What is Western legal tradition based on? - ANS_Roman Law, as developed over centuries from the
Justinian compilation.
Directum - ANS_"the straight or right way"
Word for law that replaced ius
Creates droit, derecho, direito, diritto, Recht, right
ius - ANS_"pureness"
Original word for law based on Roman law
Creates just, justice, jurisprudence, jurist, jurisdiction, juridicial
LAW - ANS_That which is laid down.
From ius --> directum, we have the "pure," "straight" way which is laid down as LAW.
Functions of Law - ANS_Social infrastructure which binds members
Solves conflicts and promotes beneficial behavior
,No lawless society is recognized, and no law makes sense outside of society
Legal Naturalism - ANS_NATURE = rational order
Ancient sense of law, ius quia iustum
Law = justice and justice = the rational truth of nature where all beings and things were deemed to
accomplish what they were designed to do
* Abide by law because it is is JUST
See St. Thomas Aquinas from 1200s
Legal Positivism - ANS_AUTHORITY = rational order
Modern sense of law, ius quia iussum
Source of law = establishment of law by some socially recognized legal authority
* Abide by law because it has been imposed or enforced by some authority (entails SANCTIONS)
See Hans Kelsen from 19th century
Thomas Hobbes (power, not truth dictates law)
,Exercised in the Westphalian Paradigm
European Legal Positivism - ANS_Hans Kelsen created the Pure Theory of law in the 19th century stating
that there is an autonomous hierarchy of legal sources
Basic Norm sits at the top (derived from society); Constitution sits below; Laws by parliament third; Laws
by government at the bottom
Herbert Hart created the Minimum Content of Natural Law in 20th century -- a "mild" form of Legal
Positivism that requires PRINCIPLES derived from nature to be included in positive law (natural rights!)
Minimum content led to the creation of constitutions to protect basic rights regardless of authority
(based on PRINCIPLES not rules)
The Westphalian Paradigm - ANS_The Peace of Westphalia of 1648 followed 30 years of civil wars based
on religious disputes in Europe.
The solution to these conflicts and the way to peace was through the invention of national sovereign
states. These nations thus had the power to dictate the religion of the state and end the religious
disputes.
Westphalian Sovereignty also led to the Westphalian Paradigm: no longer do we have universal law (or
religion), but rather a series of political decisions made by sovereign entities (aka, Law).
The Westphalian Paradigm resulted from the decision of states after a long war of religions that allowed
choice of law instead of universal truth. This decision paved the way for national law, and created a stiff
separation between Domestic law and International law.
Westphalian Paradigm is closely related to the enforcement of Positive Law because Positive Law could
not have become if not for the organization structure allowed by the new paradigm.
, Domestic Law - ANS_Public and Private law.
A State's sovereignty entitles it to bind its own citizens by enacting laws.
Law is a product of national states, each hinged on autonomous systems of sources.
Legal Nationalism led to major codifications of private law (relations between citizens in nation) in the
19th century (ie constitutions)
International Law - ANS_States sovereignty can be voluntarily self limited by means of agreements with
other states.
Contracting states have an obligation to enforce international agreements and change domestic law
accordingly.
Comparative Law - ANS_A branch of legal science that investigates and measures the similarities and
differences between a national law and another.
The need for such a science stems from the fact that each state creates a national law, and any
discourse about law is only possible through the lens of comparative analysis due to the nature of
national law.
Indirect Benefits of Comparative Law - ANS_1. As an aid to legislators.
2. As a tool of construction to national or international law.
3. As a subject to be taught and studied at universities.
4. As an incentive and a guide to uniform existing laws.
5. As a driver of European laws as such.
Justinian compilation.
Directum - ANS_"the straight or right way"
Word for law that replaced ius
Creates droit, derecho, direito, diritto, Recht, right
ius - ANS_"pureness"
Original word for law based on Roman law
Creates just, justice, jurisprudence, jurist, jurisdiction, juridicial
LAW - ANS_That which is laid down.
From ius --> directum, we have the "pure," "straight" way which is laid down as LAW.
Functions of Law - ANS_Social infrastructure which binds members
Solves conflicts and promotes beneficial behavior
,No lawless society is recognized, and no law makes sense outside of society
Legal Naturalism - ANS_NATURE = rational order
Ancient sense of law, ius quia iustum
Law = justice and justice = the rational truth of nature where all beings and things were deemed to
accomplish what they were designed to do
* Abide by law because it is is JUST
See St. Thomas Aquinas from 1200s
Legal Positivism - ANS_AUTHORITY = rational order
Modern sense of law, ius quia iussum
Source of law = establishment of law by some socially recognized legal authority
* Abide by law because it has been imposed or enforced by some authority (entails SANCTIONS)
See Hans Kelsen from 19th century
Thomas Hobbes (power, not truth dictates law)
,Exercised in the Westphalian Paradigm
European Legal Positivism - ANS_Hans Kelsen created the Pure Theory of law in the 19th century stating
that there is an autonomous hierarchy of legal sources
Basic Norm sits at the top (derived from society); Constitution sits below; Laws by parliament third; Laws
by government at the bottom
Herbert Hart created the Minimum Content of Natural Law in 20th century -- a "mild" form of Legal
Positivism that requires PRINCIPLES derived from nature to be included in positive law (natural rights!)
Minimum content led to the creation of constitutions to protect basic rights regardless of authority
(based on PRINCIPLES not rules)
The Westphalian Paradigm - ANS_The Peace of Westphalia of 1648 followed 30 years of civil wars based
on religious disputes in Europe.
The solution to these conflicts and the way to peace was through the invention of national sovereign
states. These nations thus had the power to dictate the religion of the state and end the religious
disputes.
Westphalian Sovereignty also led to the Westphalian Paradigm: no longer do we have universal law (or
religion), but rather a series of political decisions made by sovereign entities (aka, Law).
The Westphalian Paradigm resulted from the decision of states after a long war of religions that allowed
choice of law instead of universal truth. This decision paved the way for national law, and created a stiff
separation between Domestic law and International law.
Westphalian Paradigm is closely related to the enforcement of Positive Law because Positive Law could
not have become if not for the organization structure allowed by the new paradigm.
, Domestic Law - ANS_Public and Private law.
A State's sovereignty entitles it to bind its own citizens by enacting laws.
Law is a product of national states, each hinged on autonomous systems of sources.
Legal Nationalism led to major codifications of private law (relations between citizens in nation) in the
19th century (ie constitutions)
International Law - ANS_States sovereignty can be voluntarily self limited by means of agreements with
other states.
Contracting states have an obligation to enforce international agreements and change domestic law
accordingly.
Comparative Law - ANS_A branch of legal science that investigates and measures the similarities and
differences between a national law and another.
The need for such a science stems from the fact that each state creates a national law, and any
discourse about law is only possible through the lens of comparative analysis due to the nature of
national law.
Indirect Benefits of Comparative Law - ANS_1. As an aid to legislators.
2. As a tool of construction to national or international law.
3. As a subject to be taught and studied at universities.
4. As an incentive and a guide to uniform existing laws.
5. As a driver of European laws as such.
