METODOLOGIA DELLA SCIENZA GIURIDICA

METODOLOGIA DELLA SCIENZA GIURIDICA

Alessandro Ferrara, Filiberto Brozzetti

Obiettivi formativi

Understanding the philosophical nature of legal issues. Learning the basic categories of legal science and the elements of the most influential theories.

Risultati di apprendimento attesi

Knowledge and comprehension: The student, through participation in lectures, workshops, and case studies, will know the main categories of legal science and the tools of legal reasoning. Ability to apply knowledge and understanding: The student will be able to recognize and adequately address the philosophical and methodological problems of contemporary legal systems, especially related to the development of technological evolution and the evolution of democratic institutions. The student will also be able to recognize the logical structure of a legal reasoning. At the end of the course there will be an oral exam aimed at verifying the acquisition of these skills. Autonomy of judgment: The student, through the methodological amd argumentational tools acquired in class, will develop autonomy of evaluation and judgment on the topics of the course, and will be able to correctly set the theoretical reflections prompted by the evolution of legal theory. The development of critical thinking will be encouraged. Communication skills: The student will have to learn the vocabulary of jurisprudence, and will have to learn to argue in a rhetorically effective way. For this purpose, oral exercises will be prepared, in which students will be asked to intervene by arguing for or against a certain position being discussed in class. Learning skills: The student will have to be able to think critically about the legal problems of contemporary society, developing the logical and rhetorical skills that will allow him to face, both in the continuation of his studies and while performing career, the new legal issues that will arise.

Contenuti Del Corso

Jurisprudence. Legal theories. Constitutional theories. Legal interpretative theories.

Testi Di Riferimento

1. Wacks, R. (2020). Understanding Jurisprudence: An Introduction to Legal Theory (Sixth ed.). Oxford University Press. From p. 1 to p. 189, from p. 203 to p. 227, from p. 235 to p. 238, from p. 251 to p. 289, from p. 293 to p. 305, from p. 321 to p. 336 and from p. 341 to p. 356. 2. Rawls, J. (1996). Political Liberalism. Columbia University Press. From p. xxxv to p. 66 and from p. 133 to p. 254. 3. Schupmann, B. A. (2017). Carl Schmitt’s State and Constitutional Theory A Critical Analysis. Oxford University Press. From p. 1 to p. 30 and from p. 135 to p. 152 or from p. 153 to 171 (optionally alternative). _________ Highly recommended: 4. Posner, R.A. (1996). The Problems of Jurisprudence. Harvard University Press. Limited to: Part I, ch. 4 and Part III.

Metodologie Didattiche

Induction (from the practical case to the philosophical issue) and active participation of the students to the academic debate.

Modalità di verifica dell'apprendimento

The exam consists of a final oral interview, in which the student must demonstrate knowledge of the main categories of legal theory and the ability to used the tools of both legal and philosophical reasoning. There could also be forms of intermediate monitoring and verification of the learning ability of the participants in the course. However the attribution of the mark will only take place at the outcome of the final exam that will take place at the end of the course.

Criteri per l’assegnazione dell’elaborato finale

Proficiency in the English legal and philosophical language. Evident interest for the subject. Intellectual appreciation of the Mentor.

Settimana 1

Introduction to the course: what is Jurisprudence; what is Philosophy of Law; what is Legal Theory. What is Law: Legal Positivism v. Natural Law; Formalism v. Realism; written v. customary law; common v. civil law systems. «Case of the Speluncean Explorers» by Fuller. *** The Rule of Law. Primary accounts of Justice. Law and Morality: the tragedy of Antigon; conscientious objectors; Freirechtsschule; Fuller’s “Inner Morality of Law”. Case studies: Nuremberg Trials; VoPo Trials; the Nazi Informer case (Hart v. Fuller).

Settimana 2

Law and Nature: life; death; self-determination; Human Rights; liberty v. dignity. Classical Natural Law: Cicero; Plato; Aristotle. St. Thomas Aquinas: rationality. *** Modern Natural Law: Grotius; Blackstone. From the State of Nature to the justification of Authority: Hobbes; Locke; Rousseau. Positivization of Natural Law: Declaration of Independence (1776); Déclaration des droits de l’homme et du citoyen (1789). Fall of Natural Law: between Enlightenment and Romanticism. *** Revival of Natural Law: Charter of the UN (1945); Universal Declaration of Human Rights (1945); Neo-Kantism. Natural Rights: Finnis; Arendt. Critique of Natural Rights: Ross; Schmitt’s «Tyranny of Values»; Critical Theories of Human Rights. Again on Law and Morality: Practical Reason; principles v. facts; legality v. validity; values and neutrality.

Settimana 3

Legal Positivism: what is philosophical/scientific positivism; Creon’s reasons; positivism as imperativism. Bentham: Utilitarism; against Common Law; pro Codification. Meanwhile in Germany: Savigny and the debate about codification. Austin: determining the Province of Jurisprudence; imperativism. *** Bentham and Austin compared: on the scope of Jurisprudence; on the nature and purpose of Law; on Sovereignty. Hart: Analytical Philosophy; «minimum content» of natural law; language; primary rules; secondary rules; «internal point of view» of the officials; social sources of rules; the Rule of Recognition. *** Hard v. Soft Positivism: exclusivism v. inclusivism; the role of the Constitution; standards for adjudication. Raz: autonomy of the Law; social and sources thesis; practical reason and authority of the Law. Case study: Eichmann in Jerusalem. A "fair" trial to Evil?

Settimana 4

Introduction to Kelsen: Reinerechtslehre; Normativism; Formalism; gradualist theory; the Grundnorm. Schmitt v. Kelsen: validity v. efficacy; legality v. legitimacy; on Sovereignty; the state of exception; on the Legislative State; on international Law; on the just war; Nòmos v. Grundnorm. *** Introduction to the concept of Constitution: definition and notions; essential contents; contractualist theories; historical evolution of Constitutional theory; evolution of Constitutional Charters; negative v. positive liberties; contemporary Constitutionalism and critiques; on who should be the Guardian of the Constitution; models and purpose of Constitutional Justice; doctrines of Constitutional interpretation; material v. formal Constitution; dealing with Constitutional Principles; on the Constituent Power. Case study: the End of the Weimar Republic; facts v. forms. *** Introduction to the concept of Sovereignty: Law and Power; Justification and legitimacy; Constitutionalism and limited Sovereignty; Westfalian Sovereignty; Law and Politics. Case study: the political and legal Causes of the English Civil War.

Settimana 5

Post-sovereignty: liquid Sovereignty; Governance v. Government; Super-National Government/Governance; Independent Authorities. Case study: Hypothesis about Algorithmic Sovereignty. *** Performing the Role of the Judge: applying the Law; Legislation v. Jurisdiction; judicial syllogism; Portalis. Adjudication: judicial discretion; Dworkin; Hart; American Legal Realism; Critical Legal Studies; interpretation of Principles; judicial fact-finding; judicial truth. *** Legal Interpretation: definition and scope; completeness, consistency and continuity of the Law; Konkretisierung. Theories of Interpretation: Restrictive Theory; Cognitive Theory; Evaluative Theory; Alternative Theory. Hermeneutics: Pre-Comprehension.

Settimana 6

Scandinavian Legal Realism: Empirism v. Metaphysics; Ross; Olivecrona. Postmodernism and the Law: what is Post-Modernism; Lacan; Derrida; Semiotics; Foucault. *** Economy, Society and the Law: M. Weber; charismatic leadership; Marx; legal materialism. Public v. Private: Welfare State; Ethical State; Liberist Theory of State; Minimun State; Philosophical Anarchism; Social Darwinism. Social Democracy v. Liberalism: Habermas and Popper. *** Regulation: from the Rule of Law to the Administrative State. The «Nudge»: Democratic Paternalism; the «gentle push».

Settimana 7

Rawls: Justice as Fairness.

Settimana 8

Punishment: Retribution. *** Punishment: Consequentialism. *** Global Justice.

Settimana 9

“What is law?” and “What is the law?". Law, society and politics. Regulative and constitutive rules. Law creates institutions and regulates conduct. Two paradigms for conceiving law's validity: legal positivism/law as command vs. justice-tracking law (natural law, human rights, Dworkin's moral reading of the Constitution). *** Legal Positivism, Law as Command: Hobbes, Austin, Hart. Law as justice-tracking: Locke, Dworkin, Habermas on justice, rights, equality.

Settimana 10

Legal positivism and justice-tracking law cut across the private-public law divide. What is public law? The Constitution as the law of law-making: government under law versus sovereign democratic will. Kelsen's paradigm of “pure law”. The Grundnorm as transcendental presupposition: “the law creates the people”. *** Schmitt's paradigm of existential constitutionalism: the State is a Constitution. Introduction to Rawls's “political liberal” constitutionalism. *** On reasonable pluralism. The rational, the reasonable, and the “burdens of judgment".

Settimana 11

The liberal principle of legitimacy and the overlapping consensus. Public reason. *** Kelsen's paradigm of "pure law" and political liberalism. Schmitt's constitutionalism and political liberalism. *** Constituent power and the normativity of the “most reasonable”. Constituent power and “the people”.

Settimana 12

Four manifestations of constituent power. Transforming the constitution: the concept of amending constituent power. *** The limits of amending constituent power. Political liberalism and the limits of amending constituent power.