index

1. Introduction: what is philosophy of law, terminology

2. Theories of law (some authors, text)
3. Philosophical concepts ‘for’ law (some applications)
1. Philosophy of Law
 Studies ‘Why’ Law (Not ‘How’ Law Is)
 It Is Part Of Practical Philosophy: The Study Of/Reflection On
Human Behaviour
 Philosophy: Reflection On The Meaning Of Life, Man, Action
 Law: A Set Of Norms/Rules, Which Regulates Human
Behaviour/Citizens
 Reflection/Clarification On The Meaning And The Essence/Nature
Of Law (Foundation, Critical Justification, Formulation)
a. foundation (past)
 The clarification of the basis/foundation of law, the conditions of the
possibility of law
 The preliminary question:
a. Why does law exist rather than the absence of law?
b. Why is it better that law exists rather than the absence of law?
B. Critical Justification (Present)
 To Criticise Means ‘To Express A Judgement’
 The Analysis Of A Juridical Norm That Exists (In Force)
 Asking The Question: is this law acceptable or
unacceptable; just/unjust?
C. Formulation (Future)
 The Planning Of (Possible) Future Law, Investigating How The Law
Must Or Should Be
 In Order To Draft A ‘Better’ Law Than The Existing One (If
Acceptable) And To Formulate New Norms Where Necessary Or
Absent
 What The law ‘ought’ to be ?
‘jurisprudence’
• juris = of law
• prudens = skilled, caution, prudence, balance
‘analytical’ jurisprudence: scientific analysis of legal structures and
concepts
‘normative jurisprudence’: knowledge of nature, place, role of law
within society, evaluation of legal rules and structures
definitions of law
• the law is a set of rules that regulate social behaviour according to
justice
• the law is a set of rules that regulate behaviour enacted by the
legislature
• the law is a set of rules which are actually obeyed by citizens and
applied by judges
disciplines
• the philosophy of law that studies law in the dimension of meaning
and value
• the general theory of law that analyses from a formal and logical
perspective
• the sociology of law that examines the empirical-phenomenal
dimension
categories
• justice
• validity
• efficacy
terminology
• natural law/jusnaturalism

• positive law/legal positivism

• real law/legal realism

natural law
negative definition: ‘non- positive’ law (not negative): the law that
exists independently of the will and act of position
a) origin: nature
b) space: universal law, everywhere
c) time: unchangeable (it is the same, cannot be changed by man)
NATURAL LAW THEORY
(doctrine of natural law, ‘jusnaturalism’)
the existence and the possibility to know natural law
a bi-dimensional/dualistic conception of law
a) law cannot be reduced only to positive law or real law
b) the existence of a law ‘before’, ‘beyond’ and ‘above’ positive or real
law
natural law theory
natural law is the law that man does not produce, but discovers and
finds in nature (‘given’)
nature is a dimension of reality that precedes and transcends man
nature is the horizon of man’s will, in which he finds himself
natural law theory
it doesn’t deny the existence and the juridical importance of positive
law, but it denies its exclusiveness
it affirms the existence of a previous law in chronological order and
superior/higher (ethically) in a hierarchical sense
(in case of conflict, it prevails)
natural law theory
natural law is the ‘unwritten law’
‘point of intersection between law and morals’
law should be based on morality and ethics
it has an intrinsic value; its obligatoriness is justified in itself
(objectively) independently of the formal ruling of the legislator or of
the judge’s decision
natural law theory

natural law is “discovered” by humans through the use of reason and

choosing between good and evil
natural law finds its power in discovering certain universal standards in
morality and ethics
theories of natural law
(history of western thought)
a) biological-naturalistic theories: natural law = impersonal biological
law that governs nature immanently (all living beings)
b) theological theories: natural law = the supernatural divinity (will of
God; divine knowledge, comprehensible by human reason)
theories of natural law
c) rationalistic theories (or jusrationalism): natural law is the norm set
down by man’s reason
- reason as the faculty able to grasp the fundamental essence of
reality and man,
- reason as the calculating faculty able to manage the modalities and
procedures to guarantee social life
common elements
a) the reference to nature
(physical nature, knowledge or divine will, human reason, understood
in the strong and weak sense)
as an objective limitation to the subjective will of man
common elements
b) connection between law and morals:
- natural law includes (implicitly or explicitly) a reference to ethics
(values; good/evil)
- coincidence with ethics/non coincidence (minimal ethics in law)
common elements
c) the reference to justice (give each man his own): equality, fairness,
equity
justice is/may not be:
(formal) legal validity
(social) social efficacy/effectiveness
natural law theory
- the justification of the foundation
(the sense of law)
- the explanation for the ends of law
(the common good)
- the obligatoriness of law
(the interior adhesion to the sense of the norm justifies the intrinsic
obedience to it)
natural law theory
- Ancient times (VI BC – II AD)
- Middle ages (II – XIV)
- Modern age (XIV-XVIII)
- Contemporary period (XIX: till today)
Aristotle (384-322 a.C.)
nature = capacity for development inherent in particular things, aimed
at a particular end
(teleological conception of nature)
“all beings by their nature have within themselves inclinations [or
dispositions] which direct them to the end which is proper to them”
(end = good)
Aristotle
natural law = what is just at all times and in all places independently of
the fact that it has been decreed
‘just by nature’ and ‘legal just’
A., Nicomanchean Ethics, bk V
“With regards to justice and injustice we must (1) consider what kind of
actions they are concerned with, (2) what sort of mean justice is, and
(3) between what extremes the just act is intermediate”.
A., Nicomanchean Ethics, bk V
“We see that all men mean by justice that kind of state of character
which makes people disposed to do what is just and makes them act
justly and wish for what is just; and similarly by injustice that state
which makes them act unjustly and wish for what is unjust”.
A., Nicomanchean Ethics, bk V
“Now 'justice' and 'injustice' seem to be ambiguous, but because their
different meanings approach near to one another the ambiguity
escapes notice and is not obvious as it is”
A., Nicomanchean Ethics, bk V
“Since the lawless man was seen to be unjust and the law-abiding man
just, evidently all lawful acts are in a sense just acts; for the acts laid
down by the legislative art are lawful, and each of these, we say, is
just.
Now the laws in their enactments on all subjects aim at the common
advantage either of all or of the best or of those who hold power, or
something of the sort; so that in one sense we call those acts just that
tend to produce and preserve happiness and its components for the
political society”.
A., Nicomanchean Ethics, bk V
“And therefore justice is often thought to be the greatest of virtues, and
'neither evening nor morning star' is so wonderful; and proverbially
'in justice is every virtue comprehended'.
And it is complete virtue in its fullest sense, because it is the actual
exercise of complete virtue. It is complete because he who possesses
it can exercise his virtue not only in himself but towards his neighbour
also; for many men can exercise virtue in their own affairs, but not in
their relations to their neighbour”.
A., Nicomanchean Ethics, bk V
“Justice in this sense, then, is not part of virtue but virtue entire, nor is
the contrary injustice a part of vice but vice entire. What the
difference is between virtue and justice in this sense is plain from
what we have said; they are the same but their essence is not the
same; what, as a relation to one's neighbour, is justice is, as a certain
kind of state without qualification, virtue”.
A., Nicomanchean Ethics, bk V
“The unjust has been divided into the unlawful and the unfair, and the
just into the lawful and the fair.
But since unfair and the unlawful are not the same, but are different as
a part is from its whole (for all that is unfair is unlawful, but not all
that is unlawful is unfair), the unjust and injustice in the sense of the
unfair are not the same as but different from the former kind, as part
from whole; for injustice in this sense is a part of injustice in the wide
sense, and similarly justice in the one sense of justice in the other”.
A., Nicomanchean Ethics, bk V
“Of particular justice and that which is just in the corresponding sense,
(A) one kind is that which is manifested in distributions of honour or
money or the other things that fall to be divided among those who
have a share in the constitution (for in these it is possible for one man
to have a share either unequal or equal to that of another), and (B)
one is that which plays a rectifying part in transactions between man
and man”.
A., Nicomanchean Ethics, bk V
“This, then, is what the just is-the proportional; the unjust is what
violates the proportion. Hence one term becomes too great, the
other too small, as indeed happens in practice; for the man who acts
unjustly has too much, and the man who is unjustly treated too little,
of what is good”.
Aristotle
“justice is a state of mind than encourages man to perform just actions”
just = lawful, fair, virtuous
natural justice “is set by nature, which renders it immutable and valid in
all communities”
conventional justice “comprises rules devised by individual
communities to serve their needs”
conventional justice is subject to change (depending on the form of
government), and is subordinate to natural justice
Aristotle
distinction between various types of justice (commutative, distributive,
legal and natural justice), recognising justice in the middleness and
equity in the corrective application to the concrete case of the general
and abstract law it is constant and stable in most cases
Roman period
definition of jurisprudence as ‘ars boni et aequi’, ‘iusti
et iniusti scientia’
Cicero: natural law = rational natural law (or right
reasoning/recta ratio): through reason man can know
the laws of nature; positive laws must be founded on
natural laws
“true law is right reasoning in agreement with nature: it
is of universal application, unchanging and
everlasting”
Roman period
justice = the constant and perpetual wish to render everyone his due
(Corpus Juris Civilis)
precepts of natural law: to live honestly, not to injure others, to give
everyone his due
Middle Ages
- the influence of Christianity: natural law = the cosmic order created
by God; eternal and unchangeable law; not impersonal and immanent
but personal divine and transcendent (written in man’s heart)
St. Thomas (1225-1274)
- scholasticism: a complex synthesis between Greek and Christian
thought
- natural law in a finalistic-creationist context: the order of the ends of
nature (inanimate and animate) coincides with the sapiential plan
that was God’s will at the moment of Creation
St. Thomas
1. (positive) divine law = the revealed truth (faith, scriptures)
2. eternal law = divine wisdom, rational guidance/plan for all living
things
3. natural law = the ‘participation’ (of the rational creature) with
eternal law, or ‘the ordination’ of human reason to good
St. Thomas
practical reason can know natural law on the basis of the observation
of man’s natural inclinations:
the conservation of life,
reproduction,
knowledge of the truth
living in a society
St. Thomas
the first and fundamental precept of natural law is ‘good is to be done
and pursued and evil avoided’
this precept is self-evident since all creatures act on account of their
end, which is the good for them
St. Thomas
4. positive human law = particular provisions deriving (by conclusion
and determination) from natural law; must be directed towards the
common good
St. Thomas
different interpretations:
- law that fails to conform to natural (or devine) law is not a law at all;
an unjust (unreasonable) law is not a law
- laws which conflict with natural law lose their power of binding
morally; it is an abuse of authority; lacks moral obligation
‘corruption of law’: justification in disobeying an unjust law
ST, Ia IIae, q. 94, a. 2
the order of the precepts of the natural law follows the order of natural
inclinations:
1) “in man there is first of all an inclination to good in accordance with
the nature which he has in common with all substances: inasmuch as
every substance seeks the preservation of its own being, according to
its nature: and by reason of this inclination, whatever is a means of
preserving human life, and of warding off its obstacles, belongs to the
natural law”
ST, IaIIae, q. 94, a. 2
2) “there is in man an inclination to things that pertain to him more
specially, according to that nature which he has in common with
other animals: and in virtue of this inclination, those things are said to
belong to the natural law, "which nature has taught to all animals",
such as reproduction, education of offspring and so forth” (family)
ST, IaIIae, q. 94, a. 2
3) “there is in man an inclination to good, according to the nature of his
reason, which nature is proper to him: thus man has a natural
inclination to know the truth about God, and to live in society: and in
this respect, whatever pertains to this inclination belongs to the
natural law; for instance, to shun ignorance, to avoid offending those
among whom one has to live, and other such things regarding the
above inclination”
ST, IaIIae, q. 94, a. 2
the rational is natural, because it has a basis in human nature, which is
rational
ST, IaIIae, q. 95, a. 2: “In human affairs a thing is said to be just by virtue
of its being right according to the rule of reason. The first rule of
reason is the law of nature”
Modern age
- birth of science: quantitative (materialistic conception of nature)
the passage from a universalistic/ metaphysical to an empirical conception of
nature: no values in nature
- secularisation of thought (religious pluralism): autonomy in morality
natural law tends to pass from an objective interpretation to a subjective
consideration (natural rights)
(natural law is not above man or outside man, but inside man)
natural rights
rights are not derivative from natural law but are the underived,
primary, and fundamental moral feature of humanity
a beginning of such a theory of subjective rights is to be found in the
seventeenth century in Grotius and Hobbes’s thought
rationalistic jusnaturalism (the problem of the compatibility between
state authority and the recognition of individual rights)
natural rights
• there might be an ultimate and irresolvable clash between competing
rights of single individuals as opposed to the picture of a moral world
which, at least in principle, is well-ordered and harmonious.
• emergence of the idea of autonomy, that is, the idea that a human
being is capable of imposing obligation upon oneself and that this
capacity constitutes the foundation for all morals
Grotius (1583-1645)
‘reason as if God were not there’; even if God did not exist, natural law
would have the same content (certain actions are intrinsically wrong
or right)
natural law = the precept of sociability (do not steal, respect
agreements) and tolerance (as a principle guaranteeing harmonious
communal life among men)
‘school of natural law’
contractarian theories:
human society is based upon a social contract
- genuine historical fact
- hypothesis, logical presumption
T. Hobbes (1588-1679)
- materialist, mechanist and individualist vision
- the state of nature: original condition of individuals (individual acts according to
his own interests, self-conservation/preservation)
natural law = liberty of each man to use his own power for the conservation of
himself (the law of the strongest)
the constant danger (perpetual war of all against all: constant fear) postulates the
need for the stipulation of a social contract (of union and subjection)
sovereign holds absolute power (unconditioned) with the task of guaranteeing
peace (in exchange for the safety of one’s life)
T. Hobbes
‘natural right’: basic right of every person to preserve his own life
laws of nature (derived from them)
T. Hobbes
political sovereing has unlimited power (punishment the violation of
contracts): objective determination of rigths and wrong
a theory of subjective rights:
• according to the logic of traditional natural law theory “certain basic
rights are inalienable because they are duties under natural law, and
all other duties / rights derive their ultimate justification more or less
directly from these
• according to a proper theory of subjective rights, certain basic rights
are inalienable because they are primary, underived features of the
person.
a theory of subjective rights:
• a typical feature of traditional natural law theory is “the idea that
obligation presupposes a superior authority. The common assumption
was that a necessary condition for the obligation of natural law was
that it issued from God’s authority and that all other obligations, that
is, those undertaken by individuals, derived their force from the
binding character of natural law
only very few early modern thinkers, Grotius among them, clearly
articulated the idea that there could be obligation without reference
to divine authority
a theory of subjective rights:
• a proper theory of subjective rights embraces the idea that human
beings are morally autonomous, that is to say, the idea that human
beings can impose obligations upon themselves without ultimate
reference to a higher law and a supreme authority, namely God
the decline of natural law
from the triumph of natural law to its crisis (19th century)
a) scepticism about natural law: we cannot objectively know what is
right or wrong (only subjective opinions: they could be neither right
nor wrong, either right or wrong)
D. Hume (1711-1776)

moralist seek to derive an ‘ought’ from an ‘is’: facts (nature) cannot be

used to determine what ought to be done or not done; we cannot
derive law from nature
the decline of natural law
b) birth of legal positivism:
the codification process (the need for the posivitisation of rational
natural law; systematisation of medieval law; formation of the
absolute states) constituted the ‘involuntary bridge’ or a ‘non-
intentional outcome’ towards legal positivism (opposite to natural law
theory)
the decline of natural law
art. 12 of the Napoleonic Code (1804) prohibits the judge from refusing
to judge in the case of obscurity, silence or insufficiency of the law
the implicit intention of the drafters: to admit the reference to equity
as integrative (outside the code)
the interpreters understood ‘integration’ exclusively inside the code
contemporary age
the return of natural law
strong and soft
after the war
20th century (second half) witnesses renaissance in natural law theory
the return/revival of natural law (following the atrocities of Nazism in Germany;
apartheid in South Africa) demonstrates the danger of the separability of law and
morals
G. Radbruch claims the existence of a meta-positive law that justifies disobedience
to a legal injustice (at least disobedience to the laws of the Third Reich)
a moderate version of jusnaturalism: unjust positive law must be disregarded only
when it is intolerable
human rights
post-war recognition of human rights
expressions in Declarations, Conventions, Constitutions
human rights: as (natural) limits/measure of positive law (political
power)
each of us, as a human being, regardless of race, religion, gender, age
(…) is entitled to certain fundamental and inalienable rights
only by virtue of belonging to human species, of being human
human rights
whether or not such rights are legally recognised is irrelevant (from a
moral point of view)
civil and political rights; economic, social and cultural rights;
environment, health; women, children, vulnerabole; tecno-scientific
progress
Nurnberg
- Nurnberg trials of senior Nazi officials: certain atcs, even if they do
not violate provisions of positive law, constitute ‘crimes against
humanity’
- not explicit reference to natural law theory: but there is an importan
recognition that the law is not necessarily the sole determinant of
what is right
J. Finnis (1940)
neoclassical doctrine of natural law
an accurate description of the facts makes it possible to assess them
correctly
natural law as a fundamental requirement of ethical and practical
reason in the protection of ‘fundamental good’
J. Finnis
principles of natural law: self-evident (not deduced from human
nature)
justice = foster common good in one’s community; foster human
fourishing
reasonable, in accordance with human nature
R. Dworkin (1931)
• theory of justice: law as interpretation
judge does not make law, but rather interprets laws;
interpretation/evaluation = expression of values inside (not outside)
the legal system
law includes: rules and principles (meta-rules, moral: justice, fairness =
equality, liberty)
J. Rawls

begins with a fiction (the original position behind a veil of ignorance) to

thematise the principle of equality (the defence of the rights to
freedom) and difference (compensation for social and economic
inequalities)
between liberalism and socialism
the return/revival of natural law
the need to fix substantial axiological limits to positive law, so as to
avoid the dangers of a use of the law against man
the mere formal promulgation or social observance of law are not
sufficient to justify the obligatoriness of it
awareness of possibile dangers:
a) the law as a mere external recipient that can be filled with any
content
b) the risk of the contents of law being decided arbitrarily by a self-
referential power
the return of natural law
the law has inalienable contents and minimum values which justify its
obligatoriness
only the law that defends man, his existence and his coexistence has an
authentic meaning
the return of natural law
not in the traditional sense but with a renewed meaning
the expression is little used and is often considered antiquated
in contemporary philosophical debate many theorisations which appeal
to natural law consider that the law cannot be neutral, or normatively
translate political will at a formal level (regardless of an evaluation of
the contents and values) or institutionalise the desires and interests
empirically arising in society (without taking a standpoint)
the return of natural law
the appeal to natural law is the appeal against the neutrality of law, in
favour of a law that does not claim to choose one ethical perspective
(delegitimising the others) from which to draw social rules, but of a
law that thematises its own ethics, the minimum ethics of law, the
ethics of human dignity and justice
the return of natural law
• the problem of justification in a pluralistic society
• even if a practical agreement exists on justice and human dignity,
there is no theoretical assent with it
the return of natural law
‘strong’ orientations: human dignity is an intrinsic value and justice
coincides with the recognition of the ontological equality among
human beings
‘weak’ orientations: justice as a procedural search for public conditions
of sharing modalities to peacefully negotiate controversies, making
individual rights to liberty compatible
the return of natural law
no pretence of completely objectivising the truth, of an eternal and
unchangeable truth, from which to systematically and analytically
deduce norms and values, formulating a sort of complete and
unchangeable code, valid for all situations, at all times and in all
places
the return of natural law
jusnaturalism in a dynamic key, adjusting it to the complex, secularised,
pluralistic society
human dignity as the objective criterion of justice and the justification of law
dynamically open to the historical-social demands which show the continuous
need for new formulations
the return of natural law
human dignity represents the structural criterion that allows a rational
attitude, in a critical sense with respect to the positive and social law
a limit for the formulation of positive, judicial and social law
the return of natural law
the declarations of human rights are the most suitable for the
formulation of human dignity that have been expressed in our age
agreement and universal consensus on what is declared in the
international documents
positive law
from positum, past participle of ‘ponere’ (to place, issue, posit): it
therefore means ‘issued’, posited
a) origin: conventional (or artificial); it derives from the will of whoever
imposes the law
b) space: particular, a certain group of individuals, and is in force in a
certain political community
c) time: changeable law, contingent (variable)
LEGAL POSITIVISM
• the reduction of law to only positive law and the superiority of
positive law over natural law
• absolutization of positive law
• denial of the lawfulness/existence of natural law
a monistic theory of law: either law is positive or it is not law
theory of positive law
• application of the scientific method to the study of law (only
judgements of fact and never value judgements)
• radical separation of law from ethics
theory of positive law
• validity: technical correctness of a norm
- legalism or formalism reduces justice to validity: the law merely
because it is law is considered just;
- moderate version: legality is the criterion for lawfulness, as obedience
to the law guarantees peace and social order
theory of positive law
• the source of law is the legislator: source of production and
qualification of the law (law becomes hierarchically the priority
source)
there are sources of cognition, such as custom or sources of delegation,
such as the judge
theory of positive law
the citizen must obey the laws because they are set out by the
legislator and because disobedience is punished (exterior obligation)
Nineteenth century
• the need for organicism, simplification, and clarity in the face of the
fragmentation of medieval law
• process of codification (Napoleonic Code, 1804)
• the formation of the modern State
Napoleonic code
• article 4 that, “the judge who shall refuse to determine under pretext
of the silence, obscurity, or insufficiency of the law, shall be liable to
be proceeded against as guilty of a refusal of justice”
only self-integration
dogma of the completeness of the legal system
Hans Kelsen (1881-1973)
• the “pure theory of law” (normativism)
- “pure” means a scientific doctrine of law:
the only true theory of law is the science of law that is not
contaminated by nature, political ideology, morality, sociology or
economy
- legal science is and must be independent of other disciplines
- scientific legality is only the formal analysis of rules
Kelsen
• the pure doctrine of law is a science which provides a formal model of
analysis of the rules (the theory of norms or the static principle) and
the reciprocal relationship between the rules (the theory of legal
order or the dynamic principle)
Kelsen
• normativism: “law is norm not fact”
• what is important in a legal argument are the norms not the facts
• it is to these norms that legal cognition is directed – norms that
confer on certain material facts the character of legal (or illegal) acts,
namely to know what the law includes and excludes
• the only criterion that Kelsen uses to distinguish what is legal and
what is not is the norm
Kelsen
• this means that if an act is not regulated by the law it is considered an
irrelevant act for the law: the jurist is interested only in those acts
regulated by legal norms
• the key point for Kelsen is the existence of a legal norm that governs
conduct
Kelsen
• the legal norm as a hypothetical judgement or hypothetical
proposition: “If A, then B”
• norms are legal if they follow this formula where A is illicit,
specifically, an illicit (in the sense of unlawful) act or condition, while
B is the penalty, that is, the punishment for behaviour which has
broken the rules or is the consequence, of illicitness
Kelsen
• either the norm carries a penalty or it is not legal
• the most important element in the formulation of the norm is the
penalty: the illicit act constitutes the condition for which the penalty
is applied
• the jurist does not take account of whether the behaviour is or is not
licit but must verify if there is a penalty:
if the penalty exists this means that the behaviour is illicit (that is
unlawful), or in other words if there is a norm that involves
punishment for that behaviour then it can be said that this behaviour
is illicit
Kelsen
- a formal analysis: the jurist does not examine the meaning of licit or
illicit which presupposes a value, but rather examines the presence or
absence of a punishment for that behaviour
licit corresponds to lawfulness; illicit to unlawfulness
illicitness is the condition A of a consequence B
therefore a fact or an act that really happens is not in itself or by itself
illicit, it is illicit because it is imputed
Kelsen
• “justice is an irrational ideal: an ideal because it is abstract, and
irrational because it is not reasonable, but if anything the result of
mere emotionalism or sentiment”
• the idea of justice is therefore a changeable idea
• this is why Kelsen says that the jurist must put aside references to
ethics, values, and justice as they are variable ideas for each
individual
Kelsen
• the inversion of primary and secondary norms is configured
• in the legal tradition
- the primary norms (prescriptive) are the rules that require certain
behaviour by the citizens
- the secondary norms (sanctions) are the rules that establish a penalty
for conduct that has violated the primary norms
Kelsen
the primary norms and the secondary norms are reversed
the formula “if A then B” is a secondary norm
the secondary norms are exclusive, that is, the only true legal rules: he
calls them primary norms
they are addressed to the judges not the citizens, because for Kelsen
the main concern is the imposition of the penalty
Kelsen
“ any content whatever can be law”
law is a container to fill with any content
this phrase therefore says that any norm can become a
legal rule, because there are no criteria to fulfil
it is also possible to imagine a law that does not punish
murder: in this case the killing of a person would be
licit
the criterion for legality is consistent with that of formal
validity
Kelsen
Kelsen analyses the norm even in its relation with the others within the
legal system
the system is structured in steps: it is a set of rules linked in a
hierarchical and formal manner by relationships of
production/delegation and execution
Kelsen
the hierarchal structure:
Basic Norm, which entitles the constituent power to produce
the Constitution, which in turn legitimizes
the law, which must be applied
by the rulings, regulations, administrative provisions and negotiating
acts
Kelsen
the Basic norm is a mental construction, a methodological expedient
that the jurist uses to close the system; in fact it is purely formal and
has no content
real law
the ‘living’:
a) origin: neither from nature nor from the will, but from most
widespread, repeated and frequent social behaviour (habits and
customs, needs or interests); the application of laws by judges
b) space: a certain social context
c) time: a specific period
dynamic and variable law
LEGAL REALISM
realists study what the law “really” is:
- an empirical vision
- values as products of society and history
legal realism
• the historical school (von Savigny) which locates the source of law in
history, in customs and the spirit of the people and considers the law
as facts
Legal realism
• the “free law movement” (Kantorowitz) calls for the free pursuit of
law by judges
• “Legal sociology” (Ehrlich) introduces the concept of “living law”,
identified with the rules under which humans really behave in social
life
• institutionalism (Santi Romano), initiates from an empirical
consideration of law identifying the legal system with an “orderly
social organization”
North American realism
• “revolt against formalism” inspired by the philosophy of utilitarianism
and pragmatism
• the law is discerned with the recording of what happens in court and
the prediction of what will happen
legal realism
• it is a movement which criticises rationalistic logicism, believing that
the law is a means of ensuring social needs, in a ductile, variable and
flexible manner
• case law is given priority over legislation and doctrine: the law is
discerned with the recording of what happens in court (presupposing
that what happens is different from what is expected on the basis of
application of positive law) and the prediction of what will happen
legal realism
• real law coincides with the “prophecy” of judges, recognized as
having an innovative and creative role
• it is empirical law, therefore variable and probable: it is the functional
law of “social engineering”, designed for practical purposes (law in
use) and identified by social actions (law in action) therefore it is
structurally uncertain
O. W. Holmes
• the law corresponds to the “prophecies of what the courts will do in
fact”, to the actual procedure, the experience, and the life of the law
Pound
• the law as an “edifice” built by men to meet needs and
aspirations
• “sociological jurisprudence” seeks the adaptation of the
law to social needs and interests