The course aims at the following learning objectives:
a) being familiar with the main authors and theories which have influenced contemporary legal culture; b) to acquire competences in relation to the main concepts of legal theory; c) to develop a critical approach to legal knowledge and culture.
a) being familiar with the main authors and theories which have influenced contemporary legal culture; b) to acquire competences in relation to the main concepts of legal theory; c) to develop a critical approach to legal knowledge and culture.
teacher profile teaching materials
Non-legal technical language. Why does LL resort to technical terms and technicizations? The boundaries between linguistic layers (in LL). Why can technical terms and technicizations have different origins? The language of law as an “administered” language.
Problems of understanding legal language: generalities. Semantic problems and pragmatic problems: an approximation. Pragmatic problems: form and function of speech acts; explanatory factors; two types of cases (of pragmatic problems); first case + examples; second case + examples.
Ambiguity: definition. Forms of ambiguity + examples. Relativity of ambiguity problems. Semantic ambiguity in law. The case of Nix v. Hedden (semantic ambiguity in a tax law case).
Syntactic ambiguity in law: cases + examples. Pragmatic ambiguity in law: cases. Vagueness: definition. Examples in ordinary language. The “reflective” character of vagueness. Vagueness as a characteristic of ordinary language.
Vagueness in legal language. Examples of vagueness in law. Analysis of the category “indeterminate legal concepts”. A non-traditional example of vagueness in law. A non-obvious example of vagueness in law. Interlude: the case of MacLennan v. MacLennan (vagueness in a family law case).
Law and norms. Normativism. Assumptions and problems.
A basic distinction: speech acts statements meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision”: definition. “Legal norm”: definition. Clarification concerning norms and their formulation. Provisions and legal norms: distinctions and interactions.
“Legal norm” in the strict sense and in the broad sense. Characteristics of legal norms in the strict sense: a) prescriptive character; b) conditional structure; c) general and abstract character.
Legal norms in the broad or generic sense. A list of types of legal norms in the broad sense: 1. Power-conferring norms; 2. Permissive norms; 3. Definitional norms; 4. Interpretative norms; 5. Referral norms; 6. Norms on the effectiveness of norms; 7. Norms on conflicts between norms; 8. Repealing norms; 9. Constitutive norms. The distinction between legal norms in the strict sense and in the broad sense: usefulness and limits.
Legal principles: an approximation. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and infra-constitutional; general and “sectoral”; expressed and unexpressed.
The classical rule of law. Classical constitutionalism. Totalitarian states. Contemporary constitutionalism. Post-war constitutions: characteristics. The constitutional state governed by law. The “constitutionalization” of legal systems.
“Old” constitutionalism “new” constitutionalism. Rights-based constitutionalism: characteristics. 1) The legal character of the constitution (and of fundamental rights); 2) The breadth of the catalogue of rights; 3) The “direction” of fundamental rights.
Characteristics of rights-based constitutionalism (continued): 4) Centrality of judicial power; 5) The supranational dimension. The variables of the constitutionalist model. Constitutionalism constitutional state “neoconstitutionalism”.
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and dialogue among courts. Substantivism.
Rights-based constitutionalism: a contested paradigm. The aspirations and aporias of rights-based constitutionalism: 1) weak and limited rights; 2) proliferation of rights.
The aporias of rights-based constitutionalism (continued): 3) real rights and “paper” rights; 4) rights that cost and rights that do not cost; 5) the zero-sum game of rights; 6) rights and social and value conflict. Conclusions.
Fundamental rights. From subjective rights to fundamental rights. Toward a definition of “fundamental right”. Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by higher-ranking norms.
Clarifications and further developments of the formal definition of “fundamental rights”: a) on the “superiority” of the norms that confer fundamental rights; b) Constitution and its surroundings; c) fundamental rights among values principles and rules: fundamental rights and principles.
Fundamental rights among values principles and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
Limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the prism of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: rigorous constitutional drafting and minimalism of rights. Second strategy: constitutional law through rules. Third strategy: eclipse of the juridical nature of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights. Conclusions.
Alternatives to the constitutional state (CS)? Premise. The systemic architecture of the CS. CS: fact or interpretation? Digital alternatives to the CS: 1) Market-liberal state; 2) Security state; 3) Populist state. Conclusions.
Freedom in the history of security. Libertas and securitas. Freedom-security. The principle of freedom. Insecurity and precaution. Balancing freedom and security (introduction).
The constitutional state versus local governance. New terrorism media revolution institutional drifts. Political drifts. Legal drifts. A (merely) political response. A (also) legal response.
Balancing freedom and security. Individual rights and collective goods. Individual security. Social security. The trilemma of security. Public or national security. Migration-related security. Conclusion.
Public insecurity and the rule of unreason. Three fallacies about security. Self-defence. Torture. Constitutional emergency. A proposal.
- BOBBIO, Norberto - General Theory of Law (Teoria generale del diritto), Giappichelli, 1993.
- GUASTINI, Riccardo - The Syntax of Law (La sintassi del diritto), Giappichelli, 2011.
- PINO, Giorgio - Analytical Theory of Law I. The Legal Norm (Teoria analitica del diritto I. La norma giuridica), ETS, 2016.
- PINO, Giorgio - Rights-Based Constitutionalism. Structure and Limits of Contemporary Constitutionalism (Il costituzionalismo dei diritti. Struttura e limiti del costituzionalismo contemporaneo), Il Mulino, 2017.
- BARBERIS, Mauro - There Is No Security Without Freedom. The Failure of Anti-Terrorism Policies (Non c’è sicurezza senza libertà. Il fallimento delle politiche antiterrorismo), Il Mulino, 2017.
- BARBERIS, Mauro - How the Internet Is Killing Democracy (Come internet sta uccidendo la democrazia), Chiarelettere, 2019.
- BARBERIS, Mauro - Ecology of the Network (Ecologia della rete), Mimesis, 2021.
- CELANO, Bruno - Lessons in Philosophy of Law. Constitutionalism, Rule of Law, Codification, Legal Positivism (Lezioni di filosofia del diritto. Costituzionalismo, Stato di diritto, codificazione, positivismo giuridico), 2nd ed., Giappichelli, 2021.
- PINO, Giorgio - Interpretation in Law (L’interpretazione nel diritto), Giappichelli, 2021.
All texts will be provided and uploaded to Moodle. There is no need to purchase any books.
Programme
Legal Language (LL): generalities. The relationship between law and communication. An obsolete (and naïve) view of LL. LL today: its stratified structure. Layers of LL: ordinary language; technicized language; technical (legal) language. Technical terms and technicizations in law: origin.Non-legal technical language. Why does LL resort to technical terms and technicizations? The boundaries between linguistic layers (in LL). Why can technical terms and technicizations have different origins? The language of law as an “administered” language.
Problems of understanding legal language: generalities. Semantic problems and pragmatic problems: an approximation. Pragmatic problems: form and function of speech acts; explanatory factors; two types of cases (of pragmatic problems); first case + examples; second case + examples.
Ambiguity: definition. Forms of ambiguity + examples. Relativity of ambiguity problems. Semantic ambiguity in law. The case of Nix v. Hedden (semantic ambiguity in a tax law case).
Syntactic ambiguity in law: cases + examples. Pragmatic ambiguity in law: cases. Vagueness: definition. Examples in ordinary language. The “reflective” character of vagueness. Vagueness as a characteristic of ordinary language.
Vagueness in legal language. Examples of vagueness in law. Analysis of the category “indeterminate legal concepts”. A non-traditional example of vagueness in law. A non-obvious example of vagueness in law. Interlude: the case of MacLennan v. MacLennan (vagueness in a family law case).
Law and norms. Normativism. Assumptions and problems.
A basic distinction: speech acts statements meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision”: definition. “Legal norm”: definition. Clarification concerning norms and their formulation. Provisions and legal norms: distinctions and interactions.
“Legal norm” in the strict sense and in the broad sense. Characteristics of legal norms in the strict sense: a) prescriptive character; b) conditional structure; c) general and abstract character.
Legal norms in the broad or generic sense. A list of types of legal norms in the broad sense: 1. Power-conferring norms; 2. Permissive norms; 3. Definitional norms; 4. Interpretative norms; 5. Referral norms; 6. Norms on the effectiveness of norms; 7. Norms on conflicts between norms; 8. Repealing norms; 9. Constitutive norms. The distinction between legal norms in the strict sense and in the broad sense: usefulness and limits.
Legal principles: an approximation. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and infra-constitutional; general and “sectoral”; expressed and unexpressed.
The classical rule of law. Classical constitutionalism. Totalitarian states. Contemporary constitutionalism. Post-war constitutions: characteristics. The constitutional state governed by law. The “constitutionalization” of legal systems.
“Old” constitutionalism “new” constitutionalism. Rights-based constitutionalism: characteristics. 1) The legal character of the constitution (and of fundamental rights); 2) The breadth of the catalogue of rights; 3) The “direction” of fundamental rights.
Characteristics of rights-based constitutionalism (continued): 4) Centrality of judicial power; 5) The supranational dimension. The variables of the constitutionalist model. Constitutionalism constitutional state “neoconstitutionalism”.
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and dialogue among courts. Substantivism.
Rights-based constitutionalism: a contested paradigm. The aspirations and aporias of rights-based constitutionalism: 1) weak and limited rights; 2) proliferation of rights.
The aporias of rights-based constitutionalism (continued): 3) real rights and “paper” rights; 4) rights that cost and rights that do not cost; 5) the zero-sum game of rights; 6) rights and social and value conflict. Conclusions.
Fundamental rights. From subjective rights to fundamental rights. Toward a definition of “fundamental right”. Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by higher-ranking norms.
Clarifications and further developments of the formal definition of “fundamental rights”: a) on the “superiority” of the norms that confer fundamental rights; b) Constitution and its surroundings; c) fundamental rights among values principles and rules: fundamental rights and principles.
Fundamental rights among values principles and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
Limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the prism of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: rigorous constitutional drafting and minimalism of rights. Second strategy: constitutional law through rules. Third strategy: eclipse of the juridical nature of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights. Conclusions.
Alternatives to the constitutional state (CS)? Premise. The systemic architecture of the CS. CS: fact or interpretation? Digital alternatives to the CS: 1) Market-liberal state; 2) Security state; 3) Populist state. Conclusions.
Freedom in the history of security. Libertas and securitas. Freedom-security. The principle of freedom. Insecurity and precaution. Balancing freedom and security (introduction).
The constitutional state versus local governance. New terrorism media revolution institutional drifts. Political drifts. Legal drifts. A (merely) political response. A (also) legal response.
Balancing freedom and security. Individual rights and collective goods. Individual security. Social security. The trilemma of security. Public or national security. Migration-related security. Conclusion.
Public insecurity and the rule of unreason. Three fallacies about security. Self-defence. Torture. Constitutional emergency. A proposal.
Prerequisiti
There are no prerequisites for enrolling in this course.Core Documentation
The course readings are taken from parts of the following books (only selected sections will be used):- BOBBIO, Norberto - General Theory of Law (Teoria generale del diritto), Giappichelli, 1993.
- GUASTINI, Riccardo - The Syntax of Law (La sintassi del diritto), Giappichelli, 2011.
- PINO, Giorgio - Analytical Theory of Law I. The Legal Norm (Teoria analitica del diritto I. La norma giuridica), ETS, 2016.
- PINO, Giorgio - Rights-Based Constitutionalism. Structure and Limits of Contemporary Constitutionalism (Il costituzionalismo dei diritti. Struttura e limiti del costituzionalismo contemporaneo), Il Mulino, 2017.
- BARBERIS, Mauro - There Is No Security Without Freedom. The Failure of Anti-Terrorism Policies (Non c’è sicurezza senza libertà. Il fallimento delle politiche antiterrorismo), Il Mulino, 2017.
- BARBERIS, Mauro - How the Internet Is Killing Democracy (Come internet sta uccidendo la democrazia), Chiarelettere, 2019.
- BARBERIS, Mauro - Ecology of the Network (Ecologia della rete), Mimesis, 2021.
- CELANO, Bruno - Lessons in Philosophy of Law. Constitutionalism, Rule of Law, Codification, Legal Positivism (Lezioni di filosofia del diritto. Costituzionalismo, Stato di diritto, codificazione, positivismo giuridico), 2nd ed., Giappichelli, 2021.
- PINO, Giorgio - Interpretation in Law (L’interpretazione nel diritto), Giappichelli, 2021.
All texts will be provided and uploaded to Moodle. There is no need to purchase any books.
Attendance
Attendance is not mandatory; however, it is strongly recommended, as it enhances students’ understanding of the assigned course materials.Type of evaluation
Assessment will be based on an oral examination at the end of the course. Students must achieve a passing grade in order to pass the examination. Successful candidates will receive a mark on the Italian 30-point grading scale.