Workshops Summaries
The historical development of the law
- Code of Hammurabi - 1760 BC
- divine power handed to King Hammurabi
- around 282 rules
Solon's Laws - 500 BC
- extensive legal reforms
- covered: private and public life
- goal: help repair the "morality" of Athens
The Twelve Tables - c 449 BC - 529-534 AC
- Justinian's Corpus Juris Civilis (Codex, Digesta, Institutions)
Napoleonic Civil Code - 1804 & BGB (Germany - 1900)
- more concise, accessible and comprehensive
- model for civil codes in other parts of Europe & the world
The Nuremberg Trials 1945-1946
- prosecution of prominent Nazi leaders for their roles in the Holocaust
- key point for the development of cases on war crimes, crimes against
humanity, aggression
Brown v. Board of Education- 1954
- segregation in schools was unconstitutional
Truth and Reconciliation Commission (South Africa) – 1996
- amnesty in return for a full disclosure of Apartheid crimes committed
- documentation of crimes, perpetrators held to account, empowering
victims
- restorative justice (rather than just punishment)
Characteristics of law
typically enforced by collective means (in particular, state organs);
accompanied by specific sanctions
punitive but also preventative and even restorative
stable and uniform but open to evolution
,DEFINING LAW
1) a set of universal moral principles in accordance with nature
2) a collection of valid rules, commands or norms that may lack any moral
content
- ‘law and right are the sum total of those conditions by which the free
moral will of one
- person can be reconciled with the free moral will of another person
according to a universal law of moral freedom.’ (Kant)
- law as a realization of the idea of freedom within society (Hegel)
- 'an aggregate of rules which determine the essential relations of man
living in a community’ (Arendts)
- 'law is the total sum of constraining rules which obtain in a politically
organized society / the system of purposes and interests secured by
coercive means' (Jhering)
The purpose of law:
- creating a system to regulate human conduct by establishing
standards, maintaining order,
- resolving disputes and protecting liberties and rights
RULE OF LAW
Encapsulates idea of supremacy of law over arbitrary power
believed to represent a key characteristic of modern democratic society a
proposed definition principle of governance in which all persons, institution
and entities, public and private, including the State itself, are accountable
to laws that are publicly promulgated, equally enforced and
independently adjudicated and which are consistent with
international human rights norms and standards. [...]
UN Secretary
-General’s Report on the rule of law and transitional justice in conflict and
post-conflict societies S/2004/616 (2004)
THE HART-FULLER DEBATE
the grudge informer case triggered a debate:
o Professor Hart (positivist):
the Nazi law = formally valid law at the time whether the law was moral or
not was irrelevant
, The Court erred in convicting the woman for denouncing her husband
o Professor Fuller (naturalist):
the Nazi law = so morally wrong that it could not be considered valid law
eight (8) principles identifying law's "internal morality “generality,
promulgation (i.e. published), non-retroactivity, clarity, non-contradiction,
possibility of compliance, constancy (i.e. consistent),congruence (i.e.
harmony) between rule and action the Court was correct in convicting the
woman for denouncing her husband
NATURAL PERSONS = human beings
e.g. yourself, members of your family, friends etc.
LEGAL PERSONS = entities (i.e. organizations) that have received the
status of legal subjects e.g. corporations, university, municipality, etc.
CONSEQUENCE:
can vary from one field to another
essentially entails that the legal subject is/can be an addressee of the law
CS: may hold certain rights, become duty bearers, receive certain
permissions etc.
The historical development of the law
- Code of Hammurabi - 1760 BC
- divine power handed to King Hammurabi
- around 282 rules
Solon's Laws - 500 BC
- extensive legal reforms
- covered: private and public life
- goal: help repair the "morality" of Athens
The Twelve Tables - c 449 BC - 529-534 AC
- Justinian's Corpus Juris Civilis (Codex, Digesta, Institutions)
Napoleonic Civil Code - 1804 & BGB (Germany - 1900)
- more concise, accessible and comprehensive
- model for civil codes in other parts of Europe & the world
The Nuremberg Trials 1945-1946
- prosecution of prominent Nazi leaders for their roles in the Holocaust
- key point for the development of cases on war crimes, crimes against
humanity, aggression
Brown v. Board of Education- 1954
- segregation in schools was unconstitutional
Truth and Reconciliation Commission (South Africa) – 1996
- amnesty in return for a full disclosure of Apartheid crimes committed
- documentation of crimes, perpetrators held to account, empowering
victims
- restorative justice (rather than just punishment)
Characteristics of law
typically enforced by collective means (in particular, state organs);
accompanied by specific sanctions
punitive but also preventative and even restorative
stable and uniform but open to evolution
,DEFINING LAW
1) a set of universal moral principles in accordance with nature
2) a collection of valid rules, commands or norms that may lack any moral
content
- ‘law and right are the sum total of those conditions by which the free
moral will of one
- person can be reconciled with the free moral will of another person
according to a universal law of moral freedom.’ (Kant)
- law as a realization of the idea of freedom within society (Hegel)
- 'an aggregate of rules which determine the essential relations of man
living in a community’ (Arendts)
- 'law is the total sum of constraining rules which obtain in a politically
organized society / the system of purposes and interests secured by
coercive means' (Jhering)
The purpose of law:
- creating a system to regulate human conduct by establishing
standards, maintaining order,
- resolving disputes and protecting liberties and rights
RULE OF LAW
Encapsulates idea of supremacy of law over arbitrary power
believed to represent a key characteristic of modern democratic society a
proposed definition principle of governance in which all persons, institution
and entities, public and private, including the State itself, are accountable
to laws that are publicly promulgated, equally enforced and
independently adjudicated and which are consistent with
international human rights norms and standards. [...]
UN Secretary
-General’s Report on the rule of law and transitional justice in conflict and
post-conflict societies S/2004/616 (2004)
THE HART-FULLER DEBATE
the grudge informer case triggered a debate:
o Professor Hart (positivist):
the Nazi law = formally valid law at the time whether the law was moral or
not was irrelevant
, The Court erred in convicting the woman for denouncing her husband
o Professor Fuller (naturalist):
the Nazi law = so morally wrong that it could not be considered valid law
eight (8) principles identifying law's "internal morality “generality,
promulgation (i.e. published), non-retroactivity, clarity, non-contradiction,
possibility of compliance, constancy (i.e. consistent),congruence (i.e.
harmony) between rule and action the Court was correct in convicting the
woman for denouncing her husband
NATURAL PERSONS = human beings
e.g. yourself, members of your family, friends etc.
LEGAL PERSONS = entities (i.e. organizations) that have received the
status of legal subjects e.g. corporations, university, municipality, etc.
CONSEQUENCE:
can vary from one field to another
essentially entails that the legal subject is/can be an addressee of the law
CS: may hold certain rights, become duty bearers, receive certain
permissions etc.
