What is it all about? Flashcards
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 Law
The method of defining
Definitio fit per genus proximum et differentiam specificam (scholastic way)
- genus proximum (finding the closest category)
- differentia specifica (finding a specific difference)
* definiendum = definiens
(Law) = (…)
How to approach the definition of law
- Intuitive associations with morals and conventions
- All of these are social norms (genus proximum), and not laws of nature such as gravity
But what’s the conceptual difference?
- Coercion?
- Subjectivity/Objecitvity (cf. Morals – Ethics)?
- Written character?
- Defining Law
Coercion/Enforceability:
- 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
- Defining Law
Necessarily 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
- Defining Law
Kantian Philosophy (Cf. Kant, Metaphysics of Morals [1797]):How does Kantian philosophy define law in contrast to morals and conventions?
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!
- An Alternative Approach to Understanding the Concept of Law
Wittgenstein, Philosophische Untersuchungen (1953):
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!
- 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
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
- Permissions
- e.g. to drive
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
- 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
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 final:
- 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 in the law? What are the key points? who determines it?
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
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
What is the meaning of legal thought according to Holmes in “The Path of the Law
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…
- Holmes, The Path of the Law
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
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
- Holmes, The Path of the Law
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”
What does Holmes emphasize in The Path of the Law about the relationship between tradition and modern legal reasoning?
- 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
- Holmes, The Path of the Law
Jurisprudence:
- Jurisprudence is law most generalized
- Cf. Fundamental conceptions and broadest rules
➢Jurisprudence shall be valued more after Holmes - Theory has practical importance
additional holmes text
Liberal View of Law
Not gained by reading others, but by exploring the subject itself.
Jurisprudence
Helps understand existing dogma and generalize legal principles.
Historical Context
Discover how the law evolved to its current form.
Purpose of Legal Rules
Consider the ends rules aim to achieve, the reasons behind them, and the trade-offs involved.
Universal Interest of Law
The broader and more general aspects of law give it universal relevance.
Connection to the Universe
Law connects individuals to a larger universal process, hinting at the "universal law."
Reflection of the Infinite
Through understanding law's broader aspects, one glimpses the unfathomable, infinite nature of justice and society.
