Readings

Structuring Law Aristotle:
Man is a rational talking social animal, curious by nature.
State is a natural outgrowth of the family.
Man when good is the most perfect animal but when evil is the very worst animal.
State is organic.
Government by rational principle, not by a man “for a man rules in his own interest and thus becomes a tyrant”
The governed and the governors take turns governing and being governed (yes, he says that).
But: Natural slavery. Aristotle thought some people were slaves by nature, that they were unable to think for themselves and needed someone to watch over them. The slave and the free man are different to Aristotle in that the slave “can apprehend but cannot form ideas”. (Man kann Ideen dem Sklaven erklären, aber der Sklave kann Ideen selber nicht gestalten).

Legal Typology
Freedom from / Right to
Negative rights / affirmative rights
Procedural/Substantive
civil and political rights
economic, social, and cultural rights
HR and rule of law

vested right, executory right, claim
4 basic rights in EU – free movement of good, workers, capital, services.

Hobbes
Life without the state is poor nasty brutish and short
People consent to be governed by a strong man who will protect them from each other and other strong men.
State is an artificial person, a mechanism.

Rousseau
General will
Right to Rebel
Social contract
Man in the state of nature is good – but society and social life corrupt him

Locke
Social contract
Labor theory of value
Life, liberty and property.

Kant
Human Dignity (not in the U.S. constitution, central to the German Grundgesetz).
I have yet to see much or any social contract theory in German intellectuals. It doesn’t seem to figure in the thinking of Marx or Hegel.

Social contract did not really correspond to German conditions? It certainly corresponded to U.S. conditions. Adult colonists fled
EUROPEAN RELIGIOUS WARS
so they agreed to form corporate bodies – Massachussets Bay Company, Hudsons Bay Company — these were corporations, chartered to govern lands and make profits.

Like Magna Charta the U.S. Revolution was (partly) about taxes.
U.S. colonists thought they were fighting to have the same rights as people in England.

The U.S. was a new secular order
*Not a monarchy
*Not a religious state (theocracy)
-But a slave state
-Multiracial
*First instance of the idea that peace is built through economic interdependence.
-that idea later gets taken up in the European Union.
*Limited government
-of enumerated powers (named powers)

Preamble to the U.S. Constitution is not a source of binding law.
Preamble Does have interpretive value to determine other laws.
No provision for plebiscites in the U.S. federal constitution.

Constitutional Rights
Arose out of the idea of non-binding hortatotory programmatic goals – Anspornendes Recht
These became increasingly seen as binding law.

Constitutional Principles:
A federal government of enumerated limited powers.
A presumption that federal power does not exist.
Federal powers are in the field of international relations, interstate commerce, international commerce.

There are lots of parallels between German and U.S. constitutional law.
There are also important differences.
There are no social rights (Vornahmerechte) in the U.S. federal constitution.
The federal constitution only contains protections against state power (Abwehrrechte) NOT protection against private power. There is no Drittwirkung (third party effect) in the U.S. constitution.
There is no principle of the social welfare state (Sozialstaatsprinzip) or of “essential human dignity” (Menschenwürde) in the U.S. federal constitution.

U.S. Constitution is written in simple English and is intended to be understood by the ordinary person.

Bold are terms already in the legal language (stuff I did not make up)
Italic or plain text are my translations

Vocabulary: These two are inexact.
Objektives Recht  – Objective law ; Executory rights
Subjektives Recht – Vested Rights; Rights in personam

These are exact.
Materielles Recht – Substantive Law – Substantives Recht
Verfahrensrecht – Procedural Law

Formelles Recht – Formal law; Procedural Law 

Positive Law – Geltendes Recht; Positives Recht

These are exact but are also my own translations of German terms.
Abwehrrechte – Freedoms from State power
Vornahmerechte – Affirmative Claims to state resources
Mitwirkungsrechte – Rights of political participation
Teilhaberrechte – Participatory Rights

Judicial Review
The U.S. and French revolutions were revolutionary because they brought back Aristotle’s idea of government by consent instead of government by divine right of kings.

the story of the rise of fundamental rights is the recognition of fundamental rights politically and then the legal implementation (Umsetzung) of the politically recognized fundamental right.

Why was there a revolution? U.S. Declaration of independence
The declaration is not “binding” law in the sense that it creates no rights or duties
but IS persuasive in that it explains Why the U.S. government was formed; it can be used as an aid to interpret other laws.
“Soft law” is not directly binding but has persuasive value.

1) Taxation – the colonies were only indirectly represented in London.
a) Lots of colonists were tax evaders, pirates, privateers.
2) Land expansion in the West. The British wanted to get along better with the natives so restricted colonization of the west.
3) Violent suppression of riots
4) Slavery is tough. The Crown opposed slavery. The industrializing Northern also opposed slavery.  The rural agrarian South supported slavery.
a) This would later result in the U.S. Civil War.

Interestingly religion was Not one of the causes of the revolution. The principle of religious tolerance existed de jure (By law) in some of the Colonies (Rhode Island is the famous example) and de facto (in practice) in others (New York). The British crown had catholic colonies – Quebec, Maryland.

One key idea of the U.S. revolution was the idea that if the constitution is law then the ordinary laws are subject to the constitution.
This view of the relationship between ordinary law and the constitution did not prevail in England. In England the doctrine of parliamentary supremacy prevailed.

This is the issue of the “direct effect” of public law on private persons
The public law may have no effect,
indirect persuasive effect
or direct binding effect
and that effect may be between
two governing bodies
the state and the private law person
two private law persons

THIS ISSUE OF WHEN AND WHETHER PUBLIC LAW HAS EFFECTS ON PRIVATE LAW RELATIONS IS STILL A VITAL CENTRAL CONCERN OF LAW.
It is an open issue! Controverted!

In Germany, e.g. there is now the AGG.

Laws have a legal presumption of being consistent with each other
(Vermutung der Vereinbarkeit der verschiedenen Gesetze)
So, when interpreting laws, courts will always interpret them so as to be not in conflict.
Furthermore whoever wishes to argue that a law is unconstitutional must prove their case: when in doubt, whoever has the burden of proof loses.

Sometimes laws conflict with each other and courts cannot avoid facing the fact that two different laws are in conflict.
How to resolve the conflicts?
There is a hierarchy. (Einstufung)

U.S. Federal Constitution
Ordinary federal law and International Law are next and are equally ranked.
International law may be
-customary international law is directly effective
-international treaty law only has direct effect if ratified
-some treaties codify customary law. Vienna Convention, Convention on Rights of Child, Law of the Sea Convention
Ordinary federal legislation
State Constitution
State Legislation
Customary Law
Case Law

Case law (Rechtsprechung; Richterrecht) is properly speaking customary law. It IS a source of law.

What is Not in this list?
Legal scholarship. It is NOT a source of law.
General principles of law (Allgemeine Rechtsgrundgsätze) – are also not a source of law!
*Caveat: General principles of law and legal scholarship ARE sources of international law. So they exceptionally occur in Anglo-American common law.

Customary Law = Actual pratice coupled with sense of binding obligation.

Direct effect is the idea that a law creates enforceable rights. The entire story of constitutionalization of law is the finding a) that a right exists b) that the right is held by a certain person c) that the person who holds the right can enforce it.

Not all rights are held by persons!
Not all right are enforceable!

There is an international law against kidnapping (=abduction; Entführung): no State may kidnap any person.
States do sometimes kidnap people! Eichmann, Argoud, various terrorists.
Guess what? The right not to be kidnapped is NOT held by an individual. It is held by their State. Your only remedy if you are Eichmann is to beg the German government or the Argentine government to save you.

Further, not all rights are enforceable! Some rights are
a) programmatic — they set out a goal for the government
b) hortatory (Anspornend) — they inspire, exhort.
Hortatory and programmatic laws may however have persuasive value for the interpretation of other laws.

The story of constitutionalization starts with:
1) The question whether national public law (the constitution) can apply to private persons (Vertical direct effect of national law)
-the U.S. said “yes”
-Britain said no.

2) Then the question whether the national public law (the constitution) can apply to the relations of private parties inter se (Horizontal direct effect)
-the U.S. said “no” (No third party effect).
-Germany said “yes”
(Bundesarbeitsgericht: Unmittelbare Drittwirkung der Grundrechte;
 BVerfG Mittelbare Drittwirkung der Grundrechte)

3) The current question is whether and when international public law — treaties — can have direct or indirect effects into national law.
a) Ius cogens — clearly yes
b) Customary international law — Yes in the U.S. and Germany and probably France
c) International treaty — direct effect only if so intended and ratified. May have indirect effect depending on the national law.

Most human rights are enforced by states, so we have to understand a bit about the origin of the state to understand the rights which states recognize.

What is the origin of the State?
Organic/Historical Theory: ARISTOTLE
Family, Extended Family, Clan, Tribe, Polis, League of Polises
Seems historically tenable.
Per Aristotle:
-Man is a rational talking social animal, inherently curious
-Slavery is natural and good
-Happiness is the highest goal of life in political society. The object of the state is to attain the good life for all.
*”We do not allow a Man to rule but Rational Principle, for a Man decides in his Own interested — and thus becomes a Tyrant.”
–First idea of the rule of law State.

Contract Theory
-Requires capacity to contract
-How is will manifested?
-Why does contract bind succeeding generations?
-“State of Nature” (SON) never existed: Humans by nature are social and interdependent.
Hobbes SON – “poor, nasty, brutal and short”, a war of all against all, the law of the jungle, natural right to self defence
Citizens alienate right to self defence to a strong man. “a common power to keep them all in awe”.
Rousseau’s SON – primitive communism, instinctive, natural, comfortable, plentiful, no property. (influences Marx)
Locke’s SON – like the garden of eden, impoverished but peaceful.

Social Contract NOT historically tenable BUT corresponded fairly accurately to the U.S. colonial experience!

U.S. a “great experiment” “novus ordo saeclorum”.
*Multiracial (Natives, Europeans, Africans)
*Multinational (Britons, Germans, Dutch, Swedes, French)
*Several religions (various Protestant sects, Catholics, Jews, Natives)
*Secular State – because European religious wars caused European refugees to flee for their lives to the Americas.
*No Aristocracy – they thought about whether to have a king, (elected: for life tenure?) and decided not to.
*Limited Self Government – since the state is not a giant family it does not and cannot do everything
-Plenty of dictatorships still exist.
-Plenty of aristocratic states still exist.
*Freedom of Trade

All these things were revolutionary and led to the revolutions in France,(1789), Europe (1848), Russia (1917) and China (ca. 1920-1949).

Written Constitution, unlike Britain’s which was unwritten.
Thus: judicial review possible. This implies:
*Enforceable constitutional rights. Constitutional rights Not as political claims but as enforceable legal rights.

MODERNITY (NEUZEIT) IS THIS:
The replacement of war by politics, (negative sum)
the replacement of politics by law, (zero sum)
the replacement of legal conflict with economic trade. (positive sum)

Rise of Judicial Review (Revisionsverfahren): until the Bonn Republic Germany had no judicial review against the constitution because the constitution was a political document, addressed to state power, not to the people. It was the law of the organization of the state, not the law of fundamental rights.

Public law is compledx because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.

1) If it is possible to interpret federal or state legislation, the federal constitution, and internationally consistently then such an interpretation will apply.
It is only where there is an unavoidable conflicting interpretation where the court is compelled to  choose that the hierarchy of law:

In principle the addressee of the federal constitution is the federation, not the states nor the people.