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). 

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. Genau.
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

Tonights lecture: 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.


SOURCES OF LAW AND HIERARCHY
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.

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)


The reason is 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.

Because the stakes are much higher and hotly contested the law itself is more conflicted. 
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International 
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from” 
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested 
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms: 
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
 (“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.


Sometimes I am confronted by the fact that
Public law is essentially more complex than private law.
It is.
The reason is 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.
Because the stakes are much higher and hotly contested the law itself is more conflicted. 
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International 
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from” 
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested 
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms: 
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
 (“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.

THE PROBLEM WITH FUNDAMENTAL RIGHTS IS THAT THEIR EXTENT IS AMBIGUOUS
This is why we tried to distinguish rights as:
substantive
procedural
vested 
executory
hortatory
in personam
in rem
civil and political (Bürgerrechte)
social rights (Vornahmerechte)

Why ambiguity? 
Because the terms are general. 
Because different private persons’ fundamental rights can conflict.

HOW TO GET RID OF AMBIGUITY? 
1. LEGAL PRESUMPTIONS. 
2. LEGAL HIERARCHY.

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: 

constitution,
federal and international law, 
state constitution, 
state law

 Is this even a personal right? If there is no right we don’t have to figure out its extent.

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

Thus, the fundamental rights listed in the bill of rights did not apply to the states
until the XIVth Amendment (Civil War).

*When does a fundamental right apply to the states?
It is the same question as whether the constitution applies overseas! Or to foreigners!

               Public   Private
National       1        2
International  3        4

Monism-Dualism
U.S. Monist as to customary international law
(custom = actual practice + belief such practice is legally binding)

U.S. Dualist as to treaties:
Unratified treaties do not have direct domestic effect.
Ratified treaties have direct domestic effect.
Treaties with direct domestic effect may also create rights among private persons (third parties)
*against the state (vertical direct effect)
*against other private persons (horizontal direct effect)

Direct Effect / Self Executing / Transposition

The German word for “elector” (as in “electoral college) is: Kürfurst. When the President is elected, the voters in each state vote for an elector, who pledges to vote for their choice. Each state organizes its own elections for the President. In practice, each state is “winner take all”. Each state has a number of electors assigned to it based on its population. This is why you can have a majority of U.S. persons voting for Gore, yet have Bush elected (See: Bush v. Gore, 531 U.S. 98 (2000)).

State parties to a treaty are first and second parties.
Signature of a treaty creates legal rights and duties between states as a matter of *international* law.
(horizontal effect)

U.S.A. ———— Germany
!                   !
!                   !
!                   !
!                   !
U.S. Citizen        German Citizen / National 
(third parties)

There are several related separate questions, namely:
I. Is the treaty/constitution directly effective in national law? 
A. If the treaty/constitution is directly effective in national law:
1) Does the treaty create rights between the state and the citizen? (Vertical direct effect)
2) Does the treaty create rights between citizens? (Horizontal direct effect)

If the treaty does not create directly effective rights and duties in national law, 
or if the treaty does not create directly enforceable righs of private persons,
the treaty may nonetheless have indirect effect as a persuasive evidence of other positively binding rights. (Indirect effect)

Notice that whether it is a treaty or a constitution we are asking the same question! Does the public law instrument create binding rules? If it does, may individuals invoke the public law document to secure their private rights?
I.e. “Does Marbury have a right?” “If he has a right, can he enforce it?”

U.S. is monist as to customary international law. 
1. Customary international law is directly effective before U.S. courts.
U.S. is dualist as to treaty law.
2. As a general rule, Exceptionally, some treaties are transposed into domestic law. Ordinarily a treaty does not create rights or duties which may be enforced before U.S. courts by private persons.
The U.S. regards the U.S. constitution and ordinary federal legislation as hierarchically superior to international law. 
One can make a good argument however that the ordinary legislation of the several states is inferior to international law because of the nearly exclusive federal power over international relations. 
At the same time, one can argue that the constitutions of the several states are superior to international law, because the several states were international legal persons prior to the constitution of 1787. 
However: 
1) All laws are presumed to be coherent and not in conflict. Whoever wants to argue that laws are in conflict bears the burden of proof that they are and if the laws can be interpreted in a non-conflicting way the court will interpret them not to be in conflict.
2) These questions are rarely litigated due to the “political question” doctrine. They are often considered non-justiciable. That’s because the federal government, specifically the presidency, has nearly exclusive power over foreign relations. 
Some people see international society as a “state of nature” — the law of the jungle (terrible!) — that is less and less the case because of the U.N. and a vast network of international treaty law.
TYPES OF RIGHTS/FREEDOMS 

Hortatory (Anspornsrechte)

License (Erlaubnis)

Executory (etwa wie eine Anwartschaft)

Vested (sicher begründete Rechte)

Fundamental freedoms from State action (Civil and Political Rights) (Abwehrrechte; Freiheitsrechte)

Positive claims to state resources (Economic and Social Rights)

Civil Rights (Bürgerrechte)

Rights in Personam
Rights in Rem (Sachenrechte)

STRUCTURE OF THE GLOBAL LEGAL SYSTEM

             National Law — International Law
private law               
——————————————–
public law                

STRUCTURE OF THE U.S. FEDERAL SYSTEM

         Executive — Legislative — Judicial
                    
Federal             
………………………………………..
State               





In this course we are mostly looking at conflicts between the branches or between the federal and state governments and at conflicts between individuals and the state or federal government.

STRUCTURE OF ARGUMENTS 


Text (what does this term mean? what does this term Not mean?)
Grammar, Structure (Context)
Legislative History
Teleology (what would this lead to? where do we want to go)

THEORIES OF LAW  
Conceptual jurisprudence (Begriffsjurisprudenz)
-deduction of legal will from the legal code
-rules
-conditionals “if … then”

Legal process interest balancing (Interessenjurisprudenz)
-standards, norms, policies
-interest balancing (Interessenabwägung)
*identify interested parties (plaintiff, defendant, state, stakeholders)
*identify competing interests 
*evaluate interest, i.e. assign a “weight” ($) to the interest
*compare the competing interests

Creative Legal Arguments
*History
*Economics
*Legal Theory
*Comparative Law 

Reductio argument: “Look what it would lead to” – counterfactual reasoning (“imagine”)

Law is split into four quadrants:

Public — Private
National
International

This is related to two questions:
1) Does the (public)(international) law apply domestically (Anwendbarkeit)
2) Can the (public) (international law) be enforced by private persons? (Unmittelbar) or instead only by States (Mittelbar).

Unmittelbare Anwendbarkeit in English is
Direct Effect.
This question is more often referred to in U.S. law as “the State Action doctrine” or “the color of law”. 

The law of state organization is public law. Thus, in principle, it governs the relations of public law bodies.



To structure our own thinking — which makes our arguments more persuasive — we make the doctrinal (=Rechtsdogmatik) distinctions public/private national/international.

stare decisis – precedence rule (Präzedenzfall – Richterrecht): In common law judges “expound” the customary common law (custom = actual practice + belief the practice is legally obligated or permissible). Cases are analogized to each other (case A is like case B so the same rule 1 which governed case A should govern case B) or distinguished from each other (A is NOT like B for these reasons… and so rule 1 which applied in case A may not apply to case B.)

As well as teaching you law, I am trying to teach you how to think creatively about law: part of that is “counterfactual” reasoning. “What would it lead to”. “What if”.

Read everything you can, but especially read those things which you are curious about.




I. the plain text (plain meaning, Wortlaut des Gesetzes) to
II. context (grammar and structure), then
III. legislative history (Rechtsgeschichte, Travaux préparatoires) and ends with

IV. teleology – the purpose of the law (sinn und Zweck des Gesetzes).

We can contrast vested rights with executory rights. An executory right requires further action to vest. For example, I have an executory right to my pay, which vests when I finish lecturing this semester and fill out my time sheets.

We can also consider hortatory rights (Anspornsrechte). The hortatory right is not binding. It is a desired social goal. But even though a hortatory right creates neither vested nor executory rights it may be used in the interpretation of other rights.

Customary international law has two elements: actual practice and the belief that such practice is legally binding. Hortatory rights may be evidence of the opinion that an actual practice is legally binding. Hortatory rights may also be used for the interpretation of other rights: the hortatory right may show us the purpose of the law; remember that when interpreting a statute (=Gesetz) we look first at
The literal text (Wortlaut des Gesetz). 
then the context (Grammar and structure; flanking laws) 
then the legislative history
then the goal of the law (teleology) (Sinn und Zweck des Gesetz).



Fundamental human rights had often been seen as political claims, not as legally enforceable rights. 
Political claims in a democracy are enforced at the ballot box – by voting.
“Declaration” or “Resolution” means *non binding*. No one who wrote the French declaration of rights of man thought that they were creating legally ence of rights, and can be and are invoked as a guide to the extent of other positively enforceable legal rights.


U.S. Declaration of Independence only has one positive legal effect: the establishment of the United States’ claim international legal personality. 
However, the Declaration of Independence is persuasive evidence of law; it tells us goals and purposes of the United States (“life, liberty, and pursuit of happiness”).
The U.S. Articles of Confederation created a confederation: confederations are not permanent. They can be an international legal person. Confederations are 

the forerunner of international organizations. Int. Orgs did not exist under international law until 1919 at earliest but by 1945 were clearly a part of 

international law. One may call the U.N. *either* a confederation (my view) *or* an international organization (the majority view).
Member States of a confederation may withdraw from the confederation. Confederation is not perpetual. In contrast, federation is perpetual and Member States may not withdraw from it.


The Rise of Fundamental Rights as Legally Enforceable Claims:
Effect of Judicial Review:
1) Non-enforcement of a right (no determination of constitutionality or unconstitutionality; rather, that the right, while it may exist, is unenforceable)
2) Declaration that an entire legislative act is void
3) Declaration that a *specific provision* of the law (e.g. “§3(c), only” is void
4) Determination that the law is unconstitutional and will not be applied until amended.


Hierarchy of Norms


Federal Constitution  

Ordinary Legislation – International Law
–Customary International law=directly effective=unmittelbare Anwendbarkeit
–Treaty Law – Must be ratified. Not directly effective. 

State Legislation 

Sources of National Law:
Legislation
Customary Law = Actual practice + Sense of legal obligation
Case law — case law is supposedly expressing customary law

International Law 
Treaties = Conventions (Abkommen, Verträge)
– not directly effective (Unmittelbare Anwendbarkeit) 
Customary Law = Gewohnheitsrecht 
– directly effective


Separation of Powers – Gewaltenteilung
*Executive
*Legislative

*Judicial