What is it all about Flashcards
experiencing law
How do we perceive law in daily situations?
- Contracts, e.g. a contract with Wiener Linien GmbH & Co KG
- Legal forms (Ltd., GmbH)
- Property
- Family Law
- Administrative processes (university admission)
- Murder (Criminal Law and Tort Law)
➢The degree of pervasiveness goes as far as to reach and to fill the entire language we use!
defining definition
- Definitio fit per genus proximum et differentiam specificam (scholastic way)
- genus proximum (finding the closest category)
- differentia specifica (finding a specific difference)
–> Definition happens through the next category and the specific difference.
definiendum = definiens
(Law) = (…)
defining law (hard to do)
Intuitive associations with morals and conventions
All of these are social norms (genus proximum), and not laws of nature such as gravity
law is a normative expectation
morals =personal; law = collective
law= regulation of human behaviour
law = usually written
operates through coercion (in opposition to morals) - ex: violation of a law leads to sanctions
regulates how things ought to be (counter - factual)
coercion of law
Conventions may cause internal coercion (habitus)
* Laws are not necessarily enforceable or provide for a sanction
- lex imperfecta
e.g. German decree on advisory speed limit
may nevertheless have legal relevance (e.g. in case of accident)
- soft law
guidelines, codes of conduct, recommendations, e.g. Resolutions by United Nations General Assembly
lacks binding force, but often obeyed
is law written ?
Customary Law is unwritten law
- but it is not convention – it requires opinion iuris
The British Constitution is also unwritten, yet undoubtedly law
Conventions may be written (Knigge)
➢ the (un)-written character of social rules is no differentia specifica
Kantian Philosophy (Cf. Kant, Metaphysics of Morals [1797]): On defining law
each of these social norms looks at a different aspect of freedom of the human being
- Morals: formulating maximes for one’s own behavior
- Law: when human beings act and interact freely law emerges
- Conventions: clarify how to pursue certain objectives (Zweckverfolgung)
Caveat: there are counterexamples!
according to KANT: law is what you actually do, morals are intentions
Wittgenstein, Philosophische Untersuchungen (1953): on concept of law
Definitions usually oversimplify the subject (definiendum)
* Sprachspiele (language games)
* Rather than finding the scholastic differentia specifica, family resemblances are decisive
➢We can think about law this way as well!
==> definition of law too simple, you need to find family resemblances instead (family = social norms)
typical properties of law
Law is regulation of human behavior – already used as a genus proximum
* Permeates all aspects of life
* Regulates how things ought to be (counterfactual)
* Usually written
- Publicity (e.g. “I plead the Fifth”)
* Law typically operates through coercion
- the consequence for violations of law are sanctions (damages, fines, criminal punishment etc.)
- Cf. legal review
objectives of law
necessary objectives of law:
- maintain peace
- structure and regulate social relations
- allow economic exchange
- enforce obligations
- protect rights
possible objectives of law:
- execute will of majority
- execute will of ruling class
- promote social equality
- protect rights of minorities
types of legal rules
Prohibitions - e.g. to smoke
Obligations - e.g. to pay rent
Permissions - e.g. to drive
Two notions of law
Law in the formal sense:
* law = all rules in the correct procedure
* abstraction is made from content of the
law
* independent of justice
Law in the material sense:
* law = rules that have a legitimate
content
* correct procedure alone is not sufficient
* connection to justice
Per google:
law in formal sense: binding and has direct legal authority, which means that they must be followed and applied by courts, governments and citizens.
law in the material, or indirect sense: represent the influences and factors that contribute to the creation and evolution of the content of law
disciplinary approach to law : continental approach
Law as we know it today appeared in the 19th century by applying historical methods to the object
law
- historische Rechtsschule
* The focus lay on Roman Law and germanic legal traditions/history
* Different approaches emerged over time (economic analysis, scientific methods,…)
disciplinary approach to the law
In many parts of the world law is not considered an academic subject
- Law Schools in the US
- Teachers are for instance social scientists, philosophers, economists etc.
* The continental way is to think about law as a discipline
- It is neither a humanity nor a science – it is in-between
➢Law is compartmentalized in prudence, hence the term jurisprudence
Law relies on other academic fields (e.g. social sciences such as economic analysis)
* However, it still has a proprium
- It has a specific methodology of its own -> compare Interpretation
* Dealing with law is a hermeneutic exercise
- It requires argumentation – it is flexible to a certain degree
- Distinguish internal and external legitimacy
Schools of legal thought
Natural Law:
* Law is rights and duties inherent to human being
* Law applies to all societies (universal)
* Law is immutable (eternal)
* Natural law can be found through use of reason
* Proponents: Rousseau, Voltaire
Positivism:
* Law is determined by legislator
* Law is limited to the territory of the state by which it is enacted
* Law can be amended any time
* Judges must search for will of the legislator
* Proponents: Austin, Hart, Kelsen
legal realism
Criticism of “mechanical“ and “formalist“ deductions in law
* Law as a product of human action
* Emphasis on importance of judges for the law (law is judge-made)
* Proponents: Holmes, Llewellyn, Pound, Cohen
➢Holmes, The Path of the Law, Harvard Law Review 1897, 457
