Foundations of law (C02B3A) - volledige samenvatting in Engels (15/20 gehaald)

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FOUNDATIONS OF LAW
Examen: open vraag = casus
 Readings vd course mag je meenemen naar examen

1. Introduction
1. Why is it important to know the foundations of law?
1) Helps understand the functioning & structure of legal systems
2) Identify strengths & weaknesses
a. = critical evaluation of law
3) Help with legal reasoning
4) Provide context & show ideas that influence the laws
a. = contextualization of legal education & practice
5) Foundation of differences between legal systems
a. = global & comparative perspectives

What is Foundations of Law?
1. Theoretical & historical foundations
- What are the foundations of law?
= the essential base of legal systems
= what makes it possible for legal systems to exist & function afterwards
o Internal foundations
 Legal doctrines, legal reasoning, rules
 = documents that work internally
 Upholds & enforces the law
o External foundations
 Historical, societal, philosophical influences
 Historical: legal systems = influenced by specific times
 Philosophical: big questions (why?..)

- Foundations of law:
o Historical (1)
o Theoretical (2)
o Institutional (3)
-> 2 questions:
1) Where does law derives its authority form (= legitimacy of law)?
a. Given by state or derived from something that transcends
governments?
2) What are the basic elements that all legal systems need to function
effectively?
a. Certain features (e.g.: rules, public trust, forms of legitimacy..)



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 Is that enough or is there something deeper? Something that
lurks in the background as we approach different issues?
-> Help understand why some things work in legal systems while other things
don’t

- Historical foundations of Western legal systems (1)
≠ over the entire world
o Code of Hammurabi
 Codification, Written Law
 It showed that laws can be codified: laws more transparent &
stable
 = one of the oldest recorderd legal codes
 Systematic approach to law (specific issues described with specific
defenses)
o Greek Law
 Plato, Aristotle: Natural Law
 Law should be based on common good
 Important development = relationship law – justice
 Concern about nature of justice & role of law to achieve this
o Roman Law
 Most influence
 E.g.: Justinian code
 Shows sophisticated legal reasoning & that law can be adopted to
different situations
o Canon Law
 Religious influence on law
 Provided legal framework for matters relating to church
 Role in shaping European legal systems blending the authority
with legal order
 Something transcending lurking in the back = justice in religious
sense
o <-> justice in Greek sense
o Common Law
 England: Case Law (stare decisis)
 ≠ codified
 Based on precedent = past judicial decisions guide future
rulings
 Fewer rules & guided by traditional decisions
 Big role: colonization
 Caused it to spread & be a part of our system
o Enlightenment Thought

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Social Contract Theories < Rousseau, Hobbes, Locke
= focused on concepts, individual rights & a social contract
 E.g.: individual right to property < Locke
 Law = product of reason, consent, individual rights (= a biggg
transformation)
o Paved the way for modern legal systems
 Prioritize individual rights & freedom
o <-> always an entity outside yourself that tells you to
obey laws
o Constitutionalism
 = important after the revolutions
 E.g.: French revolution, American revolution
 Systems started to codify with concepts
 E.g.: separation of powers

- Theoretical foundations of law (2)
o Natural law
 Core idea: laws = derived from inherent moral principles (= principles
that exist independently)
 Connection law – morality
 Aristotle, Aquinas (& later thinkers like Kant)
 Aristotle: believed that law should reflect a legal order that’s
moral & timeless
o If law isn’t moral it isn’t law
o Morality = validity
o Can’t be changed bc it’s based on truths
 Aquinas: believed in divine law
 Valid law must align with morality or justice
 Aristotle: the content of 'natural' justice (or 'universal' law) =
set by nature
o This makes it unchangeable & valid in all communities
 What is justice? – see later
o Legal positivism
 Core idea: law = valid if created by proper authority and follows
established procedures
 Validity of law doesn’t depend on whether it’s just or moral
o BUT it depends on whether it has been properly
enacted by the appropriate authority following certain
procedures
 As long as law follows the rules of the legal
system, it’s legal

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 Important authors: H.L.A. Hart, John Austin
 Separation law <-> morality
 What law is <-> what law ought to be
o Legal realism
 Focus: how law functions in practice, not just in theory
 = pragmatic approach (less abstract)
o Law ≠ fixed decision: influenced by other things (social
environments, other actors in legal system..)
o Law ≠ purely logical
 Deeply imbedded in society: much more focus
on individuals, context & behavior
 <-> natural law & legal positivism: focus on abstract principles
(morality & law)
 Judges, social context & institutional behavior shape the law
 “The life of the law has not been logic: it has been experience” <
Holmes
 Law ≠ just shaped by former rules BUT by actions & judges (law
evolves bc of real world events)
o Critical Legal Studies (CLS)
 Core idea: law = a tool of power, reinforcing social hierarchies
 Legal decisions often reflect the interests of dominant groups
(instead of the true quality)
 CLS questions the neutrality of law
o Law ≠ mutual, objective
o Idea that law can be separated from ideologies
(morality <-> law)
 ≠ really possible (influenced)
 Draws into question the foundation of the other
legal theories
 = radical & critical approach to understanding law

- Institutional foundations of law (3)
o = how does law operate within legal institutions & how do these institutions
function?
o Role of courts
 Judicial interpretation, precedent
 Courts interpret & apply the laws in disputes
o BUT ALSO crucial role in maintaining the rule of law (=
principle that everyone (also government) is subject to
law)
- -> Interaction between courts, legislature, parliaments = essential

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o Legislatures & law-making
o Rule of Law: law must govern, not arbitrary power?

- Legal reasoning & precedent
o Stare decisis in common law systems
 Traditional decisions = more important to the legal system in common
law systems than in others
 Key example of precedent: the way higher courts (e.g.: US supreme
court) set precedent for lower courts
 Once higher courts decide on a legal principle lower courts
must follow that
o Responsibility for higher courts to consider the long-
term consequences
 = more & more common in other legal systems too bc of complexity in
legal systems that we have created
 Sometimes courts don’t follow higher courts: moral, political or
… landscape has changed
o Courts may decide that all rulings aren’t appropriate
anymore (e.g.: laws that have become discriminatory)
o How legal reasoning evolves through case law & statutes
o Institutional foundations create legal certainty

2. Globalization & the foundations of law
- Interaction between national & international legal systems
o International legal systems = shaping the way law is understood & applied
 Poses challenges & opportunities (e.g.: international treaties, human
rights..)
o Crosspollination of legal ideas: created global legal culture to a certain extend
 Legal systems = influenced by internal factors (= own history &
traditions) & external factors (= international law)
 Need to be balanced by national legal systems
- International institutions (UN, ECHR, ICC) shaping domestic law
o Set standards (= agreeing on definitions of what law is) & enacts binding
decisions (< contemporary procedures (≠ advisory procedures))
o What if you don’t follow the rules? Lacks enforcement (in the way that we find
in national legal systems)

3. Key takeaways
1) Law’s foundations = shaped by historical, theoretical & institutional element
2) Different legal theories offer competing views on the nature & purpose of law


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4. Wat is law?
- Hart’s perspective (zie tekst: “concepts of law”)
o Law = more than just commands
 = ia system of rules that guide behavior
o Makes differentiation: primary rules <-> secondary rules
-> Creates: form of flexibility
 Primary rules = rules governing conduct
 = direct commands for behavior (obligations, prohibitions)
 E.g.: "don’t steal"
 Secondary rules = rules about rules
 Provide structure & adaptability
 3 types:
o Rule of recognition: determines what counts as valid
law within a legal system
 = central to Hart’s theory
 Provides criteria for what’s considers law
 E.g.: constitutional provisions
 Makes it able for a legal system to function &
evolve by giving authority to legal institutions
o Rule of change: allows for laws to be updated or
changed
o Rule of adjudication: establishes how legal disputes are
resolved
 E.g.: how laws are made, interpreted & enforced
o Focus on: law as an institutional system
o Did Hart answer the question?
 No, there’s a reason
 He avoids the question & transforms it: he says that we look
for a solution to another question
 = chemistry part of the text: instead of asking what law is, we
ask what actually is going on
o Hart’s impact on legal theory
 From command theory -> a more flexible understanding of law as an
evolving system (after WWII)
 Focus on the institutional nature of law
 = how it is created, interpreted & enforced
 Paved the way for debates on the relationship between law, morality,
& society (see later)
o How does Hart’s concept of law as a system of rules help us understand the
internal foundations of legal systems?



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o In what ways does Hart’s theory allow for changes in law through the legal
system’s internal processes (e.g., legislative reform, constitutional
amendments)?
o How do secondary rules (e.g., rules of recognition) play a role in creating a
more sophisticated and adaptable legal system?
o What are the foundations of law?
 Internal foundations:
 Legal doctrines, reasoning & rules
 = within the legal system
o = Hart’s focus
 External foundations:
 Historical, societal & philosophical influences
 = broader context
-> Difference in what’s happening within legal system & broader context
-> E.g.: movement of Roe v. Wade
 Court ruled that the 14th Amendment’s right to privacy
extended to a woman’s decision to have an abortion
 The decision balanced this right against the state’s interest
in regulating abortions
 Was that the end of Roe v Wade? NO, Roe must go
 = Dobbs v. Jackson Women’s Health Organization
 Court ruled that the Constitution doesn’t
confer a right to abortion
 = overturning Roe
 The decision focused on a return to state
authority to regulate abortion
 = rooted in an originalist
interpretation of the Constitution
 = another decision about women’s health by
the same court (= institution with the same
authority)
 The same legal authority finds a
completely opposite interpretation of
the law in this case
 Relate these 2 cases to theory:
-> Goal: how to balance external & internal foundations
 Internal foundations of law:
 Legal Reasoning:
 In Roe v. Wade, how did the Supreme
Court justify the right to an abortion



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under the 14th Amendment and the
right to privacy?
 Court justified the right to
abortion by 1) recognising the
the right to privacy and
extending this right to
encompass women's decision
to abortion; 2) balancing this
right against the state's
interests in protecting
maternal health and potential
life; 3) a framework was
established to guide when and
how state could regulate
abortion
 How did the Court’s interpretation of
stare decisis (precedent) play a role in
Roe?
 It played a significant role as
by extending this precedent to
abortion rights the court
demonstatred a commitment
to the principle of stare decisis
BUT court also showed
willingness to expand on
existing precedent to address
new (constitutional) questions
-> allowed the court to find a
constitutional right to
abortion while maintaining
consistency with the prior
rights
 In Dobbs v. Jackson, how did the
Court’s reasoning change? Why did
the majority argue that Roe was
wrongly decided?
 The reasoning in the two
cases differ. The majority also
argued that Roe case was
wrongly judged, because the
court didn't explicitly mention

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or protect the right to
abortion (argued that this
right isn't deeply rooted in the
history and traditions); court
rejected the notion that the
right to abortion falls under
the 14th Amendment's right
to privacy, which was the
basis for the Roe decision;
Dobbs decision focused on a
return to state authority in
regulating abortion,
contrasting with Roe's federal
protection of abortion rights
 Judicial Interpretation:
-> E.g.: multiple judges have been appointed
 How did the justices in Roe and
Dobbs interpret the Constitution
differently regarding individual
rights?
 Roe: broad interpretation of
individual rights (right of
privacy)
 Dobbs: narrow view on
individual rights (specific right
that has to be conferred by
the constitution)
 What role did constitutional
interpretation (e.g., originalism vs.
living constitutionalism) play in the
decisions?
 Roe: constitution should be
interpreted in the light of the
society & the norms
 Dobbs: constitution should be
interpreted in the light of the
circumstances that it was
written in by the draft of the
constitution
 Precedent and Stare Decisis:



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 How did the principle of stare decisis
(respect for precedent) factor into
both decisions?
 Both decisions overturned an
existing precedent
 Why did the Dobbs court feel justified
in overturning nearly 50 years of
precedent?
 Court thought that in Roe v.
Wade the constitution was
wrongly interpreted &
adopted a more originalistic
interpretation
 External foundations of law:
-> Legal interpretations can lead to different
outcomes (e.g.: originalist, progressive..): what does
that do to your conclusions? (maybe doesn’t have
that much to do with law)
 Societal and Historical Context:
 How did societal values regarding
women’s rights, privacy, and bodily
autonomy influence the Roe decision
in 1973?

 Roe's case was influenced by
the societal values of the time
regarding women's rights,
privacy. For instance,
Women's Rights Movement at
the time, which advocated for
greater equality and
autonomy for women in
various aspects of life,
including privacy rights

 What social and political movements
contributed to the push to overturn
Roe, culminating in Dobbs?
 The movement to overturn
Roe v. Wade & achieve the
Dobbs decision was driven by:
religious groups (conservative
religious organizations

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