Obiettivi formativi
Understanding the philosophical nature of legal issues.
Learning the basic categories of legal science and the elements of the most influential theories.
Prerequisiti
Basic skills required by the degree program
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 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. 135 to p. 152
Metodologie Didattiche
Lectures (from practical examples to philosophical issues) 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 use 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 course grade will only take place after the final exam, at the end of the course.
Criteri per l’assegnazione dell’elaborato finale
Proficiency in legal and philosophical English. Evident interest for the subject.
Positive assessment on the part of the Instructor.
Settimana 1
Von Bogdandy/1
The overall aim of the course, universalism and particularism as leading paradigms, why and how to read great texts.
Introduction to Kant’s thought on global order, the overall logic of his book on perpetual peace, close analysis of the arguments in the key parts, developing a critical position.
Settimana 2
Von Bogdandy/2
Introduction to Schmitt’s thought on global order, the overall logic of his book on the concept of the political peace, close analysis of the arguments in the key parts, developing a critical position.
Reflecting again the overall aim of the course after having gone through it.
Settimana 3
Brozzetti/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
Settimana 4
Brozzetti/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
Settimana 5
Brozzetti/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
Settimana 6
Brozzetti/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
Settimana 7
Ferrara/7
“What is law?” and “What is the law?". Regulative and constitutive rules.
Two paradigms for conceiving law's validity: legal positivism/law as command vs. justice-tracking law
Legal Positivism, Law as Command: Hobbes, Austin, Hart.
Law as justice-tracking: Locke, Dworkin
Settimana 8
Ferrara/8
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
Settimana 9
Ferrara/9
Introduction to Rawls's “political liberal” constitutionalism.
The rational, the reasonable, and the “burdens of judgment".
Legitimation by Constitution: The liberal principle of legitimacy, overlapping consensus
Public reason and the Supreme Court: Rawls's constitutionalism
Settimana 10
Ferrara/10
Kelsen's paradigm of "pure law" and political liberalism.
Schmitt's constitutionalism and political liberalism.
Constituent power and the normativity of the “most reasonable”.
Settimana 11
Ferrara/11
Constituent power and “the people”.
Four manifestations of constituent power
The concept, function and aspects of amending constituent power.
Settimana 12
Ferrara/12
The limits of amending constituent power.
Political liberalism and the limits of amending constituent power.
Vertical reciprocity and the principle of amending legitimacy