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
Holmes, The path of the Law pt.1: what studying law means studying, meaning of legal thought, limits of the law,
Studying law means studying a profession
- because public force is intrusted to judges
* “People want to know under what circumstances and how far they will run the risk of coming against
what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared.”
➢The object of our study is prediction
The meaning of legal thought is to make prophecies of cases more precise and to systematize them
* The facts shall be reduced to legally important circumstances
* A legal duty is a prediction that shows the connection between action and sanction
- Something ought to be, if…
Limits of the Law:
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
* Law shall primarily take account of social and practical aspects and not of moral considerations
➢There is a danger, both to speculation and to practice, of confounding morality with law. Legal language lays the trap for this mistake according to Holmes.
Holmes, The path of the Law pt.2: forces that determine content/growth of the law, the ideal of law, jurisprudence
What are the forces that determine the content and growth of the law?
* Many theories come up with various solutions (e.g. Zeitgeist, sovereign power)
* „[…]we should be interested none the less, still with a view to prediction, in discovering some order,
some rational explanation, and some principle of growth for the rules which he [the sovereign] laid
down”
➢Then, a second fallacy comes in – logic
➢The language of judicial decisions is logic
Law as a subject of study/The ideal of law:
* Holmes states that most of the things we do, we do because of tradition and convention
*
“Still it is true that a body of law is more rational and more civilized when every rule it contains is
referred articulately and definitely to an end which it subserves, and when the grounds for desiring
that end are stated or are ready to be stated in words”
* When we ask for the purpose and reason of a law, we typically refer to tradition and history
➢“The rational study of law is still to a large extent the study of history”
Instead of blindly imitating a rule from the past one shall master statistics and economics
* Tradition must not override rational policy and must not be misunderstood
* Roman Law shall be studied as a working system
urisprudence:
* Jurisprudence is law most generalized
- Cf. Fundamental conceptions and broadest rules
➢Jurisprudence shall be valued more after Holmes
* Theory has practical importance
