Marx)

- Egalitarianism --> Equality = equal treatment of equal cases.

- Rawls theory of justice concerned with distributive justice.

- Contemporary constitutional democracies and issues that bring forth distributive justice: 1) people hold diverse and conflicting religious, moral and ethical conceptions of the good. 2) within societies, usually large to very large socio-economic inequalities.

- Rawls central aim of theory of social justice = identify and justify principles of justice that resolve the 2 above conflicts.

- What should be assessed in terms of justice is how basic structure of sictey makes use of differences in ppl.

- Aim of rawls liberal egalitarianism = bring social institutions of this basic structure in accordance with principles of justice so arbitrary inequalities mitigated as much as possible → equal distribution of primary goods: prerequisites that people need in their status as free and equal citizens regardless of rational plan of life: fundamental rights, wealth, income etc

- Tax system - progressive taxation - equal taxation that depends on how much you earn (if earn more = more taxes) Proportionate taxes.

- Healthcare and education should be accessible to everyone. Advocate for welfare states

- More state involvement

- Consent, equal moral staus and VEIL OF IGNORANCE - counterfactual thinking = impartiality - no biases and self interest to assess principles:

1) Each person is to have equal right to most extensive total system of equal basic liberties compatible with a similar system of liberty for all

2) Social and economic inequalities are to be arranged so they are both

a) To greatest benefit of the least advantage - difference principle

b) And attached to offices and positions open to all under conditions of fair equality of opportunity - fair equality of opportunity principle

Absolute Advantage - Adam Smith (models of comparative advantage)

A country should specialize in producing and exporting goods it can produce more efficiently—using fewer resources or less time—than other nations, while importing goods where it is less efficient.

Ricardian Theory - David Ricardo (Models of comparative advantage)

Comparative advantage comes from differences in technology based on efficiency. (tech based theory) - e.g. might take 1 worker hour to produce product, and another half for same product. Ignore costs of transport and exchange values between currencies and factors such as that.

Redistribution of income

redistribute wealth/money from some individuals or groups to other. Usually done through social policies and tax systems enacted by government. E.g tariffs

- Refers to FISCAL POLICIES e.g. progressive taxation, welfare programs and social saftey nets. (pro - redistirbution of wealth, con ficalty of policies - how governments intervene)

3 options to redistribute:

1) Regional development policies (similar to Friedman) exceeding welfare used to recover regions where income lower: promote sustainable growth, job creation e.g. through infratsurtcure projects.

2) Trade adjustment assistance (target workers replaced by trade - labour law protection, relocation support etc.)

3) Soical Saftey net (pensions, support, uneployment)

CONDITION: state must be efficient in what they are doing

Positive sum game v zero-sum game

Pos: win-win scenario is a concept from game theory where the total value or resources available increases, allowing all participants to benefit simultaneously → international trade is a positive sum game

Zero: Zero-sum is where one persons game is exactly equal to another persons loss (total benefit to all parties adds up to 0)

Tariff def. + pros and cons

Tariffs = Government impediments to trade in form of tax or duty on goods or services imported from other countries (by government).

PROS:

- Through tariffs - government revenue and "optimal tariffs": Tax on import good = increases its price, domestic competitors can raise price as well, consumers pay more so domestic producers gain profit - producer surplus

- The above is known as MONOPOLY power, HOWEVER use of tariffs for NATIONAL surplus purposes different for:

a) Small countries: consumers lose part of consumer surplus, producers can better withstand competition, government gets tariff revenue BUT NET LOSS - small countries no increase naitonal surplus

b) Large countries' "optimal tariff": Prices increase in country but not as much as with tariff on small country, price world makert decrease (exporters lower price), Loss of consumer surplus offset by higher government tariff revenue BUT GLOBAL WELFARE loss + POSSIBLE RETALIAION - large countries can enhace national surplus by deviating from FREE TRADE in manner that improves "terms of trade"

CONS:

- retaliation overall neg.

- tariff on imported can cause consumers to resort to lower quality domestic ones.

Free trade (consumer surplus increase, producer decrease = welfare gain) vs tariff scenario (consumer surplus decreases and producer increases = welfare loss) - so tariff scenario is not advantageous unless you are huge global economic power

Consume v producer surplus

conumer: inancial benefit buyers receive by paying less than their maximum willingness to pay.

Producer: Producer surplus is the profit sellers receive by selling for more than their minimum acceptable price

Welfare

Welfare state as its goal has income redistribution from too

Welfare and income redistribution are still better ways to achieve benefit of own nationals rather than tariff and protectionism - how do we do this? By the 3 policies stated above

Efficiency (pareto v Kaldo-Hicks)

Pareto Efficiency:

"Policy choice is pareto efficient if leaves at least one person better off and no one else worse off"

Kaldo-Hicks efficiency:

"Pollicy choice is Kaldo-Hicks efficient when is possible that those who benefit from policy choice can compensate those who lose from it."

Stolper-Samuelson Theorem (based on H-O model):

Trade increases real return to abundant factor of production in each country, and reduces real return to relative non-abundant factor: if country high in capital, return of capital would increase and labour decrease

= country will specialise in goods in which has comparative advantage and export these (e.g. capital intensive industry) and will reduce investments in industry in which do not have comparative advantage and import these goods (e.g labour-intensive industry)

Globalization

Increasing connectedness and integration on international level - among different countries, nations and economies on global scale

Globalization global - rise welfare (foreign capital, technology)

Globalization local - loss welfare (minority community that will be deprived of human rights e..g SHEIN)

Pro: reduce transaction costs, reap benefits of trade, lower consumer costs, connectivity - foreign capital and tech.

Con: Hyper globalization, economic tensions, will be touched in contradiciotns.

Protectionism

government polices that restrict international trade to shield domestic industries form foreign competition.

E.g export more than import, TARIFFS - tax imposed by government in imported goods and services typically with aim to boost domestic production, Import quotas, subsidies, Voluntary export restraint (VER)

Globalisation Trilemma - Dani Rodrik

"Impossibility theorem" for global economy → states democracy, national sovereignty and global economic integration are mutually incompatible. Can combine any 2 of the 3 but never all simultaneously.

3 options:

1) One option is go for global federalism - align scope of politics with scope of global trade markets. But cannot realistically be done at global scale as difficult to achieve seen by EU. - incompatible with nation state

2) Option 2: maintain nation state but make it responsive to only needs of international economy. Pursue global economic integration at expense of domestic objectives. E.g. 19th century Gold Standard - incompatible with democracy

3) Option 3: Downgrade ambitions with respect to international economic integration we can achieve. Go for limited version of globalization - post-war Bretton Woods regime. Has become victim of own success - forgotten compromise embedded in system.- incompatible with deep economic integration

Rodrik's solution

Globalization limits focus on domestic policy rules

Suggest thinner layer of globalization: nable countries to reap benefits from tade and ecnourage provision of public good while leaving space for governments to address domestic economic, social and political priorities. Metaregime outlined by Rodrik D and Steve Walt: Distinction between 4 categories:

- Prohibited actions (e.g. BTNS)

- Negotiations and mutual adjustments

- Independent actions

- Multilateral governance

Specialization and diversification - contradiction in globalization e.g. China, distributional effects (efficiency vs equality conflict), global integration vs national sovereignty,

Rodrik's 4 contradictions in globalization:

1) Economic tensions between gains from productive specialization and gains from productive diversification. Standard trade theory + principle comparative advantage told countries: specialize in what presently good at producing. Developmentalist thinking says - governments should push economies to produce what countries richer than them do. Countries adhering strictly to free trade (e.g. Mexico) did more poorly than those who pursued more activist policies (e.g China) did better. Produced inherent conflict between interventionist policies of most successful economies and "Liberal" principles enshrined in world trading system.

2) Hyper-globalization increased distributional problems in economies. Trade theory predicted substantial redistribution of income from trade's losers to winners would be inevitable flip side of gains from trade. Many regions and groups of workers experienced income losses - further felt in health and social status. Globalization deepen = redistribution loom larger in comparison to net efficiency gains.

3) Hyper-globalization directly undermined democracy by eroding accountability of public officials to their electorate. Reducing barriers to trade and financial globalization became code for diluting old domestic social bargains on social safety nets, industrial policies and labor markets, health and safety regulations.

4) Inherent tension between global geopolitics and geopolitical competitions on one hand, and international economic competition on other hand. Zero-sum logic of former = antithetical to positive-sum logic of latter. Believed china would reap benefits of economic integration and adopt more Western policies but became more strong and assertive over global political and economic order. Strategic competition would eventually reassert itself.

Democratic law making combined with judicial review

Think of constitutional democratic system as two step strategy to remedy democratic deficiencies. 1) main bulk of law making done democratically 2) judicial review is smoking out and removal of decision that violate fundamental rights (in hindsight).

Judicial Review (def. strong & weak)

Judicial review - highest court determines whether specific legislative or executive measure is in violation of a fundamental right protected by constitution.

Strong: constitutional courts have power to decline to apply a state act in particular situation as is incompatible with constitution - invalidated or annulled measure

Weak: constitutional courts can only declare that legislative or executive measure is incompatible with the constitution. Court cannot invalidate or annul act, declaration merely advice. Administration decide whether the measure is implemented or not.

Democratic law making (Republican view in favour weak) Pros + Cons

Pros:

• Equality of citizens

• Legitimate and consent based

• There is participation of citizens and transparency in the legal process. 

• Important decision making left to a larger group of more diverse people better representing the majority of the citizens

Cons:

• The majoritarian democratic process is sometimes less attentive to minorities and fundamental rights.

•  Law making process is always under time pressure so may preclude legislators from making through analysis of potential negative fundamental rights implications. Also have limited foresight of full range of circumstances in which law will have an impact on enjoyment of individual rights in future.

• Parliament can make laws imposing limitations on rights that legislators neither intended or anticipated. Can also be explicitly disregarded e.g LGBTQ in Hungary.

Judicial review (Liberal view in favour strong) Pros + Cons

Pro:

• Strong but independent judicial review has supplementary but indispensable role - provides additional layer of governmental accountability in process of checks and balances.

• Emphasize principle of legality - implies exercise of democratic-political authority should always remain with boundaries of constitution. Constitution determines rules of game of legitimate democratic decision-making. Executive branch only has those powers that expressly conferred by constitution.

Cons:

• Jeremy Waldon argues strong judicial review is politically illegitimate and violation of democratic values. Leaves important decision in society to smaller number of unelected judges. 

→ Undermines democratic legitimacy, judges unelected

Legal Arguments against abortion as consitutional right (Case Dobbs 2022 strong judiciary in order to overrule Roe and Casey)

• Until latter part of 20th century - no support in American law for constitutional right to obtain an abortion. Abortion long been a crime in every single state.

• Constitution makes no reference to abortion (so should overrule Roe and Casey) - right to abortion does not fall within Due Process Clause of 14th amendment (guarantees rights not mentioned in constitution so long as “deeply rooted in nations history and tradition” and “implicit in concept of ordered liberty”) → Right to abortion not deeply rooted in Nations history and traditions as in past 2/3rds of states criminalized abortion for long time and even those that were more “liberal” still criminalized some abortions and regulated them more stringently. 

• Abortion right critically different from all other rights falling within 14th amendment. Did include intimate sexual relations, contraception marriage but abortion fundamentally different as both Roe and Casey acknowledge because destroy “fetal life” and “unborn human being”. 

• Give issue of abortion to ruling of people's elected state representatives

• Ignore stare decisis

• Constitution neutral and leaves issue for people and their elected reps. To resolve through democratic process.  

• Overruling Roe does not overrule precedent cases on issues involving contraception and marriage.

Legal arguments in favour of abortion as fundamental right (Casey & Roe both strong judiciary as states had to follow same abortion guidelines after)

• In case of Casey - opinion concluded that stare decisis (calls for prior decision to be followed in most instances) required adherence to what it called Roe’s “central holding” = a state may not constitutionally protect fetal life before “viability

Roe held and casey reaffirmed that: Constitution safeguards woman’s right to decide whether to bear a child, In first stages of pregnancy, government could not make that choice for women 

• Right Roe and Casey recognized does not stand alone - court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships and procreation - right to terminate pregnancy arose out of right to purchase and use contraception. 

• Stare decisis - contributed to actual and perceived integrity of judicial process by ensuring decision founded in law rather than in proclivities of individuals - but today proclivities of individuals rule.

• Majority makes their decision based on the question of whether reproductive right recognized in Roe and Casey existed in 1868 when 14th amendment ratified. 

• Relevance of this history is not clear.

• SECOND!! - early law does provide some support for abortion rights. Common law authorities did not treat abortion as a crime before “quickening” (point where fetus moves in womb). Early American law followed common law rule. 

• Majority emphasises that we in the 21st century must read 14th amendment as the ratifiers did. People did not ratify 14th amendment - men did so not surprising they were not attuned to reproductive rights of women’s liberty. If say we must read constitution from perspective of time it was ratified - it consigns woman to second-class citizenship. 

• Cannot read constitution in different ways whenever they seem fit, cannot interpret it as allowing contraception but theme everting back to old ideals to promote ban of abortion. 

• Framers understood long-livety of constitution so defined rights in general terms to permit future evolution. 

• Majority says its decision des not undermine any number of constitutional rights but it does as their current legal analysis would mean constitution did not acknowledge and protect right to contraceptive use Griswold or interracial marriage Obergefell. 

• By overruling Roe and Casey and more than 20 other cases reaffirming right to abortion - majority is abandoning stare decisis - principle central to rule of law. 

Weakening stare decisis:

• Threatens to upend bedrock legal doctrines

• Creates profound legal instability

Balkin’s “Critical Legal Theory”

• Balkin: American legal scholar who introduced the “Critical Legal Theory”

• - ambivalence → Law can restrain power, bring power under rule of law so that is (sufficiently) just, impartial and worthy of respect, Law can mystify unjust uses of power, so that it seems worthy of respect but is not. Law can do BOTH

• Says there can also just be unfair Rigid laws - Law as oppression (bad) and emancipation (good)

• Law can restrain power (rule of law) BUT also Law is framework for creation of new powers - new powers created by law = courts, judges (empowered), lawyers anyone and any institution that can use law - can use it for oppression or emancipation

• Law as outcome of political process, however law and politics are not the same thing. Political demand can be put in law, law gives the language and tools to translate political will into something legal = deeply connected but at same time different.  

• E.g. use of law as instrument of oppression: legitimates power, abuses, more easily accessed by powerful forces compared to weaker ones (e.g. women, slavery, minorities) → Dobbs = oppression

• Law as tool for emancipation: legal terms = accessibility, powers to change/challenge injustices, give women rights, abolish slavery, accommodate minorities → Roe and Casey = emancipation

• Law’s utility depends on political climate - societal conditions and how political power is exercised. 

• Law is JANUS FACED!! - plasticity

• Opposite enterprise same Law - plasticity (law is plastic)

• Contestable part = law creates new power (in the moment it creates powers restrains them immediately so idea is not to create an entity that can overturn the law itself)

• Law legitimizes power either by restraining power or mystfiying unjust uses of power or both

• On one hand - law gives the powerful the upper hand. 

  • “Most powerful forces generally make the greatest use of law; will tilt the substantive content of law to their interests…”

  • After all - enjoy greater access to lawmakers, courts, quality legal counsel and devote more (financial) resources to legal rep. And lobbying.

• Recourse ot law forces the powerful in society to talk in terms which the powerless can also participate and also make claims. 

• In parliament and court, proposals need to be formulated in general legal terms, must be in line with concepts of minimal standards e.g. rule of law and not inconsistent with fundamental rights. 

Language of law misused by powerful….

People have used law to subordinate others and secure their own interest under guise of promoting laudable goals like freedom, liberty, equality, human dignity etc. 

Can also be used against powerful:

• Choose to speak in language of law, powerful can be called to account because they try to legitimate what they are doing in those terms

• Others can argue that powerful have misused (language) of law

Balkin’s conclusion: 

• Be aware of inherent ambivalence

• Rule of law clause and rights discourse can help powerful to masquerade structural injustices but…

• Rule of law values and rights discourse have also allowed people to speak out against and to restrain worst excesses of power