In the 20th century, the field of philosophy of law experienced constant upheavals affecting both major legal traditions, the continental and the Anglo-Saxon analytical tradition. After the second world war, however intense, systematic and pregnant debates among Anglo-Saxon thinkers led analytical philosophy of law to set the very conceptual terms of philosophical debate even in countries of continental tradition. Philosophy of law came thus to have an unprecedented influence to legal practice, affecting arguments developed especially in front of constitutional courts or in the context of justifying legislative choices. However, the scope of this globalized dialogue remains largely inaccessible to young lawyers originating from continental legal systems, since quite often the curricula thereof focus on a sector-based material organized in rather outdated fashion.
Thus, the main learning objectives of this course are:
To introduce students to the developments in the philosophy of law, that have given it over the last 50 years such a dynamic role.
To familiarise them with the technical terminology of recent discussions, making it possible for them to benefit as well to contribute in scientific research and dialogue that has developed internationally on such issues.
To provide them with the conceptual equipment that will allow them to bridge in their thinking seemingly diverging traditions
To allow them to gain an accurate understanding of the critical and leading role of the philosophical arguments for the legal practice, in particular through revealing the practical aspects of philosophy of law and its impact on the practitioners' reasoning.
To demonstrate the moral and political challenges that inevitably conceal the legal controversies and to instill a sense of responsibility for one's own interpretive stance
Course Content (Syllabus)
The hinges around which presentations evolve is the attitudes adopted by contemporary legal philosophical trends on the key issue of the relationship between law and morality. The starting point is thus the consolidation of positivistic currents in the 19th century. The chapters articulated around this axis are:
1 The establishment of legal positivism: British utilitarian - the conceptualism of German romanists - the voluntarism of legal imperatives.
2. The antiformalist challenge of in-between-wars period: Turning to legal aims and interests – sociological institutionalism - social engineering - legal realism.
3 The recasting of positivism (Hans Kelsen, HLA Hart): confrontation with resurgent natural law trends and realism – taking distances from traditional positivism - devising descriptive "normativity"
4 The controversy about the judge's discretion and the nature of judicial activity: the Hart – Fuller debate- R. Dworkin's storming of positivism- the defensive attitude of soft positivism
5. The controversy about the nature and the bindingness of legal rules: a conflict within the positivist camp, HLA Hart, J. Raz, N.McCormick – R. Alexy's claim to correctness and continental antipositivism.
6 The increasing deviations from the positivist rule: economic analysis of law - theories and proportionality and value-weighting -radical skepticism (critical legal studies, theories of biopolitics).
commands, sovereignty, rule, legal aims, interests, realism, free interpretation, decision, language og law, internal point of view, legal system, grundnorm, rule of recognition, human dignity, natural law, discretion, one right answer, principles, rights, practical reason, authority, economic analysis, value-weighing, biopolitics, law and litterature