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LUISS Guido Carli

Metodologia della scienza giuridica - Canale E

Programma

ProfessorMario Ricciardi
Course code718
General Discipline (SSD)IUS/20
Course Year1
SemesterII Semestre
CourseE
Teaching LanguageEnglish
Credits9
Total Workload195
Total Lesson Hours60
Course ContentsThe Concept of Law and Its Normative Dimensions. Fundamental Legal Concepts. The Relations of Law and Morality.
Reference BooksMark C. Murphy, Philosophy of Law. The Fundamentals (Blackwell, Oxford, 2007).
Course Formative ObjectivesThe Legal Methodology course aims to develop in its students a grasp of the main concepts of legal thought and of the structure and content of legal reasoning. Among the areas covered in the lectures: The Concept of Law and Its Normative Dimensions; Theories about the Nature of Law (Legal Positivism, Natural Law Theory); Legal Rules and the Legal System; The Fundamentals of Normative Thought; The Concept of Justice and its Relevance to Law; Relations between Law and Morality.
PrerequisitesNone.
Teaching Method
Assessment MethodOral Exam
Criteria For Deciding On Subject Of Final Paperminimum final mark obtained in the exam session: 27.
Extended Program And Reference Reading Material
Week 1Philosophy, the familiar, and the Unfamiliar. Commonplaces about Law: (i) Law as a Social Phenomenon; (ii) Law is Authoritative; (iii) Law is for the Common Good.
The concept of Law. Clear cases and the Clarification of the Concept of Law.
The Theory of John Austin. Law as a Social Fact. The Idea of Command and the Nature of Law [Legal Norms]. Law as General Commands Issued by Sovereigns to their Subjects [Sovereignty]
Criticisms of Austin's Theory of Law. Austin and Commonplaces about Law. The Idea of a Legal Command and the Validity of Acts in the Law [Validity]. The problem of the Persistence of Law. Authority and Threaats. Immoral Laws and the idea of justice [justice]. Legal Positivism.
Week 2H.L.A. Hart and the Clarification of the Concept of Law. The Concept of a Legal System [Legal System]. Primary and Secondary Rules. Rules of Recognition.
Hard and Soft Positivism. Constitutionalism [Constitution]. Ronald Dworkin and the Role of Principles in Legal Interpretation [Interpretation]. Riggs vs. Palmer and Dworkin's critique of the Models of Rules. Law as Integrity.
Natural Law Theory and Its Relations to Morality. Lon Fuller and Procedural Natural Law. Aquinas and Substantive Natural Law. Is There a Third Way between Legal Positivism and Natural Law Theory? H.L.A. Hart and the Minimum Content of Natural Law.
Week 3Social Roles and Social Rules. The Institutional Nature of Law. Occupancy Rules and Performance Rules. Law and the Basic Institutions of Society.

The Basic Roles in Paradigmatic Legal Systems I. The Role of Subject (i) Obedience [Effectivity]. The Role of Subject (ii) Political Obligation. Social Contract. Fair Play [Hart and Rawls].
Week 4The Basic Roles in Paradigmatic Legal Systems II. The Role of Legislator.
The Basic Roles in Paradigmatic Legal Systems III. The Role of Judge. Judicial Discretion.
Week 5The Aims of Law and the Common Good. Common Good and Common Goods. The Tragedy of Commons and the Need for Morality. Morality and Law in Developed Legal Systems. Law and Sustainable Development.
Positive and Critical Morality.
Week 6J.S. Mill and the Harm Principle. Challenges to the Harm-to-others Principles (i) Types of Harm; (ii) The Party Harmed. Moral Legislation. The Hart vs. Devlin Debate and the Moral Limits of the Criminal Law.
Week 7Types of Legal Rules and Their Functions. Contract Law. Constitutional Law. Criminal Law. Tort Law. The Structure of Legal Rights. Rights and Obligations. Promises and Contracts. Theories of Contract. Constitutional Liberties.
Week 8The Nature and Aims of the Criminal Law. Introduction: Crime and Punishment. Two Normative Theories of Punishment: (i) Utilitarian Theories; (ii) Retributivist Theories. Hart's Mixed Theory of Punishment. Justification and Excuse.
Week 9The Nature and Aims of Tort Law. Introduction: Torts and Damages. Economic and Justice Accounts of Negligence Torts. Fairness and Efficiency. Their Role in Legal Reasoning. Rights and Consequences [Legal Arguments]. Elements of the Negligence Tort: (i) Duty; (ii) Breach; (iii) Cause; (iv) Loss. Damages.
Week 10Intentional Torts and Torts of Strict Liability. Tort Law and Economic Development.
Week 11Putting Legal Roles Into Question. Challenging the Law. Against the Role of Subject: Philosophical Anarchism. Against the Role of Legislator: Marxism, Feminist Legal Theory, Critical Race Theory. Against the Role of Judge: American Legal Realism, Critical Legal Studies.
Week 12Law and Justice [Justice].
Theories of Justice: (i) Utilitarianism; (ii) Libertarianism; (iii) Equal Liberty. Part I (Kant). Part II (Rawls).