B000195 - PHILOSOPHY OF LAW

Italian

Discussion of the theories of legal validity, legal sources and legal interpretation
The common law tradition
Differences between the English conception of the rule of law and the continental European conception of Rechtsstaat
Students can choose one of the following four seminars:

The theory and history of penal execution

The rule of law between colonialism and post-colonialism

The theory and history of international law

The law and social problems

Students must study all of the following texts:
- A. Ross, Diritto e giustizia, Einaudi, Torino, latest edition, pp. 1-159;.
- E. SANTORO, Diritto e diritti: lo Stato di diritto nell’era della globalizzazione. Studi genealogici su Albert Venn Dicey e il rule of law, Giappichelli, Torino 2007.
and one of these volumes:
M. FOUCAULT, Sorvegliare e punire, Einaudi, Torino 1993.
L. RE, Il liberalismo coloniale di Alexis de Tocqueville, Giappichelli, Torino, 2011
D. Zolo, Cosmopolis. La prospettiva del governo mondiale, Feltrinelli, Milano 1995.
E. Santoro (a cura di), Diritto come questione sociale, Giappichelli, Torino, 2009.

Students attending classes and actively taking part in a seminar will be exempted from studying one of the four texts required by the general programme.

Knowledge
Knowledge of the main problems of language theory. Critical mastery of major twentieth century legal theories (Kelsen’s theory of the legal system and the different theories of legal realism). Knowledge of the history and nature of the common law. Analytical knowledge of the rule of law and its problems, and the relationship between rule of law and interpretation. Critical mastery of the relationship between objective law and the protection of individuals’ rights
Abilities
Ability to analyse the social impact of law (shift from law in books to law in action) and to discuss the today’s problems with the idea of law as a tools for checking power. Ability to draft a short paper based on a bibliography indicated by the teacher, and to discuss it in a seminar
Expected results
Sensitivity to the different perspectives on the problem of legal validity. Ability to focus the problem of the relationship between law and power, to compare different approaches to this problem in the common law and the civil law traditions.

It is recommended to have passed the exam of General Constitutional Law and Private Law

Lectures: 50 hours
Seminars: 10 hours
Students attending the seminars must complement the study of the basic textbook with the reading of other papers about related topics. Additional reading will be indicated during a dedicated organizational meeting.
They will be requested to:
- orally expose a brief report on the topic assigned to them
- present a written paper of 6-10 pages (2,000 characters per page) on the topic
- actively take part in discussion meetings, during which all participants’ oral reports will be exposed
They must attend all of the seminar’s meetings and actively take part in seminar discussions.
Students attending the lectures and actively taking part in seminar meetings will be exempted from studying one of the four texts required by the general programme

Intermediate tests
During each lecture some specific topics will be discussed; in such occasion students’ mastery of the concepts previously treated will be assessed. During the third part of the course students will be requested to present a brief written paper and to discuss it in seminars.
The final exam will consist in a discussion of the textbooks’ topics and, for students attending seminars, in the evaluation of their written papers and their discussion during seminars.

The course is divided into three parts.
- The first part, consisting in theoretical lectures, will be devoted to discussing theories of legal validity, legal sources and interpretation. The topics will be discussed by comparing the natural law approach, Kelsen’s positivist approach and the realist approach.
- The second part, also consisting in lectures, will be devoted to highlighting the peculiarities of the common law tradition with respect to continental European tradition, and to discussing the differences between the English conception of the rule of law and the continental conception of Rechtsstaat; lastly, the relationship will be discussed between interpretation and rule of law.
- The third part will consist in seminars; students can choose one of the following four topics:

o Seminar on the theory and history of penal execution. The philosophy of punishment and the development of a effective organization of penal execution in the north-western world will be discussed. Special attention will be paid to the ‘disciplinary’ function of prison and the meaning of detention, in the light of its apparent inability to perform any re-socializing function.
- Reference text: M. FOUCAULT, Sorvegliare e punire, Einaudi, Torino 1993.

o Seminar on the rule of law between colonialism and post-colonialism. Its subject will be Alexis de Tocqueville’s theory of law and democracy and his views on the colonization of Algeria. Premised on these reflections, ‘classical’ theories of the rule of law will be related to the philosophical and sociological literature associated with ‘post-colonial studies’.
- Reference text: L. RE, Il liberalismo coloniale di Alexis de Tocqueville, Giappichelli, Torino, 2011

o Seminar on the theory and history of international law. The theoretical legal aspects of the concepts of international order and war in the history and philosophy of modern and contemporary international law will be discussed. Special attention will be paid to the new forms of humanitarian war and the different models of organizations for securing peace. In the framework of today’s ‘globalization’ processes the issue of the development of international institutions and legal system over the last three centuries will be dealt with: from the Westphalia model to the Holy Alliance, the League of Nations, the United Nations, international criminal courts. In particular, the alternative between the Kantian cosmopolitan conception and the realist neo-Grotian conception of a ‘minimal world order’
- Reference text: D. Zolo, Cosmopolis. La prospettiva del governo mondiale, Feltrinelli, Milano 1995.

o Seminar on law and social problems. The conception of law as social practice and the ways of tackling some problems in legislation, the social problems raised by legislative solutions and the way in which legislative solutions turn into social practice will be studied. Issues being treated include: the relationship of law with social solidarity, problems with using the language of rights, law and gender, the regulation of migrations and the law of penal execution..
- Reference text: E. Santoro (a cura di), Diritto come questione sociale, Giappichelli, Torino, 2009