FOUNDATIONS OF LAW
WEEK 1 – WHAT IS “FOUNDATIONS OF LAW”?
SESSION 1 – What is law?
Why is it important to know the foundations of law?
Understanding legal systems and their functioning, critical evaluation of law, navigating legal
practice, contextualizing legal education and practice, global and comparative perspectives.
What are the foundations of law?
Internal foundations: legal doctrines, reasoning, rules
External foundations: historical, societal, philosophical influences
Historical foundations of Western legal systems:
Code of Hammurabi (codification, written law)
Greek law (Plato, Artistotle, natural law)
Roman law: civil law law of nations
Canon law: religious influence on law
Common law: England, case law, stare decisis
Enlightenment thought: social contract theories (Hobbes, Locke)
Constitutionalism
Theoretical foundations of law: natural law legal positivism legal realism critical legal
studies (CLS).
Natural law theory:
Laws = derived from inherent moral principles (exist independent of human institutions)
Aristotle, Aquinas, and later thinkers like Emmanuel Kant
For a law to be valid it must align with morality or justice!
Aristotle: the content of ‘natural’ justice (of ‘universal’ law) is set by nature, which
renders it immutable and valid in all communities
Legal positivism: separation of law morality
Law is valid if created by proper authority and follows established procedures
Important authors: H.L.A. Hart, John Austin
“The existence of law is one thing, its merits of demerits are another thing, whether a
law be, is one inquiry; whether it ought to be or whether it agrees with a given or
assumed test, is another and a distinct inquiry” – John Austin
Legal realism:
Focus on how law functions in practice, not just in theory
Judges, social context, and institutional behavior shape the law
“The life of the law has not been logic: it has been experience” – Oliver Wendell Holmes
,Critical legal studies: CLS questions the neutrality of law according to them you cannot fully
separate law from politics (for example) and its influences.
Law as a tool of power, reinforcing social hierarchies
Legal decisions often reflect the interests of dominant groups
Institutional foundations of law:
Role of courts (judicial interpretation, precedent)
- Stare decesis in common law systems
- How legal reasoning evolves trough case law and statutes
Legislatures and law – making
Rule of law: law must govern, not arbitrary power?
Globalisation and the foundations of law:
Interaction between national and international legal systems international institutions (UN,
ECHR, ICC) shaping domestic law
KEY TAKEAWAYS
1. Law’s foundations are shaped by historical, theoretical and institutional elements
2. Different legal theories offer competing views on the nature and purpose of law
3. Next session: applying these theories to real – world texts and societal examples
SESSION 2 – What is law?
Hart’s perspective on “what is law?”:
Law is more than just commands – it’s a system of rules that guide behavior
Primary rules: rules governing conduct (eg: “don’t steal”)
Secondary rules: rules about rules (eg: how laws are made, interpreted, and enforced)
Emphasis on law as an institutional system
Group exercise:
1. How does Hart’s concept of law as a system of rules help us understand the internal
foundations of legal systems?
2. In what ways does Hart’s theory allow for changes in law trough the legal system’s internal
processes (eg: legislative reform, constitutional amendments)?
3. How do secondary rules (eg: rules of recognition) play a role in creating a more sophisticated
and adaptable legal system?
Primary vs secondary rules:
Primary rules: direct commands for behaviour (obligations, prohibitions)
Secondary rules: provide structure and adaptability
- Rule of recogniton: 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
Rule of recognition: central to Hart’s theory
Provides criteria for what is considered law (eg: constitutional provisions)
Enables a legal system to function and evolve by giving
,Hart’s impact on legal theory:
Shift from command theory to a more flexible understanding of law as an evolving system
Emphasis on the institutional nature of law – how it is created, interpreted, and enforced
Paved the way for debates on the relationship between law, morality and society
What are the foundations of law?
Internal foundations external foundations:
Internal foundations: legal doctrines, reasoning, rules within the legal system
External foundations: historical, societal, philosophical influences broader context
Example: Roe v Wade (1973)
The court held 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.
Example: Dobbs v Jackson Women’s Health Organization (2022)
The Court ruled that the Constitution does not confer a right to abortion, overturning Roe. The
decision emphasized a return to state authority to regulate abortion, rooted in an orginalist
interpretation of the Constitution.
Internal foundations of law:
1. 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?
- How did the Court’s interpretation of stare decisis (precedent) play a role in Roe?
- In Dobbs v. Jackson, how did the Court’s reasoning change? Why did the majority argue
that Roe was wrongly decided?
2. Judicial interpretation:
- How did the justices in Roe and Dobbs interpret the Constitution differently regarding
individual rights?
- What role did constitutional interpretation (eg: orginalism vs living constitutionalism) play
in the decisions?
3. Precedent and stare decisis:
- How did the principle of stare decisis (respect for precedent) factor into both decisions?
- Why did the Dobbs court feel justified in overturning nearly 50 years of precedent?
External foundations of law:
1. Societal and historical context:
- How did societal values regarding women’s rights, privacy, and bodily autonomy influence
the Roe decision in 1973?
- What social and political movements contributed to the push to overturn Roe,
culminating in Dobbs?
- How have cultural shifts over the decades played a role in how these cases were decided?
2. Political influence:
- What role did political changes (e.g the appointment of more conservative justices) play?
- How might the Court’s decision reflect broader political pressures or the influence of
religious and social groups?
3. Historical legacy:
- How did the legal reasoning build on decisions regarding privacy and individual rights?
- How does the ruling reflect a historical shift in the interpretation of constitutional rights?
, Internal foundations: how did the legal reasoning, judicial interpretation, and precedent shape the
decisions in Roe and Dobbs?
External foundations: how did societal values, political pressures, and historical context influence the
outcome of these cases?
Debrief of the session:
Internal and external interplay: both internal legal reasoning and external societal pressures
are essential to understanding how legal systems operate
Shifting balance internal doctrines (e.g. precedent, constitutional interpretation) external
factors (e.g societal values, political movements) influenced these landmark cases
WEEK 2 - WHAT IS “THE RULE OF LAW”?
SESSION 1 – Rule of law:
Why is it important to understand the rule of law?
Foundation of modern legal systems, protection of individual rights, economic stability and
prosperity, global significance, prevention of tyranny and dictatorship.
LEARNING OBJECTIVES
1. Understand the concept of the rule of law
2. Trace the historical development of the rule of law
3. Analyze the relationship between the rule of law and government power
4. Distinguish between theoretical perspectives
5. Apply the rule of law to contemporary issues
A (very brief) introduction to Plato: the Republic (around 380 BC)
Hierarchy of government: tyranny - democracy - oligarchy - timocracy - aristocracy
‘Rule of law’: law must reflect ideal good and restrain the dangers of democratic excess
Philosopher – kings as ultimate interpreters of law, understands justice beyond politics
Law must align with absolute truths to achieve the common good
Laws that don’t guide toward justice contribute to tyranny
Connection to the rule of law: a just legal system is one in which the law is rational,
reflecting universal truths and constraining political power
Aristotle’s politics (350 BC):
Aristotle’s focus on practical governance Plato’s idealism
“He who bids the law rule may be deemed to bid God and Reason alone rule, but he who
bids man rule adds on element of the beast; for desire is a wild beast, and passion
perverts the minds of rules, even when they are the best of men”
Laws govern both rulers and citizens (so, all), securing justice and order
Laws prevent the arbitrary use of power and help balance the interests of all
Rule of law ensures rational, constitutional governance, rather than rule by decree
For the common interest: For the interest of the rulers:
Monarchy Tyranny
Aristocracy Oligarchy
Democracy Anarchy
WEEK 1 – WHAT IS “FOUNDATIONS OF LAW”?
SESSION 1 – What is law?
Why is it important to know the foundations of law?
Understanding legal systems and their functioning, critical evaluation of law, navigating legal
practice, contextualizing legal education and practice, global and comparative perspectives.
What are the foundations of law?
Internal foundations: legal doctrines, reasoning, rules
External foundations: historical, societal, philosophical influences
Historical foundations of Western legal systems:
Code of Hammurabi (codification, written law)
Greek law (Plato, Artistotle, natural law)
Roman law: civil law law of nations
Canon law: religious influence on law
Common law: England, case law, stare decisis
Enlightenment thought: social contract theories (Hobbes, Locke)
Constitutionalism
Theoretical foundations of law: natural law legal positivism legal realism critical legal
studies (CLS).
Natural law theory:
Laws = derived from inherent moral principles (exist independent of human institutions)
Aristotle, Aquinas, and later thinkers like Emmanuel Kant
For a law to be valid it must align with morality or justice!
Aristotle: the content of ‘natural’ justice (of ‘universal’ law) is set by nature, which
renders it immutable and valid in all communities
Legal positivism: separation of law morality
Law is valid if created by proper authority and follows established procedures
Important authors: H.L.A. Hart, John Austin
“The existence of law is one thing, its merits of demerits are another thing, whether a
law be, is one inquiry; whether it ought to be or whether it agrees with a given or
assumed test, is another and a distinct inquiry” – John Austin
Legal realism:
Focus on how law functions in practice, not just in theory
Judges, social context, and institutional behavior shape the law
“The life of the law has not been logic: it has been experience” – Oliver Wendell Holmes
,Critical legal studies: CLS questions the neutrality of law according to them you cannot fully
separate law from politics (for example) and its influences.
Law as a tool of power, reinforcing social hierarchies
Legal decisions often reflect the interests of dominant groups
Institutional foundations of law:
Role of courts (judicial interpretation, precedent)
- Stare decesis in common law systems
- How legal reasoning evolves trough case law and statutes
Legislatures and law – making
Rule of law: law must govern, not arbitrary power?
Globalisation and the foundations of law:
Interaction between national and international legal systems international institutions (UN,
ECHR, ICC) shaping domestic law
KEY TAKEAWAYS
1. Law’s foundations are shaped by historical, theoretical and institutional elements
2. Different legal theories offer competing views on the nature and purpose of law
3. Next session: applying these theories to real – world texts and societal examples
SESSION 2 – What is law?
Hart’s perspective on “what is law?”:
Law is more than just commands – it’s a system of rules that guide behavior
Primary rules: rules governing conduct (eg: “don’t steal”)
Secondary rules: rules about rules (eg: how laws are made, interpreted, and enforced)
Emphasis on law as an institutional system
Group exercise:
1. How does Hart’s concept of law as a system of rules help us understand the internal
foundations of legal systems?
2. In what ways does Hart’s theory allow for changes in law trough the legal system’s internal
processes (eg: legislative reform, constitutional amendments)?
3. How do secondary rules (eg: rules of recognition) play a role in creating a more sophisticated
and adaptable legal system?
Primary vs secondary rules:
Primary rules: direct commands for behaviour (obligations, prohibitions)
Secondary rules: provide structure and adaptability
- Rule of recogniton: 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
Rule of recognition: central to Hart’s theory
Provides criteria for what is considered law (eg: constitutional provisions)
Enables a legal system to function and evolve by giving
,Hart’s impact on legal theory:
Shift from command theory to a more flexible understanding of law as an evolving system
Emphasis on the institutional nature of law – how it is created, interpreted, and enforced
Paved the way for debates on the relationship between law, morality and society
What are the foundations of law?
Internal foundations external foundations:
Internal foundations: legal doctrines, reasoning, rules within the legal system
External foundations: historical, societal, philosophical influences broader context
Example: Roe v Wade (1973)
The court held 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.
Example: Dobbs v Jackson Women’s Health Organization (2022)
The Court ruled that the Constitution does not confer a right to abortion, overturning Roe. The
decision emphasized a return to state authority to regulate abortion, rooted in an orginalist
interpretation of the Constitution.
Internal foundations of law:
1. 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?
- How did the Court’s interpretation of stare decisis (precedent) play a role in Roe?
- In Dobbs v. Jackson, how did the Court’s reasoning change? Why did the majority argue
that Roe was wrongly decided?
2. Judicial interpretation:
- How did the justices in Roe and Dobbs interpret the Constitution differently regarding
individual rights?
- What role did constitutional interpretation (eg: orginalism vs living constitutionalism) play
in the decisions?
3. Precedent and stare decisis:
- How did the principle of stare decisis (respect for precedent) factor into both decisions?
- Why did the Dobbs court feel justified in overturning nearly 50 years of precedent?
External foundations of law:
1. Societal and historical context:
- How did societal values regarding women’s rights, privacy, and bodily autonomy influence
the Roe decision in 1973?
- What social and political movements contributed to the push to overturn Roe,
culminating in Dobbs?
- How have cultural shifts over the decades played a role in how these cases were decided?
2. Political influence:
- What role did political changes (e.g the appointment of more conservative justices) play?
- How might the Court’s decision reflect broader political pressures or the influence of
religious and social groups?
3. Historical legacy:
- How did the legal reasoning build on decisions regarding privacy and individual rights?
- How does the ruling reflect a historical shift in the interpretation of constitutional rights?
, Internal foundations: how did the legal reasoning, judicial interpretation, and precedent shape the
decisions in Roe and Dobbs?
External foundations: how did societal values, political pressures, and historical context influence the
outcome of these cases?
Debrief of the session:
Internal and external interplay: both internal legal reasoning and external societal pressures
are essential to understanding how legal systems operate
Shifting balance internal doctrines (e.g. precedent, constitutional interpretation) external
factors (e.g societal values, political movements) influenced these landmark cases
WEEK 2 - WHAT IS “THE RULE OF LAW”?
SESSION 1 – Rule of law:
Why is it important to understand the rule of law?
Foundation of modern legal systems, protection of individual rights, economic stability and
prosperity, global significance, prevention of tyranny and dictatorship.
LEARNING OBJECTIVES
1. Understand the concept of the rule of law
2. Trace the historical development of the rule of law
3. Analyze the relationship between the rule of law and government power
4. Distinguish between theoretical perspectives
5. Apply the rule of law to contemporary issues
A (very brief) introduction to Plato: the Republic (around 380 BC)
Hierarchy of government: tyranny - democracy - oligarchy - timocracy - aristocracy
‘Rule of law’: law must reflect ideal good and restrain the dangers of democratic excess
Philosopher – kings as ultimate interpreters of law, understands justice beyond politics
Law must align with absolute truths to achieve the common good
Laws that don’t guide toward justice contribute to tyranny
Connection to the rule of law: a just legal system is one in which the law is rational,
reflecting universal truths and constraining political power
Aristotle’s politics (350 BC):
Aristotle’s focus on practical governance Plato’s idealism
“He who bids the law rule may be deemed to bid God and Reason alone rule, but he who
bids man rule adds on element of the beast; for desire is a wild beast, and passion
perverts the minds of rules, even when they are the best of men”
Laws govern both rulers and citizens (so, all), securing justice and order
Laws prevent the arbitrary use of power and help balance the interests of all
Rule of law ensures rational, constitutional governance, rather than rule by decree
For the common interest: For the interest of the rulers:
Monarchy Tyranny
Aristocracy Oligarchy
Democracy Anarchy
