Law and Society Week 4 2025

Session Overview

• Law and Society Course

  • Instructor: Bruno Sousa Rodrigues

  • Date: 20/02/2025

Session 4: Positive Law and State Institutions

• Key Topics:

  • Finalize discussions on historical origins of the legal profession.

  • Political centralization and its influence on law (Insights from Saskia Sassen).

  • The importance of State sovereignty in legal organization.

  • Limitations to State legality and the distinction between law and morality (Insights from H.L.A. Hart).

Historical Context of Legal Profession

• Historical Insights on Legal Business:

  • Criticism of the engagement of curia and lawyers in promoting litigation for profit.

  • Lawyers in the papal curia contributed significantly to Rome's economy during the 12th and 13th centuries.

  • Litigation increased demand for legal professionals, benefiting various sectors of the economy (shops, inns, etc.).

  • The rise of lawyers coincided with an influx of litigants, not as a cause of the litigation surge.

Growth and Formalization of Legal Procedures

• Legal Profession's Role in Canonical Litigation:

  • Advocates and legal professionals became crucial in the late 12th century due to complex court procedures.

  • By 1200, self-representation in litigation was discouraged; expert legal aid was deemed essential.

Professional Judges Versus Lay Judges

• Historical Judicial Structures:

  • Early courts lacked regularly appointed judges; Frankish judges chosen per case until Charlemagne instituted lifetime appointees.

  • Judges initially had non-professional backgrounds yet began developing a form of professionalism.

  • Understanding of judicial professionalism progressed within the Church from traditional courts to trained legal officials.

Evolution of Accountability in Courts

• Judicial Independence:

  • The rise of judicial professionalism correlated with judges gaining independence from political influences.

  • By the early 18th century, judges achieved irremovability barring extreme circumstances (i.e., parliamentary request).

  • French judicial positions often became private property through office purchase, complicating royal control.

Public Accountability and Justice Administration

• Judicial Processes in Early Societies:

  • Description of ancient Greek courts: judges proposed judgments with public approval, illustrating early community involvement in justice.

  • Over time, public participation in the judicial process diminished.

Sovereignty and Law

• State Sovereignty as Absolute Power:

  • Sovereignty defined as the absolute authority of a commonwealth; laws depend on the sovereign.

  • Contracts differ from laws; the sovereign cannot bind himself as laws are one-sided.

Territorial Sovereignty

• Jurisdictional Authority:

  • Definition of territorial sovereignty as exclusive rights over land, air, and sea.

International Law vs. National Law

• Monism and Dualism Explained:

  • Monism: law viewed as a unified whole derived from a common source.

  • Dualism: distinction made between international law (governing states) and municipal law (governing individuals).

Emergence of Human Rights

• Universal Declaration of Human Rights:

  • Recognizes the inherent dignity and equal rights of all individuals as foundational to justice and peace.

Legal Positivism Insights

• Distinction between Law and Morality:

  • Legal positivism allows for a value-neutral analysis of law, separating it from moral considerations.

  • Law is seen as set by a sovereign entity, applicable to subjects under its jurisdiction.

Conclusion

• Reflection on the Interrelation of Law and Morality:

  • Ongoing dialogues in legal theory regarding the connection and separation of law from moral imperatives.

Session Overview Law and Society CourseInstructor: Bruno Sousa RodriguesDate: 20/02/2025Session 5: Positive Law and State Institutions

Key Topics:

• Finalize discussions on historical origins of the legal profession.

• Political centralization and its influence on law (Insights from Saskia Sassen).

• The importance of State sovereignty in legal organization.

• Limitations to State legality and the distinction between law and morality (Insights from H.L.A. Hart).

Historical Context of Legal Profession

• Criticism of the engagement of curia and lawyers in promoting litigation for profit.

• Lawyers in the papal curia contributed significantly to Rome's economy during the 12th and 13th centuries.

• Growth in litigation increased demand for legal professionals and benefited various sectors of the economy.

Growth and Formalization of Legal Procedures

• Advocates became crucial in canonical litigation due to complex court procedures by the late 12th century.

• Self-representation was discouraged by 1200; expert legal aid viewed as essential.

Professional Judges Versus Lay Judges

• Early courts lacked regularly appointed judges; Charlemagne instituted lifetime appointees.

• Judges developed professionalism from non-professional backgrounds in Church courts.

Evolution of Accountability in Courts

• Judicial professionalism led to independence from political influence.

• By the early 18th century, judges could only be removed under extreme circumstances.

• French judicial positions often complicated royal control through office purchase.

Public Accountability and Justice Administration

• Ancient Greek courts illustrated early community involvement in justice.

• Over time, public participation in judicial processes diminished.

Sovereignty and Law

• Sovereignty defined as the absolute authority of a commonwealth; laws depend on the sovereign's discretion.

• Territorial sovereignty indicates exclusive rights over land, air, and sea.

International Law vs. National Law

• Monism: Law viewed as a unified whole from a common source.

• Dualism: Distinction between international law (governing states) and municipal law (governing individuals).

Emergence of Human Rights

• Universal Declaration of Human Rights recognizes inherent dignity and equal rights of individuals as foundational to justice and peace.

Legal Positivism Insights

• Legal positivism allows a value-neutral analysis of law, separating it from morality.

• Law is established by a sovereign entity, applicable to subjects under its jurisdiction.

Conclusion

• Ongoing dialogues in legal theory regarding the connection and separation of law from moral imperatives.