Module 1: What does Law do?

• What is the constitution?

  • = specifies the basic allocation of power in a society, it specifies who gets to decide what the laws will be
  • Highest piece of national legislation (all national law must comply with the constitution - supremacy of the constitution)
• Can constitutions be easily changed?

  • Constitutions are written in such a way that even democratically elected majorities do not have total freedom to adopt any kind of legal regulatory rules.
• Are all constitutions written?

  • Some states do not have a written constitution
  • The constitutional rules are found in ordinary laws, customs, case law
  • Ex. United Kingdom → Magna Carta, 1215
• What is the content of a democratic constitution?

  • Separation of powers
  • The rule of law
  • Fundamental rights
  • Distribution of sovereignty
• What does separation of powers entail?

  • The sovereign State has three branches
  • Legislature → enacts the law
  • Parliament
  • Executive → enforces the law
  • Head of state → Ex. president
  • Jurisprudence → applies and interprets the law
  • Trias politica → The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary.
• What is the rule of law? And what does it guarantee?

  • It entails that private actors (citizens) as much as public actors (the State) are accountable under the law.
  • It guarantees:
  • Fundamental rights and (democratic) values
  • Actual legal protection: independent courts
• What are fundamental rights?

  • The constitution provides fundamental rights that protect the legal position of the individual against the State.
• Rule BY law

  • A state depending on law for its functioning.
• Rule OF law

  • A state depending on law for its functioning, whereby the law is guided by certain values.
  • Ex. human rights, democracy, …
  • = Rechtstaat
• Kelsen Theory:

  • → pure theory of law → focused on the law alone
  • “Killing is wrong” → cannot be empirically verified. A legal norm is not valid because it confirms to ethical standards.
  • Which rules are legal and are valid?
  • If it is regulated as a legal norm in accordance with another, “higher” legal norm that authorises its creation in that way.
  • And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm.
• Radbruch Formula


  Tries to solve the conflict between justice and legal certainty
• Radbruch Formula

  1. Positive law, secured by legislation and power, takes precedence even when its content is unjust

  2. If the conflict between statute and justice reaches such an intolerable degree that the statute must yield to justice

  3. Justice takes precedence over legal certainty
• Radburch Formula

  Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in positive law, then it is not merely 'flawed law', it lacks completely the very nature of law
• Radbruch Formula

  Human rights surpass all written laws
• Types of justice

  • Distributive justice
  • Corrective justice
  • Retributive justice
  • Restorative justice
  • Organisational justice
  • Procedural justice
• Distributive justice


  Distributing something 'good' or 'bad' over a group of persons (Ex. dividing a cake equally) (related to social justice)
• Corrective justice

  Punishment should be proportional to the seriousness of the crime/ compensation to the damage suffered
• Retributive justice


  Punish those that committed certain kinds of wrongful act proportionally ('they get what they deserve') → do not punish the innocent
• Restorative justice

  The ones harmed and the ones taking responsibility for the harm should communicate to find a way to address the harm → rather new type of justice (youth)
• Organisational justice

  Treating individuals within organisation fairly (Ex. employees of a company)
• Procedural justice

  Fairness in procedures and processes that resolve disputes
• The same rules apply for all in procedural justice
• Organisational justice = treating individuals within an organisation fairly (Ex. employees of a company)