LEGAL THEORY
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- Versione italiana
- Academic year
- 2020/2021
- Teacher
- ENRICO MAESTRI
- Credits
- 9
- Didactic period
- Primo Semestre
- SSD
- IUS/20
Training objectives
- The course aims at providing theoretical tools of analysis, useful for understanding the legal phenomenon in its complexity . It explains that any legal system consists of two kinds of rules: rules imposing duties and empowering; that fundamental rights restrict any legal power; that anyone who exercises power or is the recipient of obligations has to observe legal rules, which lead to fair behaviors; that judges have the power to interpret and apply rules; that law is different from morals, but justice is the guideline to legal criticism. The acquired knowledge and the capacity of applying the acquired knowledge will refer to the understanding of legal experience and its basic concepts.
Prerequisites
- Knowledge of legal terminology and skills of understanding legal texts and case law.
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 60 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 three parts:
Part I - THEORY OF LAW: PROBLEMS AND POSSIBILITIES (20 HOURS)
1. Overview, objectives and method. Questions and answers in the philosophy of law. Descriptive theory. Transform the question. What is the scope of law theory?
2. Philosophy of Law: general theory of law and conceptual analysis. The problem of the theories of law.
3. Conceptual analysis. Alternative goals. Challenges to conceptual analysis. The boundaries of law. Law theory: ideas and contexts.
PART II - SOME THEORIES ON THE NATURE OF LAW (20 HOURS)
1. H.L.A. Hart and legal positivism. An overview of legal positivism. A summary of the hartian position. The recognition standard. The internal aspect of the rules (and the law). The open structure. The minimum content of natural law. Inclusive legal positivism vs. exclusive legal positivism.
2. The pure theory of Hans Kelsen's law. The pure theory of law. Reduction and Law Theory. Hart vs. Kelsen. About the nature of norms.
3. Theory of Natural Law and John Finnis. Traditional lawlessness. Theories of the Middle Ages and the Renaissance. John Finnis. Naturalism vs. Positivism.
4. Understanding Lon L. Fuller. A different kind of jusaturalism. Fuller's approach. Contemporary conceptions. Fuller and the Legal Process.
5. The interpretative approach of Ronald Dworkin. The first writings. The constructive interpretation. The correct answer. Dworkin vs. Hart.
Part III - THEMES AND PRINCIPLES (20 HOURS)
1. Justice. John Rawls and social contract theory. The two principles of Rawls. Rawls's subsequent perspective changes. Robert Nozick and libertarianism. Michael Sandel, communitarianism and civic republicanism. Feminist criticisms.
2. It's worth it. A starting point. Salary. "Making society better": consequentialism and utilitarianism.
3. Rights and Discourse on Rights. Hohfeld's analysis. The theory of will and the theory of interest in comparison.
4. Will and reason. Legal positivism and the theory of natural law. Social contract and economic analysis.
5. Authority, intention, and error. Didactic methods
- The course is organized in frontal lectures on all the topics regarding the course programme.
The course consists of lectures, during which they will try to facilitate as much as possible the participation of students, possibly even with written reports assigned well in advance and presented at the beginning of lesson. In order to give substance to the course, it will consider whether to discuss some judgments, showing interpretative decisions made in court and the ratio that produced them.
More precisely, due to the Covid emergency, the course is organized according to the blended modality, that is, mixed in presence and remotely.
In presence, the lessons will take place according to the protocol provided to ensure the health safety of the participants.
The lessons will be held remotely in streaming on the collaborated blackboard platform or in case of malfunction on the Google Meet platform (https://meet.google.com/lookup/bjxyvjemtp).
The lessons will be recorded and made available in video mode on Blackboard and in audio mode on Classroom (tupmp4m)
The lessons can also be downloaded.
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. Reference texts
- For attending students:
G. Carcaterra, Presupposti e strumenti della scienza giuridica, Giappichelli, 2012,
Brian H. Bix, Teoria del diritto. Idee e contesti, Giappichelli, Torino, 2016.
For non-attending students:
G. Carcaterra, Presupposti e strumenti della scienza giuridica, Giappichelli, 2012,
Brian H. Bix, Teoria del diritto. Idee e contesti, Giappichelli, Torino, 2016.
Or:
N. Bobbio, Teoria generale del diritto, Giappichelli, Torino 1993.
