LEGAL METHODOLOGY
Instructional goals
1. Understanding the Philosophical Nature of Legal, Ethical, and Political Issues: to develop a comprehensive understanding of the philosophical nature of legal, ethical, and political issues. This involves exploring the underlying principles and theories that shape these domains and the intricate relationships between them. Students will delve into the fundamental concepts, such as justice, equality, rights, and morality, and analyze their application within legal, ethical, and political contexts. By engaging in critical discussions, reading relevant texts, and examining case studies, students will develop a deep understanding of the philosophical foundations that guide decision-making in these areas. 2. Learning the Basic Categories and Methods of Legal Science and the Elements of the Most Influential Theories: equipping students with a solid grasp of the basic categories and methods of legal science, along with the elements of influential legal theories. Students will learn theories about the different branches of law, such as constitutional, criminal, administrative, and international law, and understand the distinctive features and functions of each. They will explore the various methods employed in legal analysis, including statutory interpretation, case law analysis, and legal reasoning. Additionally, students will study prominent legal theories, such as legal positivism, natural law theory, and legal realism, and critically assess their strengths, weaknesses, and implications. This goal aims to provide students with a comprehensive framework for understanding the complexities of the legal field. 3. Acquiring Autonomous Critical Thinking: cultivating autonomous critical thinking skills. Students will develop the ability to analyze and evaluate legal, ethical, and political issues independently, relying on evidence, logical reasoning, and ethical principles. They will learn to question assumptions, recognize biases, and consider multiple perspectives when engaging with complex problems. Through interactive discussions, debates, and collaborative projects, students will refine their analytical and argumentative skills, learning to construct well-reasoned and persuasive arguments. The goal is to foster intellectual independence and empower students to engage in critical inquiry and contribute to the ongoing discourse in legal, ethical, and political arenas. By focusing on these instructional goals, students will gain a comprehensive understanding of the philosophical nature of legal, ethical, and political issues. They will be equipped with the necessary tools to navigate the complexities of legal science, including its categories, methods, and influential theories. Moreover, students will develop autonomous critical thinking skills, enabling them to engage with these subjects thoughtfully, analytically, and ethically.
Intended learning outcomes
Knowledge and Understanding: being able to demonstrate knowledge and understanding in the fields of study of legal theory and philosophy of law, and to include, whilst supported by advanced textbooks, some aspects that will be informed by knowledge of the forefront of the current debates in these fields of study.
Applying Knowledge and Understanding: being able to apply knowledge and understanding in a manner that indicates a professional approach to their work or vocation, and having competences typically demonstrated through devising and sustaining arguments and solving problems within the relevant field of study.
Making Judgements: showing the ability to gather and interpret relevant legal theories and arguments to inform judgements that include reflection on relevant social, scientific or ethical issues.
Communication Skills: being able to communicate information, ideas, problems and solutions to both specialist and non-specialist audiences.
Learning Skills: having developed those learning skills that are necessary to continue to undertake further legal study with a high degree of autonomy.
Course Contents
I. LAW AND MORALITY: The Source of Normativity between Natural Law and Legal Positivism
II. LAW AND POWER: The Principle of Authority from Sovereignty to Constitutions through the Experience of the State
III. LAW AND SPACE: From Local Communities to the Global Society
IV. LAW AND JUSTICE: Pursuing Balance between Opposing Interests
V. LAW AND ITS METHODOLOGY: Making the Law and Interpreting the Laws
VI. CONTEMPORARY CHALLENGES TO THE LAW: Finance, Digitization and Warfare
Reference Books
Main Handbook: Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (6th Edition), Oxford University Press, Oxford-New York 2020 (limited to the chapters indicated below in the syllabus)
Second Textbook: Benjamin A. Schupmann, Carl Schmitt's State and Constitutional Theory, Oxford University Press, Oxford-New York (limited to the chapters indicated below in the syllabus)
Mandatory Readings: all those listed below in the syllabus, which can be found uploaded on the course page on Luiss Learn
Study Materials: slides uploaded on the course page on Luiss Learn
Teaching Methods
Acquisition: lectures, podcasts and online quizzes
Practice: guest speakers, case study and simulation
Investigation: analyzing ideas and information in a range of materials and resources
Collaboration: small group project, discussing others’ output and building joint output
Discussion: seminars, group based class discussion, synchronous and asynchronous discussion
Production: essays
Assessment Method
The assessment of learning is conducted according to the following criteria:
- 15% of the final grade is based on attendance and active participation in class (7.5% for attendance and 7.5% for participation through contributions, opinions, initiatives, questions, and comments)
- 30% of the final grade is based on the result of the first mid-term test (multiple choice)
- 30% of the final grade is based on the result of the second mid-term test (open-ended questions)
- 25% of the final grade is based on the final oral exam
The mid-term tests cover the topics taught from the start of the course until the first test, and from the first to the second test, respectively. They are not mandatory: if you do not participate in one or both tests, you will be examined on the missing topics during the final oral exam. You may reject the written test grade, in which case you will also be examined orally on the related topics.
The oral exam covers all topics for which you have not already received a grade. Additionally, once the list of students registered for a specific exam session is finalized (five days prior), a brief critical text will be sent to be commented on during the exam.
Non-attending students are required to study all the material listed in the syllabus without exception. Unjustified non-attendance will be evaluated negatively.
Thesis assignment criteria
A strong interest in the subject matter and theoretical inquiry, along with critical thinking skills and intellectual engagement will be highly valued by the course chair.
Week 1
Introduction to the course, explanation of the contents, reference materials, and methods of assessment.
During the first week, three historic trials will be analyzed in order to highlight and introduce the main topics of legal theory covered in the course: Socrates, Louis XVI, and Nuremberg.
Week 2
I. LAW AND MORALITY: The Source of Normativity between Natural Law and Legal Positivism
During the second week, the course will begin by reflecting on the origins of legal thought in ancient civilizations. The fictional case of the Speluncean Explorers, created by Lon Fuller, will be used to represent the different perspectives that can be adopted when deciding a controversial case, particularly concerning the relationship between law and common sense in the interpretation of general rules applicable to a specific case.
Using the tragedy of Antigone, the dichotomy between natural law and legal positivism will be illustrated in resolving the tension between law and morality. The major classical natural law theorists, such as Plato and Aristotle, will then be discussed, leading to an in-depth exploration of the complexity of St. Thomas Aquinas' thought.
The week will conclude by addressing the positions and arguments of classical legal positivism: its antecedent in David Hume's empiricism, Jeremy Bentham's critique of natural law, and John Austin's first structured theoretical elaboration. Additionally, the debate on the codification of German law and the positions of the Historical School of Friedrich Carl von Savigny will be presented.
Reference:
- Main Handbook: Chapters 2.1, 3 and 8.2.
- Lon L. Fuller, The Case of the Speluncean Explorers, "Harvard Law Review", Vol. 62, No. 4 (Feb., 1949), pp. 616-645
- Thomas Aquinas, Summa Theologiae, I-II, Question 96, Articles 4-6
Week 3
I. LAW AND MORALITY: The Source of Normativity between Natural Law and Legal Positivism
In the third week, the course will continue with the explanation of contemporary legal positivism, starting with the work of H.L.A. Hart.
The course will then address the radical legal positivism of Joseph Raz and the contemporary return to natural law theories by authors such as Joseph Finnis and Lon Fuller. Students will be encouraged to engage in debate, revisiting the arguments from the Hart-Fuller debate regarding the Nazi Informer Case.
In the final lecture of the week, the course will examine how the history of Bills of Rights from the eighteenth to the twenty-first century serves as an example of the positivization of natural law.
Reference:
- Main Handbook: Chapters 2.1., 2.4.-11., 4 and 5
- H. L. A. Hart, Positivism and the Separation of Law and Morals, "Harvard Law Review", Vol. 71, No. 4 (Feb. 1958), pp. 593–629
- Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, "Harvard Law Review", Vol. 71, No. 4 (Feb. 1958), pp. 630–672
Week 4
II. LAW AND POWER: The Principle of Authority from Sovereignty to Constitutions through the Experience of the State
During the fourth week, the course will delve into the fundamental theme of the relationship between law and power, beginning with a discussion of the classic social contract theorists: Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. This will cover the progression from the State of Nature to the role of the sovereign power of the state in shaping and applying law for society.
The course will then explore the thought of two pivotal legal philosophers, Hans Kelsen and Carl Schmitt. The contrast between their respective formalist and realist legal doctrines will be illustrated by analyzing the constitutional collapse of the Weimar Republic.
Building on these topics, the final lesson of the week will focus on a deeper examination of the concept of sovereignty, looking at the English Revolution from both a strictly legal perspective and the indispensability of symbolic power.
Reference:
- Main Handbook: Chapter 2.3.
- Thomas Hobbes, Leviathan: Chapters XIII, XIV, XVII and XVIII
- John Locke, Second Treatise on Government: Chapters II, VIII, IX and XI
- Jean-Jacques Rousseau, The Social Contract: Book I, Chapters I, VI, VII and Book II, Chapters I-VII
- Benjamin A. Schupmann, Carl Schmitt's State and Constitutional Theory: Introduction and Chapter 2
Week 5
II. LAW AND POWER: The Principle of Authority from Sovereignty to Constitutions through the Experience of the State
The fifth week will be dedicated to the study of constitutional theory. It will begin with an examination of the concept of a Constitution, followed by an overview of the history of constitutionalism and the different stages in the achievement of various generations of rights.
The course will then address some of the most controversial topics in constitutional doctrine: the theoretical problem of Constituent Power, the distinction between a Constitution in its formal and material sense, constitutional justice and finally, the legal-political issues posed by the interpretation of the constitutional text.
The section on LAW AND POWER will conclude with reflections on the contemporary crisis of the concept of sovereignty.
Reference:
- Materials provided by Prof. Brozzetti
- Benjamin A. Schupmann, Carl Schmitt's State and Constitutional Theory: Chapters 4 and 5
- Keith E. Whittington, Constitutionalism, in The Oxford Handbook of Law and Politics, pp. 281-299
Week 6
III. LAW AND SPACE: From Local Communities to the Global Society
The sixth week will be dedicated to the theme of the spatiality of law, the extent of its validity, and the hypotheses of its universality. Starting from the strictly state-based nature of law, the course will begin by reflecting on the 17th-century debate between Hugo Grotius and John Selden regarding the enforceability of law and sovereignty on the high seas. Then, the course will return to the theories of Kelsen and Schmitt, examining their respective theory and critique of international law.
Next, the theory of human rights as universal rights will be presented, along with the related critical perspectives.
Finally, the course will address issues concerning law in the context of armed conflict, covering jus ad bellum, jus in bello, and the concept of bellum iustum (just war).
Reference:
- Main Handbook: Chapter 10.1.-4.
- Bryant G. Garth, The Globalisation of the Law, in The Oxford Handbook of Law and Politics, pp. 245-264
- Materials provided by Prof. Brozzetti
Week 7
- FIRST MID-TERM TEST (multiple choice) -
IV. LAW AND JUSTICE: Pursuing Balance between Opposing Interests
After the first assessment test on the topics covered so far, the course will continue by addressing the central theme of various theories of justice, beginning with the debate within moral philosophy. This will include an examination of different doctrines such as utilitarianism, Kantianism, and empiricism.
The course will then explore neo-contractualism, focusing in particular on John Rawls' contributions to contemporary theories of justice.
Reference:
- Main Handbook: Chapter 9
Week 8
IV. LAW AND JUSTICE: Pursuing Balance between Opposing Interests
During the eighth week, the examination of the theme of justice will continue, focusing on some of the critiques of John Rawls, particularly those by Robert Nozick, Friedrich von Hayek, and Michael Sandel.
The course will then analyze various theories of punishment in criminal law.
Finally, the topic of adjudication will be addressed, specifically how the role of the judge should be performed, starting from Article 4 of the Napoleonic Code. This will include a study of the contributions of Ronald Dworkin and the critical perspectives of American Legal Realism and Critical Legal Studies.
Reference:
- Main Handbook: Chapters 6.1-2, 12, and 13
Week 9
V. LAW AND ITS METHODOLOGY: Making the Law and Interpreting the Laws
Week Nine will be dedicated to the relationship between law and language.
In particular, the various theories of legal interpretation and their respective proponents will be presented.
An entire lecture will focus on hermeneutic theory as applied to the interpretation of law.
Reference:
- Timothy Endicott, Law and Language, in The Oxford Handbook of Jurisprudence and Philosophy of Law, pp. 935-968
- Materials provided by Prof. Brozzetti
Week 10
V. LAW AND ITS METHODOLOGY: Making the Law and Interpreting the Laws
The course continues with an examination of the theories of Scandinavian Legal Realism and its major proponents.
Following this, the distinctive elements of legal reasoning will be explored, according to the theories of Frederick Schauer and Richard Posner.
Students will engage in discussions on Justice Antonin Scalia's work on the interpretation of sources in common law and Ronald Dworkin's commentary on the same.
Reference:
- Main Handbook: Chapter 6.3.
- Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, and Comment by Ronald Dworkin
Week 11
- SECOND MID-TERM TEST (Open-ended questions) -
VI. CONTEMPORARY CHALLENGES TO THE LAW: Finance, Digitization and Warfare
After the second midterm test, the course approaches its conclusion.
During the eleventh week, the characteristics of the world's major legal families will be presented, with particular attention to the most distinct theoretical aspects as well as those that seem to reveal common problems, tensions, and concerns across different systems.
The course will then explore the complex relationship between law and economics as applied social sciences, which follow different methodologies but share common fields of action.
Reference:
- Brian H. Bix, Moral Philosophy and Law and Economics, in The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts, pp. 288-299
Week 12
In the final week, the course will conclude by shedding light on three themes that represent the main challenges to the stability of the traditional legal categories explored so far: pervasive digitization and AI, contemporary asymmetric and hybrid warfare, and climate change and sustainability. These topics will be examined in terms of their impact on existing legal frameworks and the need for new approaches to address emerging issues in each area.