METHODOLOGY AND LEGAL LOGIC
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- Versione italiana
- Academic year
- 2022/2023
- Teacher
- ENRICO MAESTRI
- Credits
- 6
- Didactic period
- Secondo Semestre
- SSD
- IUS/20
Training objectives
- The main goal of the course consists in providing the basis to acquiring a full ability in analysing and interpreting legal sources by means of mastery in interpretive techniques, reasoning and argumentation. Another goal consists in acquiring consciousness about cultural and value aspects connected to the legal questions and, in general, to the jurist's function.
1. The main acquired knowledge will refer to contemporary theories of interpretation and legal reasoning, in their connection with the theory of legal sources.
2. The basic acquired abilities (that are the capacity of applying the acquired knowledge) will refer to the methodological and deontological questions connected with legal interpreters’work in today’s pluralistic societies. Prerequisites
- Knowledge of legal terminology, ability to use a sound vocabulary of specialised terms, ability to read legal texts with understanding. Getting through the exam of Filosofia del diritto, Diritto costituzionale, and Istituzioni di diritto privato is a necessary condition for standing up to the test.
Course programme
- The course will deal with the analysis of legal reasoning and interpretation in the judicial context. It pays attention to the proceeding of legal implementation. It analyses the issues about the modalities of interpreting and applying legal texts with reference to cases and the way by which interpreters find the proper statement. It provides with an analysis of legal sources, use of legal methods, reasoning, the role of logical control in interpretation, legal logic, ethics, effective implementation of rules from a sociological and legal point of view.
In particular, the course consists of frontal and practical lessons for a total of 40 hours. At least 1 hour per week will be dedicated to the study and discussion of the relevant case law.
The program is divided in four parts:
PART I – Legal Theories and Concepts (10 hours):
1. The law as interpretative discourse;
2. Two mainstream approaches to the legal text:
2a. post-positivist Analytical approach (Kelsen, Hart, Raz);
2b. hermeneutic Approach (Esser, Hassemer, Kaufmann)
PART II – Legal Reasoning (10 hours):
1. Law as prescriptive language;
2. Law as an eminently linguistic question;
3. Law as a social construction, not as a given;
4. Theoretical and normative deductive syllogism (logic and law);
5. The Hart's thesis of the open structure of the law;
6. Marginalization of the deductive syllogism;
7. Abductive reasoning (evidential reasoning);
8. Inductive reasoning;
9. Rhetorical and topical reasoning
10. Dworkin: semantic theories vs. interpretative theories of law;
9. The division between analytic and hermeneutic theories: legal objectivism and legal non-Objectivism;
10. The hermeneutic theory of law;
PART III – Constitutionalization of law and legal sources (10 hours):
1. Constitutionalization of law:
2. A new theoretical approach: the neo-constitutionalism
3. I ° Dworkin: rules vs. principles, Riggs vs Palmer, defeasibility (exceptions implicit and / or explicit);
4. II Dworkin: The law as integrity;
5. Deconstruction of the pyramid hierarchy of sources of law;
6. The crisis of the pyramid legal sources: UE, Soft law, New Lex mercatoria, Lex Informatica, New International Law (Transnational and Global Law);
7. The network of legal source as an emerging paradigm;
8. Legality in the judicial sense;
9. The principles;
PART IV – Facts and rules in judicial reasoning: (10 hours):
1. Arguments in point of law;
2. Arguments in point of fact;
3. The logic in the judging. Didactic methods
- The course is organized according to modality in presence.
In presence, the lessons will take place according to the protocol provided to ensure the health safety of the participants.
The podcast part of the course (teaching units, pdf, ppt, supplementary documents) will be organized on classroom. Learning assessment procedures
- The exam consists of a oral test. The aim of the exam is to verify at which level the learning objectives previously described have been acquired. Students have to answer some questions on the topics regarding the course programme. The final evaluation is established in connection with the examination results.
To be more precise, the final exam consists of an oral test (about three question). The final grade results from the average of the grades deriving from every single answer given by the student. As part of the oral test, in-depth understanding and criticism of the legal concepts and methods studied during the course will be verified. For the preparation of the exam it is crucial to start from the analysis of legal reasoning in its various forms.
For those students the exam consist - if it is possible - about three questions. The final grade results from the average of the grades deriving from every single answer given by the student to each question. This rule does not apply if the student isn't, from the beginning, in the condition of sustaining it. Reference texts
- The following text:
G. Carcaterra, Presupposti e strumenti della scienza giuridica, Giappichelli, Torino, 2012.
