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THE BIRTH OF LAW

Rules and laws – and the conventions or customs from which they are descend – have been a part of human life ever since our ancestors first began to live in large and settled groups. But our knowledge is vague of laws that were in effect before the invention of writing in about 3500 B.C. The earliest known legal text was written by a king of the Mesopotamian city of Ur, in about 2100 B.C. It dealt largely with compensation for bodily injuries, and with the penalties for witchcraft and runaway slaves.

One of the most detailed ancient legal codes was drawn up in about 1758 B.C. by Hammurabi, a king of Babylonia. The entire code, consisting of 282 paragraphs, was carved into a great stone pillar which was set up in a temple to the Babylonian god Marduk so that it could be read by every citizen.

The pillar, lost for centuries after the fall of Babylon in the 16 century B.C., was rediscovered by a French archaeologist in 1901 amid the ruins of the Persian city of Susa. Hammurabi`s words were still legible. The pillar is now in the Louvre museum in Paris.

The laws laid down by Hammurabi were more extensive than any that had gone before. They covered crime, divorce and marriage, the rights of slave owners and slaves, the settlement of debts, inheritance and property contracts; there were even regulations about taxes and the prices of goods.

Punishments under the code were often harsh. The cruel principle of revenge was observed: an eye for an eye and a tooth for a tooth, which meant that criminals had to receive as punishment precisely those injuries and damages they had inflicted upon their victims. Not only murderers but also thieves and false accusers faced the death penalty. And a child who hit his father could expect to lose the hand that struck the blow.

The code outlawed private blood feuds and banned the tradition by which a man could kidnap and keep the woman he wanted for his bride. In addition, the new laws took account of the circumstances of the offender as well as of the offence. So a lower-ranking citizen who lost a civil case would be fined less than an aristocrat in the same position- though he would also be awarded less if he won.

Nevertheless, Hammurabi's laws represented an advance on earlier tribal customs, because the penalty could not be harder than the crime.

The ancient Greeks were among the first to develop a concept of law that separated everyday law from religious beliefs. The Greek believed that laws were made by the people for the people.

What the Greeks may have contributed to the Romans was the concept of “natural law”. In essence, natural law was based on the belief that certain basic principles are above the laws of a nation. These principles arise from the nature of people. The concept of natural law and the development of the first legal system had a profound effect on the modern world.

Draco’s laws were shockingly severe (hence the term draconian), so severe that they were said to have been written not in ink but in blood. On the civil side they permitted enslavement for debt, and death seems to have been the penalty for almost all criminal offences. Solon, the Athenian statesman, is known as one of the Seven Wise Men of Greece. Solon revised every statute except that on homicide and made Athenian law altogether more humane.

THE NATURE OF LAW

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated.

EU LAW

EU law is divided into «primary» and «secondary» legislation. The treaties (primary legislation) are the basis or ground rules for all EU action.

Secondary legislation – which includes regulations, directives and decisions – are derived from the principles and objectives set out in the treaties.

How EU decisions are made

The EU’s standard decision-making procedure is known as ««Ordinary Legislative Procedure’ (ex «codecision»). This means that the directly elected European Parliament has to approve EU legislation together with the Council (the governments of the 28 EU countries). The Commission drafts and implements EU legislation.

EU treaties

The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries.

The Treaty of Lisbon increased the number of policy areas where «Ordinary Legislative Procedure» is used. The European Parliament also has more power to block a proposal if it disagrees with the Council.