Appunti delle Lezioni di Philosophy of Law, Appunti di Filosofia del Diritto

Scarica Appunti delle Lezioni di Philosophy of Law e più Appunti in PDF di Filosofia del Diritto solo su Docsity! FEBBRAIO POL 12-14-20-21-26-27 12/02/2019 Nature of law: what is law? Law is a set of rules governing private and public human sphere. What is philosophy of law? The defini�on comes from Enrico Ber� which is the best interpreter of Aristotle. Philosophy has been essen�ally seen as logos, in the word’s great sense, namely not as a mere “discourse”, seman�c (exclama�on, prayer, order, etc.) or apophan�c (statement, asser�on, announcement, revela�on, observa�on, discovery, tes�mony), but as “argumenta�on”. By “argumenta�on” I intend a discourse which is not limited to saying how things stand, but which tries to jus�fy, to mo�vate, to demonstrate what it asserts, to bring reasons, to “account” for itself. In western legal tradi�on, law has been considered as LOGOS, which means DISCOURSE. The discourse can have a seman�c meaning which is ‘explana�on’ or an apopha�c one, which is ‘statement’. LOGOS as philosophy is ARGUMENTATIONS. The discourse not only gives a descrip�on, tries to jus�fy, to offer good reasons, to mo�vate and to demonstrate. Philosophy means to say something in order to argumentate. Philosophy is a set of discourses which are properly of argumenta�on. The form of argumenta�on is the DIALECTICS. The typical philosophical situa�on is the one we find in Plato’s dialogues: people discussing together. The aim of dialec�cal confuta�on is to state the truth of the statement. Dialec�cal Confuta�on: to state the truth of a statement through the verifica�on of the impossibility of the statement opposite to the first one, proving that the first one is true. Dialec�cal confuta�on is a type of dialogue. The dialogue in itself is the situa�on in which argumetna�ons take place. In philosophy, there are arguments and the typical method in which we use them is in the dialec�cal confuta�on. Dialogue is defined as goal-directed type of conversa�onal exchange in which two par�es reason together, taking turns to ask ques�ons, give replies, and put forward arguments to each other. (Douglas Walton) The dialogue is the situa�on where argumenta�ons take place by necessity. There is a difference between conversa�on and dialogue. Dialogue in a strong sense, is not a simple conversa�on, but a discussion, a comparison between opposite theses, aiming to determine which of them is true and which of them is false. Dialogue in strong sense is a discussion whose aim is to decide which argumenta�on is true and which one is wrong, so the aim the search for truth. dialogue in weak sense is conversa�on, an exchange of personal point of views. When somebody says that dialogue could be fic��ous too, it hints at the possibility that someone holds talks with himself, that is to say someone who represents to himself the nega�on of his own posi�on trying to confute it. From this point of view, dialogue, for philosophers, is not a mere state of affairs, or only an ethically advisable behaviour, but a sign of willingness to listen, of respect of others, of self-cri�cism. Dialogue is the unavoidable condi�on of dialec�cally arguing, and so of philosophically thinking. I consider dialogue not simply a fact, but a transcendental structure of philosophical argumenta�on, given its non-apodic�c, namely monological, nature, which is dialec�cal, therefore dialogical. According to Enrico Ber�, we find two different dimensions in the ‘strong dialogue’: a real and a fic��ous dialogue. The real dialogue is the dialogue between two people; the fic��ous dialogue takes place when someone holds a talk with himself. Someone who represents to himself the nega�on of his own posi�on which is trying to confute it. This kind of situa�on is not simply a fact, something that can be or cannot be. The fic��ous dialogue is a transcendental structure of philosophical argumenta�on. Philosophy is not a monological kind of knowledge, it is a dialec�cal kind of knowledge. If there is no dialogue, there is no dialec�ve and so no philosophy. Kant and Hegel they alone (through fic��ous dialogue) conceived their philosophy, alone. Anther kind of knowledge is science. It is aphodic�ve, monological, it is not a dialogue, just a demonstra�on. 1 ‘trascendental’=trascendentale, is something you cannot deny, undeniable. The very basic-stone is the idea that philosophy in general is something we have in a dialogue by using argumenta�on in the par�cular form of dialec�cs and in this situa�on dialogue is undeniable. The dialogue’s existence doesn’t depend on us, and you cannot deny it. Why is it possible to say that dialogue is undeniable? If you want to deny dialogue, you must have a dialogue. This is an ELENTIC DEMONSTRATION. (elen�c= something to put in front of the enemy, something you cannot override). You’re asking ‘why’ and this ques�on can be posed only in a dialogue. So, dialogue is something that doesn’t depend on us, on our decision to have or not to have it. Dialogue is similar to philosophy: you cannot deny philosophy. If we ought to philosophize we ought to philosophize, and if we ought not to philosophize we ought to philosophize; in either case, therefore, we ought to philosophize. If philosophy exists we ought certainly to philosophize, because philosophy exists; and if it does not exist, even so we ought to examine why it does not exist, and in examining this we shall be philosophizing, because examina�on is what makes philosophy. [Aristotle, Protrep�cus] If you want not to philosophize, you are philosophizing! It is a philosophical assump�on. You cannot be in a legal contrext without philosophy. Law is a par�cular type of philosophical experience. Dialogue in itself can’t be deniable, it is transcendent. To have a dialogue it is not sufficient to have two people. You need two different ideas on something, you need two people that think in a different way. If I’m with a friend and we have the same idea about the same topic, we’re not having a dialogue, but if one suggests to deny the idea they both put forward, they are having a fic��ous dialogue. This fic��ous dialogue situa�on is common to a lawyer. A lawyer has to discuss with the client and obviously the client will define himself innocent, but the lawyer has to consider also the situa�on in which he is wrong in this way you are considering all the op�ons and you know how to demonstrate that the opposite one is wrong. And the lawyer has to have a conversa�on with the client even if he doesn’t have the competence, and the lawyer has to present him other solu�ons and alterna�ves. What makes a dialogue a dialogue is the fact that there are two different points of view on the same thing. So the structure of the dialogue: you must have IDENTITY: the same topic at stake in the discussion, then you must have the DIFFERENCE not only of the people, but most properly of the opinions, and finally there must be the rela�ons between the par�es, they must have a dialogue, to listen and to make ques�ons and to give answers. Some�mes, even if there are two people talking about the same topic, they don’t listen to each other, you’re not taking into considera�on the other opinion, so rather than a dialogue, they are having two monologues. The object of the dialogue is in rela�on with the subject, we discuss on something and this kind of knowledge of the two par�es. We are having a rela�on of philosophy if the dialogue is dynamic. Maybe we will change our ideas a�er the conversa�on. WHAT MAKES THE DIALOGUE A DIALOGUE= IDENTITY, DIFFERENCE AND RELATIONS between the two par�es and between the par�es and the topic. IDENTITY ← RELATION → DIFFERENCE This rela�on can be found in the principle, in the ARCHE’. real or fic�tuous ← in a strong sense, truth ← DIALOGUE → in a weak sense, no truth 14-02 SUM UP OF LAST LECTURE Ber�’s idea of philosophy is strictly related to argumenta�on, the main ac�vity we have in philosophy from a methodological point of view is dialec�c. The dialec�cal confuta�on is the main tool we use when we discuss something from a philosophical point of view: we have to demonstrate, to show 1 convic�on, for it a�ends upon true reality,/ but the other, that [it] is not and that [it] must not be,/ this, I tell you, is a path wholly without report:/ for neither could you apprehend what is not, for it is not to be accomplished,/ nor could you indicate it. (Fr. 2) It is necessary to say and to think that What Is is; for it is to be,/ but nothing it is not. (Fr. 6) [Parm., On Nature] Not-being in itself can neither be spoken, u�ered, or thought, but that it is unthinkable, unu�erable, unspeakable, indescribable [Plat., Sophyst] Plato (428/427 a.C. – 348/347 a.C.) What we call philosophy is the type of knowledge given by Plato. Philosophy as knowledge is given by him. As the method of inquiry is given by him. I must test the philosophy of my father Parmenides, and try to prove by main force that in a certain sense not-being is, and that being, on the other hand, is not. [Plat., Sophyst] In one of his dialogues, in the Sophyst, he tests the philosophy of ‘his father’ Parmenides and tried to prove that the ‘not being’ ‘is’ and that that being on the other hand is not. Parricidio: Plato kills Parmenides, his father philosophically, and Plato says that from a certain point of view he tried to prove that in a certain sense, ‘not being’ is. But in the same dialogue, Plato says that the ‘not being’ in itself can neither be spoken! so in a part of the dialogue Plato says not being in itself can neither be spoken, in another part of the dialogue in a certain sense, not being is. It seems to be a contradic�on, but it is not. In this claim, Plato is not thinking about the not being in itself, but not being in a certain sense. How many sense do we have to speak about the not being? We may speak about in an absolute sense or in a strict sense, and from an absolute point of view ‘cannot be’ and Parmenides was right, and Zeno and Anassagora were wrong. In itself, from an absolute point of view, the Nothing cannot be conceived, doesn’t exist. But it is possible to say that not being ‘is’ and even that ‘being’ is not in a certain sense. He is right. This ‘sense’ is relevant, it is different. Not being in a certain sense ‘is’, that’s why we speak about the not being and it is possible to think ‘not to think’ bc we’re thinking about the physis. It is no more the problem of dualism, bc the principle is to be, but inside 0being0 we have nothing. Inside being, we have a very par�cular way of ‘being’. I am ‘being’, I am Puppo even if I am not Maino. Not being in a certain sense is. From an absolute point of view, in itself, being is. We are obliged to recognise the existence of not being as differences and from this point of view, being is not, I am not this table and since I am not this table, being that is not, I am me. In this way, we don’t have dualism between being and not being, because in itself being is and not being is a modality of being, it is not a nega�on, it is not an alterna�ve, it is an inner part of being, the being cannot be without the not being. We cannot recognise iden�ty without differences and btw we cannot recognise differences without iden�ty. This is why dialogue is undeniable. Dialogue is a rela�on between differences. Dialogue in itself reprise the structure of being. It is a sort of parresia, the way in which we may recognise so to say ‘the be in ac�on’. Dialogue is the iden�ty but at the same �me differences. From a ra�onal point of view, if I want to have a dialogue, I must have a dialogue, but it is really undeniable bc in itself it is what it makes the being part of the world, of the human existence. It has to do with arché, with physis, with the structure of reality. When you deny a dialogue, you are denying the being. That’s what gives you the real reason to agree with Ber�: dialogue is not just an ethical conduct, to be honest and polite.., to have a dialogue means to recognise the impossibility to deny the existence of arché, the being. That’s why it is metaphysical. Meta=a�er, so a�er physic. Metaphysic can be understood even in an ‘empirical’ way, it is what it is to be among differences, the rela�on. Arché cannot be reduced to a sum of different items. The rela�on in a dialogue can be 1 million different kind of rela�on. We have the possibility of different kind of rela�on bc of the principle. Arché is a sort of water that con�nuously goes on. The logos? Philosophy is conceived as logos, logos means discourse, it is made up by 21 different levels. Logos, discourse, is not an object, it is an ac�vity. Once you mean ‘x’ (person, discourse, poem..), your life will change=bc what happens inside you, you cannot 1 understand and that’s the power of arché. Arché is not an object, while I’m looking at the arché as an object, I’m part of the arché= arché is the object, is the subject, is the rela�on between the subject and the object. Dialogue is two par�es talking together and the rela�on you cannot define, you may look at it. This theore�cal discussion can have a real prac�cal evidence, only from this point of view I can recognise that the dialogue is undeniable. If you want ot understand who is ‘bad’ and who is not, if someone denies the existence of dialogue, from an empirical point of view the possibility to her a dialogue, that man is a bad one. If I want to kill you, I am not a good man, you’re not obliged to have a conversa�on with me. If someone wants to kill me, you cant say ‘let’s have a dialogue’, I have to recognise that since he wants to kill the dialogue it is something that I cannot accept. So he is wrong and I am right. 20-02 logos, ethos and pathos - rhetoric in the legal field The dialogical situa�on is typical of the legal field. In Italy, there's a very important tradi�on - dialogical perspec�ve to law - but dialogue is something we may find even in the poli�cal sphere, when the law-maker creates law, law is created through dialogue. Our dialogue is free of rules, mainly we discuss with our friends without thinking about an authority, a third part of a dialogue that will decide the outcome. In the legal field, dialogue is conceived inside an ins�tu�on, the context is completely different. Once u want to have a dialogue in the legal field, mainly in front of a judge but even in the poli�cal assembly, you must respect rules. That's why when we study law we're obliged to study codes (codice di procedura penale tetc) rules to give shape to the dialogue. One thing is to listen from a poli�cian in a talk show one thing is to look at poli�cians discussing in the parliament. The context is different even because they speak in front of a subjects. All dialogues in the legal field have a specific aim: the aim of this par�cular dialogue is to persuade, the judge in a trail or the audience for elec�ons or to promote a law, one must be able to persuade. Consider «the materials to be used in suppor�ng or opposing a poli�cal measure, in pronouncing eulogies or censures, and for prosecu�on and defence in the law courts. […] Since rhetoric exists to affect the giving of decisions -- the hearers decide between one poli�cal speaker and another, and a legal verdict is a decision -- the orator must not only try to make the argument of his speech demonstra�ve and worthy of belief; he must also make his own character look right and put his hearers, who are to decide, into the right frame of mind» Arist., Rhetoric, II, I, 1377b So, the dialogue in legal field is not a philosophical dialogue. The typical method of the la�er is dialec�cs, a specific mean is argumenta�on (tautology, argumenta�on=philosophy). It's not possible to have a dualist aspect of arkè or dialogue is impossible to be denied. These are dialec�cal confuta�ons based on elenkos, logical tool used to show that what someone says is contradictory, and so we cannot expect a contradic�on. This dialec�cal confuta�on is governed by logic, contradic�on is linked to logic. In philosophy, what we use is mainly logic, logos. Since the dialogue we may have in legal theory (poli�cal and legal in strictu sensu - judge) are different than those of philosophy , because of the presence of a 3rd with the duty to decide. A trail is a situa�on where we discuss, the lawyer tries to persuade that what he says is correct and what the prosecutor says is wrong. Here dialec�c is not sufficient. We must use rhetoric. It's a type of argumenta�on, bigger of dialec�c, because dialec�c is part of rhetoric. We use not only logic but also emo�ons, pathos. If you want to persuade, you use emo�ons, not only offering good reasons in support to your cases but presen�ng these reasons in a good shape. Impossible to obtain persuasion if the judge think you're a fool or stupid lawyer. Ethos of the speaker is important. Even in dialec�c context is important to use good discourse (like in Plato’s dialogue) and also show ethos, but they cannot be forgo�en in a rhetorical field as the legal one. Ethos: if you're a good man, you say things jus�fied by the fact you’re a good man. Aristotle's rhetoric. If you want to obtain persuasion, you must use logos, ethos and pathos. It is a common idea that rhetoric doesn't regard logic, but it does. (excep�on for Dark Rhetoric). Dialogue in a strong sense -- the aim of rhetoric is to search for truth. That's something that eve Plato, Aristotle, Caesar and so on, meant. They were against sophists - what we think about rhetoric nowadays has to do with that kind of bad idea of rhetoric. But since it is a dialogue, if we're 1 in front of a judge and our aim is persuasion, we must use logos, ethos and pathos, but s�ll for searching truth. Don't forget that! Ethical aspect, Ethos. Idea of harmony and virtue in Chinese culture, think to law as something we're obliged to follow. Here we find again the ethical aspect; mainly in Aristotle, we may find a similar idea of ethics: he says that the aim of ethics is to make a man good, give man the possibility to improve virtue, to become a virtuous man (e�ca delle verit0 E 2 30 E 1 9). What is the problem of virtue ethics? Virtue is something you cannot impose, it's a choice, you cannot oblige someone to be virtuous. According to Aristotle, the best way to teach virtue is by examples. Look at good examples. The problem is that virtue is subjec�ve in nature, it depends on culture, not on rules (Chinese dis�nc�on: rules are law, virtue not).(Kan�an version: to be virtuous means obliging to rules). For sure, virtues re something that regards a subject, but the subject is not alone. To be a good example, you must offer reasons to show what you think to be the virtue, you have to prove it ---> Dialogical situa�on. According to such a concep�on, man is never conceived as a subject on his own, as an individual. A subject is a subject in society. Objec�vity is different from dogma�sm, it doesn't mean one cannot discuss an objec�ve fact. Ie: MLK is a hero. Truth depends on us. Since dialogue has to do with truth, the aim of persuasion is source for truth. LEP all must look at truth. It is good for a lawyer to have a ethical conduct because it will be easier to persuade people. So ethos is thought to be linked to truth. Not a good way to understand ethos according to Aristotle. It is not truth that truth depends on ethos; it's ethos that depends on truth: if I want to say the truth, it means I'm a good man. If I act n a good way, it means I have a virtue. Even the idea of virtue in Aristotle is not subjec�ve. Subjec�ve: if you consider myself to be a virtuous man, what I do is virtuous. I'm a good man = I have an ethos. The focus is always on truth. Truth in itself doesn't depend on subjects. What depends on subject is the possibility to make a truth more persuasive. Truth is undeniable. Even if you dont 'use "it's true that0 E 4 20 E 0 6€ " we find truth in argument, when we need to explain something. In itself, truth cannot be denied. To sophists, you may deny truth --- they thought truth did not exist -- that's why rhetoric is not of/out ?? truth. Plato: you cannot accept what the sophists say because they make an affirma�on implying it is true, contradic�on., so truth is a transcendental en�ty. But everyone has its own truth: truth in itself it undeniable, but rela�ve truth exists. I have my personal view on the world, you have your personal view. You cannot say what you think is an absolute truth. If I say "truth is rela�ve", even the statement itself is rela�ve. Put in this view, the theory that truth is rela�ve is unacceptable. There is nothing that cannot be discussed, you must discuss on everything. Principle asser�on. It's impossible to say truth doesn't exist. Absolute is not something that cannot be put in discussion. An absolute truth could exist, but absolute may mean something you're obliged to recognize as such when we ask about it, like dialogue. Difference between absolute and dogma�c. Speak about absolute truth in terms of intersubjec�vity. 21.02 Truth is not a thing, an object, like ark猫, the principle cannot be considered an object of our reason. The principle, ark猫, is the condi�on of our reason. Ark猫 is in everything, it's in what we are looking for but even in myself, that's why it can be an object of my knowledge. Dis�nc�on and division -- not admi�ed for ark猫. Before explaining what truth may be, let's make another dis�nc�on: another mistake that we must be careful with is confusing truth and reason. "It's true reasoning", we say, because we think about truth. Reasoning is never true or false. In itself, reasoning is valid or not valid. Reasoning is a set of statements, premises and conclusions. This set of premises and conclusion has a srt of internal link. A statement can be truth or false, not reasoning. Truth is a quality of a statement, not of a reasoning. Asser�ons, proposi�ons. In the realm of argumenta�on, we may say that statements, asser�ons, proposi�ons and so on can be defined as arguments. «We define an argument as a set of reasons offered in support of a claim. The reasons may be presented orally, in a wri�en text, or by means of photographs, symbols, and other non-verbal means. They provide the evidence that is supposed to back the claim in ques�on. The claim for which the reasons are given in support is called the argument’s conclusion. The reason are called its premises» L.A. Groarke, C.W. Tindale, Good reasoning ma�ers, 7] 1 Reasoning = a kind of abstract structure, which can be dynamic and interac�ve in some cases, as well sta�c and solitary in other case. In this account, reasoning is used in argumenta�on, but it can be used in other fields as well (e.g. mathema�cs). Argumenta�on = “to reason in context”: I argue in order to obtain persuasion, to convince someone of what I claim for A reasoning in an abstract structure; in an argumenta�on, we use reasoning, but we could have reasoning without argumenta�on. Argumenta�on means reasoning in context. I need to link premises and conclusion. Logic is the science of reasoning, the study of the principles of correct reasoning. Studying the correct principles of reasoning is not the same as studying the psychology of reasoning. Logic is the former discipline, and it tells us how we ought to reason if we want to reason correctly. Whether people actually follow these rules of correct reasoning is an empirical ma�er, something that is not the concern of logic. Logic is presented as a formal science. Logic is part of argumenta�on, because logic is the science of reasoning. Logic is not a descrip�on of reasons, it's not something about psychology, it's prescrip�ve knowledge, tells us how to reason in a valid way, that's why it is considered a formal science. From natural language to formal language, step by step we use symbols and mathema�cal formulas. That's how logic is usually understood. Informal logic: studies which try to make logic open to everyday discourses. There's a dis�nc�on between deduc�on and induc�on. If the first premise is false, the reasoning could s�ll be valid. One must take care of logic. There is a rela�on between logic and argumenta�on. Formal logic is about validity. A reasoning is valid if it respects the rules of logic. Sound reasoning: it is valid and all its premises are true. So, validity is not the same of soundness. When you ask about truth, you're in the realm of soundness, not logic. Argumenta�on > Soundness + Persuasiveness = Rhetoric (Formal) logic: reasoning is valid if it respects the rules of logic. Sound reasoning = it is valid and all its premises are actually true. Validity ≠ Soundness Logic ≠ Argumenta�on Argumenta�on > Soundness + Persuasiveness (Rhetoric) Dis�nguishing between induc�on and deduc�on: based on the distrinc�on between strong and weak arguments. A strong argument provides evidence that will convince a reasonable (not abstract) audice that they should accept our conclusion. Reasoning (if P, then Q) / argumenta�on (Q because of P). Find good arguments (premises) in support of a claim, making them acceptable to the audience. In deduc�on, we go from if P reaching, step by step, a conclusion. “Inference” = the use of a rule or warrant to link some proposi�ons (statements) with others. The conclusion is the proposi�on toward which the inference moves. Premises are the beginning proposi�ons from which the inference starts. Thus, an inference links premises to the conclusion, and it always has a direc�on-proceeding from the premises to the conclusion. Every �me a rhetorician speaks must take in mind to which type of audience is speaking to. It's different to speak in front of a judge and in front of a jury. Jury: more pathe�c audience, think like a common man. Judge: speak like a jury. In an rgumenta�on, the reasonable audience is the problem; find out good reasons for that audience. Then, for sure, conclusion must be logical consequence of its premises. But, the main problem with logic is that usually formal logic is about deduc�on. When 1 you present arguments, you don't present deduc�on, but induc�on. The main relevant feature of deduc�on is once you accept premises you cannot refuse conclusion, conclusions come by necessity by that conclusions. The link between premises and conclusions is as strong as it may be. Deduc�on is used in the realm of mathema�cs, a type of formal logic or vice versa. For along period of �me, in legal reasoning, the aim was legal discourse to have the same certainty of science, ac�ng thorugh a sort of deduc�on ---> prac�cal syllogism, prac�cal reasons, idea that a judge should reason like a mathema�cian. The major premises is law, the minor is the fact. The conclusion is made by the judge. When he reasons in this way, he combines major premises and minor premises. Cesare Beccaria is the father of this kind of reasoning. In Dei deli� e delle pene, he says that in order to obtain certainty in law, the judge must reason in a syllogis�c way. Conclusion: sumpsa�on, applica�on of the law to the fact. Idea that we must search for a logical but deduc�ve form of legal reasoning. In deduc�ve arguments, the link between premises and conclusions is so strong that the conclusion necessarily follos from the premises. In other words: it is impossibile for us to accept that the premises are true and s�ll reject the conclusion. The link is as strong as it can be. Deductevely invalid arguments (or induc�vely valid arguments) contain a conclusion that does not necessarily follow from the premises. The link is not so strong. The problem is that usually when in the field of argumenta�on and legal reasoning is a type of argumeta�on, we don't use deduc�on, but induc�on, which is different from thepint that induc�on can be defined invalid from a deduc�ve pov. Nduc�on the conclusion doesn't follow by necessity from the premises. The link between th two is not as strong as it is in induc�on. Induc�ve arguments. Once u need o offer good reasons, you have to use deduc�on, induc�on leads to mistakes, because it is based on generaliza�on. You look at someone and it is natural to generalize, say because of that, it's always like this! This mistake is a fallacy, a false generaliza�on. In the realm of induc�on, there's a set of tools to use to put under discussion the reasoning of our oppenent, like in deduc�on (2 fallacies), induc�on has plenty of fallacies, more than 200. not so easy to recognize them, but to make a good argumenta�on, you're obliged to learn, especially if you have to judge an argumenta�on, working as a judge or legal advisor, you need to check argumenta�ons and look for fallacies. Relevance and Sufficiency We count a premise as relevant when it provides some evidence that makes the conclusion more or less likely. A strong argument proposes premises that are relevant to its conclusion. If it failed to do so, it would provide no support for this conclusion. In addi�on, a strong argument requires premises that are sufficient to establish that a conclusion is more likely than not. A good argument has relevance: provide some evidence that makes the conclusion more or less likely. A strong argument proposes premises that are relevant to its conclusion. Connec�on between premsies and conclusion, not logic but about relevance. Also, sufficiency is important. To evalute suffiency, you must be in a context. Logic is about the foral structure of a reasoning, of argumenta�on, but sufficienty is about the argumenta�on itself: you cannot judge without being in a context. Argumenta�on is always in a context. But you have ways to judge argumenta�ons. Maxims by Grice. 1. Maxim of Quan�ty: informa�on. Make your contribu�on as informa�ve as is required for th current purposes of the exchange. - it may happen u make a mistake. Do not make your contribu�on more informa�ve than is require. -- don't say too much. 2. Maxim of Quaity: Truth. Do not say what you believe to be false. 1 Do not say that for which you lack adequate evidence. When in a dialogue and discuss in front of a 3rd party, you must have vidence to support what you say. If what you say it's false, it will be hard to give arguments. Or the witness is una�endable . there is no necessity between law and jus�ce. To legal posi�vsm, you cannot ask about justce in law, but just legal validity. Jus�ce could be considered a subjec�ve valid. Jus�ce is something bigger than law; law is part of jus�ce. 3. Maxim of Rela�on. Relevance 4. Be relevant 5. Maxim of manner clarity 6. Avodi oscurity of expression 7. Avoid ambiguity 8. Be biref (avoid unnecessary prolixity) brocardi: brief al�n expressions used in legal theatres HERBERT PAUL GRICE (1989). Studies in the Way of Words. Harvard University Press Maxim of Quan�ty: Informa�on Make your contribu�on as informa�ve as is required for the current purposes of the exchange. Do not make your contribu�on more informa�ve than is required. Maxim of Quality: Truth Do not say what you believe to be false. Do not say that for which you lack adequate evidence. Maxim of Rela�on: Relevance Be relevant. Maxim of Manner: Clarity ("be perspicuous") Avoid obscurity of expression. Avoid ambiguity. Be brief (avoid unnecessary prolixity). 26.02 The Problem of Truth “A proposi�on is an affirma�ve or nega�ve expression that says something of something” [Arist, Prior An., 24a 16] When we think of truth we think of statements and proposi�ons. To Aristotle, a proposi�on is an affirma�ve or nega�ve expression that says something of something. The statement says something, the proposi�on is the meaning of the statement. It rains - is a statement. Also "piove" is a different statement, but the proposi�on is the same, since they tell the same thing. For our aim, we will use statements, asser�ons and proposi�ons as having all the same meaning -- set of statements. Every �me an asser�on or proposi�on says something of something, that's the star�ng point to analyse what truth is. It rains Wales are mammals The door is open or it is closed To kill is a wrong thing Truth concerns not reasoning (which can be valid or not), but it's about discourses, statements. "it rains" "Wales are mammals" apophan�c statements: only type of statements which can be true or false; a ques�on cannot be true or false, it's not a true bearer. 1. Con�ngent truth 2. Extra-contextual truth 3. Logical truth 1 1. There is no being outside thought: even Parmenides shared this. There is no iden�ty between the two, but the being is included. We think the being, and every �me we think, we think something. 2. Thought is not external to being: every thought always is thought of something. Even if I may think of "nothing" I'm thinking about something, because Being is the only thing that can be. 3. So, there is no iden�ty of being and thought, but there is a necessary rela�on. To say that a statement is true, we're connec�ng the statement with something different from itself; what is different from the statement is a part of its meaning. What we call "meaning" is made up by two different things: the sense (senso) of a statement and the referent (referente); explained by Freghe ?? What we call zin is the meaning of the statement from a linguis�c point of view. Referent meaning of the statement in rela�on with the object it refers to. Every statement refers to something. That part of the meaning of the statement, what we're talking about/refer to, it's that part of reality we must take into considera�on once we want to understand if our statement is true or false. What we call knowledge in itself is not given by descrip�on, it's not a product; in itself - it's something Agazzi too says, it's made up by a process, a rela�on of ourselves and the world. From a certain point of view, you need the world, the world comes towards us, there is a mee�ng between the reality and you. This mee�ng is what we call knowledge. We have knowledge of something when this rela�on is given without contradic�on -- mee�ng between the fact in itself and us. From this pov, Descartes was wrong. There's no division between res extensa and res cogitans. Of course there's a dis�nc�on, but no division. If this division was a think, it was impossible to know something outside your view. By the way, even if you may say there's something you don't know, you're talking about that, so that thing is already in your knowledge, in your thoughts. That's why knowledge is given with a process of progress because we know day by day li�le parts of the world more and since knowledge is made up by this process of reciprocal mee�ng, it depends even on the context. From a certain pov, a thing is like this and from another it's like that. (Look at mind for psychology is a thing, from neuroscience or philosophy is another �ng -- always mind, but different knowledge because of different context.) that's why our knowledge is by necessity incomplete, not because we cannot know the world in itself, but because every �me for a certain pov, the world is different. We meet the world in a different way, we meet li�le parts of the world but the world is always the same. If you want to be honest, you must recognize you may have the knowledge of that part of the world. Idea similar to that given by classical philosophers when they speak about aletheia (alfa priva�vo) Heidegger said that aletheia is truth, but it's a par�cular way of conceiving truth. Truth in this sense means what is not covered, what is discovered. Truth is discovered by us, but in itself, it shows itself. Once truth as aletheia appears, a part of truth remains unknowable, there's a part of truth we cannot know, because in that situa�on it remains in the dark side, as something wai�ng to be discovered. That part of truth or reality wai�ng for us is called "mystery" but it's a part of truth, of reality. Enlightment: view that one day man will not everything. That's wrong, especially according to scien�sts. Nowadays science tells us there's a part of the world wai�ng to be discovered. We cannot assume we're able to give an objec�ve descrip�on of the world. Truth plays an ac�ve role, it's not an object, just like reality is not just an object but a part of this rela�on. Some�mes it can be hard to meet reality, to say something to be considered truth. Reality is part of the rela�on. Karl Popper made a mistake: he says that truth in itself is something we cannot know. We may get closer to the truth but in itself truth is unknowable. That's the problem we find when discussing about truth in trials: we cannot find truth because truth is outside the trial, so we cannot know truth. It's a common and wrong theory. Why? First of all, because Popper believed that knowledge is a process that in itself aims to know the truth. But knowledge is a process that is about reality, not truth. What we know a�er the process of knowledge, it's reality, not truth. What we know is the world, truth is the rela�on between our statement and the world. Knowledge is a process of knowing the world. And more than this, secondly, Popper speaks of truth as an object. What we have here, in proper terms, it's called reifica�on of truth, but truth is not an object. Truth is a par�cular way of being, the specific rela�on we have when speaking of something, not an object. Truth is a condi�on of our way of speaking and thinking. It's what we find every �me we ask about the rela�on between what we say and the statement. Reality, the world is an object in itself - object as "what we're talking 1 about", not as res extensa. It's not easy to accept that. The fact that truth is not an object, means that it is not unknowable. What's reality? Defini�on: reality is what is different from non being; it is what it is, it's the domain of being. Being is the only thing that can exist. Reality is exactly everything we may talk about. Everything that can be the referent of our discourse is real, even if it can be the case that it is not part of the real state of affairs. That's hard metaphysics, moving to ontology. Dreams are real, their part of reality even if they're not a part of the real state of affairs. At the same �me, a dream cannot be considered a picture of reality. We may say that what we have are different types of reality because we may speak of different states of being. We speak about dream, feelings, pegasus, because everything is part of reality, everything that can be told by a statement within a discourse is part of reality, but it's possible to have different ontological status. One thing is to speak about a table, one thing about dream. We may use even different kind of criteria to describe that. Methodological monism: idea we must use only one method in every kind of knowledge. This method, as you may understand, is that of empirical science. According to the posi�vis�c account of knowledge, knowledge may be considered as such only if it's possible to use an empirical method, by descrip�on. For example, law is not made as an empirical science it is made, so it's not knowledge. To obtain an analy�cal knowledge in law, you must study as an object (NB) the language of legislators. Law is made up by rules and if you wanna be a scien�st in law you must look at the language of legisla�on as it was an object. We must look in an empirical way. It's a mistake. Why? It's a mistake saying that in every field of knowledge, one should use only one method. Today, instead of methodological monism there's methodological pluralism. The knowledge we may have in law it's real knowledge, even if it's not empirical. The metaphysical reason for that is that what we may know on reality may be different. It's wrong saying that just the empirical pov is the good one: it depends on what you want to say, on the way you're looking at the world. The world is made up by things that stand in different way, are alive in different way. Our world is made up by something that is real, but even by something that's real even if it doesn't concern the real state of affairs. Even in decision-making process, emo�ons and feelings have their place. Human understanding of the world is relevant to legal reasoning. Very o�en a judges decides a case on different places. There are other parts of our minds we use when we need to decide a case; of course, we cannot remove reasoning. Philosophy is a special part of knowledge, it's about us. The legal theatre presents plenty of philosophical problems. We discover that it's not possible to remove morals from law (The Nuremberg Trial was an example) . Even with human rights, we find that it's impossible to remove morality from law. MARZO 05-06-07-12 (film)-13-14-26 05-03-2019 Truth is not about language, truth is about the rela�on between language and reality, so it is the discourses about reality, what we are thinking about. It is not outside of thought, even though it is about something. There is no iden�ty between the two, there is the rela�on by necessity. truth is not an object and there is not right way to look at issues: this is the mistake made by Popper. Truth is in the discourses we talk about reality. We don’t completely know reality only from a certain point of view and precise circumstances. It is possible to reach the truth in trial. Which kind of truth of reality we may know. Which kind of principle that rules= principle of non contradic�on. Principle of non-contradic�on “The most certain of all basic principles is that contradictory proposi�ons are not true simultaneously. […]. It is impossible that the same thing belong and not belong to the same thing at the same �me and in the same respect. […] No one can believe that the same thing can (at the same �me) be and not be” Arist., Metaph, III, 3, 1005b 13-14; 19-20 1 Aristotle talks about the principle of non contradic�on in the ‘Metaphysics’ which means ‘beyond the physics’, not only behind. So, metaphysics is something that is behind and beyond, the principle of non-contradic�on can be understood in 3 ways 1. Logical value 1.1 2. Ontological value 3. Psychological value The principle of non-contradic�on => Rules the way we think = logical. => Rules the way we reason = psychological. => Rules the meaning of proposi�on = ontological. Contradictory proposi�ons are not true simultaneously, ontology is always true: the door is either open or closed and so contradictory, proposi�ons that have a contradic�on inside, is always wrong. Every�me a reasoning has a contradic�on inside, it’s always wrong. Ancients used the word Bebaiotetos = Greek word that means ‘the most certain’, which cannot be denied. In italian, it’s translated with ‘il più accertante’, something that we use to be certain of something. So, it is impossible to deny the principle of non-contradictory = example is ‘èlenchos’ ( a type of argumenta�on which aims at showing contradic�on). The psychological value of the principle of non-contradic�on. No one can believe that the same thing can, at the same �me, be and not be. Every�me you think, you think something and you think about that thing, not something else. Every though is always about something. The ontological value of the principle of non-contradic�on. Once we look at the principle of non-contradic�on, from an ontological point of view, it’s impossible that the same thing belongs and doesn’t belong to the same thing at the same �me and in the same respect. It is not about what we may know (so not epistemological), like know something about something. ‘if a woman is beau�ful, she cant be non-beau�ful’. According to Aristotle, the proposi�on is in virtue of the principle of non-contradic�on, because there is a rela�on between the statement/proposi�on and what we’re talking about. It cant be contradictory. Otherwise you’re having an adynaton =something cannot be in the world, impossible at the highest levelm it contradicts the reality in itself. If you want to reach the truth, you must have a discourse, and what you’re saying must be coherent, not in contradic�on with reality. The principle of non-contradic�on is undeniable, bebaiotelos, according to Aristotle, because according to the principle it is impossible to state something in a contradictory way. To deny the ‘principle of non contradic�on is false’ is to demonstrate that it’s false: elen�c demonstra�on: you can only use that proposi�on to deny it: ‘the principle of non-contradic�on is false’ is true, but something either is false or is true, so s�ll you’re using the principle of non-contradic�on. Once you want to deny it, you have to use it, I am obliged to use that principle I would like to deny. This demonstra�on of undeniability of the principle is acceptable, if you accept the defini�on of the principle given by Aristotle. The Megalians, a group of philosophers of the Socra�c minor schools, were against Aristotle’s defini�on of principle. According to them, it is possible to refuse the principle because it is possible to have another defini�on because it depends on the conven�ons, on us, on our way of speaking. Aristotle said: ‘the principle of non-contradic�on is true, because it’s impossible that the same thing belongs and doesn’t belong to the same thing at the same �me and in the same respect’, their new defini�on would be: ‘the principle of non-contradic�on is false because it’s possible that the same thing belongs and doesn’t belong to the same thing at the same �me and in the same respect’ in this way, it’s possible to deny it, because we have to apply that principle spelled out in that new way. The problem is not a logic one, from an ontological point of view it doesn’t ma�er if we have many defini�ons of the principle, we can have an unlimited number of defini�ons, the point is that once I gave the defini�on of the principle, we are talking about that defini�on and not another. So again, it 1 This is called counterfactual reasoning: condi�onal containing an if-clause which is contrary to facts. Reasoning common in the legal field; not acceptable using a method that considers hard facts only. To accept this kind of reasoning means to accept the idea that usually we think of something that doesn't exist but that we accept as real. In the legal field, we decide cases by using this reasoning. 7.03 Rela�vism - J.Searle What could be more unreasonable than to suppose that it was the legisla�ve inten�on in the general laws passed for the orderly, peaceable and just devolu�on of property, that they should have opera�on in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an inten�on is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws. Seman�cs of the possible world --- we always look at the possible world star�ng from our own world. Context. It is true that such a concep�on would be unreasonable. Reasonableness. The first sight seems to be something weaker than ra�onality, what is reasonable seems less important than ra�onality. We may have disputes on reasonableness -- reasonableness is wider than ra�onality. From a mathema�cal pov, ra�onality is a li�le part of what we usually pretend to be reasonable. In the domain of law, reasonableness is what you're looking for. Looking at decision of courts, they search for reasonableness, use it as a standard. Same idea in the Riggs v Palmer case. Every �me you think to a possible world you must jus�fy the existence of that world. John Searle. He gives a possible defini�on of rela�vism: “Rela�vism is the theory that the truth (or falsity) of any proposi�on is always rela�ve to certain sorts of psychological a�tudes on the part of the person who states, believes or otherwise judges the truth of the proposi�on. [….] A proposi�on which I state is true only rela�ve to my interests or my point of view. Thus according to rela�vism so defined, a proposi�on might be true for me but false for you ” the truth or false of any proposi�on is always rela�ve to my pov. So, at first sight, if I say that I'm saying is true but rela�ve to my pov, I'm not denying the existence of truth, but I'm saying that truth exists, but it's always rela�ve to my pov and so since I'm saying that the proposi�on truth exist but rela�ve to my pov is true, it means that "the truth is rela�ve" is rela�ve, what exists is an absolute truth. Absolute used as "not rela�ve". Being rela�vis�c about rela�vism means to accept the idea that rela�vism is not rela�ve. Proposi�on P. P is the proposi�on according to which truth exist but it's rela�ve to my pov. P is true. It means that P (truth existБ─і.) is true, but according to rela�vism, every �me I say something it's true it mean it's true not from an absolute pov but it's rela�ve to my pov. It means that P in itself is rela�ve and so what does it mean? If something is rela�ve in itself, what I'm saying is rela�ve. To say that rela�vism is rela�ve means that it is true we may have an absolute truth. It's not true from an absolute pov that truth is rela�ve, because everything i say is rela�ve to my pov. To be a rela�vis�c means to accept something that is absolute. “Why are the rela�vists not worried by the incoherence of their posi�on? I don't know, but I think it is because they think they are possessed of an important insight, which is not touched by these logical worries. The insight has to do with the perspec�val character of all knowledge claims. The idea is that all claims are made from a point of view, from some perspec�ve or other and there is no superior or master perspec�ve from which to judge all other perspec�ves. The rela�vity to perspec�ves is all the rela�vism they need and the fact that the judgment ‘all judgments are perspec�val’ is itself perspec�val does not seem to them a decisive refuta�on”. The basic idea of rela�vist is that all claims are made by a pov, subjec�ve way of pu�ng down everything, there's not a reality in itself: what exists are different images of reality, opinions, pictures. John Searle says that there is no superior perspec�ve. It's impossible to say which is the real reality, bc everyone looks at it from his pov. To Searle, a good account of truth is given by the correspondence theory of truth. correspondence theory of truth: the truth or falsity of a statement is determined by how it relates to the world and whether it corresponds with that world Disquota�on explains the correspondence theory of truth. Alfred Taski logician. We have a statement which is true if it corresponds to the real world. To Searle, if truth is rela�ve to my pov, then disquota�on makes the real world dependent on this pov. The rela�vity of truth implies the rela�vity of reality, because of disquota�on. 1 Disquota�on: For any statement S, that statement is true if and only if p, "Snow is white” is true if and only if snow is white. The trouble is that disquota�on makes not just truth but the rain itself, and everything else rela�ve to me. So now I have to say “It is raining, but only rela�ve to my point of view”. And that is consistent with “It is not raining, rela�ve to your point of view”. [..] If truth is rela�ve to my point of view then disquota�on makes the real world dependent on this point of view […]Well couldn't he just accept that? Isn't that what the rela�vist should really want--that all of reality only exists from his point of view? Is that a coherent posi�on? Reality exists but only from my pov. Since rela�vism seems to be the best theory to describe reality, it's s�ll dangerous, because everything exists from my pov. we move from dogma�sm to the idea that we can have disputes on everything because everyone has its own pov. “The original idea of rela�vism was to define truth only rela�ve to people and their points of view. We then discovered [disquota�on] that the rela�vity of truth implied the rela�vity of reality. But the original assump�on behind our defini�on was that there really were people with different points of view, and that was an absolute assump�on. But rela�vism does not allow for the absolute existence of anything, not even people and points of view. So when the rela�vist says: ‘You and I both exist with our points of view and maybe from your point of view it is not raining, even though from my point of view it is raining’, he must mean ‘You and your point of view can only exist from my point of view’”. The real core of rela�vism is that reality itself doesn't exist: it exists only and only if we accept it. If you don't exist from my pov, there's no dialogue. Regression at infinitum. 1. Assume all truth is rela�ve to references of the asserters of the truth. If S asserts p then p is true only rela�ve to the interests of S. 2. By disquota�on, if truth is rela�ve, then reality is rela�ve. 3. If reality is rela�ve, it is rela�ve to the existence of people and preferences 4. But if everything is rela�ve, then existence of people and preferences must itself be rela�ve Proposi�on 1: “It’s raining”. This proposi�on, according to rela�vism has to be interpreted as Proposi�on 2: “Its raining but only rela�ve to preference of 1”. But of course proposi�on 2 is as rela�ve as 1. It can only be interpreted as Proposi�on 3 : “Proposi�on 2 is true but only rela�ve to preference 2”. That is: “It's raining rela�ve to preference 1, but only rela�ve to preference2”. But Proposi�on 3, must itself be rela�ve, as is stated by Proposi�on 4: “Proposi�on 3 is true but only rela�ve to preference 3”. Thus: “It’s raining rela�ve to preference 1, rela�ve to preference 2, but only rela�ve to preference 3. The infinite regress follows automa�cally”. The rela�vity of the goodness of the taste of chocolate only makes sense given the absolute existence of the tasters and the goodness or badness of their taste experiences. When you say ‘chocolate tastes good’, that is rela�ve. But when you say ‘chocolate tastes good to me’, thus iden�fying the rela�vity of the first claim, the claim of rela�vity cannot itself be rela�ve. If it is rela�ve, it cannot ground the rela�vity of the first claim “There is a deep point here that I want to make fully explicit: the rela�vity in ques�on, rela�vity to preferences, a�tudes, etc., is only intelligible if there is something that is not itself rela�ve. It makes sense to say that my u�erance of "chocolate tastes good" is true rela�ve to me, but that is onlybecause my existence and the way that chocolate tastes to me are absolute. There is nothing rela�ve about either of them”. “A consistent rela�vism makes it impossible to state anything because there is no end, there is indeed a vicious infinite regress of rela�visms to rela�visms. […] The way out of this, that is an implicit in the first person point of view of the rela�vist, is to insist that the rela�vism terminates in his existence and preferences. But then that is a form of solipsism, because everyone else exists only rela�ve to his existence and preferences” 1 To stop this, the only way is violence: "You exist because I say so" - the strongest wins the dispute. But that's inconsistent! If you want to have dialogue on something, the existence of that thing is not rela�ve. The thing must exists, me and my opponent need to exist. The existence of reality doesn't depend on my pov. But in a consistent rela�vism, there is a vicious infinite regress of rela�vism to rela�visms. To Aristotle, man is a social animal ---> it would be impossible not to have dialogue. Dialogue is undeniable. We're able to have dialogue because reality in itself exists, truth exists, we exists. there's difference between rela�vism and a rela�vis�c account of truth. Everyone has its own idea on the world, we may have different ideas of reality. But truth is not a thing, but a rela�on between language and reality; the fact that we have different visions of reality doesn't have an impact on truth. As regards future events, to Hilary Palmtam, it's not possible to talk about the truth because we lack evidence. Principio del terzo escluso doesn't count for future events. Aristotelian delibera�ve context of the law-maker; using rhetoric is necessary. What guarantees the existence of truth is the principle of non-contradic�on. Dialogue, truth and the principle of non-contradic�on are undeniable, because if you want to deny them, you need to use them. What kind of knowledge is philosophy? Is philosophy knowledge? What about philosophy of law. (To Pa�erson, argumenta�on has nothing to do with truth) 13.03.2019 On the nature of philosophy (again) As we said, the basic situa�on of philosophy is the dialogue. There is no philosophy without dialogue. The dialogue is necessity but no sufficient. The dialogue alone in not philosophy, it could be in a weak sense. In the dialogue, the par�es make ques�ons and give answer, but philosophy happens in a dialogue, so when is a ques�on philosophical? There must be made a dis�nc�on between philosophy and knowledge and scien�fic knowledge. The idea of science developed in modern era comes from Galileo and this concep�on is different from the one of Descartes. Descartes believed that knowledge can be considered a good type of knowledge when a separa�on between the subject, res cogita and the object, rex extensa is made. Scien�fic knowledge, according to Descartes is the knowledge on/of something. The knowledge about the objects and the subject is the scien�st, one who looks at the knowledge and who is outside of knowledge. • Philosophy is a type of knowledge which is all-encopassing, all-absorbing (‘totalizzante’) Philosophical knowledge is different, this dis�nc�on between subjects and objects is impossible. The knowledge is on everything, is totalizzante. Philosophy ques�ons the whole en�rety The first kind of philosophy is metaphysics, the knowledge about the arché, the principle. So this means to ques�on the ‘essence’. Aristotle said that the first philosopher was Thales because he ques�oned about physics, about the nature of everything. • Philosophy ques�ons on the essence Galileo said ‘non tentar le essenze’, do not ques�on the essence, it’s pointless. According to modern science, you should ask about models of reality and not reality in itself. From a scien�fic point of view what you amy know about reality is some characteris�cs that you may describe in objec�ve way, something you can measure. You’re giving a descrip�on of one of the features of something. Science looks at reality but not reality in itself, models of reality, so from a science you miss something. • Philosophy is a radical ques�oning: so radical to the point that it can ques�on itself (problema�city, ‘problema�cità’) So, philosophical ques�ons are so radical that philosophy may ques�on itself, this is called ‘problema�city’. It is so problema�c that you ques�on yourself. When philosophy ques�ons itself, we discover that philosophy is undeniable. Science cant ques�on science in itself. To ask on maths for a 1 to put subjects into the law it is giving an interpreta�on of law, in fact in French universi�es for a long period of �me, philosophy of law had been deleted since 1804. Philosophy of law was a mere history of law. with the Weiner crise, the philosophy at best was the theory of knowledge. In communist states it was forbidden. There was fear of philosophy in general and in par�cular of philosophy of law because to allow it would have meant to allow a free way of thinking, ‘thinking outside the box’. If you reduce philosophy to a theory meant to delete methaphysics. But, it is that part that of philosophy that it is ‘on us’, the essence. This development started with Galileo and Descartes, they believed in God and he was our ‘guarantee’ for saving from a never ending doubt, he was a guarantee for his method, his key element. God was reduced to an hypothesis. At the beginning of the modern era, god was put away from ourselves and so it happened in law too. «Et haec quidem, quae iam diximus, locum aliquem haberent, e�amsi daremus – quod sine summo scelere dari nequit – Deum non esse aut ab eo non curari nego�a humana» “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness: that there is no God, or that the affairs of men are of no concern to Him” The modern natural law theorist was Hugo de Groot who lived in the same period of Descartes. He believed that ‘ius naturalis’ existed thanks to God, based on his existence and it would exist even if god didn’t exist. Why and how ius naturali exists it is because of our reasoning (Enlightenment) we remove God, the reason is sufficient and that’s why in the enlightenment period god became the reason. The aim of philosophy is to ask to reach the truth, whereas the modern idea of law is not about truth but about certainty. It is not possible to delete philosophy of law, philosophy of law is philosophy, it has all features of philosophy, without them, it would be just a theory of law. philosophy of law doesn’t explain law, it understands it. It is useful in our legal world even if it is really hard to explain. In the ‘post modern era’, nowadays, we need to think outside the box, we need new concepts. There is a deep rela�on between law and philosophy. Philosophy is contempla�ve, law is a prac�ce knowledge. We discuss to decide a case, it is not theore�cal knowledge. That’s why you need dialec�s, rethorics. Philosophy of law is a part/the core of law, you can find that at the beginning of law, back in roman �mes, in Roman law. before roman law was about ideas, discussions of jus�ce. For example in the Digestum: de iusta et iure. Ulpianus wrote ‘primo libro ins�tu�orum’, ius was law, the art of goodness and fairness (Celsus), law has to do with ‘ius��a’. 1.1.0. De ius��a et iure. 1.1.1. Ulpianus libro primo ins�tu�onum Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. est autem a ius��a appellatum: nam, ut eleganter celsus definit, ius est ars boni et aequi. 1. Cuius merito quis nos sacerdotes appellet: ius��am namque colimus et boni et aequi no��am profitemur, aequum ab iniquo separantes, licitum ab illicito discernentes, bonos non solum metu 1 poenarum, verum e�am praemiorum quoque exhorta�one efficere cupientes, veram nisi fallor philosophiam, non simulatam affectantes. A law student at the outset of his studies ought first to know the deriva�on of the word jus. Its deriva�on is from jus��a.' For, in terms of Celsus' elegant defini�on, the law is the art of goodness and fairness. 1. Of that art we [jurists] are deservedly called the priests. For we cul�vate the virtue of jus�ce and claim awareness of what is good and fair, discrimina�ng between fair and unfair, dis�nguishing lawful from unlawful, aiming to make men good not only through fear of penal�es but also indeed under allurement of rewards, and affec�ng a philosophy which, if I am not deceived, is genuine, not a sham. Lex is a part of ius, the difference is between diri�o and legge. We cannot have ius��a without philosophy, you need a philosophical a�tude, you develop it by doing philosophy. In order to be virtuous man, you need to act as such. 26/03/2019 “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness: that there is no God, or that the affairs of men are of no concern to Him” Hugo de Groot, De iure belli ac pacis No principle, no metaphysical issue in our knowledge. Philosophy is not knowledge. Philosophy is a method, a way of searching for reasons. Law from a philosophical point of view → look at law in a problema�c way, ques�oning it, not describing it. Now law is in a deep crisis. Giving interpreta�on of law means modyfing what the lawmaker said. Look at law as an object – Bobbio regarding the legal scien�st. So� law is not law according to a modern concep�on of law. All the characteris�cs philosophy has match with the one philosophy of law has. To Puppo: one must look at the beginning of law, that is Roman Law. “Ius es tars boni et aequi” – Ulpianus, libro primo ins�tu�onum A law student at the outset of his studies ought first to know the deriva�on of the word jus. Its deriva�on is from jus��a.' For, in terms of Celsus' elegant defini�on, the law is the art of goodness and fairness. 1. Of that art we [jurists] are deservedly called the priests. For we cul�vate the virtue of jus�ce and claim awareness of what is good and fair, discrimina�ng between fair and unfair, dis�nguishing lawful from unlawful, aiming to make men good not only through fear of penal�es but also indeed under allurement of rewards, and affec�ng a philosophy which, if I am not deceived, is genuine, not a sham. Genuine Philosophy, act like a philosopher. Nowadays, law is about regula�ng social interac�ons. Lawyer: vir bonus dicendi peritus. Perizia + bonitas = good lawyer. Bonus: regards ac�on, as it can be learned by book Dicendi Peritus: it’s a skill based on technique (rhetoric) Using dialec�cs to decide. Legal domain: PRACTICAL REASONING. In order to have a decision, act in a certain way. Four Cardinal Virtues: IUSTITIA (jus�ce), TEMPERANTIA (temperance), FORTITUDO (courage), PRUDENTIA/SAPIENTIA (prudence) Ius��a: to Plato, it differs from the others, because it rules the rela�on between the 3 other virtues. To Aristotle, it’s an ethical virtue; it has to do with phronesis, the ability to decide how to achieve a certain aim, ability to reflect upon what is good. Temperan�a: prac�ce of self-control, ability of modera�on. For�tudo: to face, go against fear or in�mida�on. Pruden�a: prac�cal virtue we have to know how to act, to understand, make a dis�nc�on in order to see what’s the right way to act, the appropriate ac�on to perform in a certain situa�on. Deciding according to the par�cular case we’re facing, not following a general rule. Each case can be different from the other; you must be able to have the appropriate decision for that case. Iurispruden�a: iurisprudente is able to find out what really is in a case, understanding the par�cular situa�on in front of him. Common law: judge-made-law. Stare decisis, dis�nguishing. Law made according to these virtues, following pruden�al, not following the will of the state but facts. The trolley problem: You see a runaway trolley moving toward five �ed-up (or otherwise incapacitated) people lying on the tracks. You are standing next to a lever that controls a switch. If you pull the lever, the trolley will be redirected onto a side track, and the five people on the main track will be saved. However, 1 there is a single person lying on the side track. You have two op�ons: Do nothing and allow the trolley to kill the five people on the main track OR Pull the lever, diver�ng the trolley onto the side track where it will kill one person. Which is the more ethical op�on? And what if the single person on the side track is family? The fat man: do you push the fat man to prevent a trolley problem? As before, a trolley is hurtling down a track towards five people. You are on a bridge under which it will pass, and you can stop it by pu�ng something very heavy in front of it. As it happens, there is a very fat man next to you – your only way to stop the trolley is to push him over the bridge and onto the track, killing him to save five. Should you proceed? The most important think is TO DO, to act. We become just by doing just ac�ons, temperate by doing temperate ac�ons, brave by doing brave ac�ons. This view is supported by what happens in city-states. Legislators make their ci�zens good by habitua�on; this is the inten�on of every legislator, and those who do not carry it out fail of their object. This is what makes the difference between a good cons�tu�on and a bad one. In order to act following virtue, you must know what virtue is. If you don’t know law, you can’t use pruden�al. But... experience is a way of knowing. Different from a poli�cal and legal perspec�ve. Aristotle: ethical virtue is the result of ah habit or training. If you wanna be brave, act in a brave way. To know what “brave” is doesn’t mean you’re brave. Being virtuous means being close to an extreme rather than the other. The intermediate situa�on doesn’t exist. Some acts are made in sè, no intermediate posi�on. Jus�fying everything is against the whole concept of truth: something is real, something isn’t. Virtue is concerned with feelings and ac�ons, in which excess and deficiency are in error and incur blame, while the intermediate condi�on is correct and wins praise, which are both proper features of virtue. Virtue, then, is a mean, in so far as it aims at what is intermediate. But not every ac�on or feeling admits of a mean; because some have names that directly connote depravity, such as malice, shamelessness and envy, and among ac�ons adultery, the� and murder. All these, and more like them, are so called as being evil in themselves; it is not the excess or deficiency of them that is evil. In their case, then, it is impossible to act rightly; one is always wrong. It is hard work to be excellent, since in each case it is hard work to find what is intermediate. To do this to the right person, to the right extent, at the right �me, with the right mo�ve, that is not for everyone, nor it is easy; wherefore goodness is both rare and laudable and noble . The unjust has been divided into the unlawful and the unfair, and the just into the lawful and the fair 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 injus�ce in the sense of the unfair are not the same as but different from the former kind, as part from whole; for injus�ce in this sense is a part of injus�ce in the wide sense, and similarly jus�ce in the one sense of jus�ce in the other. Of par�cular jus�ce and that which is just in the corresponding sense, (A) one kind is that which is manifested in distribu�ons of honour or money or the other things that fall to be divided among those who have a share in the cons�tu�on (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 rec�fying part in transac�ons between man and man. The just, then, is a species of the propor�onate. For propor�on is equality of ra�os [...]. This is what is just in distribu�on, and this species of the just is intermediate, and the unjust is what violates the propor�on; for the propor�onal is intermediate, and the just is propor�onal. This, then, is what the just is-the propor�onal; the unjust is what violates the propor�on. Hence one term becomes too great, the other too small, as indeed happens in prac�ce; for the man who acts unjustly has too much, and the man who is unjustly treated too li�le, of what is good. The remaining one is the rec�ficatory, which arises in connec�on with transac�ons both voluntary and involuntary. This form of the just has a different specific character from the former. For the jus�ce which distributes common possessions is always in accordance with the kind of propor�on men�oned above and the injus�ce opposed to this kind of jus�ce is that which violates the propor�on. But the jus�ce in transac�ons between man and man is a sort of equality indeed, and the injus�ce a sort of inequality; not according to that kind of propor�on, however [...]. For it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has commi�ed adultery; the law looks only to the dis�nc�ve character of the injury, and treats the par�es as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it. 1 wri�en law? it is a dilemma bc the choice is not easy and bc there are good reasons for each op�on. And we cannot use a single rule to find an answer. The custom and wri�en rules are conceived differently, it depends on the concep�on of law. if we reason with the modern idea of law, the Kelsen’s pyramid, the principle is at the top of the pyramid and the rules at the basis. If we reason with the classical idea of law there is no hierarchy, there is no criteria to choose between wri�en and unwri�en law, they are at the same level. In both cases, we have law but different kinds of law which are both valid. In the tragedy everyone is for creonte. An�gone is in a bad situa�on because of filia. she’s the closest with edipus. The story of edipus ended with An�gone. An�gone believed there was something more than just wri�en law. the unwri�en law is important too, that was the law that gave birth to the polis. If there is the polis, its existence is due to the unwri�en ancient law. So, it is important to listen to both par�es, to both wri�en and unwri�en law reasons. If you deny the dialogue you cannot explain your posi�on. No one is superior to the others. Legally they are both valid. Athens is moving from old rules to new rules, but you cannot forget that if you’re in Athens it is bc of the unwri�en law. Aristotle= you cannot deny dialogue, men are in polis and so by their nature they need dialogue. So, the dialogue between the two law is important. But hybris arises when we act against our well-being. This is what happened to An�gone. She decides not to have a dialogue, to kill herself and by doing so, every kind of dialogue is impossible. In this case, the hybris was her suicide. Sophocles didn’t explain who was wrong, bc both of them were. Sophocles’ poli�cal message= if you don’t dialogue, tragedy is the only result. (see Aristotle above). Everyone is wrong, creonte changed idea bc of Iresia, not bc of An�gone’s view (no dialogue). Sophocles’ message to Aristoi, the party in his contemporary Athens that embodied the ancient and unwri�en law and he himself was one of them = don’t think you’re superior, your reasons/point is not be�er than the other party’s only bc you will not have a dialogue and listen to them.He’s not saying you don’t have to follow unwri�en law and just new law. no. he says you need to be open to hear both par�es of the dispute and then reach a common solu�on otherwise the only solu�on is the war, the tragedy. Some�mes it could happen that the law is unjust, but you have means to cri�cise it. QUOD PRINCEPS PLACUIT LEGIS HABET VIGOREM = ‘Ciò che è gradito al principe, ha valore di legge’. Orestea mercoledì 10 aprile 2019 Classic = something that does not lose value, survives the �me. Law is made also from greek tragedies and philosophy. Tragedies are about us. It is about our way of being. Dilemma in An�gone is about wri�en law v. customary law. In this case, the conflict is between two rules: respects of both parents v. revenge for the murder of the father. To respect the rule he has to kill the murder of the father, but it is the mother. Oreste doesn’t know what to do, so Apollo as deus ex machina says to him to kill the mother. A�er Oreste killed the mother he was hunted by the furies. He went to Athens to get judged, because there he could find goodness (Apollo) in fact there he found Apollo's sister Athena. Oreste judged by Atena a�er killing the mother. Athena absolved him. → First example of trial, in the 5th centuries BC. Par�es are the Furies and Oreste. Oreste represented by Apollo, first lawyer. Furies represented the oldest system of rules, based on revenge. The trial infact over-ruled them. Conflict btw the old and new rules. Orestea is before An�gone. In the order of the polis the old rules doesn’t exist but there is s�ll a conflict, the change is gradual. The changes of socie�es cause struggles, bc transi�ons take �me. Oreste alone can't find the solu�on of the conflict. Apollo wants to be the new legal order. The discussion in the trial is btw Apollo and the Furies. No one is for the Furies, while Apollo represents Oreste so he is the first lawyer. Apollo defended not only Oreste but also the reasons. For the Furies is ok to kill Oreste bc he killed his mother, because in the previous legal order it was valid. But Athena stops them to see the other point of view, that is how the trial starts. Both of the par�es need to be listened.(right to fair trial, art 111 Italian Cons�tu�on and 6 ECHR) During the trial Athena the judge take posi�on because they were 6 v. 6 1 Athena decided for Oreste, was she a good judge? What does it mean to be impar�al? If we understand impar�ality in a certain way she wasn’t. But the judge is human, able to be empathic, every kind of subject is involved even the judge. The judge needs to put himself in the shoes of the par�es to have an idea, a pre- comprehension. We live in polis because of the existence of the polis (an�gone). Furies are then changed into the Eumenidi, protectors of Athens. Athena convince them with rhetoric,without forcing them. The furies (old system) change mind and they get integrated in the polis (the new system). Through argumenta�on and persuasion of Athena (dialogue). → Thomas Aquinas in other words says movere animus through the use of pathos and logos to open mind and move feelings → Socrates, by dialogue you can change the nature of man → Plato, to be good you must know what good means → Aristotle, to be good you must act in a good way. Puppo 11-04 Law is a trial. There is no law without having a trial. This is clear if we look at classical philosophy (it refers to Plato and Aristotle), dialogue is the situa�on of philosophy and that is true also for legal situa�ons. This is dialogical perspec�ve. This idea is valid also for St Thomas in the Middle Ages. In that period something is changing. His issue: defini�on of law, in which way reason and will may collaborate in order to make law. law has 4 different shapes. The Summa Theologica, in ques�ons 90-95 talks about law. law is a rule and measure of acts, whereby man is induced to act or is restrained from ac�ng. In this concep�on there is a lot of Aristotle: in explaining why law is not as rule, lex is derived from ligare, to bind, because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts. Since it belongs to the reason to direct to the end, which is the first principle in all ma�ers of ac�ons according to the Philosopher. PP: Law is a rule and measure of acts, whereby man is induced to act or is restrained from ac�ng: for "lex" [law] is derived from "ligare" [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts; since it belongs to the reason to direct to the end, which is the first principle in all ma�ers of ac�on, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently, it follows that law is something pertaining to reason. Aquinas was one of the philosophers able to translate Aristotle in modern (middle ages) �me, if we know Aristotle today it is thanks to him, he translated him. This opinion seems like dogma�c. Aquinas gives his explana�on of zoon poli�con. To have reason means men may search for truth, this assump�on is explained by aristotel into the methaphysis when he discussed about the undeniability of dialogue. USE REASON TO SEARCH FOR TRUTH. This par�cular way of understanding reason is what we find in st Thomas Aquinas. What’s new, why this? Because not only because men are zoon poli�kon, but also becasue men are created by God and men have a prominent posi�on in the universe, they are similar to God, so we have reason not only by nature but to have reason is what makes men similar to God. By using reason, we may know the order that is into nature. This order is not created by men, but by god. Since we are created by god and since we have reason, we may par�cipate, there is par�cipa�o ra�onis, in the reason of God. If we don’t par�cipate, no possibility for us to be part in the reason of god, it’s impossible for us to KNOW what is happening in nature. But, as a ma�er of fact, we KNOW the order. We may explain why something happens in the world of nature and this is part of the basic idea of modern philosophy (19th century). Science wasn’t against the Chris�anity idea of middle ages. The system of thought of Galilei and the one of this period. Philo of Galilei is not based on Aristotle. The main purpose of philosophy by Aristotle is to search for an explana�on of the essence, metaphysical part and this idea (to ask about essence) is not reasonable, it doesn’t make sense to Galilei = NON TENTAR L’ESSENZE. Brecht was wrong by claiming there is a big struggle in Galileo Chris�anity (?). Men use reason with specific aim. That’s why Thomas said everything pertain to reason, so also law is something pertaining to reason, pertain to RATIO not to VOLUNTAS (will). Ra�o v. Voluntas: be�er to know before you act: if don’t know, you don’t know where to look. Before moving physically, you need to know where to look. In order to reach a place, you need to know where that place is. You look on google maps, you understand where it is. Then, once you know, you decide to move. In 1 this area, there are a lot of jus�fica�on for the ac�on, ac�on > reason. That’s wrong idea according to Aquinas and Aristotle. Theore�cal reason to solve a philosophical ma�er: to verify if a certain kind of statement is true or false, we use our reason to see if there is any kind of correspondence between facts and statements. We use and need reason when we have to decide. Prac�cal reason is used in the poli�cal/ legal domain: judge uses his reason in order to decide if the claim is true or not. In this domain, besides reason, emo�ons play a key role, so rhetoric is very important. But s�ll, judges have TO KNOW, people want to be judged by competent figures. Is it possible to say that law is based to reason ONLY? Law is reason and will together. Law cannot be without will, but form a certain point of view, someone may say that we may have will without reason. We reason in order to decide something. And so, to have a decision on something. Morality is about myself, law is not only about myself, it is about society and a lawmaker has the power to modify the conduct of society by using (impera�vis�c account by Aus�n) by using the sanc�on. No division between morality and law for Thomas, but s�ll in this account reason and will stay together. A law is imposed on others by way of a rule and measure. Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such applica�on is made by its being no�fied to them by promulga�on. Wherefore promulga�on is necessary for the law to obtain its force. Law has to do immediately with reason. You cannot accept law that is against reason. But at the same �me has to do with the FORCE of law, law needs to be imposed, LAW NEEDS WILL. And, in the legal domain, the WILL is in the PROMULGATION. It is used for making the reason enforceable. If law is not published in certain way is not law. from this point of view, the legal domain is the one in which we find a certain kind INSTITUTIONALISED. Reason and will, in this order. Without will we have no law. Will is a part of law but without reason is not law. Et sic ex quatuor praedic�s potest colligi defini�o legis, quae nihil est aliud quam quaedam ra�onis ordina�o ad bonum commune, ab eo qui curam communita�s habet, promulgata. Thus from the four preceding ar�cles, the defini�on of law may be gathered; and it is nothing else than an ordinance of reason (ORDINATIO RAITONIS) for the common good (AD BONUM COMMUNE), made by him who has care of the community, and promulgated. Reason used in a direc�on which in law is bonum commune: which is GRATIA. Deus nos instruict per lege et iuvat per gra�a. God teaches us by using law and so law is about what is good. To teach means to make clear what is good and what is wrong. Reason has to do with the salva�on of our soul. Even in the realm of law, we are directed to God. AFFECTIO IURIS the role played by lawmaker is not only a role by someone who is powerful, by someone who takes care of its community. Lex naturalis is more important than lex divinas. L.n is more important for men because lex divina depends on regula�on, there was a �me it didn’t exist, or places where we don’t know it. Aristotle lived before Christ. L.naturalis, human beings may know even if they don’t know lex divina. READ THIS SLIDE BEFORE NEXT WEEK: Now a certain order is to be found in those things that are apprehended universally. For that which, before aught else, falls under apprehension, is "being," the no�on of which is included in all things whatsoever a man apprehends. Wherefore the first indemonstrable principle is that "the same thing cannot be affirmed and denied at the same �me," which is based on the no�on of "being" and "not-being": and on this principle all others are based, as is stated in Metaph. iv, text. 9. Now as "being" is the first thing that falls under the apprehension simply, so "good" is the first thing that falls under the apprehension of the prac�cal reason, which is directed to ac�on: since every agent acts for an end under the aspect of good. Consequently the first principle of prac�cal reason is one founded on the no�on of good, viz. that "good is that which all things seek a�er." Hence this is the first precept of law, that "good is to be done and pursued, and evil is to be avoided.” (Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum) All other precepts of the natural law are based upon this: so that whatever the prac�cal reason naturally apprehends as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided. SECOND FILM When we say we do not know truth, it's like say we do not know reality. 1 Thomas is similar to this situa: the one who makes law is part of the community. In that �me, the idea is similar to magna carta. He is part of the bonum commune, he takes care of the society an so of us. you cant think yourself outside the community). To Hobbes, the leviathan is not part of the nature, we create him. In classical concep�on (and Locke), the one who makes law is part of the society. (in Rousseau ‘we are the power’, democracy). 3. The Iura connata= rights we have as human rights, everyone has this kind of rights. We have property, life and freedom. There is equality among us. It is impossible for the power to go against Iura connata, the power ahs the duty to make law to maintain Iura connata. The liberal state cannot enter our property, our freedom and cannot decide upon my life. The basic idea of this model of statee= I am the owner of myself. I cannot accept someonw to tell me what to do, I am free. That’s why I sign the social contract, to be free, to use freedom, to be alive, to maintain my property against the ci�zens and even against the state. 4. Since, the powers are part of society and they are not absolute, they have boundaries, the powers need our trust. We may decide that a certain kind of power doesn’t respect iura connnata, or the rule of law so we don’t trust anymore and so there is no consent. The power has the duty to respect the boundaries so to explain its ac�ons. This mechanism is mainly used in elec�ons. In the situa, there is a dispute about the boundaries. 5. . Is it possible to search to a superior state for deciding this kind of conflicts? No. in cri�cal situa�on, we use. Since the power cannot go beyond their limits, we may in cri�cal situa, when state doesn’t respect division of power, iura connata, in state of war, in those APPEAL TO HEAVEN. Let God judge who is right. We can destroy the power because it is created by us. We would come back to the state of nature. When Locke looks at men, he thinks about the owner. Property is the most iura connata. No one can enter my ‘privacy’ and tell me what to do. And since it is the most important, we are the owner f the state. We may decide, in that situa, the state doesn’t respect the social contract. So I don’t accept that situa, so I ask the power back to return to the state of nature because I want t TO CREATE AB ORIGINE a new kind of state. Locke is Anglican, protestant. God exists. He is really religious, this is important to understand because the state of nature is peaceful. RIGHT IS THE COLOR OF SHAME, red is the color for Locke. Why in Hobbes we are free? No feeling of just and unjust, the just and unjust is created by leviathan. In Locke is plenty of shame. From a religious point of view, he is plenty of shame. I don’t make some act, because of the same, not only of myself, every �me I live in society and in the state of nature, I am in society. In state of nature, there is society, there are no ‘judges and legislators’ but there is society. THE EYE OFHTE OTHERS WHO ARE LOOKING AT ME. So, for sure men are good, from another point of view, they’re good not by virtue, but by themselves they decide that act in a certain way is not possible because I would be shame. Even in my room, when I’m alone, I want to do something but I don’t because I feel ashamed. ‘god is watching you’. I wan to do but I can’t because I feel ashamed. So, even in these philosophy, not only anthropological but also the religious one is really important to dis�nguish Locke form Hobbes. Everything is rooted on emo�ons, and shame (capitalism ..) once we lose the emo�onal side, there is no limit because I am the owner of myself. This situa is good un�l we have a common feeling. ‘to steal a pen is a bed thing’. Once we are in an individualis�c society, how is it possible to find a limit? No. there is not the eye of the other, I am the other. You exist un�l I think you exist. What you think of me depends on me, no more the idea of public shame’, ‘comune senso del pudore’. It depends on the place, �ma, situa, it depends on too much things, it exists what I think, I believe it to be, but no, nowadays the public shame doesn’t exist. The main problem for locke is property, because, do we have or not some kinds of limits to my property? Three restric�ons on the accumula�on of property in the state of nature: 1) one may only appropriate as much as one can use before it spoils (Two Trea�ses 2.31), 2) one must leave “enough and as good” for others (the sufficiency restric�on) (2.27), and 3) one may (supposedly) only appropriate property through one’s own labor (2.27) OBJECTIONS 1. once we think about money, I can obstain as much as I want, the first rule cant apply to our world. (Mac Parson opinion). I may have more property because of money. 2. it depends on what you think 1 3. if I am the boss of a farm, I own the labor of my workers so the 3rd restric�on doesn’t apply anymore. A man is defined by the fact that he has the property. The property is defined by the labor, I own your labor so I own you. (karl). The cri�cism by Mac Parson is the one of Karl Marx. We may be owner of money. We may be owner of men, if men are defined by the property, and the property is defined by your labor in my property, I own you the person. Even if from theore�cal point of view, liberalism is be�er but there are a lot of problems. One big problem is of ‘individual’= defined by its property, I’m property of myself. This is wrong. I’m free to do what I want. NO. for sure, we are free to do what we want, to a certain extent, we live in a society. There is a certain rela�on that doesn’t depend on us, we must accept the rela�on. My decision may be of some bad reac�ons to you but at the same �me I cant accept the idea of a paternalis�c idea of the state. What is good for us, I up to us (not me). To a certain extant, to smoke is not a bad thing. Trouble with problem, another problema�c thing: idea of concensus. It seems a god thing, every �me and every day we may ask parliaments what they do and check their ac�ons. The situa in which we live, it’s been made up by others. Its not a real possibili�es, to give a consensus to all legisla�ons in Italy, in Europe,.. our consensus can be given just to a li�le of parliament and government and since the state of nature is the state we live in. we live in a situa�on to which we don’t give a consensus. The solu�on is (Locke) about silence consensus. Its similar to Hart to the rule of recogni�on, sincie we live in a society and this kind of na�on, there is a sort of silence consensus. At a certain point we find something we don’t like, is it possible to say ‘I don’t trust with Andreo�, de Gasperi.. the father of the cons�tu�on’ it doesn’t make sense. This is the problem that jean Jacques Rousseau tried to resolve. We must search for a democra�c state, in which we must search a real good explana�on. The general will, the law us made by us, we are the state, in the democra�c idea, the state is made up of ci�zens. 08-05 AN INTRODUCTION TO LON FULLER'S LEGAL PHILOSOPHY -> "the principle of social order and individual freedom" is the last book he translated about Fuller Fuller -> from late 20s to early 70s Today: · Legal philosophy filtered to the core of Fuller's thought NEGATIVE SIDE OF FULLER'S THINKING Quote from "the law in quest of itself" : Fuller talks about some theories from American realism, par�cularly about Holmes, father of american realism. Fuller says: if you want to understand something about someone's thought, start it by considering the cri�ques. ----->> nega�ve side approach We could use the same approach talking about Fuller himself. End of the 30s --> Fuller begins to get interested in legal philosophy "o�en what an author stands for is much less important than how he go to where he is standing etc. --> in the first book Fuller dedicated to legal philosophy, fuller does not offer an original posi�on on legal philosophy, he just cri�zes the mainstreem philosophy of the �me, that is posi�vism. He was basically an an�posi�vist author at the beginning of the 30s. In this case we use "legal posi�vism" in a very broad sense: to iden�fy the thinking of very different different authors, like Aus�n, Kelsen, Hart, Romano in Italy (father of ins�tu�onalism, a movement inside posi�vism itself). 1 --> Legal posi�vism is thus very very general, as a cultural and intellectual mentality, a way to approach a phenomenon. -> in fact all these authors approach the legal phenomenon in the same way: for them, we can study the legal phenomenon using a scien�fic method. In his book, Fuller , tracing the unusual history of legal posi�vism (star�ng from Hobbs and then to American realism and then coming to Kelsen and Aus�n), Fuller argues that this mentality is unsound and with disastrous prac�cal consequences for society. (main opposi�on to legal posi�vism happened only a�er wwii, so keep in mind that at that �me in the 30s everyone only had kelsen in their minds. Fuller was going outside his �me basically) Fuller VS two posi�vist cliche 1. Jus�fica�on of law 2. Facts/values dis�nc�on They are maybe 2 of the most imp problems in legal philosophy since plato. 1. jus�fica�on of law -> we cna define law in many ways. As a social phenomenon, law needs power, penalty, authority. Without them, it is not law. Law needs all these elements. Quote by Hobbs and Bentham : law is an evil , because it limits out freedom in the state of nature. We are free to do whatever we want in the state f nature, then law arrives and limits our freedom. These limits exist to reach superior values like peace. --->>> So law is sort of a necessary evil. Problem is if law needs power , authority etc, we have to jus�fy it of course. Law needs jus�fica�on. Legal posi�vism offers to the ques�on of jus�fica�on a very simple, maybe naive answer. For legal posi�vism, the problem of jus�fica�on of the law is a formal problem, they are interested in the structure of the law. They do not consider the content. It is a problem of sources. In order to see if it is jus�fied I have to look at the sources of the law. --> problem of the sovereign: to understand if the system is jus�fied I have to assess whether the sovereign is legi�mate. From a poli�cal pov, jus�fica�on is legi�macy. Form a legal pov, it is validity. In this context, they are all synonyms : jus�fica�on , legi�ma�on and validity. 2. separa�on between facts and values, from alinguis�c pov: separa�on between descrip�ve and norma�ve language. -> for legal posi�vism (as a mentality in general) this dis�nc�on is vital. Without this dis�nc�on, legal posi�vism collapses. One thing is to look at law as it is (problem of validity) and another is how law should be (problem of legal jus�fica�on). -- Fuller's cri�cs to Aus�n -> aus�n was very influen�al for Hart and especially for Kelsen. Aus�n wrote "the province of jurisprudence determined" 1 Dis�nc�on between means and ends --> important problem for Fuller. For him this dis�nc�on is impossible: between means and ends there is a circle of interac�on. --> Problem was choose the correct means to reach the goal --> That's a very posi�vis�c, prac�cal point. For Fuller instead, when I choose a means to reach a goal, as I am approaching to the end, the end may modify my means. There's not just one direc�on, it's a circle. Wi�genstein: mother and father go to cinema and tell babysi�er to make babies play a game. When they come back, she is playing poker. --> they did not mean that obv -->> there is sthing invisible into language, part of our context/culture, close to our ra�onality. It is not imp to express it explicitly, because it is implicit -->>> see the example of father and daughter made by Wi�genstein in Pa�erson's book. This is very imp for Fuller's as well. It is the WAY we use language. Law as an iceberg --> this could be a way to imagine Fuller's perspec�ve. --> CONCEPT OF IMPLICIT LAW Law is interes�ng in the immerged part of the icerberg for Fuller (and then later for Dworkin etc). For posi�vists, law is ONLY the emerging part of it. For Fuller it is not, it is not just the black le�er part of the statute. Behind the form there is a very imp implicit part. In every legal system. The concept of implciit law is the most imp concept to understand Fuller. The invisible part of law --> what he calls implicit law 09-05 Hobbes= in the state of nature, men made up of feelings. Father of roman�cism Rousseau= Let us conclude that savage man, wandering about in the forests, without industry, without speech, without any fixed residence, an equal stranger to war and every social connec�on, without standing in any shape in need of his fellows, as well as without any desire of hur�ng them, and perhaps even without ever dis�nguishing them individually one from the other, subject to few passions, and finding in himself all he wants, let us, I say, conclude that savage man thus circumstanced had no knowledge or sen�ment but such as are proper To that condi�on, that he was alone sensible of his real necessi�es… le bon sauvage brings what he need from nature, it s not a fight, peaceful condi�on. Le bon sauvage, in this state of nature, has a par�cular feeling: self-love. He loves himself and what he needs to do it is simply what is related to myself conserva�on. It is a very clear and complete state of self determina�on, that’s why im free. The beginning of state of nature according to Rousseau= father of democracy, at the beginning of our history we’re alone and we’re happy. The beginning of state of nature according to Aristotle= Poli�cal animal is a subject (not individual) who is a poli�cal animal bc of language. The difference between animals and men is that there is language. And there is a difference between language and communica�on, animals can communicate. Language is different, communica�on is within/a part of language. Syntax, the structure of human language is unique, excep�on. there is no other form of communica�on like ours. Brain of human beings is made up to have a language. The very first stage we are alone and we are happy. No war, nothing. The stete of bon sauvage. The main stage is no property. The reason why we’re in peace. in this primi�ve state, there were neither houses nor cabins, nor any kind of property, every one took up his lodging at random, and seldom con�nued above one night in the same place; males and females united without any premeditated design, as chance, occasion, or desire brought them together, nor had they any great occasion for language to make known their thoughts to each other we live in a peaceful way un�l there is no property. The rela�on between men and female is easy. nor had they any great occasion for language. This kind of state doesn’t exist. According to Hobbes, the state of nature never existed and something we must avoid. Locke, we’re s�ll living in the state. Rousseau: we must look for it, it is an utopia, it never existed but we want to come back to that. We can understand but we 1 may feel. Ex. It’s easier to agree with Rousseau, when we’re in trouble, we’re looking for a solu�on. Once he talks about this state of nature, smth we may decide, smth we want to come back by feeling. Utopia=smth inside us. He’s able, as Hobbes, he’s able to speak to us, he’s abke to represent a certain part of our feeling. Feeling is the part completely removed away from Descartes, but from pol�cal and legal point of view for the modern poli�cal thought, feelings are very important. So, that’s the first �me in the history of poli�cal thought that utopia becomes important. It is smth we cannot have, we cannot come back to that posi�on. We have to work in order to gother. Utopia becomes a key concept in poli�cs, Marx talks about utopia and also the French Revolu�on’s father agrees too. To change the structure of the social order, we have to struggle for state of nature, it is inside us. Property: Rousseau is against private property. We live a happy life un�l there is property, in this condi�on we live happy life. But by mee�ng with the others, by mee�ng in society, we lose l’amour de soi. If I live alone, there is no problem with you, no nega�ve feelings, once I meet you, I lose the self-love, selfishness, egiois�c view of men to tell the truth: I cannot love you, it is impossible. I can love myself but not you (R😊 it happesn that once I meet you I may feel a posi�ve but also nega�ve feelings and those nega�ves feelings come up in society: pride, envy, feelings not typical of le bon sauvage, are typical of men living in society. The first man, who, a�er enclosing a piece of ground, took it into his head to say, "This is mine," and found people simple enough to believe him, was the true founder of civil society. How many crimes, how many wars, how many murders, how many misfortunes and horrors, would that man have saved the human species, who pulling up the stakes or filling up the ditches should have cried to his fellows: Be sure not to listen to this imposter; you are lost, if you forget that the fruits of the earth belong equally to us all, and the earth itself to nobody! That’s the beginning of civil society: someone says ‘that’s mine’ and you’re so fool to believe him and then there are troubles. ‘green philo’ = the ground is of everyone, belong equally to us all. It is strange to jus�fy a utopian view, nowadays we’re inside it. This state of nature never existed. Locke is for property, Rousseau is against private property. We lose l’amour de soi and there is the beginnig of newlove, l’amour propre. Self-love, which concerns itself only with ourselves, is content to sa�sfy our own needs; but selfishness, which is always comparing self with others, is never sa�sfied and never can be; for this feeling, which prefers ourselves to others, requires that they should prefer us to themselves, which is impossible [J.J. Rousseau, Emile, or On Educa�on, IV] By thinking to the best way to have educa�on, when R thinks about men in society, we’re condemned to live in society, he’s thinking about someone who feels this kind of love. Love has to do with myself. Pity is a bad feeling not for him, you’re looking at you if you were in that situa�on, you feel sad for you as him, but it means that he exists if you are able to feel like him. That’s why it is amour proper, selfishness, not love for others, love for myself. It is always love star�ng from my point of view. I don’t love you, I love the idea I have of you. I start from my perspec�ve. Always. As if I were in your shoes. Not classical �me pietas the meaning is different, it is not charitas/love, it is not that. Pietas and charitas need the idea of society to be conceivable, but at that stage there is only the man alone. You love others by looking at them from your perspec�ve, I am the measure of everything. The world itself exists under my judgment = rela�vism. That’s what happened in the French revolu�on, you have to accept my idea of liberté, égalité and fraternité from my perspec�ve, if you don’t agree with me I kill you not by shoo�ng, by knife, by guilli�ne, by cu�ng away the head: you lose your life while you use your reason. The problem of the man in the society: men are sad. Alone you don’t know nega�ve feeling. Now, you know you were happy, you cannot live without society Stages of nature: 1. Amour de soi. 2. Amour propre. 3 contract social. Contract social created to improve this situa�on, by crea�ng the state. Not just crea�ng society from civil point of view, it means to change the human beings. The natural man lives for himself; he is the unit, the whole, dependent only on himself and on his like. The ci�zen is but the numerator of a frac�on, whose value depends on its denominator; his value depends upon the whole, that is, on the community. Good social ins�tu�ons are those best fi�ed to make a man unnatural, to exchange his independence for dependence, to merge the unit in the group, so that he no longer regards himself as one, but as a part of the whole, and is only conscious of the common life. A ci�zen of Rome was neither Caius nor Lucius, he was a Roman; he ever loved his country be�er than his life [J.J. Rousseau, Emile, or On Educa�on, I] 1 By using the social contract, it makes the man a ci�zens. The ci�zens is a man denaturé, no more in nature. It is strange. And dangerous. If you want to escape the situa you need the social contract. to have society we need ci�zens, meaning men in society but this doesn’t exist in the state of nature. So we need something which is not in our state of nature. Being a ci�zen is. Social contract to create a unnatural type of men. In the democra�c state, ‘one’ is the community. We’re all part of a big corp. we’re part of that community. The ci�zen is but the numerator of a frac�on, whose value depends on its denominator; his value depends upon the whole, that is, on the community. We’re all equal, part of that big body as community, community only counts as one while in the state of nature we counted as one. Harmony in the state of nature, becase of private property, it is impossible. The ci�zen is not a man, by entering the democra�c state we lose our humanity. Harmony becomes impossible. Forced to combat either nature or society, you must make your choice between the man and the ci�zen, you cannot train both To be equal means to change the situa�on, create a new equality. The problem: the state of nature there is not the social contract, it is ar�ficial. The reason is important. Once we exit the state of nature, we start to use the reason to create what we dotn have. We start from feeling and then we reach the reason. This is the enlightnemt part of his theory. In society has been created by using reason, by using something that doesn’t exist in nature, and the same thing for ci�zens. Make a difference between men and ci�zens. By looking at clauses of social contract. These clauses, properly understood, may be reduced to one -- the total aliena�on of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the condi�ons are the same for all; and, this being so, no one has any interest in making them burdensome to others. Moreover, the aliena�on being without reserve, the union is as perfect as it can be, and no associate has anything more to demand. Finally, each man, in giving himself to all, gives himself to nobody; and as there is no associate over whom he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses, and an increase of force for the preserva�on of what he has. We give everything. In Hobbes, we give but maintain just one right: right to live alive and in peace. In locke we maintain iura connate: property, life and freedom. In rousseau we give everything as men but immediately we have them back as ci�zens, bc I’ll be part of the community. Being part of community, we decide everything, we make law with the people. I give everything and immediately I have them back. the community in itself is made up by myself too. Since we all give everything, no one owns something. What I lose is my iden�ty. I cannot be a man anymore, I start to become a ci�zen. The new corpus, that is ruled by the general will. "Each of us puts his person and all his power in common under the supreme direc�on of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole." At once, in place of the individual personality of each contrac�ng party, this act of associa�on creates a moral and collec�ve body, composed of as many members as the assembly contains votes, and receiving from this act its unity, its common iden�ty, its life and its will. This public person, so formed by the union of all other persons formerly took the name of city, and now takes that of Republic or body poli�c; it is called by its members State when passive. Sovereign when ac�ve, and Power when compared with others like itself. Those who are associated in it take collec�vely the name of people, and severally are called ci�zens, as sharing in the sovereign power, and subjects, as being under the laws of the State What is the general will we have to respect. It is about the common good, about my good anìbout majority and miniority. The common good is defined by the majority. It could be be�er to dis�nguish the general from the minority will. The utopia is that the will is the one of the ‘majority’. It is impossible in the democracy, the general will of everybody. The ‘general will’ is the one of majority, R has to admit. The general will is about what we think to be good for everyone. I as majority I am also the owner of the general will and so what I think is good is good also for you so I am right and you’re wrong and so, you’re idea must be rejected not by me but by you. This idea of democracy cannot accept disagreement. It is accepted that the general will can be embodied by one person or one party, as the last century is rooted by this idea of democracy. The paternalis�c model of the state, in the posi�on of deciding for you what is good for you and not. We’re loosing our part in the State. If you don’t want to accept this model? I sign the contract, then I exit it so I remain alone, I’m happy. 1 mercoledì 15 maggio 2019 The modern concep�on of law has a sort of terror for mul�plicity the voca�on of law is the unified and hierarchical order, unified since hierarchical. The imagine we may find in jurists mind is the pyramid of norms. Marty Mirellhe Human rights are now understood as something that is among the different lega; systems, EU based on human rights. The idea of pyramid is in crisis. The jus�fica�on given by Kelsen is too weak, we need another jus�fica�on (given by Hart). Formalism cannot explain the rela�onship btw norms and principles. But this idea even if it is wrong is so rooted in our mind that we s�ll look at law in that way. Reason according to which why when we look at law we see a system. Norberto Bobbio - pyramid inside the legal system shall be extended outside when some sytems are subordinated to systems of a certain kind. But now is wrong to look at the EU in this way. EU is not only a big pyramid made by the sates, but EU legal system is also inside the local legal systems. Infact we talk about dialogue btw courts. Not only what is happening now, but what we should expect. Different legal systems we can see them through hierarchical way or through coopera�on and harmoniza�on. The la�er is the right one. We used to look at law by using some kind of concepts, but now what we consider as law cannot be explained through that concepts. We need to reject this kind of model? According to some yes. according to Puppo, we may find systems in the legal scenario and it is some�mes true that there is pyramids, but it also true that we cannot consider a system an ac�o, because We need to jus�fy why a certain system exist, and it is not the idea of system we have. When we think about system we think about something that have a hierarchical structure, ordered in a certain way. In our mind system = order, representa�on of modes and inner rela�ons according to which a complex set is ordered. Is it true that this sytem is created by us? Or is it preexistent? If we say that is pre. We have to consider the existence of an order in nature (Thomas Aquinas natural law) As human being we have par�cipa�on the reason of god and so we may recognize the system in nature. If you say that the system is created by using our reason, you will be a legal posi�vist. First legal posi�vist and naturalist is Locke. This point is underlined by Paolo Grossi a cons�tu�onal judge. For him the system is considered to be the result of decisions and choices, so con�ngent ar�ficial produc�on. Complete and formal ordered system that sa�sfies the legal norms of objec�vity and consistency is done. See the code, no norms outside the code. This is not the idea that we have now, but we know there are norms outside the code, that cannot be explained by using this kind of view. The existence of human rights is about the nature of systems. Human rights exist before, we simply recognize what is already existent. Is it possible to say a theorem is true only when we are able to demonstrate? No it is always true. Is it possible to find the birth of this idea? Paolo Cappellini said that hierarchy is a term unknown in the classical Greek and not used in New Testament. It started to be used a�er the 6 cent AD, with the corpus dionysiacum, that beleveid that the system was created by man and didn’t exist by itself. Term is connected to a par�cular type of philosophy, the neo platonic one, that again in the history of western culture said the same that was said by elea�sts (Parmenide), dis�nc�on between iden�ty and differences, strong dualis�c view of the world. And they think that (Proclo) by using our reason we may put an order among different things. In Roman law when the term was use it had a different meaning, system something that preexist our knowledge, they used it thinking universum. Before the 6 cent there was a different type of idea of system. Order without system and without hierarchy. Now we think rights are universal. But what does it mean universal? Three universal ins�tu�on 1. Roman law - inside the idea of universum 2. Catholic church - able to improve a certain idea of wisdom from the Roman law and spread it. Roman law has inside the idea of universum 3. University - created in the middle ages by students, clerici vagantes, they were moving inside Europe and they had the same idea of universum. Universitas = form of knwledge about everything. Europe is made up by common view. That was acknowledged during middle ages, and it was subject of deep theories like Thomas Aquinas. Human rights is lex naturali, natural law. Certain law can be considered void bc violates legal principles. 1 Once we move to another philosophy the term system change meaning. With the start of science, asking on universe became pointless. Galileo, non tentar l'essenza, he removed aristotelian view from science, you cannot know the arke. And so system started to mean something that is made up by us, it developed with the enlightment and posi�vism. Only by using empirical and deduc�on you may have knowledge. That the �me when we have formaliza�on of system. Leibniz and Descartes -> system is created by men. Posi�vism → system is external See slide M. Losano. The external system can be defined as the scien�fic proposi�ons’ system which describes a certain type of reality. So it has the same structure in every kind of discipline. The structure is the connec�on that links the different elements of one of these systems. It is the whole of rela�ons of things, not the whole of things. All the sciences or disciplines have the same structure, while all the objects of a certain science have different structure. Methodological monism one method-> Wolff was the first german philosopher who spoke about system as deduc�on. According to him there is one fundamental principle and by using deduc�on we are able to build up a system of rule that can be cosidered coherent bc of its structure. Rela�on with Kelsen (neo kan�an) - common interest for exact sciences, system = set of proposi�ons that must be deduced by fundamental principle, the basic norm. cannot have a system in law without basic norm. See slide. From this point the meaning of system is this. Rela�ons between the systema�c concep�on by Chris�an Wolff and Immanuel Kant were due to the common interest for exact sciences […] and to the fact that Kant received Wolff’s theory through one of his main pupils: Mar�n Knutzen, who was professor of philosophy in Könisberg when the young Kant a�ended university. […]. In Kant’s philosophy the “system” underwent further and double specifica�on, that will be adopted by next philosophers. The system becomes the model to which each science must tend towards: there is no scien�ficity without systema�city. Secondly, the system is no more a deduc�ve set of proposi�ons, but it is a set of proposi�on that must be deduced from one principle. To make the connec�on between systema�city and scien�ficity possible, Kant adopted mathema�cs as model. We thought that law is hierarchical in nature, but it is not true. This idea is not self- evident. Dark Side of the Law 16 maggio 2019 Prof. Giovanni Bombelli Another dimension of law composed by common sense and beliefs. Basic thesis: (the experience of) law relies on a series or set of presupposi�ons: explicit and implicit beliefs. common sense or dark side; what is common doesn't need to be clarified, become explicit. We don't think about true when it's an obvious situa�on. Look at truth / ask about truth becomes problema�c. If someone says something obvious is not true, then this implicit truth needs to be explicit. Common sense works in a normal situta�on. Homogeneous society -- this reality remains unques�oned, implicit. This level is the condi�o sine qua non for theorizing law as a unity. Eg: liberal model. We don't ques�on the presump�ons of the liberal model and its principles: inviidual. Individual liber�es and rights, central role of the state as a "playmaker" - link between state and law. This horizon remains obscure and implicit. The point: during cultural transi�ons this horizon reappears bringing a muta�on of the common sense. (eg. Implosion of the East Germany in 1989 - sudden and quick transi�on) . Connec�on between poli�cs and law - moving between poli�cal and legal dimension. The plexus of these contextual and cogni�ve elements can be summed up in the no�on of ethos. Greek word indica�ng a large set of factors such as common sense, pra�cses, philosophical perspec�ves. 2. Common percep�on of law: how we understand law. Tools moments occasion to understand law. Very simple experience that makes us undestand that legal experience is related to the common people. They understand law star�ng from 2 levels. Kelsen, champion of the posi�vism, talks baout the rela�on between law and the common man. This two levels are the 1. idea of the legal order: common people construsct the idea of law as a unity, based on a simple intui�on, elaborated by each person. 2. presence of cogni�ve elements: different ideas of what is law. Underlined by the IC in a recent decision, talking about common sense. 1. idea of legal order: rough no�on of legal order makes us observe that commom people perceive law star�ng from par�al and different or confused elements - pieces of experience. People keep together different elements - unity. This opera�on enables 1 people to understand what is law. This opera�on encompasses both contextual elements and cogni�ve presupposi�ons. Eg. The idea we have of law is different from the one Chinese people have - close connec�on between religion, ethis窶ｦ) (Bobbio: legal order described in logical manner) 2. Cogni�ve elements: cogni�ve horizons, summarized through the concept of common sense- a set of beliefs, underlying law, which are grasped by people in an implicit/explicit form. The importance of this level is well known in the hisotry of poli�cal philosophy of law (Hobbes) . Examples: Greek idea of endoxa, set of opinions spread out in all people. / Vico's posi�on in his scienza nuova: common sense in a unreflec�ve judgment. Beliefs are not only an bstract idea of world, but a judgment on reality, implicit, immediate and simple. Reference to another philosopher, Max Weber in Ecomomics and Society talks about the ra�onal nature of law and pol�cal powe. Gerkman word Glauben: belief: credenza. Also Kelsen: belief in law, common prac�ce of law based on belief. Ernst Forsthoff, german cons�tu�onalist, said that German people observe legal rules because they trust jurists as scholars, they believe Glauben, presupposi�ons. The mix of the se contextual-congni�ve elements has represented the substratum for the configura�on of models both of legal orders and legal reasoning. Two examples: Volkgeist, specific shape produced in the German Hisotrical School of Jurisprudence for common sense. It's the origing of law, philosophical and historical. Common sense in a rich meaning. Niklas Luhmann (2nd half 20th century), systemic theory: society should be represented as a system, composed by different sub-systems (economics, science, law), the interac�on between sub-systems permits society to work. Equilibrium in society. Common sense represents a self- reproduc�on of law; law talks about itself, defines itself. Autopoiesis: self-crea�on. Second exaple: models of legal reasoning. Idea of reasonableness, including its mul�ple reflexes in the concrete experience of law. Presupposi�ons of reasonableness. The la�er relies on the sharing of common elements, common sense crated by values, prac�ces, procedures, historical elements. John Rawls: in 1971 in his work, he talks about reasonableness, equity, fairness. He proposed this idea star�ng from a common sense shared in democracy. We can be reasonable and accepted reasonable decisions only when we move from the same presupposi�ons or we move from the same horizon. Pe��o principi: it's a circle. Classical idea of rhetoric, rooted in a large series of presumed shared elements, contexutal and cogni�ve assump�ons. 3. Structure. Three levels. I. Categorical level. Category of ought, duty. We understand the sense of norms if we are equipped of some par�cualr mental structures. Reference to legal realism: Hagerstrom, sen�ment of duty. Difference between Kelsen and Hagerstrom., for Kelsen, duty is amental category, for H it's a sen�ment, emo�ve dimension. Duty is an unques�onable category of law. Alexius Meinong. The idea that underlying sctures of law there's a mental strucutre on borderline over categorical and psichological level. Pyscho- deon�c II. Epistemic level. Common sense encompasses a cluster (set) of beliefs, based on ar�culate and different typologies of convic�ons and they are not necessarily true. Prof Mario Iori (del diri�o inesistente), thesis that it's important to dis�nguish between true and false presump�ons of beliefs. This guy doesn't agree. III. Contextual level. This set of presupposi�ons is necessarily rooted in a specific context. No abstract no�on of duty or generic set or framework of beliefs. People necessarily understand both elements (duty and the set of beliefs) as rooted in a specific context). Wi�genstein: certainty, as a system, not abstract, but concrete. H Hart: rule of recogni�on, links with ide a of common sense / internal point of view. Maybe we should refer this idea of internal pov of all people. Everyone has an internal pov on law, everyone has a set of beliefs. R Dworkin: our concept of law is furnished by rough agreement across the field of further controversy that law provides a jus�fica�on in principle for official coercion. Idea of prac�ces, shared. Common law. Rodolfo Sacco, legal formants. Idea of living law, also Luigi Mengoni. Ethos indicates a very complex horizon underlying law, which is to be conceived especially in opposi�on to some nihilist perspec�ve concerning law. (Natalino Ir�: law is in a crisis, we must observe the form of law, it's the only thing important to understand what law is. This guy's posi�on is opposite) Classical idea of common sense. 4. Globalizing processes entail the gradual implementa�on of a new model of common sense, considered as the pre.condi�on of law- an�the�cal to the tradi�onal framework. These globalizing procesess imply a superimposi�on/confusion of different dimension (law economics and so on which in the modern period were dis�nct, different) we can understand this passage from different level: legal sources from a unique form of legal order to the increasing relevance of the so-called mul�level regula�on. theory 1