Week 1 Natural law

Question 1

Jeremy Bentham (1748-1832)

Answer 1

British law professor
Devised a plan for codification
Anachronistic principle

Question 2

Anachronistic principle

Answer 2

From anachronism
Is an chronological inconsistency in some arrangement

Question 3

Criteria for codification

Answer 3

1. Provisions committed by writing
2. Issued by a body with authority
3. Must be exclusive (formal completeness)

Question 4

Jean Jacques Rousseau

Answer 4

Social Contract 1726

Question 5

Social Contract 1726

Answer 5

People should be sovereign - social contract shall be made
In order to govern ourselves, there needs to be an agreement between citizens
The consent of the people is necessary - because binding rules are applicable for all
Important: Majority decisions needs to be followed in order for a rule to be binding

Question 6

Why is interpretation vital?

Answer 6

The law always speaks therefore a judge needs to interpret the law if the law if incomplete

Question 7

Types of Interpretations

Answer 7

Intrinsic Interpretation: Grammatical interpretation

Extrinsic Interpretation: Teleological + Historical + Legislative + Systematic

Question 8

Codification and Interpretation

Answer 8

Concepts go hand in hand because interpretation follows and builds codification
A judge has the final say when codification is interpreted meaning that although codification is key, interpretation has the final say

Question 9

Natural law

Answer 9

Law is above us, self-evident, brought by nature (no legislator nor custom)

Question 10

Epicureanism (Ancient Greece)

Answer 10

Believed that Natural state is survival of the fittest, hence we must submit ourselves to certain rules

Question 11

Formal concept of law of Epicureanism

Answer 11

Anything drafted by the state/government is automatically binding

Question 12

Stoic Approach

Answer 12

Legislation is only binding if it is just, fair, equitable and reasonable

Question 13

Material concept of law of Stoa

Answer 13

Only statutes are law (binding) regardless of the content

Question 14

Aristotle

Answer 14

Greek Philosopher who claimed that natural law has equal legal force everywhere and is independent of opinions, while man-made law only makes a difference when hits established

Question 15

Rome’s laws

Answer 15

Civil law
Law of the people
Natural law

Question 16

Middle ages’ law outlets

Answer 16

Divine law (God made - the bible and natural law)
Man made law (Ecclesiastical + Secular)

Question 17

Natural law in the Dutch Republic - Hugo Grotis

Answer 17

Father of Natural law because he wrote on the law of war and peace where the took a stance of “even if there would be no god, there would still be natural law”
He took Natural law out of the embrace of the canonist church
He also pointed out that a legal system could be built on natural law

Question 18

Natural law in the Pre-enlightenment: 17th Century

Answer 18

Some professors conducted a system of natural law in which it was an approach to learn what system of Natural law teaches:
- Natural law is automatic due to reason and logic
- Natural law is universal

Question 19

Natural law in the Enlightenment Period: 17th + 18th Century

Answer 19

This was the Era of reason where people were encouraged to use the power of reason (brain)
The thought of enlightenment was that there should be a universal set of rules that do not need to be codified because they were self-explanatory

Question 20

Change of thought through 2nd half of 18th Century

Answer 20

It was believed that codification was needed due to the fact that natural lawyers believed that they should be the ones using their brains and not everyone else

Question 21

Flaw of natural law

Answer 21

It can be moulded, thus this was also a reason for universal codification

Question 22

Natural law 20th Century: legal positivism

Answer 22

This was the return to epicureanism. Legal positivism is the belief to separate law as it is and law as it should be. –> judges have to deliver justice based on legal statutes, codification and not political morality.

Question 23

Gustav RadBruch

Answer 23

A positivist who argued: where statutory law is incomplete with the requirements of justice to an intolerable degree then statutory law must be disregarded by a judge, to favour the justice principle
Essentially saying that Natural Law should prevail over unreasonable statutory law

Question 24

Wall shooters Case

Answer 24

Case about soldiers shooting immigrants, in Berlin, that were crossing the wall after unification had made it illegal

Question 25

Radbruch Formula

Answer 25

Justice - legal certainty
Even if laws are not perfect, but these laws prove to be false then the law cannot be considered valid
(Laws prove to be false if they go against fundamental principles)

Question 26

Natural law in the 21st Century

Answer 26

Natural law represented through human rights

Question 27

A Strange Story

Answer 27

Fake case to bring forth the short fallings of the law
A man believed that his wife was dead and so he then remarried
However, he later discovered that she (the first way) was alive. Even though this was considered adultery and Bigamy, everything was according to the American Law.
3 trials:
- People v. Oades
- Oades v. State of California
- Mass meeting of people of LA and SanD

Takeaway:
- 2 different ways in which the law could be interpreted (Grammatical and teleological) In criminal law the grammatical interpretation of the law is used, due to the principle of legality.