Samenvatting Foundations of Law - KU Leuven (17/20)

What is foundations of law?
 Internal foundations = core components that operate within the legal
system = the machinery of the legal system
o E.g. legal reasoning, legal doctrines, legal rules, legal structures…
 External foundations = components that are formed by historical
traditions, by things happened in the past, by societal influences or by
philosophical influences
o Historical elements: influences of time, place, society…
o Societal elements: values, norms, power structures, cultural shifts…
o Philosophical questions
-> The internal and external elements form the foundations of law
 Historical foundations:
o Code of Hammurabi -> systematical approach of law, law can be
codified
o Greek law -> relationship between law and justice, law is more than
a set of rules => law should also reflect moral and ethical principles
 = idea of natural law
o Roman law -> legal reasoning
o Canon law -> religious influence on law
 principle of justice is transcendent
o Common law -> stare decisis
o Enlightenment thought -> Hobbes, Locke, Rousseau focused on
individual rights and social contract theory
o Constitutionalism -> documents that codify the enlightenment ideas
 Theoretical foundations of law:
o Natural law:
 Laws are derived from moral principles
 Law should reflect a moral order
 Law must align with morality or justice
=> if a law is immoral, it is not a law, even if a government
enacted it
 E.g. Aristotle, Kant
o Legal positivism:
 Separation between law and morality
 The validity of law doesn’t depend on whether its moral or not
but on whether it has been properly enacted by the
appropriate authority following established procedures
 E.g. Hart, Austin
o Legal realism:
 More pragmatic approach
 Focus on how law actually functions in practice, not just in
theory
 Legal systems are influenced by things like personal
views of judges, social environments, social context…
 E.g. Holmes
o Critical legal studies:
 Law is not neutral, it serves as a tool of power, reinforcing
social hierarchies
 Legal decisions often reflect the interests of dominant groups
 Law cannot be separated from politics or ideology
 E.g. Duncan Kennedy
 Institutional foundations of law:
o Courts -> interpretation and application of laws

1

, o Legislatures and law-making
o Rule of law -> law must govern
 What is law?
o Hart’s perspective:
 Law is more than just commands -> it is a system of rules
that guide behavior + law as an evolving system
 Primary rules = rules governing conduct -> tell people
what they can(not) do => these are direct commands
for behavior
o E.g. don’t steal
 Secondary rules = rules about rules -> define how
primary rules are created, interpreted and enforced
o E.g. how laws are made, interpreted and
enforced
o 3 types:
 Rule of recognition: determines what
counts as valid law
 Rule of change: allows for laws to be
updated or modified
 Rule of adjudication: establishes how legal
disputes are resolved
 Hart’s theory is a form of legal positivism -> Hart says that as
long as a law meets the criteria set out by the rule of
recognition, the law is valid, even if it is unjust
 Questions:
 How does Hart’s concept of law as a system of rules
help understand the internal foundation of legal
systems?
o Hart sees law as a system of rules: primary rules
guide behavior, while secondary rules define
how laws are made, changed, and interpreted.
This structure ensures order, flexibility, and
legitimacy because people within the system
accept and follow the rules. So, this framework
helps explain how legal systems function
internally.
 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 Hart's theory allows laws to change through
secondary rules. The rule of change guides how
laws are created, amended, or removed. This
internal system ensures laws can evolve while
keeping order.
 How do secondary rules (e.g. rules of recognition) play
of role in creating a more sophisticated and adaptable
legal system?
o Secondary rules help fill the gaps in the legal
system that exist due to different interpretation
by different people, bcs secondary rules, like rule
of recognition, make the legal system clearer
and more adaptable. They show how laws are
identified, changed, and enforced, ensuring
consistency and flexibility.

2

,  Roe v. Wade (1973) v Dobbs v. Jackson (2022):
o Internal foundations of law:
-> Legal reasoning:
 In Roe v. Wade, how did the Supreme Court justify the right to
an abortion under the 14th Amendment and the right to
privacy?
 The 14th Amendment says no state can take away a
person's life, freedom, or property without fair legal
process. In a free society, "freedom" includes a broad
right to privacy, which protects a pregnant woman's
choice to have an abortion.
 How did the Court’s interpretation of stare decisis (precedent)
play a role in Roe?
 In Roe v. Wade, the Court ruled that a woman has a
constitutional right to abortion based on the right to
privacy from the 14th Amendment's Due Process
Clause. This was a groundbreaking decision, built on
earlier cases that expanded privacy rights, but it went
further by applying those rights to abortion.
 “Right to privacy” should be interpreted in the spirit of
time, so the right to abortion can be derived from this
= living constitutionalism = interpretation based on
time spirit and social developments
 <-> in Dobbs the court said: individual rights such as
right to privacy should not be able to be adapted
throughout time and should not be influenced by
societal developments. We should strictly stick with
what the constitution says, and it does not mention the
right to abortion = originalism = only rights you can
derive from the constitution are the ones literally
mentioned with no room for evolution
 In Dobbs v. Jackson, how did the Court’s reasoning change?
Why did the majority argue that Roe was wrongly decided?
 In Dobbs v. Jackson, the Supreme Court argued that the
Constitution doesn’t mention abortion or protect it
implicitly, so Roe v. Wade should be overturned. The
decision shifted abortion regulation back to the states,
ending federal protection of abortion rights.
 In Dobbs, the majority said that the only valid unlisted
rights are those "deeply rooted in the nation’s history
and tradition" and necessary for "ordered liberty." The
majority ruled that abortion is not one of these rights.
-> Judicial interpretation:
 How did the justices in Roe and Dobbs interpret the
Constitution differently regarding individual rights?
 In Roe, the Court ruled that the 14th Amendment's Due
Process Clause protected a woman's right to privacy,
including the right to choose an abortion. This right was
considered "fundamental," and the Court set up a
framework to balance it with state interests.
 In Dobbs, the Court overturned Roe, stating that
abortion rights are not explicitly in the Constitution and
are not part of the rights deeply rooted in the nation's


3

, history. They decided that states should regulate
abortion, removing federal protection.
 What role did constitutional interpretation (e.g., originalism
vs. living constitutionalism) play in the decisions?
 In Roe, the Court used a living constitutionalist
approach, seeing the Constitution as an evolving
document that recognized a right to privacy <->
In Dobbs, the majority used an originalist approach,
arguing the Constitution should be interpreted based
on its original meaning when it was written.
-> Precedent and stare decisis:
 How did the principle of stare decisis (respect for precedent)
factor into both decisions?
 Both decisions overturned an existing precedent,
although Roe also used earlier cases to extend the idea
of privacy
 Why did the Dobbs court feel justified in overturning nearly
50 years of precedent?
 The court thought that in Roe, the constitution was
wrongly interpreted (originalist approach)
o External foundations of law:
-> Societal and historical context
 How did societal values regarding women’s rights, privacy,
and bodily autonomy influence the Roe decision in 1973?
 The women's rights movement and the focus on
privacy and bodily autonomy were key in Roe.
Feminists pushed for women's control over their
bodies, and society increasingly valued privacy. This
led to the Court's ruling that the right to privacy
includes a woman's right to choose an abortion.
 What social and political movements contributed to the push
to overturn Roe, culminating in Dobbs?
 Pro-Life Movement
 Religious Influence: framing abortion as a moral issue
 Conservative Political Movement: Republican Party +
judicial appointments to influence the SC
 Legal and Legislative Strategies: States passed strict
abortion laws and legal challenges to encourage the SC
to reconsider Roe
 Cultural Shift: Public opinion became more divided,
with a growing pro-life sentiment influencing politics.
-> Political influence:
 What role did political changes (e.g., the appointment of more
conservative justices) play in the overturning of Roe?
 When Dobbs was ruled, the majority of appointed
justices were Republican. This is a party that is
traditionally more conservative and thus does not
support abortion
-> Historical legacy:
 The legal reasoning of Roe built on prior SC decisions
regarding privacy and individual rights
 How does the Dobbs ruling reflect a historical shift in the
interpretation of constitutional rights?


4