International Law Outline

INTERNATIONAL LAW
Professor: Jerri Toman
Fall 2008

I. Introduction to International Law
a. What is Law
i. Various Definition of Law:
1. In its most general and comprehensive sense, law signifies a rule of action, and is applied indiscriminately to all kinds of action;
2. In its more confined sense, law denotes the rule, not of actions in general, but of human action or conduct.
ii. Philosophical Concepts:
1. The analytical questions in jurisprudence are concerned with articulating the axioms, defining the terms, and prescribing the methods that best enable one to view the legal order (or part of it) as a self-consistent system and that maximize awareness of its logical structure.
2. The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behavior, organization, environment, skills, and powers involved in the maintenance of a particular society.
iii. FORMAL DEFINITIONS:
1. Laws are the rules of conduct fixing the respective powers of men in their mutual relations and binding in the society under the sanction exercised by the authorities.
iv. Sir Paul Vinogradoff:
1. Law may be defined also as a set of rules imposed and enforced by a society with regard to the attribution and exercise of power over persons and things.
2. Forms of enforcement:
a. Execution: confiscation of property
b. Claim of damages
c. Punishment
d. Nullity of the act
v. SOCIOLOGICAL DEFINITIONS:
1. Way of conduct imposed on individuals within the society. Rule the respect of which is considered in a certain moment as guarantee of the common interest and violation of which has for consequence the collective reaction against the author of such violation. (Duguit)
2. Law is a social imperative expressing the necessity required by the natural solidarity (Scelle)
vi. ROME:
1. Celse (2nd century):
2. Jus est ars boni et aequi
3. (Law is art of good and just)
vii. Ulpien (3rd century):
1. Juris precepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.
2. (Precepts of the law are the following: live honestly, not to commit damage to anybody, give to everybody what he merits).
viii. Catholic church:
1. Thomas Aquinas (1225-1274)
a. Eternal laws
b. Natural laws
c. Human laws
ix. Hobbes(1588-1679) :
1. A law is a rule of conduct imposed and enforced by sovereign.
2. Need for the authoritative government
3. Sovereign may be not only monarch, but also a Parliament
x. Montesquieu (1689-1755) :
1. believed that all things were made up of rules or laws that never changed. He set out to study these laws scientifically with the hope that knowledge of the laws of government would reduce the problems of society and improve human life. According to Montesquieu, there were three types of government: a monarchy (ruled by a king or queen), a republic (ruled by an elected leader), and a despotism (ruled by a dictator). He believed that a government that was elected by the people was the best form of government. He did, however, believe that the success of a democracy – a government in which the people have the power – depended upon maintaining the right balance of power.
xi. Jean Jacques Rousseau (1712-1778) :
1. Le Contrat social
a. The general will must be concerned solely with the general interest, which is the inalienable responsibility of the sovereign body, expressed through legislation.
xii. French Revolution
1. Constitution of 1791:
a. The legislative power may not make any laws which infringe upon or obstruct the exercise of the natural and civil rights recorded in the present title and guaranteed by the Constitution; but, since liberty consists of being able to do only whatever is not injurious to the rights of others or to public security, the law may establish penalties for acts which, assailing either public security or the rights of others, might be injurious to society.
xiii. Kant (1724-1804)
1. The aim of law is freedom
2. Need of the Adjustment of freedom to that of every other member of the community
3. “Act in such a way that your liberty shall accord with that of all and of each one”
xiv. Rudolf of Ihering (1818-1892)
1. The end of law is the delimitation of interests.
2. Law is an agglomeration of the life conditions within the society where such conditions are insured by the public power in using the exterior constraints.
II. Law versus right
a. In most European languages the term “law” is identical with the term “right”.
i. Latin: jus
ii. German: Recht
iii. Italian: diritto
iv. Spanish: derecho
v. Russian, Slavonic: pravo
b. It may be said that on the one hand all private rights are derived from legal order, while, on the other hand, legal order is in a sense the aggregate of all the rights coordinated by it.
III. COMPARATIVE LAW
a. Origins
i. Apparently started first in Paris, in 1900. Numerous congresses were taking place during the World Exhibition, a great French scholars, Lambert and Saleilles took this opportunity to found an International Congress for Comparative law. They had in mind the development of common law of mankind (droit commun de l’humanité)
b. Objective
i. The objective of the comparative law is to compare the legal systems of different nations.
c. Comparison of the existing legal systems
i. METHODS:
1. I. Presentation and characteristics of the systems and description of their evolution and sources (Macro comparison)
2. II. Comparison of the legal issues and solutions in different legal systems (Micro comparison)
ii. We cannot study or comprehend continental civil law without a thorough grounding in and appreciation for legal history. Among the attempts to establish the groupings of the legal systems, Arminjon, Nolde and Wolff groupings were most successful: French, German, Scandinavian, English, Russian, Islamic and Hindu.
d. Present scientific activity in the field of comparative law
i. CONGRESSES organized by Academy of comparative law:
1. The Academy is a corps of scholars from all over the world, the principal objective of which is the comparative study of legal systems.
2. As early as 1900, a first congress on comparative law was held in Paris under the aegis of a French association, the Société de législation comparée. However, it would take until after the First World War before the International Academy of Comparative Law was founded in The Hague, on 13th September 1924. It is constituted in accordance with the laws of The Netherlands and has its seat in The Hague.
3. When it began its activities, the Academy was able to hold meetings annually and was in a position to maintain a publication policy. For several reasons, the Academy had to limit itself to the now primary activity to convening, at intervals of four years, an International Congress of Comparative Law.
4. Congresses
a. 1932 The Hague, The Netherlands
1937 The Hague, The Netherlands
1950 London, United Kingdom
1954 Paris, France
1958 Brussels, Belgium
1962 Hamburg, Germany
1966 Uppsala, Sweden
1970 Pescara, Italy
1974 Teheran, Iran
1978 Budapest, Hungary
1982 Caracas, Venezuela
1986 Sydney, Australia
1990 Montreal, Canada
1994 Athens, Greece
1998 Bristol, United Kingdom
2002 Brisbane, Australia
2006 Utrecht, The Netherlands
5. Societies
a. American Society of Comparative Law
b. American Journal of International law
c. Summer programs
d. Max Planck Institute in Heidelberg
e. Cardozo Institute (University of Trento)
f. Institut suisse de droit compare
g. Parker Institute (Colombia University)
IV. LEGAL FAMILIES
a. Romanistic
i. HISTORICAL BACKGROUND: Roman Law
1. Historically, legal systems started under the influence of the Roman law.
2. (Twelve Tables (c. 450 B.C.) – Justinian compilations (534 A.D.)
ii. Corpus Juris Civilis
1. 3 books:
a. Of persons
b. Of things
c. Of obligations
2. The objective was to abolish all prior law except that included in Corpus Juris Civilis.
iii. Destruction of the Roman Empire
1. With the fall of the Roman Empire, the Corpus Juris Civilis fell into disuse.
2. Invaders brought with them Germanic legal customs
a. Collections of Customary Rules
i. Anglo-Saxon legal history has common law beginnings as can be perceived in the primitive and pagan customs brought by north German invaders and their later Viking attackers—the “Barbarians”.
ii. Evidently, some features of these Germanic legal customs remained unchanged both in England and on the continent through the six centuries of Anglo-Saxon domination: the island isolation that usually spawned idiosyncracies was lessened by frequent contacts with continental Germans.
iii. By the eleventh century, those simplistic customs of a “barbaric” people had become laws to be fashioned into common law by Norman overlords.
iv. Return of Roman law
1. Reception of the Roman law after the turbulent period of the destruction of the Roman Empire, where the law was replaced by the customary rules of Lombard, Slav and Arab invasions.
v. Revival of Roman Law
1. Ancient Roman law is the bedrock upon which medieval law is built. It influenced and shaped the legal compilations of the early Middle Ages, and with its resurrection in the late eleventh century, it furnished the core of academic law that was taught at the university.
2. The resurrection of Roman law at the end of the eleventh century was a unique event in legal history and changed the future of European law. Shadowy figures with unusual names like Pepo and Irnerius began to teach the law of the ancient Romans at Bologna.
3. The law that they taught was late imperial law that had been compiled by the Emperor Justinian in the sixth century. Its doctrines provided medieval jurists with a sophisticated model for contracts, rules of procedure, family law, testaments, and a strong monarchical constitutional system.
vi. Roman civil law as basis of a commons law in Europe
1. Intellectually superior system
vii. Canon law
1. Canon law (Church took over some functions of the government)
2. Directly associated with the authority of the pope
3. Studied at the Italian universities together with the Roman civil law: degree conferred: Juris Utriusque Doctor J.U.D.
4. Canon law influenced the family law, succession, criminal law and low of procedure.
viii. The Enlightenment
1. Was an intellectual movement in 18th century. The goal of the Enlightenment was to establish an authoritative ethics, aesthetics, and knowledge based on an “enlightened” rationality. The movement’s leaders viewed themselves as a courageous, elite body of intellectuals who were leading the world toward progress, out of a long period of irrationality, superstition, and tyranny which began during a historical period they called the dark ages. This movement provided a framework for the American and European revolutions, as well as the rise of capitalism, the birth of socialism. It is matched by the high baroque era in music, and the neo-classical period in the arts.
2. Codification
a. One of the ideas of the period of Enlightenment was the codification: replacement of the diverse and unmanageable traditional law by comprehensive legislation:
b. Least influence in English law, based on historical experience and empiricism
c. France: new ideas leaded to political action – revolution 1789, included in the drafts of the constitution and civil code
d. Germany: rational abstract ideas in universities, intellectual construction: harmonization in principalities
3. Nation States – National Law
a. Legal nationalism leads to national cod