Chapter 0ne
History and Philosophy of law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
The history of law is closely connected to the development of civilizations. Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterized by tradition, rhetorical speech, social equality and impartiality.[1] Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in stone for the public to see in the marketplace; this became known as the Codex Hammurabi. But like Egyptian law, which is pieced together by historians from records of litigation, few sources remain and much has been lost over time. The influence of these earlier laws on later civilizations was small.[2] The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.[3] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[4]
Roman law was heavily influenced by Greek teachings[5] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.[6] Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian I. It was lost through the Dark Ages, but rediscovered around the 11th century. Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe-wide Lex Mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. The Lex Mercatoria, a precursor to modern commercial law, emphasized the freedom of contract and alienability of property.[7] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. As opposed to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from 400 BC, and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance.[8] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[9] But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[10] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[11] Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. [12] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[13] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.[14] Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination.[15] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.[16]
Philosophy of law
The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[17] This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue that human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[18] Austin and Bentham, following David Hume, thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality". Kant was also criticized by Friedrich Nietzsche, who believed that law emanates from The Will to Power and cannot be labeled as "moral" or "immoral".[19] Thus, Nietzsche criticized the principle of equality, and believed that law should be committed to freedom to engage in will to power.
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[20] Kelsen believed that though law is separate from morality, it is endowed with "normatively", meaning we ought to obey it. Whilst laws are positive "is" statements, law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesized to have a basic norm (Grundnorm) telling us we should obey the law. Carl Schmitt, Kelsen's major intellectual opponent, rejected positivism, and the idea of the rule of law, because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[21] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[22]
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[23] As the chair of jurisprudence at Oxford University, Hart argued law is a "system of rules". Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book Law's Empire, Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",[24] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in The Authority of Law.[25] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative dispute mediation is best left to sociology, rather than jurisprudence.[26]
[1] Théodoridés "law". Encyclopedia of the Archaeology of Ancient Egypt.
[2] Glenn, H. Patrick. Legal Traditions of the World. Oxford University Press, 2000, p 86.
[3] Kelly, J, A Short History of Western Legal Theory, Oxford University,1992, pp 5–6.
[4] Ober, Josiah, "The Nature of Athenian Democracy", The Athenian Revolution: Essays on Ancient Greek Democracy and Political Theory. Princeton University Press1996, p 121.
[5] Kelly, A Short History of Western Legal Theory ,p 39.
[6] As a legal system, Roman law has affected the development of law in most of Western civilisation as well as in parts of the Eastern world. It also forms the basis for the law codes of most countries of continental Europe ( "Roman law". Encyclopaedia Britannica.
[7] Sealey-Hoole,. Commercial Law. LexisNexis Butterworths Commercial Law2003,p 14.
[8] Glenn, H. Patrick, Legal Traditions of the World, Oxford University Press,2002, p 255.
[9] Glenn, Legal Traditions of the World, p 276.
[10] Glenn, Legal Traditions of the World, p 273.
[11] Glenn, Legal Traditions of the World, p 287.
[12] Glen, Legal Traditions of the World, p 304.
[13] Glenn, Legal Traditions of the World, p 305.
[14] Glenn, Legal Traditions of the World, p 307.
[15] Glenn, Legal Traditions of the World, p 309.
[16] Farah, Paolo. "Five Years of China WTO Membership. EU and US Perspectives about China's Compliance with Transparency Commitments and the Transitional Review Mechanism". Legal Issues of Economic Integration 33 Five Years of China WTO Membership,pp 263–304.
[17] Bix, John Austin.
[18] Kant Immanuel, Immanuel, Groundwork of the Metaphysics of Morals,1998,p 42.
[19] Greek Kazantzakis, Nikos. ,Friedrich Nietzsche and the Philosophy of Law and Polity. Athens: Editions Kazantzakis (1909—Reissue edition 1998). ,pp 97–98.
[20] Marmor, The Pure Theory of Law.
21 Bielefeldt, Heiner ,"Carl Schmitt's Critique of Liberalism: Systematic Reconstruction and Countercriticism", Law as Politics: Carl Schmitt's Critique of Liberalism. Duke University Press,1998.,pp 25–26.
[22] Finn, John E. , "Constitutional Dissolution in the Weimar Republic", Constitutions in Crisis: Political Violence and the Rule of Law. Oxford University Press,1991, pp 170–171.
[23] Bayles, Michael D, "A Critique of Austin", Hart's Legal Philosophy. Springer,1992,p 21..
[24] Dworkin, Ronald . Law's Empire. Harvard University Press,1986,p 410.
[25] Raz, Joseph , The Authority of Law, Essays on Law and Morality. Oxford University Press,1979, pp 3–36.
[26] Raz, The Authority of Law,p 37.
History and Philosophy of law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
The history of law is closely connected to the development of civilizations. Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterized by tradition, rhetorical speech, social equality and impartiality.[1] Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in stone for the public to see in the marketplace; this became known as the Codex Hammurabi. But like Egyptian law, which is pieced together by historians from records of litigation, few sources remain and much has been lost over time. The influence of these earlier laws on later civilizations was small.[2] The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.[3] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[4]
Roman law was heavily influenced by Greek teachings[5] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.[6] Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian I. It was lost through the Dark Ages, but rediscovered around the 11th century. Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe-wide Lex Mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. The Lex Mercatoria, a precursor to modern commercial law, emphasized the freedom of contract and alienability of property.[7] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. As opposed to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from 400 BC, and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance.[8] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[9] But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[10] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[11] Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. [12] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[13] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.[14] Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination.[15] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.[16]
Philosophy of law
The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[17] This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue that human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[18] Austin and Bentham, following David Hume, thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality". Kant was also criticized by Friedrich Nietzsche, who believed that law emanates from The Will to Power and cannot be labeled as "moral" or "immoral".[19] Thus, Nietzsche criticized the principle of equality, and believed that law should be committed to freedom to engage in will to power.
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[20] Kelsen believed that though law is separate from morality, it is endowed with "normatively", meaning we ought to obey it. Whilst laws are positive "is" statements, law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesized to have a basic norm (Grundnorm) telling us we should obey the law. Carl Schmitt, Kelsen's major intellectual opponent, rejected positivism, and the idea of the rule of law, because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[21] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[22]
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[23] As the chair of jurisprudence at Oxford University, Hart argued law is a "system of rules". Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book Law's Empire, Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",[24] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in The Authority of Law.[25] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative dispute mediation is best left to sociology, rather than jurisprudence.[26]
[1] Théodoridés "law". Encyclopedia of the Archaeology of Ancient Egypt.
[2] Glenn, H. Patrick. Legal Traditions of the World. Oxford University Press, 2000, p 86.
[3] Kelly, J, A Short History of Western Legal Theory, Oxford University,1992, pp 5–6.
[4] Ober, Josiah, "The Nature of Athenian Democracy", The Athenian Revolution: Essays on Ancient Greek Democracy and Political Theory. Princeton University Press1996, p 121.
[5] Kelly, A Short History of Western Legal Theory ,p 39.
[6] As a legal system, Roman law has affected the development of law in most of Western civilisation as well as in parts of the Eastern world. It also forms the basis for the law codes of most countries of continental Europe ( "Roman law". Encyclopaedia Britannica.
[7] Sealey-Hoole,. Commercial Law. LexisNexis Butterworths Commercial Law2003,p 14.
[8] Glenn, H. Patrick, Legal Traditions of the World, Oxford University Press,2002, p 255.
[9] Glenn, Legal Traditions of the World, p 276.
[10] Glenn, Legal Traditions of the World, p 273.
[11] Glenn, Legal Traditions of the World, p 287.
[12] Glen, Legal Traditions of the World, p 304.
[13] Glenn, Legal Traditions of the World, p 305.
[14] Glenn, Legal Traditions of the World, p 307.
[15] Glenn, Legal Traditions of the World, p 309.
[16] Farah, Paolo. "Five Years of China WTO Membership. EU and US Perspectives about China's Compliance with Transparency Commitments and the Transitional Review Mechanism". Legal Issues of Economic Integration 33 Five Years of China WTO Membership,pp 263–304.
[17] Bix, John Austin.
[18] Kant Immanuel, Immanuel, Groundwork of the Metaphysics of Morals,1998,p 42.
[19] Greek Kazantzakis, Nikos. ,Friedrich Nietzsche and the Philosophy of Law and Polity. Athens: Editions Kazantzakis (1909—Reissue edition 1998). ,pp 97–98.
[20] Marmor, The Pure Theory of Law.
21 Bielefeldt, Heiner ,"Carl Schmitt's Critique of Liberalism: Systematic Reconstruction and Countercriticism", Law as Politics: Carl Schmitt's Critique of Liberalism. Duke University Press,1998.,pp 25–26.
[22] Finn, John E. , "Constitutional Dissolution in the Weimar Republic", Constitutions in Crisis: Political Violence and the Rule of Law. Oxford University Press,1991, pp 170–171.
[23] Bayles, Michael D, "A Critique of Austin", Hart's Legal Philosophy. Springer,1992,p 21..
[24] Dworkin, Ronald . Law's Empire. Harvard University Press,1986,p 410.
[25] Raz, Joseph , The Authority of Law, Essays on Law and Morality. Oxford University Press,1979, pp 3–36.
[26] Raz, The Authority of Law,p 37.
