Foundations of Law in Context

I teach this course at the Erasmus University College, first year bachelor.

General information

 

Introduction

This course has a double focus. First, it is a (further) introduction to the foundations of law, following the course Legal Reasoning. Second, it is an introduction to the study of law in the context of society. An assumption (and hope, and aim) of lawyers is that law addresses actual problems in society and solves these. Law needs to regulate behavior, and needs to be effective in dealing with social problems. ‘If the law cannot resolve conflicts or address people’s problems, it better be changed or discarded’ – at least that is the first thought. Another assumption is that law responds to new and contemporary social problems. New developments in society (for example mass immigration, economic breakdowns, rise of technology) need to be regulated by law. In this course, we will investigate both assumptions. This course aims to increase the understanding of the role and nature of law as it actually functions in society.

In the real world, law is not always effective. People and organizations may ‘deal with the law’ in their own way, for example because they have other interests to serve as well. Other factors in society, like power structures, or development of the economy, may also interfere in the workings of the law. Also in the real world, some social problems just do not end up on the desk of the legislator. And if they do, other interests (political, financial) may interfere with drafting a good law. The foundations of law – understood as the principles and aims that are basic and core characteristics of law, like the ideals of the rule of law, protecting private property, freedom of contract, enhancing a just society – are under constant tension of their realization. It is a theoretical challenge to assess this tension between law and society. Is law a tool of the powerful? Can law empower the weak? Is law’s function to ‘hold society together’? What is law’s relation to cultural values?

We will ask several questions in this course, among which the most important are:

– What are the foundations of law, in other words the principles, functions, and aims that are basic and core characteristics of modern law? What are its main categorizations, and why? How does law theoretically fulfill its functions? What are the roles of politics, the legal profession, and enforcement agencies in upholding the core functions of the law?

– How to theoretically understand the interaction between law and society? Which theoretical perspectives have been developed, and what are their characteristics? What is the empirical evidence for those theories?

– What does theoretical and empirical research in law and society tell us about securing and upholding the foundations of law? Which institutional structures threaten or undermine those foundations? Is the legal system able to address those threats?

 

Learning Objectives
After completing this course, students will be able to:

– describe and explain the distinction between public and private law, substantive and procedural law, and national, international and customary law;

– describe, explain and critically evaluate the foundational concept of property;

– describe, explain and critically evaluate the foundational concept of freedom of contract;

– describe, explain and critically evaluate the foundational concept of crime;

– describe, explain and critically evaluate the foundational concepts related to legitimate government, especially the ideals of a constitution, the rule of law, democracy, and the separation of powers;

– describe and explain the theoretical foundations of legal procedures;

– recognize different theories that address the relation between law and society, among which the most important are Functionalism, Critical Theory, Symbolic Interactionism & Ethnomethodology, and legal pluralism;

– describe and explain current legal theories that address the problematic aspects of law and society discussed in this course;

– apply relevant concepts and theories on law, society, and justice to new social problems;

– explain what empirical research in law and society entails;

– conduct a simple socio-legal research on a selected issue and give a written presentation of the research and its outcomes.

 

Staff
Course coordinator and lecturer Wibo van Rossum and guest lecturer Machteld Geuskens, both of the Department of Sociology, Theory and Methodology of Law at Erasmus School of Law, e-mail vanrossum@law.eur.nl and geuskens@law.eur.nl.

The tutor groups are taught by EUC tutors.

 

Structure
The course lasts seven weeks (exam takes place in the eight week). All lectures will take place on Tuesdays from 9.00-10.45 and will be followed by PBL meetings on Thursday and Friday. Each PBL meeting lasts three hours. We will discuss six problems.

 

 

Collaborative student activities
During the weekly tutor group meetings, students are expected to:

– collaboratively make an online wiki, listing legal terms and concepts, and their meaning and explanation;.

– collaboratively make an online wiki, listing socio-legal terms and concepts, and their meaning and explanation;

– in week 3 and 4, discuss and peer review each paper proposal’s introduction, research question, and choice for interviewees.

 

Assessment
Assessment consists of a paper (30%) and a written exam (60%). Professional behaviour will be taken into account for 10% of the final grade.

Paper

You need to write a paper on one of four topics that will be made available on CollegeWeb during the course.

The paper is a report of a research you have conducted. It contains your research findings and an analysis and discussion of these. It is based on two interviews which you have conducted, and also includes the questionnaire you have drafted and used.

There is no need to do literature research for the paper. Of course, you need to familiarize yourself with the specific topic. The topic must be addressed by using the relevant concepts and theories mentioned in the literature. Use of the right concepts and theories will be judged by the choice of your research question, your analysis and discussion. You need to argue in the paper why you chose these specific concepts and theories to address your topic, and show that you understand and are able to apply those concepts and theories. The topic should be addressed in a socio-legal way; a purely legal or legal-philosophical perspective is not enough. It is not allowed to merely summarize the literature.

After having formulated your research question for the paper, you need to conduct two interviews. Select your interviewees based on your research question; they need to be able to ‘give’ you what you need and want. Make a list of the specific topics you want to address, and think well about the questions you want to ask. One interview should take about one hour. Be sure to start in time thinking about your research question and interviewees, because selection of the interviewees, the preparation, the interviews itself, and your reflections on how to use them, take a lot of time. Use the interviewees to challenge your thoughts and assumptions, and to reflect on the topic. In your paper, use quotes from the interview to highlight important or interesting reflections and insights. Merely reporting what you have talked about, is insufficient. Add summary reports (± 1,5 A4) of each the two interviews as Appendixes to your paper, and explain in another Appendix why you chose to interview these two persons.

You may write the paper alone or with one other student. A paper of two students has a length of 2.000 words, for single students the length is 1.400 words, including literature references (APA style), and excluding the list of references. The paper should be submitted via CollegeWeb ultimately on 16 March 2017

Written exam

The exam questions are based on the literature, with special attention for the problems, and the topics discussed during the lectures. The exam will consist of five open questions, all with sub questions. The examdate is stated on the timetable on CollegeWeb.

 

 

Attendance
–      Students are allowed to miss mandatory sessions in at most the equivalent of one calendar week.

–      Students who have missed mandatory sessions in the equivalent of two calendar weeks will be graded unsatisfactory on the professional behaviour requirements and will thereby forfeit the fixed 10% mastery level that would otherwise have counted towards their final course grade.

–      Students who miss mandatory sessions in the equivalent of more than two calendar weeks will not only fail the professional behaviour requirement, but the course too.

Students are required to be present, to be ready, to come prepared, and are required to participate in an engaged manner the moment the mandatory sessions starts.

Please read the Academic Rules and Regulations (ARR) to learn about the consequences of missing a meeting (see paragraph §4.3).

 

Resources
Books:

Tony Honoré, About Law: An Introduction. Oxford University Press, 1996.

Max Travers, Understanding Law and Society. Routledge, 2010.

 

Articles and further materials:

John Rawls – Justice as fairness, a restatement, 2001, § 6, pp 14-18, and § 12 – § 22, pp 39-79 available on CollegeWeb

Robert Nozick – Anarchy, State, and Utopia, 1974, Chapter 7 pp 149-174, available on CollegeWeb

Chapters 4, 5, 6, 7 and 8 from Jaap Hage & Bram Akkermans (eds.), Introduction to Law. 2014, available via the EUR library on http://link.springer.com/book/10.1007%2F978-3-319-06910-4

Stanford Encyclopedia of Philosophy, entry ‘Distributive Justice. Available online at https://plato.stanford.edu/entries/justice-distributive/

If necessary: Reliable Internet sources

 

Advanced resources (available at EUC OSEA or the EUR Library):

D.S. Clark, Comparative law and society, Research handbooks in comparative law, Cheltenham: Edward Elgar 2012

H.P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law, Oxford: Oxford University Press 2014 (fifth edition)

Michael D. A. Freeman, Law and sociology, 2006. Available via:

https://eur.on.worldcat.org/oclc/797176264?databaseList=2198,3561,2274,2229,1931,233,1697,2269,3555,2268,3313,3554,2662,3036,239,3950,638,2507,1978,3012,3374,1271,283,2237,2038,2236,203,2375,2572,2175,3384,2294,3382,3538,1875,2369,2006,3018,3577,2443,3976,2264,2462,2263,2261,3195,143,1842,2259,2897,2215,3589,3225,3587,1847

Kitty Calavita, Invitation to law & society: an introduction to the study of real law, 2010 (EUR Library)

Richard L. Abel, The law & society reader, 1995. (EUR Library)

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