Curriculum
teacher profile teaching materials
Law and norms. Normativism. Assumptions and problems.
The concept of a “legal norm.” A basic distinction: speech acts, statements, and meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision” (legal provision): definition. “Legal norm”: definition. Clarifications regarding norms and their formulation. Legal 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) interpretive norms; (5) referral norms; (6) norms governing the validity or effectiveness of norms; (7) norms regulating 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: a preliminary approach. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and sub-constitutional; general and sector-specific; expressed and unexpressed (implicit) principles.
The constitution as a source of law. Meanings of the term “constitution”. Functions of the constitution.
“Old” constitutionalism and “new” constitutionalism. Rights-based constitutionalism: characteristics. (1) The legal nature of the constitution (and of fundamental rights); (2) the breadth of the catalogue of rights; (3) the “direction” of fundamental rights.
Rights-based constitutionalism: characteristics (continued): (4) the centrality of the judiciary; (5) the supranational dimension.
The variables of the constitutionalist model. Constitutionalism, the constitutional state, and “neo-constitutionalism.”
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and judicial 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) genuine rights and “paper rights”; (4) costly rights and costless rights; (5) the zero-sum game of rights; (6) rights and social and value conflicts. Conclusions.
The “grammar” of rights. The possibility of a theory of rights. Elements of a theory of subjective rights: (1) the content of rights. Types of rights.
Elements of a theory of subjective rights (continued): (2) the structure of rights. “Atoms” and “molecules” in rights. Rights, reasons, and interests. The “core” and the “protective scope” of rights.
Elements of a theory of subjective rights (continued): (3) rights-conferring norms: (a) content; (b) sources; (c) structure; (d) formulation.
Implications of a “grammar” of rights: (a) the correlativity between rights and duties; (b) the role of judicial protection; (c) positive and negative rights; (d) the internal complexity of rights.
Fundamental rights. From subjective rights to fundamental rights. Towards a definition of “fundamental right.” Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by superior norms.
Clarifications and further analysis of the formal definition of “fundamental rights”: (a) on the “superiority” of norms conferring fundamental rights; (b) the Constitution and its surroundings; (c) fundamental rights between values, principles, and rules: fundamental rights and principles.
Fundamental rights between values, principles, and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
The limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the lens of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: strict constitutional drafting and rights minimalism. Second strategy: constitutional law through rules. Third strategy: the eclipse of the juridical character of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an overall assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights.
+ Rights vs. democracy (from the constitutional state to the judicial state).
Rights, democracy, and adjudication: (1) Rights vs. democracy? (2) Rights and judicial discretion.
Rights, democracy, and adjudication (continued): (3) From “who has the last word” to the “culture of justification.” Conclusions.
- 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.
All texts will be provided and uploaded to Moodle. There is no need to purchase any books.
Mutuazione: 20110979 Costituzionalismo e teoria del diritto in GIURISPRUDENZA LMG/01 R BAQUERIZO MINUCHE JORGE ORSON
Programme
Introduction: What Is General Theory of Law?Law and norms. Normativism. Assumptions and problems.
The concept of a “legal norm.” A basic distinction: speech acts, statements, and meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision” (legal provision): definition. “Legal norm”: definition. Clarifications regarding norms and their formulation. Legal 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) interpretive norms; (5) referral norms; (6) norms governing the validity or effectiveness of norms; (7) norms regulating 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: a preliminary approach. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and sub-constitutional; general and sector-specific; expressed and unexpressed (implicit) principles.
The constitution as a source of law. Meanings of the term “constitution”. Functions of the constitution.
“Old” constitutionalism and “new” constitutionalism. Rights-based constitutionalism: characteristics. (1) The legal nature of the constitution (and of fundamental rights); (2) the breadth of the catalogue of rights; (3) the “direction” of fundamental rights.
Rights-based constitutionalism: characteristics (continued): (4) the centrality of the judiciary; (5) the supranational dimension.
The variables of the constitutionalist model. Constitutionalism, the constitutional state, and “neo-constitutionalism.”
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and judicial 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) genuine rights and “paper rights”; (4) costly rights and costless rights; (5) the zero-sum game of rights; (6) rights and social and value conflicts. Conclusions.
The “grammar” of rights. The possibility of a theory of rights. Elements of a theory of subjective rights: (1) the content of rights. Types of rights.
Elements of a theory of subjective rights (continued): (2) the structure of rights. “Atoms” and “molecules” in rights. Rights, reasons, and interests. The “core” and the “protective scope” of rights.
Elements of a theory of subjective rights (continued): (3) rights-conferring norms: (a) content; (b) sources; (c) structure; (d) formulation.
Implications of a “grammar” of rights: (a) the correlativity between rights and duties; (b) the role of judicial protection; (c) positive and negative rights; (d) the internal complexity of rights.
Fundamental rights. From subjective rights to fundamental rights. Towards a definition of “fundamental right.” Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by superior norms.
Clarifications and further analysis of the formal definition of “fundamental rights”: (a) on the “superiority” of norms conferring fundamental rights; (b) the Constitution and its surroundings; (c) fundamental rights between values, principles, and rules: fundamental rights and principles.
Fundamental rights between values, principles, and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
The limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the lens of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: strict constitutional drafting and rights minimalism. Second strategy: constitutional law through rules. Third strategy: the eclipse of the juridical character of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an overall assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights.
+ Rights vs. democracy (from the constitutional state to the judicial state).
Rights, democracy, and adjudication: (1) Rights vs. democracy? (2) Rights and judicial discretion.
Rights, democracy, and adjudication (continued): (3) From “who has the last word” to the “culture of justification.” Conclusions.
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):- 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.
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. teacher profile teaching materials
Law and norms. Normativism. Assumptions and problems.
The concept of a “legal norm.” A basic distinction: speech acts, statements, and meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision” (legal provision): definition. “Legal norm”: definition. Clarifications regarding norms and their formulation. Legal 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) interpretive norms; (5) referral norms; (6) norms governing the validity or effectiveness of norms; (7) norms regulating 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: a preliminary approach. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and sub-constitutional; general and sector-specific; expressed and unexpressed (implicit) principles.
The constitution as a source of law. Meanings of the term “constitution”. Functions of the constitution.
“Old” constitutionalism and “new” constitutionalism. Rights-based constitutionalism: characteristics. (1) The legal nature of the constitution (and of fundamental rights); (2) the breadth of the catalogue of rights; (3) the “direction” of fundamental rights.
Rights-based constitutionalism: characteristics (continued): (4) the centrality of the judiciary; (5) the supranational dimension.
The variables of the constitutionalist model. Constitutionalism, the constitutional state, and “neo-constitutionalism.”
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and judicial 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) genuine rights and “paper rights”; (4) costly rights and costless rights; (5) the zero-sum game of rights; (6) rights and social and value conflicts. Conclusions.
The “grammar” of rights. The possibility of a theory of rights. Elements of a theory of subjective rights: (1) the content of rights. Types of rights.
Elements of a theory of subjective rights (continued): (2) the structure of rights. “Atoms” and “molecules” in rights. Rights, reasons, and interests. The “core” and the “protective scope” of rights.
Elements of a theory of subjective rights (continued): (3) rights-conferring norms: (a) content; (b) sources; (c) structure; (d) formulation.
Implications of a “grammar” of rights: (a) the correlativity between rights and duties; (b) the role of judicial protection; (c) positive and negative rights; (d) the internal complexity of rights.
Fundamental rights. From subjective rights to fundamental rights. Towards a definition of “fundamental right.” Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by superior norms.
Clarifications and further analysis of the formal definition of “fundamental rights”: (a) on the “superiority” of norms conferring fundamental rights; (b) the Constitution and its surroundings; (c) fundamental rights between values, principles, and rules: fundamental rights and principles.
Fundamental rights between values, principles, and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
The limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the lens of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: strict constitutional drafting and rights minimalism. Second strategy: constitutional law through rules. Third strategy: the eclipse of the juridical character of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an overall assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights.
+ Rights vs. democracy (from the constitutional state to the judicial state).
Rights, democracy, and adjudication: (1) Rights vs. democracy? (2) Rights and judicial discretion.
Rights, democracy, and adjudication (continued): (3) From “who has the last word” to the “culture of justification.” Conclusions.
- 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.
All texts will be provided and uploaded to Moodle. There is no need to purchase any books.
Mutuazione: 20110979 Costituzionalismo e teoria del diritto in GIURISPRUDENZA LMG/01 R BAQUERIZO MINUCHE JORGE ORSON
Programme
Introduction: What Is General Theory of Law?Law and norms. Normativism. Assumptions and problems.
The concept of a “legal norm.” A basic distinction: speech acts, statements, and meanings. The distinction applied to law. Examples. “Normative act”: definition. Normative acts and normative documents.
“Provision” (legal provision): definition. “Legal norm”: definition. Clarifications regarding norms and their formulation. Legal 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) interpretive norms; (5) referral norms; (6) norms governing the validity or effectiveness of norms; (7) norms regulating 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: a preliminary approach. Principles as “fundamental” legal norms. Principles as indeterminate norms. Principles as “defeasible” norms. Principles as generic norms. Three classifications of principles: constitutional and sub-constitutional; general and sector-specific; expressed and unexpressed (implicit) principles.
The constitution as a source of law. Meanings of the term “constitution”. Functions of the constitution.
“Old” constitutionalism and “new” constitutionalism. Rights-based constitutionalism: characteristics. (1) The legal nature of the constitution (and of fundamental rights); (2) the breadth of the catalogue of rights; (3) the “direction” of fundamental rights.
Rights-based constitutionalism: characteristics (continued): (4) the centrality of the judiciary; (5) the supranational dimension.
The variables of the constitutionalist model. Constitutionalism, the constitutional state, and “neo-constitutionalism.”
Constitutionalism and interpretation. The axiological supremacy of the constitution. Judicial application of the constitution. Principles and interpretation. Balancing techniques. Comparative arguments and judicial 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) genuine rights and “paper rights”; (4) costly rights and costless rights; (5) the zero-sum game of rights; (6) rights and social and value conflicts. Conclusions.
The “grammar” of rights. The possibility of a theory of rights. Elements of a theory of subjective rights: (1) the content of rights. Types of rights.
Elements of a theory of subjective rights (continued): (2) the structure of rights. “Atoms” and “molecules” in rights. Rights, reasons, and interests. The “core” and the “protective scope” of rights.
Elements of a theory of subjective rights (continued): (3) rights-conferring norms: (a) content; (b) sources; (c) structure; (d) formulation.
Implications of a “grammar” of rights: (a) the correlativity between rights and duties; (b) the role of judicial protection; (c) positive and negative rights; (d) the internal complexity of rights.
Fundamental rights. From subjective rights to fundamental rights. Towards a definition of “fundamental right.” Extensional definitions. Content-based definitions. A formal definition: fundamental rights as rights conferred by superior norms.
Clarifications and further analysis of the formal definition of “fundamental rights”: (a) on the “superiority” of norms conferring fundamental rights; (b) the Constitution and its surroundings; (c) fundamental rights between values, principles, and rules: fundamental rights and principles.
Fundamental rights between values, principles, and rules (continued): from principles to rules and from principles to values. “Unwritten” rights.
The limitability and inviolability of fundamental rights. The problem: constitutionalism and the limitability of rights. Fundamental rights through the lens of balancing. Constitutional law “through principles” and the inevitability of balancing.
Strategies for avoiding balancing. First strategy: strict constitutional drafting and rights minimalism. Second strategy: constitutional law through rules. Third strategy: the eclipse of the juridical character of fundamental rights.
The mirage of absolute rights. The meaning of the inviolability of fundamental rights.
Rights-based constitutionalism: arguments for an overall assessment. “Paper rights” and the problem of effectiveness. Proliferation and interdependence of rights.
+ Rights vs. democracy (from the constitutional state to the judicial state).
Rights, democracy, and adjudication: (1) Rights vs. democracy? (2) Rights and judicial discretion.
Rights, democracy, and adjudication (continued): (3) From “who has the last word” to the “culture of justification.” Conclusions.
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):- 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.
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.