Introduction to law

Lecture I
Notion and theories of
law
Mladen ain, LL.M.Eur.

Notion of law

What is law?

Cognition limited by ideology and the fact that most legal

scientists through history belonged to the ruling class of people

Explanations of law seldom critical but rather apologetical

Cognition limited by complexity

The real conditions of existence influence peoples thoughts and

perceptions
Law closely connected to state but also other factors (economic,
cultural, political, biological)
Law as product of will, but also reason and other objective
circumstances

Notion of law

Law emerges and maintains itself as coercion

legal order as coercive order

Law serves not only the ruling class but is also

based on the
acceptance and autonomy of subjects affected by it
(question of legitimacy)
pursuing common social goals and, more and more, basic
human values (rights and freedoms of human beings)
=> All aspects of law have to be considered in order to give a
definition of law and avoid the danger of reductionism
therefore to understand law a brief introduction into the
basic theories of law is needed

Ancient theories of natural law

The differentiation between law, morals and

religion (not always present in antique
societies)

Code of Hammurabi 2100 b.C.

The Ten Commandments
Scientific thought undeveloped

Ancient theories of natural law

Differentiation in Ancient Greece

nomos, themis, dike

Natural law

Not created by men

Does not depend on human will, but is objectively
necessary
Is always valid
Is valid for all people universal
Consists of perfect, absolutely just rules for a good life in
human community

Ancient theories of natural law

Positive law

Created by men
Is valid through human will and his efficacy
depends on sanction
Is transitory
Not universal but valid only for individual people
and/or states
Imperfect its rules are more or less just

Ancient theories of natural law

Dualism
All Greek Philosophers the dychotomy between
what is and what ought to be
Plato (427 347) Positive law is only a means to
achieve justice as the supreme value (justice is
connected to natural law!)
Aristotle (384 322) justice is the supreme value,
but natural is what everywhere has the same power
(explanation of law closer connected to reality than
in the case of Plato)

Ancient theories of natural law

Justice according to Aristotle

Commutative justice the principle of the

exchange of equal values
Distributive justice the principle of merit and
demerit
No general rule can give the best solution for
every single case corrective justice needed
(equity)

Ancient theories of natural law

Ancient Rome
In principle Ius est ars boni et aequi, but practice shows

Postivistic approach the proclaimed duality between natural and

positive law does not exist
Dogmatic approach quod principi placuit legis habet vigorem
state apparatus
Ius civile and ius gentium (the predecessor of international law)

Legal dogmatism prevailing also in greek culture and in all

ancient cultures approach inspired by:

Socrates behaviour
Law does not emante from God but from natural necessity
Approach shaken only sporadically (e.g. Theater Antigone)

Medieval and rationalist theories of

natural law

Medieval Theories
God as the supreme authority

Lex naturalis is revealed to people by God

Lex divina aeterna the supreme order

State subordinated to God
Why?

Roman tradition continued glossators

At the same time german customary laws on
certain territories of northern europe why?

Commentaries on customary law => Magna charta

libertatum (1215.)

Medieval and rationalist theories of

natural law

Rationalist theories
Liberal and revolutionary ideology of natural law vs.
a church-led feudal theory of natural law

The source of natural law is the human reason

All human beings have certain inborn and unalienable rights
independent of the will of earthly legislators
The right of the people to disobey unjust laws and
authorities who enact unjust laws

Medieval and rationalist theories of

natural law

Hugo Grotius De iure belli et pacis (1625.)

Natural and objective foundations of international

law universally valid principles of justice

Samuel von Puffendorf (17th century)

Complex system of natural law but without

guarantees of human rights

Medieval and rationalist theories of

natural law

Christian Tomasius

Difference between moral (honestum, inner obligation, nonenforceability) and law (iustum, external obligation,
enforceability)

John Locke (1632- 1704) and Jean-Jacques

Rousseau (1712 1778)

Social contract the transition of human beings from a

natural state of freedom and equality without authority into
the state of political society; state established to protect
natural rights of men and ensure their well-being the right
to resistance against tyranny and the deposition of rulers
who would breach the social contract

Medieval and rationalist theories of

natural law

Inspired by ideas of Locke and Rousseau

declarations on the rights and freedoms of men, first
written constitutions
The underlying principles are:

Humans are born and live free and equal in rights. Social
differences may only be founded for the purpose of
achieving a common good.
The aim of every political system is to maintain natural and
inalienable rights of men, which are: liberty, property, safety
and resistance to oppression

Medieval and rationalist theories of

natural law

Every sovereignty is founded in the nation (cf. International

law). No individual can exercise authority not founded in the
Nation.

The idea of rational natural law is accepted by Kant,

Fichte, Stammler, Del Vecchio, Bloch
Especially in the 70-ties John Rawls (The Theory of
Justice)

takes up the disputations concerning the social contract

(neocontractualism) with an emphasis on new ways of just
distribution of social goods (distributive justice) , the
reorganisation of the state functions and the position of
citizens towards the state.

Legal positivism

The rejection of the dualism between natural

law (ius naturalis) and positive law
There are no other norms, but norms of
states
=> The legal order consists exclusively
out of norms created by the state and/or
other subjects which are therefore valid only
for certain societies at certain time and are
not absolutely just.

Legal positivism

Such an approach natural or normal for

jurists practitioners of all times because:

They are in the service of the political authority

and proprietors which are authorities in creating
legal norms
They are always preoccupied by concrete legal
problems, so that they are not interested in
abstract reasoning and notions such as
principles of justice or natural rights

Legal positivism

Main arguments for the rejection of natural law

concepts:
Legal positivists do not deny that theoreticians of
natural law have spotted real problems, they only
contest:

The importance of natural law theories for the daily work of

the jurists (attitude of dogmatic-normative legal positivists)
The veracitiy of natural law positions towards those
problems (attitude of sociological and cultural legal
positivists)

Legal positivsm dogmatist and normative

approach the contestation of importance
of natural law positions

The law is a system of rules set (and

enforced) by the state
The task of jurists is only to interpret those
rules and apply them in the concrete
situation, without inquiring into their social
function or values they aim to achieve
Ancient Rome but also Thomas Hobbes the
law cannot be unjust because justice is
the same as legality

Legal positivsm dogmatist and normative

approach the contestation of importance
of natural law positions

French school of exegesis

German school of Begriffsjurisprudenz
The norms are orders of the legislator, they are
unquestionable (dogma dogmativism), the jurist
has only to apply them
Dogmative positivism reduces the creation of law
only to the creation of general norms (e.g. laws);
Individual norms (e.g. judgments) are not creation of
law, but only the mechanical application of law.

Legal positivsm dogmatist and normative

approach the contestation of importance
of natural law positions

Hans Kelsen (1881-1973) the normativist theories of law,

Pure theory of law law as normative form of social relations

Purifying the legal science from any kind of psychological,

sociological and value based research
Also rejects dogmatist theories who see the law primarily as the
expression of the legislators will. Validity of legal norms is
independent of the will of its creator, but depends on whether they
have been adopted in the legally prescribed procedure
Develops to a state of perfection the formal logic of law (such as
rules of interpretation) but misses to deal with legal values and
certain aspects of legal relationships
The jurist is only an expert-technician and law is to him only a
hierarchical system of norms which prescribe a sanction.

Legal positivism - The contestation of

veracitiy of natural law positions

All positivists
The positivists admit that theoreticians of
natural law were right when they said that:

There are similar human relationships and

therefore also legal norms with very similar or
identical content in different societies
Legal norms fulfil certain social values like justice

However...

Legal positivism - The contestation of

veracitiy

... the legal positivists hold that those phenomena

have been wrongly explained in the past when they
were considered to be evidence for the existence of
universal and absolute rules of natural law
The positivists say:

The similarities between human relationships and norms in

different societies are neither the consequence of an
order by supernatural forces nor the consequence of
reason, but consequences of essentially equal
characteristics of mankind and similarities of human
life in civilised communities

Legal positivism - The contestation of

veracitiy

Those similarities which are neither universal nor

eternal are only objective regularities of social
life so they are the subject matter of sociology,
history, psychology and not of legal science

Consequently, natural law theories confuse

sociological regularities as facts which simply are
given with legal norms as facts which say that
something ought to be

Legal positivism - The contestation of

veracitiy

Concerning the opinion of natural law theories that human

relationships and legal norms express certain values, the
positivists say that this has also been wrongly explained
because:

Values are subjective and relative connected to special social or

even personal circumstances therefore e.g. certain subjects can
consider a legal norm to be unjust whereas other can consider it
just
To speak about unversal values is only the need of certain authors
and social groups to impose their values (and in the worst case
ideologies) on others. Universal values are nothing else than moral
norms or political principles say the positivists. (Debate
concerning the role of jus cogens in international law!)

Sociological legal positivism

Which are the social sources of law? Which

are the functions or roles of law in society?
The main opponents are not natural law
theories but dogmatic-normative theories
which, according to the theoreticians of
sociological legal positivism ignore the
relationships between law and society

Sociological legal positivism

Rudolf von Ihering (1818. 1892.) combines to a certain

extent dogmatic and sociological approaches to law

Law is the system of state-imposed rules and the creator of all law
is the purpose (Ihering, Purpose in law, 1883.)
Jurists are not only interpreters and appliers of law Jurists must
always necessarily regard the social sources of law (although
dogmatically this would be disapproved), because all human
behaviour is always directed at realizing certain aims and interests
Law is a certain technique to solve disputes of interests and to
direct a reasonable egoism especially important when dealing
with legal gaps (Philip Heck, Primacy of logic-logic is not
sufficient in dealing with legal disputes, sociological understanding
of human relationships and interests is also needed)
Interessensjurisprudenz against dogmatic Begriffsjurisprudenz

Sociological legal positivism

Hermann Kantorovitz and Eugen Ehrlich

the Free law movement

Social law, not crated by the state, the courts, the

jurisprudence, but by the society itself (Ehrlich,
Basics of sociology of law, 1913.)
Judges can decide against unjust but legal, stateimposed, norms (contra legem) Danger: lack of
legal certainity and posiibility of arbitrariness

Sociological legal positivism

Leon Duguit (1859. 1928.) solidaristic

theory of law

Emphasizes the aspect of cooperation and

interdependence in the society
Legal norms emerge when the disrespect for
economic and moral norms starts to endanger the
social solidarity to that extent that the punishment
of the perpetrators is required by the social
community itself

Sociological legal positivism

Karl Marx and Friedrich Engels marxist theories of

law

The law has a class based source and function

The law is the expression of the will of the ruling class
The legal relationship is only the expression of the existing
real relationships of production
The law, as well as the state, are products of the bourgoise
thought in order to regulate productional relationships. They
tend to die out in a communist society because there will
not be any (class) differences based on the propriety of
means for production.

Sociological legal positivism

Max Webers (1860. 1920.) sociology of

law (Economy and society)

There exists extra-state law with a non-violent

system of coercion along with the state law
Weber analyses the law in the historical,
economic, religios, political and similar contexts
The law develops from an irrational state to a
rational one

Sociological legal positivism

George Gurvich (1894 1965) the idea of social

law, 1932

The positive law in a society is not only one und unified but
pluralistic according to the interests of various important
social goups
The difference between state law and other types of law is
that State law is based on the monopoly of physical
enforcement and subjects of law almost cannot exempt
themselves from it, whereas other types of law use more
non-violent means and do not have this monopoly
There is a tendency of centralising the legal order in modern
societies

Sociological theories of law

Niklas Luhmann

Legal norms are a means to reduce the

complexity of life and rationalize it
This enables easier calculation of options, greater
certainity and easier making of decisions
Example is the regulating of traffic

Integral theories of law

Critiques of existing theories:

Natural law theories see in the law a system of

ethical values
Dogmatic and normativist theories explain the law
as a pure system of norms which is valid
independent of values
Sociologists tend to regard the law as an
expression of necessary living conditions,
whereby the values and norms are only
subsidiary factors

Integral theories of law

The integralist theories criticize that those

other theories of law overemphasize certain
elements of law
Therefore integralists say that law cannot be
understood without taking account of all
those elements

Integral theories of law

The naturalists were mistaken that certain understandings

of justice are absolute and universal, because they
disregarded the historical aspect of development of human
society
The dogmatists, reacting to the mistake done by naturalists,
almost completely forgot about the theory of natural law,
completely disregarded the importance of legal values such
as (peace, security, common good) and were applying the
norms simply as the will of the legislator not asking which
ideals and values these norms serve
The sociologists tend to disregard autonomous idelogical
and value systems, by only focusing on individual and group
interests which the legal norms serve

Integral theories of law

Finally we can say the following about the

law:

The law is a special system of norms created and

mostly physically sanctioned according to certain
procedures
That system has the function to direct important
social relationships for the purpose of ensuring
basic conditions for the survival of the society

Integral theories of law

That system is not only created by the state but also by

social groups and individuals, but only the state has the
monopoly of physical coercion
Lower legal norms are not only the mechanic and logical
application of higher norms, but always also a creation of
law (in accordance with higher norms) according to certain
values and by relatively independent reasoning
Interests and values protected by the law are expressed
through the principle of justice, they are historically
changing and move between the privileging of ruling class
interests and the common good of the community

Integral theories of law

Each social relationship and therefore also each

legal norm contains in itself a value assessment

Positive value assessment norm granting rights and

creating duties and obligations
Negative value assessment triggers the issues of delict
and sanction

Exercise:
He who robs another person shall be punished by
imprisonment.
Find the negative and positive value assessment!

Definition of law

The law is a system of legal norms, created

by the state and/or other actors, which from
specific social relationships and which direct
those relationships by force towards the
achievment of peace, security, justice and
other socially recognized values.