PHILOSOPHY OF LAW (CEILS), Sbobinature di Filosofia del Diritto

Scarica PHILOSOPHY OF LAW (CEILS) e più Sbobinature in PDF di Filosofia del Diritto solo su Docsity! LAW  set of norms (rules, principles, normative arguments) that claims to be correct Law has to be JUST, whatever “just” or “justice” means. Law in itself needs to be considered just to be shared, followed and understood in order to obey it. The jurist without understanding what is just or unjust remains without orientation. So in order to understand what is just or not we are not only looking at the law or at the set of norms, but also to ourselves, meaning that to understand what is justice is necessary to understand WHAT CAN BE JUST. N.B Justice is always ad alterum, you cannot be just with yourself, if you want to discuss about just and unjust you always need to take into consideration this dimension of social matter ad alterum. According to non-cognitivism we cannot ask about truth in law because law needs to be just and justice is not about the empirical world while the truth is. But we cannot accept this view according to Massimo La Torre, meaning that the norm without correctness or truth is unjustifiable => law needs to assert correctness and hence truth. NON-COGNITIVISM  theoretical assumption according to which we cannot find the truth in moral questions, because truth is only about the empirical world, something that we can measure, and justice cannot be measured Now stands out why philosophy is important  PHILOSOPHY IS ABOUT THE KNOWLEDGE OF TRUTH AND QUESTIONING TRUTH. According to ENRICO BERTI (one of the most prominent scholars of Aristotle) when we refer to philosophy, we refer to a kind of knowledge and lifestyle of our western tradition. Philosophy was born in Greece and in our tradition it has been essentially seen as LOGOS. PHILOSOPHY  LOGOS LOGOS  not only means discourses, but mainly argumentation ( a discourse which does not limit to describing how things stand but rather tries to justify, demonstrate what it asserts. Discourses never account for themselves in philosophy, they need to be motivated. Philosophy mainly consist in DIALECTICAL CONFUTATION to demonstrate the truth of a statement by verifying the impossibility of the opposite statement. PLATO  we cannot deny the existence of truth ↓ if you are able to demonstrate that truth does not exist it means that is true that truth does not exist and hence through the dialectical confutation we have demonstrated that truth exists. Because it is false that “truth does not exist”, it is true that “truth exists” WE CANNOT DENY THE EXISTENCE OF TRUTH (important because the law without truth is unacceptable), TRUTH IS UNDENIABLE BUT WE STILL DON’T KNOW ANYTHING ABOUT IT. Dialectical confutation relies on DIALOGUE the goal-directed type of conversational exchange, which always sees two parties reasoning together by alternating questions, replies and arguments. Law is based on dialogue. And nowadays we can make a distinction about strong dialogue and a normal conversation. STRONG DIALOGUE dialogue in a strong sense is not a conversation, but a discussion: it is about a comparison of different thesis and its first aim is to search for truth. If you’re not searching for the truth it is not a dialogue even if it seems to be. Moreover we can make a further distinction between a REAL DIALOGUE and a FICTITIOUS DIALOGUE. REAL DIALOGUE strong dialogue enacted in concrete situations between two or more people FICTITIOUS DIALOGUE strong dialogue carried on in a fictitious situation meaning that it can be enacted within yourself, by talking with yourself. (you can ask yourself if what you believe is true or false, having a dialectical confutation with yourself). Dialogue is the transcendental structure of the philosophical argumentation (transcendental, in this context, means that DIALOGUE IS UNDENIABLE), because the philosophical argumentation is dialectical, hence dialogical. In order to deny dialogue, you need to have a dialogue, so dialogue is undeniable and philosophy is as well. It is important to remind that in order to have a dialogue the matter is not the number of people involved, but it is the number of opinions and point of view relying on a certain subject, because in political and legal domains we always have different points of view. Two monologues don’t make a dialogue. In order to have a dialogue I need to give motivations and to offer good arguments to support my point of view, a good way to do it is to demonstrate that the other party’s position is unacceptable. A dialogue may have a controversial shape and so become a DEBATE. It is easy to think that only the other party can be wrong, I can be wrong as well. (trial is a particular case of debate in which two parties state their reasons for being right in front of a third person, the judge, who can state his/her opinion only in the end. So the judge is not a party of the dialogue but each of the two parties are both having a dialogue with the judge). It is wrong to reduce dialogue always to a debate, I must be open to accept that what I think is false and what the other party thinks is true. THE DIALOGUE AS A MANIFESTATION OF THE ARCHE’ Philosophy was born on the boundaries of Greece with naturalistic philosophers NATURALISTIC PHILOSOPHERS  naturalistic philosophers sought the principle of everything, not identifying it in the Gods, but seeking within what we now call nature, the physical world. They detached from faith and religion and relied on reason and observation. According to Aristotle, rhetoric consists in an ability that all human being possess, but after the birth of modern science (1500,1600) scholars thought that rhetoric would adapt to whatever you believed and that to reach truth you should have use science. But the idea that we can avoid rhetoric is completely false, to a certain extent all men tend to discuss statements and to maintain them, TO DEFEND THEMSELVES AND ATTACK SOMEONE ELSE. Rhetoric concerns all human beings and is a way of being of ZOON POLITIKON human beings as political and linguistical animals. The essence of human being according to Aristotle, is a human being which lives in society (the polis), and to live in society implies rhetoric because everyone sooner or later will discuss statements and will be obliged to defend himself from attacks. The Greeks saw the human being as a being who speaks, when they said that it means that he lives in discourses. That’s why philosophy was born in Greece, because there the people could have freedom of thought. The Greek man was a man who loved to talk and understood that we are living things who speak and live together. And not everything is beautiful because to be in such condition, doesn’t mean that everything is peaceful. Because the possibility of speaking against one another, in being with one another is therefore fought about. The political life and sphere of our living in society is full of conflicts and debates. It is also full of dialogue, for sure, but immediately what happens in political life is that the dialogue can very often become a dispute. From this point of view, is important to remember that Greek society is deeply connected with αγον (agon). AGON the agonistic dimension of living together is strongly accepted. Athens, fifth century. The Olympic Games were born there (in Athen) like a tragedy, they were about the agonistic dimension of living together. According to Heidegger, the orator is the one who is generally in power over being there. Who is the orator? The orator is the one who is able to gain consensus and from a certain point of view also to guide citizenship in taking a decision about what is just or not, about what is better to do in this condition, who is a bad man and so on. The proof of this fact is the existence of sophistry. Once rhetoric arises, immediately sophistry comes. The sophist is someone who is very able, as the Orator, to speak. He speaks in a very good way. Mainly, they were paid by politicians during that time. They were a sort of spin doctors in ancient Greece. But the sophist is someone who doesn’t believe in the existence of truth. He has a sceptical attitude: truth does not exist. Or a relativistic one: truth exists but we cannot know it, or better to say, truth, in different places or in different times, changes. And so we cannot say that one truth exists but what he might say is that different truths exist: this is what it means to be a relativist in front of the truth. Truth depends on some interest, some different perspectives, and so on. It is relative to my point of view. And the sophist was very able to put things into this way and to make you believe that, because of the fact that truth does not exist, what is true is what he is telling you. Aristotle said that for sure it is possible to make a distinction between rhetoric and sophistry, but you cannot divide them as they come together. When you have the power of speaking, pay attention because you are in danger. To persuade and to be persuaded are the same thing. Sometimes I am the orator and sometimes I am the listener. what does it mean to be persuaded? once you are persuaded, it means you’ve changed your frame of mind, persuasion is a matter of deliberation, it's for sucre a theoretical matter but its a practical matter, because it's about deliberation we need to act in a certain way. you need to change it, you’re in a legal domain, not in a theoretical one, law is about what we need to do or not only in order to have a better world. The fact that we nowadays see rhetoric as something quite negative is due to the use of rhetoric made by the sophists but also it is a matter of the story of thought because it is a very long history during the centuries but at the very beginning, sophistry was a problem, so it was better to search for other forms of reasoning. Rhetoric is a way of reasoning. Greeks saw that there exists a field of episteme which is not about opinion and it is science and what we call nowadays mathematics. And in this knowledge it doesn’t matter what you think. 1 + 1 is equal to 2. Why is man a zoon politikon ? We are political animals because we’re also linguistic animals because we have logos. And it is for logos that we can deliberate as rhetoric is about deliberation, political measures, prosecutions and defence in law courts. Human beings as they have logos and the power of speech, logos, is intended to set for their expedient and their inexpedient. And therefore likewise even just and unjust. In this perspective, the matter of justice is immediately given in a rhetorical dimension. In other words, it is given in a political damage. And it is a characteristic of men that he alone has any sense of good and evil, of just and unjust. And the association of living beings, where descends, makes a family and the state. STATEWhat we call state is the dimension of living together in certain rules, but the idea of the state is something that is typical of the modern era as it was born in the late sixteenth century, but at that time it didn’t exist. Then it doesn’t exist by itself something that we may call justice because it is from a certain point of view, a creation of men because just human beings have any sense of what is just or not and so it doesn’t exist. But is like saying “stars don’t exist because we cannot see them”. In order to see them, we need to use a certain kind of tools, but they exist. So you cannot say immediately that justice does not exist because it is just for human beings and it is not in nature. “Is deliberation impossible about somethings?” is the question given by Aristotle in the “Nicomachian Ethics”. Aristotle says that no one deliberates about the eternal things. But no more do we deliberate about the things that involve movement but always happen in a certain way or weather of necessity or by nature. For example the rising of the stars. Or there are things that happen in one way and not in another. For example drugs and grades. Or chance events like the founding of treasure. On that there is no deliberation. And it means that these are kinds of facts which don’t depend on us and on our decision. And so we deliberate about things that are in our power and can be done. In the case of exact sciences, there is no deliberation. For example, there is no deliberation about the number of the letters of the alphabet. The things that are brought about by our own efforts but not always in the same way are the things about which we do deliberate. It means that deliberation is concerned with things that happen in a certain way for the most part but in which the event is obscur and with things in which it is undeterminate. Mostly it happens in this way. Usually we believe that but maybe this case is different. From this point of view it is possible to give an explanation on the nature of law. Law is a certain speech, prescriptive in nature and we assume that law has a general value. It means that in most cases we believe that is just what is given by the law. But in the real life it can be the case that in order to find justice you need to move away from the law. when we are in rhetoric, we need to look at logos, ethos and pathos. LOGOS, the speech, is constituted by three elements: ● the person speaking, the orator. ● The topic spoken about, the object from a certain point of view which is the discussion. ● the person spoken to, the listener, the audience. The objective is to persuade someone, and once you need to persuade someone, persuasion depends on the hearer. The hearer, from this point of view, is the most important thing in rhetorical discourses. But you cannot look at the hearer without looking at the same time at the person speaking and at the topic spoken about. It is like a triangle, but you cannot have a triangle without three parts and it is the same here. These are the components of the speech. We use logos in three different ways. Logos for argumentation, usually find in philosophy, logos as speech, and logos as part of rhetorical discourses. What is very important to remember and understand is that from this point of view, listeners and hearers are not external users but they are part of discourses. You cannot divide the three because rhetoric is never a static object but is always dynamic. In this way the discourse seems not only concerned with one of its elements, the message of what is said. Aristotle just said something something different: logos is not only what is said, but is made up of all the 3 elements because each of these places a crucial role in building the speech and gaze his real consistency only thanks to the relationship between those three elements. In this way speakers and listeners can be considered as internal components and not only users. You can understand if the consensus obtained by the orator is a good one or always truth, but it's impossible, this kind of status of truth depends on what we are discussing, and, therefore is strictly dependent on the nature of the rhetorical issues. issues that have for the most part regularly, precisely for their nature, and not for our cognitive limits, cannot be part of a stable and universal knowledge like mathematics, where it is not certain a kind of knowledge we believe, after the revolution of goerderner, we know that mathematics are full of questions and paradoxes. The issues stated on rhetorical issues are, where there’s no agreement, so non agonistic dimension is possible, the truth we’re dialoguing with, is a truth always exposed to failure, a precarious one. Franca D’agostini speaks of a weak truth not compared to scientific one but because in the political concept what we consider is exposed to failure and there’s always someone that disagrees. it’s not by chance that rousseau addresses this matter in what we call majorities and minorities, but because with a different anthropological individual and was into the scientific knowledge it’s better not to have a minority, the majority’s answer is the truth, if you don't want to share the majority opinion, the human rights would do that since you cannot avoid disagreement ! it’s a matter of fact, sooner or later be ready because someone is going to disagree, it always happens in political life. so it's better to discuss but then we learn, or one in which we cannot discuss? of course the first one is better, but not because there’s no truth but because this disagreement in a rhetorical matter is always present, differences are a way of being, diversity is different opinion, it’s a matter of being, so you cannot avoid differences and so you need to find out a method in order to work to maintain differences in unity, not identity. What a good politician should look for is unity not identity, maintain differences and identity, to solve conflict doesn’t mean to accept but to maintain agonistic dimension in a peaceful loving. rhetoric is to manage discussion, disagreements and to live together. Finally, to discuss the truth we need to know what truth is. only a discourse can be true, a statement to better say. or if you want to be really in a philosophical way a preposition, usually we use discourses, statements and propositions in the same way but they’re not the same thing. Discourses are made up of different statements but when interested, you need to look at propositions, the meaning of a statement. We can have different statements but one proposition. If I say “it rains” it is the same but it is the semantic value of a statement. a proposition since aristotle can be defined as an affirmative or negative expression, an abstract that says something of something of something. when we speak, but also when we think, there’s always this thinking something of something. when i say it rains, i am saying something of what? the weather. When I say this table is made of wood, I think, i’m saying something about this table and so on. everytime we speak we speak of something. also when i refer to a non-empirical world. if i say sherlock holmes is a detective, i’m saying something of something, also if sherlock holmes does not exist since you cannot meet him on the street but only in the books. So the inexistence of Sherlock Holmes is the ontological value is different from the one in this table. but we can talk about sherlock holmes, we are saying something of something of something. How many types of propositions can we have? Basically, this is a quatripatricial thing made by Franca D’ Agostini, a thing that is useful to a certain extent. when we speak, we think, we talk or discuss, we use these kinds of statements. It rains, whales are mammals, the door is open, to kill is evil. Which type of statements can be considered true? Let's start with “it rains”. since you can see it, it can be considered true/false. because if you open the window you can see it. so it rains is a good example of an alethic statement. a statement that can be true or false, a statement which is a truth bearer. then, “whales are mammals” is a good example of an alethic statement since it’s true. but is it true like it rains? no. because we call them mammals, like a label we put on them, but the reason for which we call them mammals, let’s imagine we call them bottle since it’s not a nominalistic matter, is because they have some kinds of characteristics. -The being mammals of the whales do not depend on external circumstances (from a question)-. you consider whales are mammals as a good alethic statement, and by the way, it is true. These two examples can be considered true or false. “The door is open/closed” can it be true or false? This is not an empirical truth. This is an example of a statement that is always true, at least in classical locìgic, it is theouthology. While in contract issues the door is open AND closed, is always false, at least in classical logic. If you want to look at conditional logic, the latest statement is not always false. so it rains, whales are mammals, the door is open or closed are all statements that can be true or false. “to kill is evil”. to say that it’s false would be interesting. It depends on the person or depends on circumstances. kill the mosquito during the night i'm for the animals but i’m killing it. So you may say since to kill is evil depends on something it cannot be considered true or false as the previous statement were, it depends on deliberation. This is the rhetorical tool. Because this is a particular kind of truth, a statement, not saying that’s true or false, but a statement like whales are mammals can be true or false. and also it rains can be true or false here but maybe in NY it’s true. Also whales are mammals is always true, have you read moby dyck? Do you remember what Melville says about whales? He said that whales are fishes, why? because at that time we believed that whales were fishes. so, by themself, whales were always mammals, or in a nominalistic approach, were such a type of animals we call mammals, but it’s just from the last century that we recognized them as mammals. The door's open or closed value of the statement depends on the meaning of words and the logic we use. because it always depends on something. “It rains” depends on the weather. “Whales are mammals” depending on science. “The door is open” depends on logic. “to kill is evil” depends on what you believe. but you cannot say that it’s not a good example of truth because it depends on something, because it always depends on something external to the statement. because a preposition is a statement that says something of something. the first one about the weather, about whales, about logic, about beliefs. Please forget to use the word always when you speak about truth. It doesn't mean that the absolute truth doesn't exist, but it’s not “whales are mammals” because science changes. The scientific definition of whales was very different and imagine how we go on with our scientific knowledge. Is it possible to say science is always the same, it’s wrong there’s always progress in science. to search for an absolute truth you need to look at dialectics. you already know what’s an absolute truth, that truth is undeniable. What does it mean that it is something that cannot be discussed anymore? no. we are zoon politikon, we must always be ready to meet someone that says the truth does not exist and then after debating on the fact that truth is undeniable. It is an absolute truth but not undisputable.the very naif definition skeptical of truth does not exist is unacceptable and again the nature of archè, why our understanding of achp being made in a way of being is and difference is a way of being. This is an absolute truth. From this point of view truth is really untenable because it is anywhere, also in rhetorical disputes. Please, never say “whales are mammals” is an absolute truth, because science is never absolute, but it can be a universal truth, but universal and absolute truth are different things. A universal truth is a truth that can be maintained as valid also when we look at different ways of being. The rhetorical domain is made up of things that change their nature depending on the context. The nature of the state also depends on circumstances. extracontexual truths are the ones that don’t depend on the context. “It rains” is a contingent truth, one that can be experienced in the empirical domain, and the empirical world changes very quickly. “Whales are mammals” is about extracontentual truth, a statement which depends on general knowledge. “The door is open'' is a logical truth, because the truth of this statement depends on logic. and the last one is a rhetorical and controversial truth, because it is a statement to which is very easy to find disputes and the truth of this statement depends on what we believe about to kill and about evil, but it is true, because if you are not in that position to think that to kill is evil, you cannot say that you cannot accept truth, it depend on. it’s clear that for that human it’s evil, but for the same who did it it’s due. And so,if you cannot say that to kill is evil is not true, how can you say that it is unacceptable? It is unacceptable, because it is true. if you say that it’s wrong it means that it’s not only a matter of judgement but you cannot remove truth and avoid it in such a kind of discourse, you cannot avoid truth every time you meet such a kind of statements. so, what’s the difference between the 4 types of truths? It is not based on the fact that it depends on something, because it always depends on something, on weather, science, and logical belief. The difference is what makes the statement true. that something to which i’m referring whenever i talk. in the first case is the weather, in the second is science, in the third one is logic, in the last one is our ideas. so, the structure of all those types of truth is the same. there’s a statement,something we are talking about and it depends on something. This is the structure of truth. It depends on. you cannot say you cannot accept you say that the last one is truth is a good example of truth because it ALWAYS depends. The bad thing is that there is easy to understand if it rains, if whales are mammals and if tautology is true, but it’s sometimes very hard to understand if killing is evil. It depends, and sometimes it is very hard. If you want to live a simple life, go to engineering and not law, because here we need to understand if killing is evil. in principle is okay, but then it depends on the base. This is a legal matter and sometimes, because it always depends on us, also the principle to kill is evil is discussed, it’s rhetoric, it’s what we do in law. everytime we need to understand if such a kind of principle is true or not, but it itself can be true or false, otherwise you cannot say I cannot accept what we saw before. Just think about that. something, truth is more about a different thing. Truth is about what you know, but this is only the epistemic side of the coin. In itself truth is not only about what we know, but it is about what we know and the reality we are talking about, the world in itself, the true description of reality. Truth is not certainty. The explanation given by Timothy Williamson on the difference between truth and certainty is clear: “Imagine to consider all the coins we have in our pocket in this room. If we count them all, the number most certainly is either odd or even, but we don’t know the exact number of coins. But we may say that since we don’t know the number, if it is an odd number then it is true it is an odd number, and if the number is even then it is true that the number is even. But since we are completely uncertain whether the number is odd or even there is no certainty. Whichever proposition that the number is odd or even is true is not certain. Truth yes; certainty no.” (Tetralogue: I'm Right, You're Wrong) If truth was equal to certainty, I would have to admit that if I am not certain of P, P is false, and it is not the case! What usually happens is that we make a lot of confusion because “this statement is true” and “I am sure of that”, when they are entirely different things. We can be sure of a statement also when it is false. Truth is not certain in a subjective way, but it can be said to be in an objective way. When I am sure about facts I can say that my statement is true. When we speak of truth we are always in front of a typical matter, which is the knowledge of reality. When we speak about the truth of the empirical world it is really easy, I know whether it is raining or not because we can see the fact. When we move to the domain of knowledge, “whales are mammals”, it may not be as easy to understand if our statement is true or false; the same applies to logical truth and is even more hard to say whether “to kill is evil” is true or false. At this point, it is more about difficulties that we usually meet in understanding if our statement is true or false and not anymore about the nature of truth. So, also in the rhetorical domain it is possible to speak about truth – otherwise we would not be able to say whether “it is raining” is true or false, you cannot have one without the other. From an epistemic point of view the structure is the same. At this point, the definition of what can be considered to be true or false according to Plato and Aristotle may seem obvious. According to Plato, “true is the discourse that says how things stand”. It is false that “it is raining” because things stand in a different way, it is true that “whales are mammals” because it says how things stand, and in a debate it would be hard to say that “to kill is evil” is false; as a general principle there can be a rather wide agreement on this even if it depends on what “evil” and “to kill” mean. But soon the discussion would get more into detail and deal with specific scenarios (killing insects, killing for self defence etc) and it would seem like the issue depends on the context, which is also made by our way of looking at the world. However, in itself, it is not a matter of truth, but it is a matter of knowledge of truth, and it is different. Aristotle is even more clear that Plato, stating that “falsehood consists in saying of that which it is that it is not, or of that which is not that it is. Truth consists in saying of that which is that it is, or that which is not that it is not”. It’s false that it is raining because we are saying something that is not. To look at truth from this point of view means to take into consideration our discourses and what we are talking about. In order to understand if our statement is true or not, first of all we need to look at our statement to understand its meaning, and, if in a dialogue, be sure to use the same words with the same meaning as your opponent. Sometimes it is common to have disputes because we do not agree on the meaning of a statement; this is more of a false dispute because it is a nominalistic matter, it’s very easy to solve it. After that, you need to look at reality: the weather, science, logic, ethics, etc. Only at this point you can say if the meaning of your statement is true, because it says how things stand, and usually how things stand does not depend on us, or at least it depends on us only to a certain extent. In rhetoric, deliberation is about things that depend on us, but what does it mean “on us”? It depends on us because in itself what is considered to be evil or not depends on us, but when I am involved in a discussion about that it is no more a relativistic account; it really depends on what we usually believe to be good or evil . We don’t live in a tabula rasa, we always need to find a justification, good arguments in support of our claims; in themselves these kinds of arguments already exist: they are called opinions, edoxa. So, for example, today we believe that it is true that to kill is evil, it can be hard to justify the idea that in a certain case this principle does not count, it cannot be assumed as a rule even if in itself it is considered to be bad. It is always possible to have disputes on this (again, this is why it is inexact to speak of “absolute truth”). Alethic realism Our contemporary way to describe this kind of truth is alethic realism. “A statement (proposition, belief…) is true if what the statement says to be the case actually is the case: in other words, there must be something that makes p (proposition) true. So, the theory is simply based on the very general and unspecified idea that ‘some existent, some portion of reality’ makes a proposition true” [F. D’Agostini, Misunderstanding about truth]. It does not matter what kind of reality, every time we speak, we speak of something. So, it is that something that makes our statement true: the weather, science, logic, our belief… everything. The truth of a proposition is a determined by how it relates to the world: S. Thomas Aquinas stated “Veritas supra ens fundatur” (truth is based on reality); or, as A. Tarski showed, “a proposition p is true if and only if there is a fact in the world which confirms it (eg, “it rains) is true if and only if it is actually raining). This gives a relational version of truth, but mind that it is not associable to the relativist version of truth. Relativism is that account of truth according to which truth depends on me, or better to say, on reality. Truth depends on reality. What makes my statement true or false is the world, not what I believe about the world. In the sentence “it is raining” it is the world that makes the statement true or false. So, truth is not a thing. There’s a big mistake made firstly by Karl Popper, according to whom we cannot reach the truth. Popper was a strong opposer of the Vien circle and the current of neo empiricism. According to neo empiricism what we need to adopt as the method to check the value of a statement is verificationism, based on the empirical world. According to Popper you cannot be sure about the empirical knowledge, and we need to falsify a statement since it is impossible to verify it. That is why we cannot reach the truth, the best we can do is getting close to it, but we can never be sure of that. According to Popper I can never reach the truth, I can only get close to it to a certain extent, I will never be 100% near to the truth. It is all reduced to a matter of approximation. This argumentation is wrong à How is it possible to say that a statement is true to a certain extent if I don’t know the truth? If I say that my statement is true at a certain level, it means that I know the level; but by definition you told me that it is impossible to reach the truth. if you canot reach the truth you cannot say that something is more or less true, it is impossible. With Popper’s approach we reduce truth to a thing, when it is not: truth is a relation between our statement and reality. Our problem is not to know the truth, our problem is to know reality. Once I know reality, I can say whether my statement is true or false. Evandro Agazzi perfectly explained Popper’s mistake: “The misunderstanding by Popper lies in having made truth a thing. Truth is not a thing. So that the cognitive enterprise is not a process that tends to know reality, but the truth. Now, why there is nothing strange in affirming that the enterprise of knowing reality can be a without-ending task, at the same time it seems absurd to declare that we assure to get closer t the truth even if we don’t have the possibility to consider the knowledge of reality as a term of comparison, to assert if we have really come closer to it”. It is a bad mistake and by reading a lot of debates we realise that it is absurd to think that you can only get close to the truth. Truth is not an object; truth it is a relation. And what we decide for a lot of reasons is that if we are in a court room we can use certain evidence instead of others – torture for example – and we believe that in order to reach the truth we need to have a certain type of trial, a fair one. We can know reality by using those kinds of evidence because then the matter is to know reality, and the reality we are talking about when in political debates is very complex, way harder than it is for the empirical world because there’s no empirical evidence, it is not comparable to “it is raining”. We can also dissent from Popper by saying that we do not know reality as a whole. When I say that truth is a matter of relation between our statement and what we are talking about, we are not referring to reality, but to a certain part of reality. This is why Agazzi affirms that there is nothing strange in saying that the enterprise of knowing reality can be a without- ending task, it is true. I cannot expect to know all the reality, because every time that I think I know reality I am only looking at a certain portion of reality. When we consider moral contradiction I need to use it. When I deny the principle of non-contradiction, I’m not saying that it is true and false at the same time, I am saying that it is false, thus using the principle of non-contradiction. Even if you want to deny the principle of non-contradiction you are obliged to use it. This principle is the most certain, bebaiotetòs, because if you want to deny it you need to use it. Similarly to truth (not by chance) what we do here is an elenctic demonstration of the principle to show that it is the most certain by using the principle of non-contradiction only. In this demonstration we are not using any other logical principle or device, we are using the principle of non-contradiction only. The principle of non-contradiction is self-founding. By contrast, to demonstrate the principle of the excluded middle or the principle of identity we need to use different principles. In order to demonstrate that the principle of non-contradiction is undeniable, however, we use the definition given by Aristotle. He could be wrong in giving us the definition. In fact, according to the Megarians (opponents of Aristotle) the principle is not the most certain of principles; they believed it to be false. That is because they had a nominalistic approach towards logic and believed that everything was a matter of definition: by changing the definition of the principle of non-contradiction, you can deny the principle itself. They could accept the undeniability of the principle only under the definition given by Aristotle, but in the history of philosophy more than 200 definitions exist. Is the principle of non- contradiction undeniable or can we deny it? 29/9/2021 Alethic realism is not the correspondence theory of truth, however, according to alethic realism a statement, a proposition or a belief is true if what the statement says is true. Ex. The statement “the snow is white” is true if and only if the snow is white. It is called disquotation because in the first part of my demonstration there is a statement and in the second part of the demonstration there is the real world, so you may see that according to this account of truth we must search for a certain type of relation between our statement and reality (not all reality, only the reality I’m referring to when I talk, think etc.). This theory is simply based on the very general and unspecified idea that some portion of reality makes the proposition true. Pay attention though, also reality is undeniable, it is one of the transcendental concepts of philosophy along with verum (true), bonum (just) and esse (reality). These three principles have been considered since the middle ages the undeniable concepts of philosophy, but also its limits. Reality is undeniable because by saying that it is deniable, one would deny the existence of what exists. Bonum/Just is undeniable because although I believe that justice doesn’t exist, every time I act I do it according to what I think is just. Truth finally is undeniable because… Nowadays we still hear people saying “we ought to find the truth”, as if truth was a thing, which is not. The only way to understand if a statement/proposition is true is by knowing reality. Relativism is unacceptable and I will show you why, but the problem we are dealing with now has to do with the principle of noncontradiction. The first one who studied the principle of noncontradiction in the history of philosophy was Aristotle. In the Metaphysics he applies three different values of the principle of noncontradiction, but they come together, it is not possible to look at the logical one without taking into account the psychological and the ontological ones. These are three definitions given by Aristotle: 1. “The most certain of all basic principles is that contradictory propositions cannot be true simultaneously (logical value). If there’s a contradiction between two things one has to be true and one has to be false. In logic what is contradictory is false. 2. It is impossible that the same thing belongs and does not belong to the same thing at the same time and in the same respect. (ontological value) 3. No one can believe that the same thing can (at the same time) be and not be” (psychological value) According to Aristotle it’s the most certain of all principles (Debaiotetos), something that cannot be denied. We cannot talk, reason or think without respecting the principle of noncontradiction: IT IS IMPOSSIBLE (strong emphasis). It is impossible to deny the principle of noncontradiction because if you do and you imply that the principle is false, then for you contradictory propositions are true simultaneously. In order to deny the principle of noncontradiction you have to use it because when you say that it is false you don’t mean that it is both true and false. Someone could say that if you change the definition of the principle of noncontradiction, then it becomes deniable. However, the justification of the principle of noncontradiction is not to be found in its logical value, but in its ontological value. That’s precisely why Aristotle talks about this principle in the Metaphysics and not in Logic. It is not about reality or the world, it’s about the relationship between our language and reality because when I think or I speak I’m always talking and thinking of something. My statement, belief, thought doesn’t belong to all reality, what really counts is the link between my statement and the portion of reality I’m referring to. I’m referring to a thing, not to everything. Thus, it doesn’t matter which definition of the principle is the Debaiotetos, by denying one you deny just that definition and not the principle itself. Ex. when I say “the wall is white”, I’m not referring to the mic\rophone, I’m referring to the wall, to that thing, not to another. When we talk about reality we think we are talking about the empirical world (I can touch it), so is it possible to consider alethic realism a good theory about truth or it is not? Alethic realism is a good way to establish if a statement is right or wrong even if we are not referring to the empirical world, but to a world that doesn’t really exist. We ought to make a division between different kinds of reality: 1. (Meinong, Berto) To be and to exist are not the same things: soft facts/ hard facts · My tie is and exists (hard fact), the existence of my tie is related to the existence of our world · Gandalf is but he does not exist (soft fact), his being though is related to the world of the lord of the rings 2. (Agazzi, Husserl) A different way of being: we have entities which are real, even if they do not refer to a real state of affairs. Abstract objects/ Concrete objects Concrete objects are divided into material/tangible objects (e.g. my tie) and immaterial/intangible objects (e.g. laws). Gandalf is himself intangible as much as a law but Gandalf doesn’t affect the empirical world as much as a law does. 30-09-2021 Why is the principle of non-contradiction undeniable? For sure for logical reasons. It is good to say that contradictory propositions cannot be true simultaneously: for sure when I speak in a contradictory way it is unacceptable. But as Puppo explained yesterday, this is not sufficient for telling us why this principle is the most certain. The answer is given by its ontological value: the relation between our language and reality. Because when we are in an argument we need to understand one another. When we speak we need to indicate something, that thing and not another. The opponent of the principle of non-contradiction shall say something which is significant both for himself and for another. It doesn’t matter what kind of definition of the principle we should give but it is that definition and not another: what the principle of non-contradiction guarantees is alethic realism because alethic realism is really about a certain kind of relation between our language and the world. without this kind of basic feature of our language it would be impossible to say anything. Every time we speak we designate something: this act, linguistic act, implies that the related object is something specific, one thing and not another. But again when we speak and we talk we refer to reality and it’s impossible not to do that and we discover that it’s possible to have different ways of being of reality. A couple of ontological explanations are given by Meinong and Berto, but also by Agazzi on the other side. There are more than those, but these two are sufficient Meinong and Berto are about the difference between to be and to exist – it’s very good to explain different kinds of facts we can meet in our discourses but it can be non-sufficient in order to explain which kind of fact is law. For this point of view, the explanation given by Agazzii etc. is more useful. different way of being: entities are all real also if they do not refer to a real state of affairs: abstract and concrete objects, but concrete objects can be material or immaterial. Gandalf is and exists for Agazzi while Berto and Meinong would say that it is but doesn’t exist. Concrete objects also are and exist but material objects are tangible, (I can touch my thigh), while immaterial objects cannot be touched. I cannot touch the law but for sure law produces effects in the real world. Just read the statement There’s no matter at all in saying that reality can be relative to my point of view. What’s wrong is saying that the truth is relative to my POV. The matter of relativism is we consider truth an object so what’s relative to my point of view is an object. This is the epistemic side of the coin to say that the knowledge of reality can be relative but once I’m able to know reality as it is at that point I can’t say any more that truth is relative because I know how that portion of reality is which makes my statement true. In fact, Searle discovers by disquotation that the relativity of truth implied relativity of reality. But the original assumption behind our definition was that there really were people with different points of view and this was an absolute assumption. But relativism doesn’t allow for the absolute existence of anything, not even the people and points of view. Because if I say that everything is relative to my point of view, that also other people are relative to my point of view and also that different points of view on reality are relative to my point of view. If you really want to be a coherent relativist you should admit that everything is relative, not only truth. So when the relativist says you and I both exist with our point of view and maybe for your point POV view it’s not raining while for mine it is, it must mean you and your point of view can only exist from my POV . You cannot escape because again no matter at all in saying that we may have different points of view in reality. I already know that in logos what I have is diversity so it’s ok to have different accounts of reality. But if you meet someone that says it’s not raining while it is, you need to find a point to solve the dispute and the point is reality. It is raining also if you’re not able to admit it and so if you assume that all truth is relative to references to the assertance (?) of the truth it means that if s asserts b then b is true only by the POV of s. By disquotation if reality is relative it’s relative by people’s points of view and preferences but if everything is relative the existence of people and preferences is also relative. If you assume that people exist in an absolute way you’re not a relativist. And so the consistent relativist makes it impossible to state anything because there is no end. There’s always a vicious circle of relativism of POV of reality of truth. The way out of this that is implicit in the first person POV is to insist that relativism terminates in his existence and preferences. But then that is a form of solipsism. Because everyone else exists only relative to his existence and preferences. Don’t believe to one who says that if you want to be really open minded and I'm in favour of diversity you must assume that truth doesn’t exist. One thing is the knowledge of reality, one thing it’s truth the real enterprise of dialogue. Being a relativist means being in a solipsistic account. We began by understanding that dialogue is undeniable and now we’re in a position that is completely far from that account of existence. Nowadays it seems like the only way to have dialogue in society but it’s not like that. The only way to assume dialogue as the transcendental structure of anthropological existence is to assume that dialogue implies the existence of truth, it is only because truth exists and doesn’t depend on us that I can be really open minded to someone else. Because I need to assume that I can be wrong. In the very beginning of the discussion I believed that it was raining because I had no access to the outside. I felt some drops on the roof and assumed it was raining. Then we opened the window and there was sun. It means that the first assumption is wrong because our epistemic knowledge of reality was not sufficient. So every time our problem is to know reality but I cannot say that reality in itself depends on me. It’s impossible but this is exactly the consistency that’s in relation to relativism. The final end of relativism is that reality is relative and so also you the people I would like to consider in a dialogical way are relative to me. So dialogue is no more a transcendental structure of existence , it’s a choice. But then you need to explain to me why I would like to have a dialogue with you if it’s a choice. Also the dialogue would be relative to me, it's a choice of mine. Completely different from our assumption that dialogue is undeniable. To understand how Aristotle explains dialogue to us, as a transcendental structure of experience, means that dialogue in itself doesn’t depend on us. In this case I see that by assuming a relativistic account dialogue depends on us but then sometimes you could deny a dialogue with someone because they exist on your POV. So I don’t think that this position is the best theory I should have. Because it’s very common to meet people who don’t want to have a dialogue. So it’s very easy to accept this idea when you think that justice is just for you and not for me. But it’s not true that truth is relative. Truth is and doesn’t depend on us. Question: Can you reach a universal knowledge of reality? Can we know what’s actually true?? In some cases, in the most important case yes, Question Can you say it’s relative that reality is relative Answer no what’s relative is the knowledge of reality. When you say reality the philosophical meaning of relative or relativism is that there is one more thing. If you mean reality like the being there is no other thing apart from it Reality is reality and for sure we might have different points of view on reality and that’s a richness, we already know that’s it’s something imposed by the nature of arché: diversity not just because we’re different but because we have different points of view. Because we cannot not have different POVs, we need to search for something able to manage this diversity and all we have is reality. Let’s not confuse reality and truth. Truth is the relation between our language and the portion of reality we’re talking about. Again he repeats that the existence of other points of view and reality are relative to my point of view. So this is to show that relativism isn’t only a bad theory but also contradictory in itself. So there’s no reason to accept relativism. It’s not for living in peace, not for acceptance of others, not for a good account of reality. It’s completely unacceptable. From a practical point of view, a theoretical point of you, logical. And it doesn’t mean that we deny the existence of different points of view on reality. Reality is what can make us have a common point and it’s reality in itself that makes it possible to solve the dispute. For example about the colour of a wall. In the history of our thought there was a time when science arose and a mistake was made. The existence of god, the arché was no more dispute but was assumed as a good starting point for having a deduction, like an hypothesis that cannot be discussed. That is what makes dogmatism impossible. Because of the fact that the knowledge of reality can be a without ending process I cannot be dogmatic. The existence of reality is exactly what excluded dogmatism, its more a sceptical conception to search for truth again and again. I can’t say that I can’t be sure of anything because my life would be impossible but so I know that I can be wrong. The famous motto by Socrates is I know that I know nothing. Usually this kind of statement is explained in a modest point of view to allow dialogue and conversation but it should be taken seriously. The real meaning is if I know I don't need it, what I need is myself. It’s a very individualistic account. Also the cogito ergo sum is individualistic But the statement by Socrates is I DIDN'T KNOW so what I need is another person. It’s a way to maintain the transcendental structure of reality, it doesn’t depend on me. Because dialogue is undeniable I need someone else in order to know reality and then I will know if what I think to be true is true or not. All the time we believe that what we do or think is true, but then we need to know if what we believe to be true is good or not and then I need to search and find it in reality. What happens in a courtroom is that. A lawyer comes in and says what their point of view is in reality. If it’s true what he tells is true. The trial is given in order to understand what happened. This is the aim of trial, to understand in fact and then to understand what lawyers claim is true or not because of alethic realism. What Puppo said is all about philosophy. But there is something more he would love to say about ph as a particular type of knowledge. To say that we have different points of view on reality means that reality exists by itself. From a logical point of view it means that reality needs to exist in an absolute way. That’s why you can't be a coherent relativist because you need to accept that something exists in an absolute way. Chocolate is good for me. But this also means that chocolate exists by itself etc. For sure we should know reality in a better way by assuming that there are different points of view. Imagine that someone asks about the reality of this classroom. The question can have diff answers because it depends on our POV of reality but in order to know we need someone else. This is the point. It doesn’t mean that reality in itself doesn’t exist, it exists, that’s why we have different points of view. If it didn’t exist, we couldn’t have different points of view. A point of view is a point of view on something. You may understand how complex it can be sometimes to discuss reality. Often we do it without any kind of knowledge of what we’re really discussing about. Even a religious experience is a political one? Since I cannot say that it is true that you are a good person, what is true is that you are a bad person. This happens when we remove reality. And it is what usually happens in political debates as it is really common to use this type of fallacy by politicians in order to say, for example, “since we cannot know that these migrants are good person, it means that they are not”. And relativism and epistemic are nowadays very shared ideas about truth. But they have a common root: They have no more interest about reality. The first one (RELATIVISM) because everything is relative to me. And the second one (EPISTEMICISM) because it is better to believe (easier to believe) that what is true depends on what I think and it doesn’t depend no more about how things stand. It seems a very cool way to say that something is not true by itself because it seems to be really dogmatic as it is a sort of rejection of dogmatism. But this is the matter we have: Everything can be justified the only way to escape this problem is to know the reality. This is the last thing about truth And then before coming back to philosophy of law, one more thing about philosophy, on the nature of philosophy again. Philosophy is a type of knowledge. And so philosophy of law is a type of knowledge. But what kind of knowledge is just philosophy? It is a certain kind of discourse. What kind of discourse is the philosophical one? It is made in dialogue, but it is not rhetoric (rhetoric is not about philosophy, It is about argument) and it is an argumentation. Philosophy is argumentation, made in dialogue, in the dialogical philosophical dimension, we use dialectics but dialectics is not sufficient to look at legal and political debates. And that’s why we use rhetoric as rhetoric is about truth and all the discussion about truth. But which kind of knowledge is philosophy? According to our tradition philosophy has or could have this kind of features: It is a type of knowledge which is all-encompassing, all-absorbing. It is a type of knowledge which is about everything. But not every kind of question can be considered really a philosophical question. For example, if I ask to myself (and it is a type of fictitious dialogue) “how many kinds of beer do I have in the fridge?” Is either a philosophical question? It is not a philosophical question. By the way, it is a certain kind of question that can be answered. In order to have a philosophical question, we do not need a question. That is a very naïve way of considering philosophy. You need a question that cannot be answered in a definite way because maybe you can believe that philosophy is a certain type of knowledge in which there is no truth, in which we can have different answers, and so if you cannot have a certain answer, it means that this is what philosophy is, because if you can search for a certain answer, it is more about science, a very certain type of knowledge. You already know that is not like that. Please don’t believe that philosophy cannot accept certain kind of strict and certain answer. The discussion about the nature of truth, the discussion about metaphysics, the discussion about the value of the principle of non contradiction: those are all typical philosophical discussion. And you know that there is plenty of certainty (we know that we cannot deny the existence of truth or deny the value of the principle of non-contradiction). Basically you may have questions without answers that are more about empirical knowledge. For example, how many grains are on the seashore? Is it a philosophical question or not? It is not and it is about empirical knowledge, but basically you cannot know how many of them there are. What is typical of philosophy is that it is a certain kind of knowledge which is all- encompassing. When you are in a philosophical domain, you cannot forget that you are in a domain which is really about yourself. It is all-encompassing because philosophical questioning, philosophical knowledge to a certain extent is always about the object of your research but at the same time when you ask a philosophical question you are asking on yourself. What is really typical of philosophy is that it is about you. Heidegger said that once you make a philosophical question (and the basic philosophical question is “why that being?”) you are asking on yourself, on the reason for which you are. It is a very all absorbing because you are in the question. Philosophy questions about the whole entirety, it can be about everything, it is not just the world outside you, but it is your being. You cannot have a philosophical question by moving on the surface. You need to go to the roots of a matter. And this is what is typical, you need to go deeper because you’re questioning on the essence of being. And so it is a radical question. The philosophical question is so radical that it can question itself. It is called problematicity . Philosophy, probably is the only type of knowledge that can be used to question itself. Imagine that you are a mathematician. And if you want to ask about the nature of mathematics, you cannot use mathematics. You need to use philosophy. Imagine that you are a lawyer. If you want to question the nature, the essence, the reason of law you cannot use law but philosophy. But if you want to question the nature of philosophy, what you need to do is again to use philosophy. So philosophy has this particular feature: it can question itself (the Protecticus by Aristotle): by questioning the possibility to deny philosophy, what we did is philosophy because we discovered that it is impossible to not have a philosophical position on philosophy. Someone can say philosophy has a contemplative nature so it is not useful. But to know that, for example, truth cannot be denied is useful.To know that relativism is a bad account about truth and that it is also really dangerous is useful. What philosophy probably doesn’t have is a practical application ( but it has to be understood in a very empirical way ). We can have a practical application of that. For example, a good lawyer should know that to be able to discuss about truth can be very useful in a legal domain. So basically philosophy is defined by some philosophers as a sort of art, a kind of art to create concepts. But what does it mean? To create concepts in a philosophical domain means to be able to make good questions. In order to create the concept I need first of all to make a good question. Philosophy is free. It cannot be imposed because it is about yourself, it is something which begins with ταυμαζειν. It is a greek word and it is wonder. Plato in “Teeteto” said that this feeling of wonder shows that you are a philosopher, since wonder is the only beginning of philosophy. This is why maybe a philosopher is able to make a question when someone else doesn’t see any matter. Usually, maybe you don’t see any trouble with truth because it doesn’t exist while a philosopher say that you’re wrong by saying that (it is a trouble) and it does exist. And you can also understand why the beginning of philosophy was given in a naturalistic way. Because φύσις is not the word of the given, is not the word of the description of nature, but it is what it can be. And so if you look at the world with this particular glasses φύσις (what can be in different way) you can be surprised by nature, you can be surprised by the world. Achille Varzi says that the main quality for philosophers is to make a substitution: In a phrase when there is a quote at the bottom, a good philosopher is able to make a question. But he can look at the world from a different perspective because you are not satisfied by reality as it seems to be, and you search the reality as it is. The philosopher is not satisfied by any others or some others conceptions and explanations but he searches by himself. And this is the beginning of philosophy, according to our tradition, Aristotle and Plato said that in different places. And this is why Tales of Miletus can be considered the first philosopher because for the first time as far as we know he was the first to say “Is reality really like that? Why they being?”. The problem is that ταυμαζειν suddenly happens in front of death. When someone dies we ask ourselves “is it possible that everything ends in this way?” This is also ταυμαζειν. It is not only in front of good things but can be also in front of very bad things. “How is it possible that we are able to do that? How is it possible that things happen in such a way?” This is ταυμαζειν too because suddenly you might discover that the world can be different. And this is about philosophy. But don’t forget that our main discussion is about philosophy of law. What is philosophy of law? What is it to you? What can it be to a certain extent? What is the difference between the perspective of the scholar in comparative law and the one of the lawyer? What does it mean to look at law from a comparativistic point of view and a philosophical one? Probably what is typical of the philosopher of law and so of philosophy of law is to look at the nature of law, to the essence of law, to what law is and also what law can be. Because this very important philosophical approach to law, which is called legal positivism is basically based on the fact that, on the idea that, in order to be a good philosopher of law or a good scholar in law you cannot ask to the essence of law, but you need to look at the law as a certain kind of object and you need to look at the law as it is and you can never ask about the law as it should be. Because one of the main ideas of legal positivism (the main account of law in modern era) is that evaluation is never a matter of knowledge but it is a matter of personal believing. It is a very matter of subjective way of conceiving the world. Because the real knowledge (a very strong prejudice typical of the scientific account of positivism) is about empirical or analytical knowledges. So it is more about description. And so what a good lawyer (for example, according to Norberto Bobbio) should do is just to give a Basically, by saying that the law is made by Roman, I would like to say that philosophy is made by Greeks because Greeks were philosophers (philosophers were born in Greece and jurists were born in Rome). Rome is the first example of a society in which we find a specific man, the jurist, voted to the study of law and to the regulation of law. As in Greece, the philosophers were the first who asked about the nature of being from a rational point of view. The Western culture is made by *Athens*, philosophy, to question the essence of being in a rational way. Rome, law, the jurist and Jerusalem, the revolution made by the Christian message: those are the three pilasters of the Western culture. And it is because of the three together that we had science and so on. But basically in this domain the very basic account of law, the beginning of law, is that we need to affect. AFFECTIO is not just when you seem to be someone else, but you are not. AFFECTIO is more about certain way of being, a certain way of also feelings. Philosophy and genuine philosophy. And what is the genuine philosophy? It is to question about the nature of truth. According to Aristotle, according to Plato, a false philosopher is the sophist: someone who seems to search for knowledge but is not interested in truth, in the real knowledge. A philosopher for Plato and Aristotle is someone who is searching for truth. So this is why you cannot avoid questioning about truth also, in philosophy of law. To question about truth in philosophy of law, in law, in a legal domain, means to question about the reason of law and so to search for justice. The search for justice is, as the search of truth is, something that cannot be deleted by our human nature. By nature, we search for justice. The main mistake made by certain kind of legal positivists was to say “it is really about human nature, but it cannot be a scientific knowledge because it is about emotion and opinions”. It is not like that: Also, in the realm of justice, we can have very strict philosophical discussion. In this account someone is considered to be the priest of law, the jurist, because we cultivate the virtue of justice. (Virtuous men and women) According to the very beginning of law, justice is the basis of law: ius comes from iustitia. The word ius, which can be translated as “law” in English but “law” is also LEX and ius and lex are not the same. “Ius comes from iustitia”, CELSIUS said so you cannot be a lawyer without having this matter of justice and justice is a virtue. Virtue is something really typical for Aristotle for example. First of all. How is it possible to become virtuous? Before understanding what the virtue can be, how is it possible to become virtuous? We become builders, Aristotle said in the “Nicomachian ethics”, by building. And we become artists by planning the art. Similarly then we become just by doing just actions. Temporate by doing temperate actions. Brave by doing brave actions. So as you may see, according to Aristotle, virtue is a matter of being. Not only a matter of “no-weak”. This is a very big distinction, for example, for the Platonic ethics and ethics by Aristotle because manly for Plato and also to a certain extent for Socrates, virtue is more a matter of knowledge. Socrates said that dialogue has a moral value because if you act in an unjust way, it is because you don’t know what justice is. And dialogue is the tool we use to learn. So if you want to become just for Socrates you need to know what justice is and so this is why they use dialogue ( it is a more theoretical matter ). For Aristotle, for sure, it is theoretical because you need to learn and to know what justice is but it’s more a practical matter: to be just means that you need to act in a certain way. And if you want to be a virtuous man or woman, you need to act in that way but act continuously. And this view is supported by what happens in πολισεις: legislators make their citizens good by abituation. (law is about making a man good) This is the intention of every legislator and those who don’t carry it out, fail to do the object. This is what makes the difference between a good constitution and a bad one. Law is not only about the prohibition, about punishment but is should be about making men good. For sure we can have different points of view on justice (what is a good man for me can be different from what can be a good man for you but it is the same as the truth) but we will see that it is possible to maintain the same strategy we learn about truth. It is possible to say that something is just or unjust in itself, it doesn’t depend on us. It depends on things and how things stand. Because not every action or feelings are means of a men*. Virtue, according to Aristotle, is about searching for a middle point but in some cases it is impossible to act in a right way. There are actions that by themselves are unjust as we have propositions that by themselves are false. One is a theoretical matter (to know about the truth of the proposition) and one is a practical matter (to know about the justice of an action). But it will be a very bad mistake to say that something is just because we believe that it is (epistemicism). We cannot accept that but we need to understand, as we did about statements, what is the value of an action in itself. This is what means to search for justice. By discussing about Antigone we will see that. 13/10/2021 One of the mistakes we mustn’t make is to apply the way you see the world to someone else’s view since it is an hermeneutical fallacy. You cannot say that Kant isn't a good scholar because he didn't apply the theory of relativity by Einstein, but he couldn't since it was impossible. Just as to say that the myth is a fable for the classical world is a mistake. Everytime you look at the past you must understand the people, also with respect, and this is what we need to do with greek philosophers, since for them myth isn't invented, nor a fantastic world. When a man looked at the myth he was looking at the root of the existence of the polis in his culture. It's not a fable, is a tale and none knew when this tale begun. A myth is something very ancient, in everyculture you have myths. When nowadays we talked about famous people, like Fedez or Cannavacciuolo, like myths it’s not the same thing. When we talk about greek myth, it is something about the nature of things and mythos has to do with wonder. Yesterday we discovered that wonder, thaumazein, is the beginning of philosophy, and according to Plato and to Aristotle, for which the lover of myth is a lover of wisdom since it's a special kind of philosopher. Why? Because the myth appears to be more than childish, it's the reason of the logos. Maybe you may think that logos is about reason, myth is about fantasy and so there's a division. According to someone logos is reason and before it there’s no reason. A myth is a special kind of logos. Emanuele Stolfi in his book “la cultura giuridica dell'antica grecia” writes that the myth is an expression of a peculiar rationality, the one based on an interpersonal exchange. At the very beginning, myths were not written but sung. there's plenty of different examples of myth played in the middle of a polis. What you have in a myth is a different kind of rationality because it's related to both the one that tells and the listener. From a certain point of view the myth is a very peculiar type of dialogical experience. Just think of Edipus, the brother and father of antigone, by listening to that myth, you're hearing the story of someone but also of yourself. nowadays when we think of the importance of classical books, we say that their value is very high because it speaks to us coming from the past. What can be of some surprise is that also in the 5th century they already knew of classical books: myths and tragedy, not only because there's different examples of ones that speak to us, but because it's something that speaks of us. it's a sort of archetype of man, a model of man. It's obvious in antigone that mythology, and the religious experience in which it was inscribed in Greece, always constituted for the ancient men this way of conceiving relationships. We believe now that religion is an individual experience but in ancient Greece it was a public activity and it was something that we can find also in the middle ages,about our living in society. This way of living in society needs plenty of relationships between men and gods themselves as we describe the nature of the man himself. It's the idea of men in perpetuos relation, zoon politicon, and thus, of archè, the origin of being, and between identity and relationship. So, looking at the tragedy means to look at a presentation of a myth, to delete the idea that the myth is about fantasy. A myth is not a fable or a legend to be translated into rational state and the state is the leviathan and it has a tremendous power. Hobbes thinks that law is made by will not reason, a problem of authority and is made by a state, called leviathan, and the leviathan is the biblical monster and there’s no power that can be as high as his. you need to obey law according to this idea since the state has the power to oblige you. it doesn't matter if it is just or unjust since you can’t ask about the justice, you need to obey it without discussion. Creon at a certain point becomes this kind of king. from the dialogue antigone-creon-emone “just as he likes it” you cannot ask for reasons since law is produced by authoctaras, veritas is about reason and rationality while auctoritas is a matter of will. and the basic idea of this account of law, popular in the modern era is that we have a distinction will and reason. it’s impossible to find agreement bte the two. reads the slide “the man established to lead, must have obedience” he’s elected and therefore he has the power to lead. Creon is the archetype of the individual. Sophocles writes about a myth that everyone knew. There's a presentation of modern ideas of law, made by will and the state is the only subject that can stay above law and decide what LAW is. the idea of an individual. the state is conceived to be as the biggest individual, made by us- see hobees- and the state and the biggest and more powerful individual, is the only one that can decide about law, that’s what creon says. It's easy to say that Creon is bad and also hitler and Antigone is the one that can represent Creon the necessity of dialogue, also Emon does. reads slide emon tries to remember the zoon politikon nature and the polis is sure under your kingdom but you’re part of the polis it’s not subject to you. antigone seems right. What she's trying to do is to remember to remember that you cannot be the owner of lawfulness and justice. Maybe it’s better to say that you’re an andiviminstrator. What's just cannot depend on what you believe and cannot be produced or cannot be identified with your law, there’s something else, what she calls the divine law, what we call the law about a certain kind of odere we think is right. there’s an origin of law and its origin, it’s a matter of archè, it’s about the metaphysical order that we need to respect and we cannot think is under our power, we cannot act against this order. At this point antigone is right.. and it's very easy to say as anuil, breacht, zagrebelsky that antigone is wìright and creon is wrong, but sophocles tragedy wouldn’t be so tragic if there wasn’t a dilemma. The dilemma exists since the two different choices, one excludes the other, and they seem all good choices. Therefore, it doesn’t seem like a dilemmatic situation. there’s no discussion of the interior dilemma and struggle of antigone, she has no doubt. The dilemma is not in antigone, and neither in Creon's psychological background. You can’t simply say that Creon's wrong and antigone is right. the dilemma is when the two choices both seem to be good. and this is why creon's law is a good law. the chorus that in the tragedy play the role of wise man, didn’ say anything against creon. one could argue that we have a system of law made of different level,and on the highest there’s the divine-moral-principle law, and in such hierarchy understanding law there’s creon's law. so it’s impossible for creon to violate antigones. but this idea of the legal system didn't exist at the time. this is a typical legal concept of the modern era. the prominent legal scholar about this idea of legal system is kelsen, in 1900, the concept of hierarchy was born in the VI dc, 100 years after antigone. it didn’t exist. to say that there’s a hierarchy, it’s a hermeneutical fallacy. since it’s a dilemma. it means that creaon’s law and the law of antigone are at the same level. immediately at the very beginning creon is right and antigone is right too. divine laws are valid but also creon’s law are valid. and this is why it’s a dilemma since immediately you can’t point out who’s right and wrong, maybe you can say it at the end of the tragedy. you can’t establish hierarchy since you’re talking about the classical world with the eyes of a moder, and by the way there’s no such thing as divine laws nowadays. legal order is about principles that are not touched by god. please don’t make confusion. we’re still discussing about it since it’s a dilemma, a situation we can’t resolve in once but everytime you face it, you can expect the solution to be hard to find. it would only be a hard problem if there's no struggle, like a mathematical demonstration, once understood, you got it. a dilemma is a theoretical or practical matter in which we need to take a choice on what we should do and why. so you can see that the dilemmatic situation is one in which the subject is really involved. and antigone is going to die for her choice. If we must give an answer, we have 3 alternatives: he's right, she's wrong, both right and both wrong. Which one? we’ll see it tomorrow. 14/10/2021 The political value of tragedy What is their relationship? The tragedy is about the representation of a myth: when you go to the theatres you knew you were going to see a myth. The dionisiache: like vacations for the theatre Fight between the writers. What is the main aim of the tragedy? For Socrates is to make the myth alive: it was a political tool, when Socrates wrote the Antigone he kept in mind what was happening in Athens. Putting Athens in front of a dilemma: when we are part of the polis we understand that you can be Creon of Antigone which represents the political parties of Athens. Between ARISTOI and DEMOS. Find a balcone between the oldest party of the polis, aristoi and the new part, demos. It is a matter of mutual recognition between the two. Antigone: oldest - aristoi Creon: new - demos Socrates worked with Pericles (demos) in order to maintain peace. Who is right between aristoi and demos? They are both wrong: he decide to bury him the reason: AN. I never would have taken on this task to spite the state, had I been mother to a brood of children, or if it had been some man of mine that lay corrupt in death. You ask that I should justify that paradox? One husband dead I might have won another man, or even further children by some other sire….. but with both my parents dead in Hades' halls, there is no chance another brother can be born. This is the reason why I honoured you so much, and why King Creon thinks that I am mad to dare such a dreadful thing, my dearest Polyneices… It is for my brother: about filia. Sofocle finds another reason for divine law: change the plot of the myth by changing some minor report of the myth. Before, the only justification given by antigona was this one. Antigone is not right: aristoi are better, we can not do that. Devine law and it is an iphotetsit you can use to justify your actions: we have no determination at a theoretical matter. The teaching drawn from Antigone concerns practical philosophy and not theoretical philosophy: that is, in the first instance, it concerns the reflection that assumes the contingency and indeterminacy of human action as a starting point, and not that which elucidates necessary determinations and connections brought into the open by the intelligence of being (F. Ciaramelli, Il dilemma di Antigone, p. 59) contingency and indeterminacy of human action as a starting point, and not that which elucidates necessary determinations and connections brought into the open by the intelligence of being (F. Ciaramelli, Il dilemma di Antigone, p. 59) It therefore makes no sense to ask who is right, also because they are both Wrong !! Antigone then wa so proud that she forgot the very good words said to Creon, she believed that Tahoe divine law is under her feet: she can decide by herself and do she can commit suicide. They both commit a sin: ubris. Creon becomes a tyrannus; he changes his mind (fear). On the other hand, to commit sudice is a very bad act: she decides by herself. self nonist they lack ionesis Antigone and Creon are both unable to weave together the laws of their own land with the justice of the gods ……. Each of the two, stiffening in his position, becomes apolis - that is, without a city and without a homeland - for his exaggerated audacity, for his arrogance ……. Both Creon and Antigone are self-nomists, human beings who have placed the law under their tutelage. Both lack phronesis and therefore fall into hybris (ibid…, p. 66)CH. (to AN.): Fair fame and praise are your companions, departing to the depths of those now dead, and no discase has wasted you, no fatal sword thrust earned, but you shall, all willing (antonomos) and unique of mortals, go down alive to Hell. Remember a man who decides not to live in a polis: is an animal or a god. Both Creon and Antigone believed themselves to be gods. The power of will given by the scientific revolution: Nietzsche (the power of will) the modern idea of power. Arrogance in the way of being with everything and everyone. otherwise. We need to change human actions. But practical philosophy and frenetic is different. Practical philosophy is episteme, practical matter. While we are in theoretical philosophy ( the difference of truth, value of dialectics), but now we are in a matter of principle, valid in EVERY case. In the realm of real philosophy the realm of endoxa is not always valid . Phronesis cannot forget practical philosophy but in practical situations we need virtus, to understand the virtues is a practical philosophical matter. Every jurist is a philosopher. Law as it has been cultivated in that culture, and therefore you need philosophy. A jurist is a philosopher with practical wisdom Sophia and phronesis. Athena has the decision before the trial, in order to decide I need the help of 12 people. How is it possible to consider Atena a good judge? Answer by a person. Okay, I think that more or less you are right but first of all we are discussing about impartiality. A good judge should be considered good if it is impartial, but Athena is not impartial, she’s the sister of Apollus. Imagine that in a courtroom the judge is the sister of a lawyer. It’s impossible if there are relations with the parties involved. We are looking at a possible positive solution to our dilemma, with a key principle of the due process of trial, but at the same time this principle is established by a person very hard to be considered as a good judge. It is a theoretical matter, a dilemma. It is clear that we need to search for an answer. Athena is a good judge or we can’t consider this principle a good principle. A possible solution is to understand impartiality. Regarding impartiality we may be thinking of objectiveness. Something rooted in us, where there’s no objectiveness in the decision. This idea is so strong that, about 70 years ago, someone claimed for artificial judges, computers deciding the cases, of application of rules, a machine made to do it, in order to avoid subjectiveness. Once you look at impartiality as a matter of subjectiveness, personal history as men. It’s clear that no one can be impartial. It’s impossible to avoid subjectivity in judging. It’s possible to avoid cognitive biases, since they are a matter of wrong uses of rationality. But for sure plenty of cognitive biases can be handled with, since we know how to overcome them but it’s impossible to have a judge without subjectivity and also decisions. Athena knows that. Athena isn’t deining her subjectivity because she’s the goodness of reason, but rather reason is something given in subjectiveness. The mistake we made with the scientifics revolution was to consider reasons as something objective, since to have rationality in this view you need to remove your subjective vision. But it is impossible in every kind of reasoning and judgement, so you need to embrace your subjectivity. Recognize it and try to find a way to be rational and also be subjective. Athena knows that and asks 12 people to judge with her. The most important thing is that people need to judge in a better way. This decision is based on her subjectiveness, but also establishes in dubio pro reo, 12 people are not able to reach a decision, so you are not guilty. Without Athena subjectiveness, this legal principle cannot be done. Counterfactual reasoning now, imagine 8 to 4 judges. In this case Athena’s decision doesn’t count anymore, but the decision was 6-6. It is reasonable to say that since we cannot reach a decision you’re not guilty. It’s not based on will. Rationality it’s always a matter of subjectiveness. It’s like understanding if a statement is true or not, you need to accept that reality is just 1 but we have different views. It’s about easy but there’s multiple realities. This solution is clearly respecting justice since athen is able to talk with the erinnis and they change their nature. From erinnis to Eumenides. Under the polis of eumenides, Athen lives in peace. The erinnis represents fear, violence,revenge, part of the trail. The message is that bad things cannot be eluded since they're part of our lives, thus of trials. In every situation you can expect that someone is asking for revenge. It’s a part of the legal experience, the ancient order. They became part of the new trial, not removed but changed their nature since Athena is able to show to the erinnis the inner rationality of the decision, it’s what good rhetoric does. It's because of that she’s able to maintain order. The oldest part of the city became part of the decision given by mortals and the goddess. There’s another kind of order to preserve to reach a good decision. This kind of rationality, based again on archè but what we are discussing are different aspects of archè, how this sìdialogiac need are able to establish a method and to tell us how to find the rule. For sure Athena could be seen as a bad judge but once we look at this different way at the matter we see that he respects the order and therefore she’s a good judge. Without this principle it’s impossible to have a trial at all, without hearing the other side. We’re in front of a certain good idea of justice, a trial without this principle is not a trial, a dialogue without the search of the truth is not a dialogue . We are made by bad feelings. Every kind of political thought or philosophy which aims to remove such a kind of human being is devoted to failure and dead men. The utopia of society with perfect people. In trial we need to know how things stand or we can’t say if you’re guilty. Now I told you about law, ius et lex, and the words used by sophocles and aeschylus is NOMOS, used by Greeks to say LAW. It’s a word that we find in nomofilachia. Legge la slide di stolfi la cultura giuridica. In order to live with justice, we need to respect NOMOI, this kind of prescription is typical of human beings. In Homer we find the verb NEMEI (still reads the slide) IN artstole, justice is a matter of proportion, division and distribution, search for the golden mine. But also at that time we have a link with ANCESTRAL BEING THAT order things, above and before us. What’s the most ancient wrd we find in Greek culture about law? It’s ThEMIS. Homer, which is the most ancient written source we have. Homer is considered an authority. Reads the slide “in homer,…” King is seen as a mediator of divine will, so he needs to be a guarantee of stability. The most important jurist is the PONTIFEX (maximus), the one that makes bridges between the divine and everyday life. The pontifex is the one that can put together the divine order and the everyday life, it’s what we find in themis as king as mediator. In Aristotle the judge is living justice, a mediator. He finds the mediatoìion between different parties, divine and this order. The same matter on the relations between principles and rules. The principles are found in the divine order. These principles do ot depend on us. Our job is not to create principles but respecting the principles we create rules. If a principle is created, it wouldn’t be a principle. An example is the declaration of human rights, we recognize a principle. By itself this principle doesn’t depend on us. This principle it’s not BASIC. Because by changing time, place and people you can't expect to find it, it doesn't depend on our decisions. There's something that is different from our reality, the reality of the divine, a principle, situation or criteria that doesn’t depend on us or we can’t expect t o reach the foundation of a legal order, una regression ad infinitum. If we look at such a problem from a methodological point of view, the basis is the principle of non contradiction. E. Stolfi says that we need to search for a guarantee of stability. We need to search for a stable ground. Despite the word, the religious fear is rooted in traditions, something that comes from the past and cannot be denied, it’s the basis of a way of being. The myth. It’s not a fable, it’s something about our way of being by searching for a root we’re in this way. Themis in eschilo is athena’s decision to give right to the arepago (it is called themis). It is a myth. Something that’s really part of such culture, of our legal experience, not a historical pov, but from a metaphysical pov. He uses themis. Something about a divine order. Something that is as it should have been. Not a matter of being. Themis is a cosmic order. She’s the 2nd wife of Zeus. There’s the slide. It's a myth, the nature of something divine because it’s at the basis of our way of being a matter of archè. Zeus is the divine and themis is a legal matter, the conjunction of the two created dike, justice, Eunomia, good order and Eirene, peace, you can't have one without the others Reads the slide.. Until the 1950s, the main matter for legal culture has been validity, to respect the rule and to understand which kind of nature a legal norm has to be considered as such, distinction between law and morality, legal and other fields, legal knowledge and scientific ones. But a distinction with which we lose conviction that law is not only a matter of rules but also a matter of principles, a matter of archè. It’s important also to know how to reach law, but we cannot have lex humana without respecting lex naturale. No nomos without themis, no dike without themis. from my question (not really important) Constitutional law constitutes the recipes that can be used to decide a case since law is based on how to find a moral ground. Respect of law is based on the fact that it’s just. However, the state loses power to different associations: Soft law , EU law, law without sanctions, recommendation, new kind , legal order, due to the changes in nature in the last 20 yrs. We don’t have a clear egal culture to explain such fenomenon. To understand nature and to organize them. Santi Romano states that the state establishes rules not so differently from how social entities could. We need to understand ancient law in order to understand today's reality. reads the slide on DIKE, from Deik We can have unjust rules, that goes against a principle. Something that it is as it should have been. It’s impossible to find truth without rhetoric, we make the principle alive, using logos and summon the principle. Once you remove it it’s hard to recognise to law a strong character. 21/10/2021 … At that time everyone believed in such a kind of dimension; it was the same in the 17 th century in Europe when discussing about the existence of God; it is impossible to imagine the society of the Middle Ages without thinking that the proper name of what nowadays we call Europe was then called societas cristianorum, a society based on Christianity, but mostly a social matter. This idea is about the existence of rules and principles that govern human interaction with, of course, a binding character – not a binding character that depends on will or on the power of the state (this is a modern idea), but one which is very similar to the one of hybris: everything in the universe has its own limits, which depend on the existence of this kind of order. This is justice. Justice is always a social matter in relation to our nature: I cannot be just by myself and with myself; justice is always ad alterum. “And proverbially ‘in justice is every virtue comprehended’; and it is complete virtue in its fullest sense because it is the actual exercise of complete virtue”. Justice is a complete virtue because “he who possesses it can exercise his virtue not only in himself, but towards his neighbour also; for many men can exercise virtue in their own affairs, but not in their relations to their neighbour”. I can be temperate or brave, but that does not mean that I am just; conversely, if I am just I can also be able to exercise the other virtues. This is why it is the most important virtue we may have: it is not only about myself, but about myself and someone else. Justice is always a matter of relation. And because law is ad alterum as well, we find justice in political and legal domains. “For this same reason justice, alone of the virtues, is thought to be “another’s good,” because it is related to our neighbour; for it does what is advantageous to another, either a ruler or a co-partner”. The context of zoon politikon is extremely evident and most of his reasoning depends on the metaphysical part of his thought. Aristotle introduces more than one kind of justice. We said that the unjust can be divided into the unlawful and the unfair, and the just into the lawful and the fair. First of all, the unfair and the unlawful are not the same. “They are different as a part is from its own”. This means that all that is unfair is unlawful, but not all that is unlawful is also unfair. We may expect that a certain action or judgement can be considered unlawful because it breaches the law, but not unfair. From a certain point of view the same action or judgement can at the same time be considered unjust for being unlawful but just because it is fair. It is then easy to establish when an action is against law, when law is written and/or given, but it can become more or less hard to understand if this action is unfair. From this point of view, we may say that the path of law into modern times is a simplified version of law: we reduce law to written law and immediately justice is no more a matter of law and is replaced by validity. It is easier to assess the validity of law. “But since unfair and the unlawful are not the same, but are different as a part is from its whole (for all that is unfair is unlawful, but not all that is unlawful is unfair), the unjust and injustice in the sense of the unfair are not the same as but different from the former kind, as part from whole; for injustice in this sense is a part of injustice in the wide sense, and similarly justice in the one sense of justice in the other. Therefore, we must speak also about particular justice and particular and similarly about the just and the unjust.” Justice from a general point of view can be divided into what is lawful and what is fair; the same applies to injustice. This is about happiness, the evaluation of actions and judgements, the evaluation of law and legal rules. Moreover, we have justice in a general sense and justice in a particular way. immediately, the main distinction is that something can be unlawful but not unfair, while what is unfair for sure is unlawful. The main important part of justice is fairness, and inside fairness we find lawfulness. Thus, law is about justice, but justice is more than law. This is a crucial point because many times a certain part of criticism we find in legal positivism against natural law theories is about the definition of “what is established is just”; it is incorrect. Justice is more than law. when Aristotle and S Thomas say that “unjust law is not law” they do not mean that every kind of law, just because it is law, is just; when we look at justice, we are looking at law, but at the same time we are looking to a concept which is higher than law. Justice is about what is lawful and what is fair. Not everything which is unlawful is unfair, but you cannot consider a law/action just if it is unfair. You may have an action against the law which is just, but you cannot have a just action if it is unfair, even if it respects the law. This is why Aristotle says that all that is unfair is unlawful, because from a certain point of view a law which is not just is not a law. The main criticism Hart made towards the natural law explanation of law is exactly on this point. Hart’s criticism is exactly this: according to natural law theories, unjust law is not really a law, but just a misinterpretation of law, something that cannot be considered to be a law: each law, being law, is just, because if a law is not just it is impossible to consider it as law. So, says Hart, how would it be possible to move criticism against the law by saying that it is not just if the underlying assumption is that if a law is not just it is not a law to begin with? Each law, in order to be law should be just; Lex iniusta non est lex, est corruption legis, unjust law is not law, it is a violence on law, it’s something similar to a law but, in reality, it is different. However, if you are a natural lawyer looking at the legal field and at law, precisely because you are speaking of law to you every law is law (a just one). Hart’s question then is: how is it possible to move criticism against law if you don’t think that unjust law is law? By definition if you speak about law, it is because law is just, you cannot say that law is unjust because to you unjust law is not law, it is something else. To sum up: natural law theories state that what is unfair is unlawful because an unjust law is not a law, it is just an image of it. So, if I say that it is not law, how is it possible to move criticism against law if you do not think that that’s law? The solution is given by S. Thomas. Hart is the most representative philosopher to move this kind of criticism and one of the most prominent legal positivists of the last century. At the beginning of the 20th century the debate on the nature of legal order was extremely active and the prominent legal philosopher on that was Hans Kelser; then, during the 40s with Alf Ross, legal realist, and Kelsen the main problem became the discussion on Hart and for the last 40 years of philosophy Hart’s criticism has been the main topic; it is a matter of principles and the relation between principles and rules; but Hart is from a certain point of view one of the best legal positivists because he was able to give a different shape to the matter of what Kelsen calls the “Basic Norm'', the nature of law. At the same time, one of the most recurrent mistakes made by legal positivists is that they completely misunderstand what natural law theories are. They believe that natural law theories are more about a very rough way to understand law, something rooted in religion, myth, etc; but it is impossible. Gottlob Frege was the father of formal logic between 1880 and 1903 and invented what nowadays we call logic; the quite common idea stating “before Frege only noises” (Dennis Patterson) is typical of a certain account of legal philosophy. Nowadays we have the matter of thinking again about the basic notion of law because we have discovered that this building of law made by legal positivism does not work anymore; there’s plenty of good tradition to look at. Before saying it does not work, let's understand it again. Probably Hart has no idea of what natural lawyers were saying when speaking about the relation between the unfair and the unlawful. Who decides what is fair or what is just? This question is very similar to the question: who decides what is true? The teaching of the tragedies of Antigone, Eumenides and Homer’s Iliad is that there is an order which does not depend on us. By speaking of alethic realism, we can mirror this: truth is what has a certain kind of relation with reality; when speaking of reality, we do not mean the entirety, just to the portion of reality we are referring when we speak of that. More or less, it is the same with justice. “Just” is what is as it should have been; for sure, it is also a matter of expectation, because justice is not only a theoretical matter, but also what we believe and expect of it. With regards to justice, this is the same situation as when we say that “this statement is not true because in the real world the situation is different”. By saying reality, we could mean different things, concepts, ideas, abstract and concrete objects, material or immaterial; then you could say that justice does not exist, but justice is one of the most important things to search for if you want to live in society. Robert Alexy stated that it is impossible for every kind of legal order to not have a certain kind of correctness. “X is a sovereign, federal, and unjust republic” it would be impossible to accept a constitution stating something similar. In a similar way, it would be impossible to accept a statement like “what I am going to say is false”. Every time we speak, we want to say that what we are going to say is true, mainly in disputes (trials) and debates. The same applies to law. The first version of legal positivism completely ignored the fact that it is impossible for a law, a legal system or order to not claim by itself to be just. From this point of view, Hobbes and Rousseau are much clearer: law is not about justice, but about peace. This means that if you search for justice sometimes you need to be ready to understand that peace is in danger. Justice does not mean that you cannot have conflict, justice is not given without disputes. In order to have justice and to maintain a social order you cannot avoid disputes; you need to find a way to manage them. This means that in society you cannot avoid disputes. Hobbes denies exactly this in favour of peace, of absence of conflicts; this is also because of history and his personal experience with civil war in Britain. But in reality, peace is not the negation of conflict, it is just a way to manage them: conflicts are part of society. In book 18 of the Iliad, we have the representation of Achilles’ shield, where two cities are represented: one is at peace, the other at war. What we find in the city at peace is the first representation of trial we have in our history. There in the forum swarm a numerous train; The subject of debate, a townsman slain: One pleads the fine discharged, which one denied, And bade the public and the laws decide: The witness is produced on either hand: For this, or that, the partial people stand: The appointed heralds still the noisy bands, And form a ring, with sceptres in their hands: On seats of stone, within the sacred place, It is the same matter we find discussed in our constitution. In the third article of the Italian constitution the principles of formal and substantive equality are presented. Formal: everyone pays and everyone pays the same; it is not just. You need to find the proportion which is found in the real state of affairs. If I want to make just law I need to look at reality, at society, and in order to do that have to be a part of society. This is why the Leviathan is not interested in happiness. Happiness seems like an abstract idea, but it is very concrete. It is just to pay taxes, but it is unjust to pay more than a certain amount. If I pay the just amount of money I am happy, because I consider it a duty to be just. I will be happy when I respect my duty. That is what it means to respect my duty: I need to pay taxes and consider it to be a good thing; but I do not consider it a good thing when taxes are too high, when they do not respect proportion. This, then, is what the just is – the proportional; the unjust is what violates the proportion. Hence one term becomes too great, the other too small, as indeed happens in practice; for the man who acts unjustly has too much, and the man who is unjustly treated too little, of what is good. This is what justice as a mean means. What is intermediate not from a formal point of view, but in a concrete situation. Not too much and not too little. The proportion is the same. You need to find this mean; it depends obviously on the situation. We have an abstract rule, proportion; in a specific situation I need to find the real measure, the real mean. I cannot expect that the rule will be the same in different contexts. In the case of evil the reverse is true; for the lesser evil is reckoned a good in comparison with the greater evil, since the lesser evil is rather to be chosen than the greater, and what is worthy of choice is good, and what is worthier of choice a greater good. This, then, is one species of the just. Justice as a matter of distribution. Rectificatory The remaining part of justice is the rectificatory one which arises in connection with transactions, both voluntary and involuntary. There is a difference between the two types of particular justice: for sure it is always a matter of equality, and so also in this case injustice is a sort of inequality but: 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 committed adultery; the law looks only to the distinctive character of the injury, and treats the parties 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. Therefore, this kind of injustice being an inequality, the judge tries to equalize it. The first type of particular justice is a political matter, up to the lawmaker/politician to deal with it because I need to look at society and I need to know the nature of the polis. In this case, on the other hand, the one with the duty to restore justice is the judge, who has to look at the fact in itself. for in the case also in which one has received and the other has inflicted a wound, or one has slain and the other been slain, the suffering and the action have been unequally distributed; but the judge tries to equalize by means of the penalty, taking away from the gain of the assailant. The penalty is what we se in order to make again the proportion, exactly because injury, murder etc. are all actions which violate the proportion. Hegel himself stated that the penalty is a way to restore the proportion we lose with a criminal act. Therefore the equal is intermediate between the greater and the less, but the gain and the loss are respectively greater and less in contrary ways; more of the good and less of the evil are gain, and the contrary is loss; intermediate between them is, as we saw, equal, which we say is just; therefore corrective justice will be the intermediate between loss and gain. What we may call pretium doloris, what we ask in order to receive money if I suffer a criminal act. This is what the judge needs to do 26-10-2021 Aristotle, Nicomachean Ethics, Book V. According to Aristotle justice is a virtue. Justice is not just a matter of respecting the rules but also a moral value. It is ad alterum, like law is, like rhetoric is, which means you cannot look at it without remembering the zoon politikon – justice is a matter of relation. The first difference is about what’s lawful and what is fair. Justice is respecting the law but also being fair. We have the distinction between particular justice and general justice. -Particular justice is either about the political action. It is something we have when we look at distribution of honour or money, for instance, and it’s up to politics because you have to look at society. Look at the judge. As for every kind of justice, what we need to look at is a matter of proportion. A judge needs to find a matter of equality between two parties, thus they need to search for an intermediate. The just is the proportional and unjust is what violates the proportion. What does it mean to be just? From a general point of view, justice is a virtue so it is intermediate between two extremes: suffering from injustice (having too little) and being unjust (having too much). When people dispute they take refuge in the judge: to go to the judge is to go to justice. Because the nature of the judge is to be a sort of animate justice. And they seek the judge as an intermediate, and in some states they call judges mediators, on the assumption that if they get what is intermediate they will get what is just. What does it mean for a judge to be intermediate? For us to be intermediate means to be impartial. It means, from a more concrete point of view, to have no interest in the disputes. The modern idea of law is that law is created by the lawmakers and law is applied by the judge. Applying the law excludes the interpretation. When the French civil law was made in 1804, the judge couldn’t interpret the law. but they knew that was going to be impossible. To intermediate= to interpret. Interpretazione comes from the Latin interpretatio. The word interpretatio comes from a commercial activity and is exactly the job of the mediator: the mediator is between two subjects. (Modern law claims that the judge’s job is only to apply the legislations, not to interpret them. But the role of an intermediator is to interpret) Interpretation is intrapretium, the mediator is in the middle, because he finds an agreement on the pretium, the sum of money. Intrapretium is interpretatio, the interpreter is in the middle of the dispute. I'm an intermediator because I don’t take parties, in the middle between law and the facts. In the legal domain there is a very important distinction between the text of the law, disposition legi, the words used by the legislator and the meaning. The meaning of the text is not exactly equal to the words we are using. It is possible for a text to have more than one meaning. To interpret law means to give the right meaning to the law by looking at the facts (it’s always a matter of fact). Intermediate not only by looking at the parties but also by looking at the law. impossible to define the impartiality of the judge in an objective way. It is impossible to have an interpretation of a text without some subjectivity. In order to comprehend what a text means you need to know the meaning of the text – pre- comprehension. U cant have interpretation without having in your mind the meaning of the words. Legal ermeneutics is a kind of philosophy done in the beginning of last century by Jaspers for instance. Everytime we look at words our subjectivity is involved. It is always a subjective play. When Aristotle speaks of the role of the judge by saying that she’s an intermediator he never refers to objectiveness. It is impossible. From a certain point of view u have to be intermediate, so subjective and so not objective. So you wouldn’t be impartial. But being partial is not being objective. So to be intermediate is something about interpretation of the law. Dialogue was being intermediate between language and reality So remember that we told that in a rhetorical domain we use to discuss about what can be an object of deliberation And what is typical of this deliberation? It is that it is about things that happens in a certain way, but not always in the same way So it is not something of UNIVERSAL. The nature of law for example. The universal value of law is not like the universal value we met within the deductive sciences for which something is always valid, but it depends on the context. It is a matter of deliberation, because sometimes it happens that we change our mind. And it is possible to look at a certain value or situation in a different way or in different ways. It means that usually there is a common opinion. We usually share a certain idea. But this idea can be matter of discussion. ‘Endoxon’ or ‘Endoxa’ is a set of ideas and opinions commonly shared by all the people or the majority of the people or by who is considered to be expert in a certain matter. Ένδοξα are this sets of opinions that we usually use as premises or standpoints in a rhetorical discourse or in a rhetorical situation. And from this point of view the universality we are talking about the law, is typical of ένδοξα. We believe that a certain law is right or that is a good law and this kind of idea is probably shared by everyone in society or by the class of expert, legal expert and jurists. Scientific knowledge can be thought not to be made by set of ‘Endoxa’ because it is a matter of demonstration. But once we use scientific knowledge in society or just think this typical situation we’re living now with a strong relation between science and law in order to understand what pandemic is, also science become a sort of ‘endoxastic’ knowledge. Once we need to know what or which kind of nature COVID-19 has we look at science immediately, we search for the most experts and we look at the certain kind of dialogue inside science in order to search a common opinion scientists share because science very often is again a matter of opinions (scientific discussion between scientists). When we talk about the nature of law as a matter of values because it’s clear that law can change it is because law is made up of rhetorical efforts and want you find in rhetoric but also dialectics are also ‘Endoxa’ (opinions shared by everyone or by someone considered to be a real expert in that matter). You need to search for that once you need for example to obtain a persuasion from an audience because what you say “something is true because everyone believes it to be true”. It is a good starting point. It doesn’t mean that it is sufficient as we always need to check the correspondence within the reality. Last time discussion we discussed by having in mind the matter of equity and which kind of relation there can be between equity and the law. What we are looking at, by reading Aristotle, is a dynamic conception of law, not the static one. So it is not a matter of struggle between judges and legislators because once the judge decides he or she needs to think of himself or herself as a legislator. And once we use equity we make the same thing that we do when we use the *lesbian multik*: we adopt the law to reality. What is important remember is that by looking at the Greek experience we have for sure this kind of account of law: even with some differences for sure for Plato and Aristotle law is a matter of reason and it is the rational conception of law which emphasise the fact of equality and because justice is always a matter of proportion. This kind of order, the same divine order that Antigone was talking about when she met Creon, for sure is an order which comes from outside but it is not an order imposed by an authority (it is not a matter of will but it is a matter of reason). It is the same kind of order you meet when Aquinas speaks of “LEX NATURALIS”. It is about that judgement that we need to do when we say “this is just because it is and it should have been”. So it is clear that we have two very different meanings of order if we speak of that by having the glasses of the modern conception of the law (because the legal order we meet when we are in the modern conception of law it is made by us, by using will, but in the classical conception of law order we are talking about it is met by us, by using the reason, it is not created by us, we can recognise this order but we cannot create it). So it is more a matter of relation (discussion about AQUINAS (Christian and from the Middle Ages) between LEX UMANA and LEX NATURALIS. It is clear that we don’t create LEX NATURALIS. LEX NATURALIS being a part of LEX AETERNA is created by god. This is what again an “endoxon” is: the sum of what was respected by all as a living custom, this is why (just a rhetorical observation) you can use or need to use “endoxon” in order to gain consensus because everyone believes that this custom is true. When Antigone speaks with Creon, she says “you need to remember that it exists δίκη (the law made by god)”, it is a living custom: everyone at that time believed in that. The mistake you cannot do is to think that because it is considered like a living custom and we share the same opinion it is impossible to change ideas. It is the mistake made by Antigone She assumed this kind of living custom as a rule in a static field (also this kind of living custom being part of the living society can be modified, maybe it is harder to modify such a kind of custom than a law made by men but it can be modified and by the way it is what happened with, for example, the idea of god: for a very long period of our history during all the Middle Ages (what we call nowadays Europe was named SOCIETAS CHRISTIANORUM and again at that time religion was not an individual matter but for society, it was a social value. Europe was made up on the Christian roots. Then at a certain point we assumed God as a sort of hypothesis and what happened with DESCARTES, GALILEI (and so on) is that we were able to remove this hypothesis because at a certain point we believed it was something impossible to be discussed but it is not like that) One of the most powerful thing you might do is to discuss about everything (typical of philosophy and in fact it is problematic (typically) as philosophy can even discuss its nature itself) But because everything can be discussed, don’t believe that there is something that cannot be discussed, it is a mistake, the one made by Antigone. Antigone believe that the law by god (δίκη) could not be discussed and it was a mistake: she did not accept that idea and that’s why she committed suicide. For her it was impossible to discuss such a kind of custom but it is possible. When time changes and nowadays times are changing very fast, you need to be ready to discuss because you want to maintain a certain value and by the way law is made to maintain a certain sen of values despite the changing of time and beliefs. This is what constitutions do. It is very easy to change laws but it is very hard, at least in our country, to change the constitution because at a certain time we believed in some basic stones for our society But what happened at that time, in the classical age, is that, as we understood by reading Antigone and by having in mind Creon, when I speak of a modern conception of law it is a philosophical subject, it is not a historical one and so also at that time we have a certain part of modern conception of law by sophistry because they believed that law is only a matter of social value, that is what it became with HOBBES the only perspective on men, the struggle for life, and basically because we became sceptical about the possibility of knowing the cosmos, not everyone deny the existence of άκρη but they say “we cannot know cosmos” and so it is better to look at what we may know and what is possible for us to know is what is made by us and law is created by man. Law is a product of our will. Why do they say that it is a product of our will and no more of reason? Because if you change time or if you change place if you move you will find different laws and so it means that because we have the same reason but laws are different those laws are produced by will not by reason. And law is made by the work of man. At this time law was felt more and more as a sort of restriction, imposed on human nature. Law became the interest of the strongest. So it became a matter of power. Norberto Bobbio (one of the most prominent legal and political philosopher in the last 50 years in Italy) at the very beginning of his career was professor of philosophy of law and he studied the law about Kelsen and was the one that translated Kelsen from a certain point of view by ousting Kelsen together with ** and was the founder of a very important school of legal philosophy in Italy, but at a certain point he said that law is a matter of power (changed from philosophy of law to politic). Because if law is a matter of power what you need to do is to study the mechanism of this power and it is a political matter. But now Bobbio is talking of politics in a very different We use practical reason in order to understand, and the virtue in order to decide which kind of mean is better to reach that gain. But there is always an aim. What is the aim of the practical reason we use in order to state the law? It is the common good. Again what Aristotle said talking of the aim of law is happiness. Saint Thomas speaks of a common good. Is the common good Saint Thomas is speaking about the same of Aristotle’s one or is it different? Is Saint Thomas’s common good like Aristotle’s happiness? No: The common good for mankind is “BEATITUDO” the main matter for a Christian is the soul, to be safe at the very judgement day It is not only happiness or social order, it is not only about our lives on this planet But it is about our life in front of God Man is always searching for “BEATITUDO” and for god. Saint Augustine said that every man has a sort of natural desire of goodness. Saint Thomas said that every animal searches for a specific aim. Is it “BEATITUDO”? No, their aim is reproduction. The main inclination for animals is reproduction and it is natural. The main inclination for mankind is not reproduction as we have reason (animals don’t) and we can dispute between things (like what is just and unjust). So our inclination is different from the one of the other animals because we are animals for sure but we have reason. And this is why we have language. So the inclination of man is BEATITUDO. What is the main difference between the human inclination towards BEATITUDO and the inclination of animals towards reproduction? It is that we can choose, it is a choice, we are free. And the measure of our freedom is also the possibility we have to choose for the best things. To avoid, to don’t search for BEATITUDO is sin. Animals are not free to decide it. And this is the base for law because DEUS NOS INSTRUIT PER LEGEM = law is a measure of human acts and law is used in order to induce men to act or restrain from acting in a certain way. So law is always made for Saint Thomas, by looking to BEATITUDO, our common good, to make for us possible or to obliged us to act in a certain way or to restraint from acting in a certain way because it is a bad thing to do that (otherwise we would lose virtue) because of our common good, BEATITUDO. Saint Thomas is not only looking at virtue in this life but also, because he was a Christian, to what was more important for him, to be saved, the safeness of our soul, BEATITUDO means to come back to god. And this is why “DEUS NOS INSTRUIT PER LEGEM”, we use law to search for BEATITUDO but BEATITUDO depends on god, on GRATIAM which is a totally free act by god because it is an act of love (the most lovefull act that god can make for us). In order to be saved, in order to come back to God, in order to have BEATITUDO, for sure you need to follow laws but it is not sufficient. You need God, GRATIAM and it can be asked but it is totally dependent on god’s decision. Lex Humana is create by us and this is why we can have LEX INIUSTA. Is it possible to find unjustice in lex naturalis? No because by definito on god is just. We find lex iniusta in lex Humana because it is created by us, and we are free to choose for the evil. Law is a matter of reason, an ordinance of reason, a rational measure. And the aim of every kind of law is the common good (DEUS NOS INSTRUIT PER LEGEM). And lex humana, if it is a good law, is not against lex naturalis, but follows it ( it follows what we, nowadays, call principles ). What we nowadays call “principles” is what Saint Thomas meant by saying “lex naturalis” that for him and for everyone at that time was about god. Now we removed god but we still have such a kind of idea about something that we consider to be just but that does not depend on our decision. This law is made by who has care of the community. Saint Thomas says that the one who has the power to make law, is part of the πολις. And basically he takes care of that. Again in this conception, very similar to the one given by Aristotle and by the Roman law (DIGESTUM), law is a matter of love (love for the πολις and for mankind). By using law the legislator want to make the πολις and men better. So different from the modern account of law. There is a bit of power in that because Saint Thomas speaks of “promulgatio”. “Promulgatio legis” is a formal act by the state( it is about will, no more reason). By the promulgation of the law, the legislator tells what is his decision. Once we have the law published, law is promulgated. At this point law can be enforced. So will is part of lex but it is not what we use to make the law: it is what we need for the validity of law, for the factiveness of law. But in itself law is about reason and reason is about the one who takes care of the community because he or she loves the community. Law is always a matter of “affection”, of feelings of love. So the promulgation is necessary for the law to obtain its force. We know we don’t have reason or will: we have reason and will. Reason in order to understand what is just And will in order to find the force of law A law is imposed by “promulgatio” and sometimes we need to impose to men a certain kind of behaviour because we have freedom, we are free to decide also for what is better. From that freedom we can also choose for what is bad for us. (dilemmas, this is why we suffer dilemmas, as we are free to choose). The measure of our freedom is the possibility we have to go for the good or to go for the bad. Without freedom for sure you choose for what is good. Saint Thomas perfectly knows that humans can choose also for the bad (he ius a Christian and he knows that our humanity is under the original sin). This is why we can choose for the bad when we are discerning between the goodness and the badness. But because law is made by using reason, Saint Thomas, as Aristotle, as Plato and as everyone who can be defined like a natural law theoriest, perfectly knows that the law can be unjust. In question 95 the matter is on unjust law: “Respondeo dicendum quod, sicut Augustinus dicit, non videtur esse lex, quae iusta non fuerit” As Agustin said in “De libero arbitrio”, unjustice seems to be in no law at all because the force of the law depends on the extent of its justice. “Unde inquantum habet de iustitia, intantum habet de virtute legis. In rebus autem humanis dicitur esse aliquid iustum ex eo quod est rectum secundum regulam rationis. Rationis autem prima regula est lex naturae, ut ex supradictis patet. Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur.” Now you might affirm a thing is said to be just, from being right, according to the rule of reason but reason is in lex naturalis. The first rule of reason is the law of nature. The law of nature is that part of lex aeterna that we may know by using our reason. As it is clear for what has been stated above: “consequently every human law has just so much of the nature of law as it is derived from the law of nature” “Si vero in aliquo, a lege naturali discordet, iam non erit lex sed legis corruptio.“ But if in any point it deflex* from the law of nature, it is no longer a law but a perplection* of the law. Because it is unjust. What is just? Just is what it is, according to the law of nature, as it should have been. When it respects a criterion which doesn’t depend on us (lex naturalis does not depend on us). We know or may know lex naturalis by using our reason but in itself it is created by god. And because of the participation of god in us, we might know lex naturalis. (Same in the discussion of Aristotle (even if there are fifteen centuries between the two) but said in a different way (here we find a more religious explanation)). peace how is it possible to have peace: the answer given by hobbes is very clear: by using law, but when he said lawhe means power hobbes’s thought is very much founded on the new scientific revolution now we add a different kind of anthropology no more zoon politicon but homo homini lupus we are one against each other who is with me is my enemy. it is impossible for me to have dialogue to search for truth because we have space for truth until we have reason but in this view the main place is for will and once you reduce men to will what you have is a struggle the only way to find this is to create a powerful power greater than the one you may have in order to oblige you to respect law to respect law is no more a matter of reason but a matter of will, i don’t trust the law anymore but i obey it because i am obliged from the power of the state and against the power of the state there is nothing i can i do i'm here to obey only, no room for discussion no room for questions just obedience for several reasons this is the idea of law that we still have today from a certain point of view thomas hobbes is one of the main modern natural law theorists what in italian we call jusnaturalismo moderno modern is the key because aristotle and saint thomas can be considered natural theorists but thomas hobbes locke rousseau are modern natural law theorists because they have a very different account of power anthropology and more and thomas hobbes is at the same time from certain point of view the first legal positivism since he was the first one who said authorities non veritas facit legis in order to obey the law you don’t need to share the law what saint thomas said is that you need to share the law, you need to believe in law you need to ask is it lex iniusta or not and then you obey it also if you say it oh it is unjust but for me is better to obey the law but you still had the question and you know the answer in these views you cannot ask about law the question you may have about law may be about the existence of law so it is a matter of validity but when it is considered valid you need to obey auctoritas non veritas facit legis it is the authority of the state no more truth means no more reason because when you have truth you need to have reason and once you are in a rational domain what you do it is to search for the truth before entering hobbes explanation about the nature of the state please remember that in every kind of modern natural law account we have a very similar scheme that is followed by locke and rousseau they believed and we will see what is different between the three in the existence of the state of nature the state of nature is something that is before the political state or the state and the state is created by us how is it possible for us to create the state by using a contract what they call social contract one of the main books by rousseau is called that way (social contract) and what is a contract the main tool we use in the legal domain and it is based on our will so state of nature social contract political state this is avery general frame which is common to rousseau hobbes and locke despite in their explanation on the state of nature and the differences between the 3 models of the state locke is for liberalism hobbes for absolutism and rousseau is for democracy and then there is an other thing in common i already told you, the main thing for me is that they all prefer individualism men became individual this is the main in my opinion difference the modern and classic account of natural law theorists in the classical there is zoon politikon we cannot live as individuals there is a certain kind of natural relation between man and man among us and it is natural because we don’t decide it in the other conception we are individuals for sure something we call society or society or state exists but is created by us it doesn’t exist in nature it is artificial and so we understand that it depends on your idea about mankind in order to justify the certain type of state or another so since hobbes has the very worst idea of men the state is bad if you were more optimistic like grotius and hobbes whosay we have a sort of appetitus societatis we search for societas ok the state can be better than it is in hobbes but to have appetitus societatis it is a characteristics of individuals it doesn’t mean we came back to the zoon politikon model don’t make this mistake to have appetitus societatis is always an individual matter it means that we as individuals search for societatis but the starting point is still the individual ok? i tell you that for sure you may think that for example that if you don’t want to accept absolutism a good move is to opt for liberalism they seem to be one the opposite of the other from a certain point of view they are but the difference between absolutism liberalism and democracy too can be only a false difference something that seems to be but isn’t of the anthropological model they all have individualist approaches so it's a matter of decision everything is about the use of will we will see that by reading locke So Thomas Hobbes in de cive Hobbes is very clear what is the natural condition of mankind in this kind of state of nature: we are all equal so the beginning is not so bad we are all equal no? i think by reading the first sentence nature has made men so qual in the faculties of body and mind what does it mean: that we are all equal as to the strength of body immediately the main condition is men is explained by looking at strength so immediately understand that the main topic he has in mind is a matter of power because trent is what we may use of our power in the natural condition we are not equal because of reason but because of strength and basically it is about the physical strength but even the weakest has enough strength to kill the strongest: they can use machinations, a confederacy so we are all equal because we have the same strength and so we live in dager, why do we live in danger because nature has given everyone a right to all jus in omnia in the state of nature there is no state there is no lawmaker we all live by having the same strength and by having jus in omnia that is it was lawful for every man in the state of nature to do what he would and against who he saw fit and to possess use and enjoy all what he would or could get imagine that we are in the state of nature i like this computer i want it but i don’t ask for permission i just get it you want it you get it the best way is to find someone weaker and this is the way ius in omnia means there is no rule at all there is just one: the use of strength and you cannot tell me but it’s mine because of the civil code and property, since there is no rule at all now because what man would he puts it to him because he wills it what is good i am the measure of my will no more lex naturalis reason bonum commune no what i want it is what it is good for me and to the protection of my life obviously it follows that in the state of nature to have all and to all is lawful for all i can do whatever i want and this is that which is meant by saying that nature has given all to all and we understand likewise that in the state of nature profit is the measure of right in this situation is peace possible? why not? because there is no reason and it is impossible to trust anybody since we bothhave jus in omnia how can i trust you it is impossible because what it is possible it has that you will be under my strength and power until i will be stronger than you it is just a matter of time, sooner or later by secret machination or confederacy you will become stronger than me so it is impossible to trust and it is for that from equality diffidence is born if any two men desire the same thing that they cannot both enjoy they become enemies this is the anthropological background we are all equal but it means that we are all enemies. and from diffidence we have war since there is no way for any man to secure himself there is always war of every one against everyone omnium contra omnes during the time men lived without a common power to keep them all in line they are in a condition of war but pay attention the nature of war doesn’t consist inactual fighting it is worse it consists in the no disposition and no assurance: i can not feel safe to know what to have an actual war fighting with a gun it is better because i know and see my enemies but in this state of diffidence in this state of not actual fighting it is worse i cannot feel safe ever it is impossible i cannot walk thestreet without feeling danger because there is no assurance of the contrary i live all my life just with one feeling: fear this is why and this is just a good suggestion to remember the nature of the state of nature the main color of this state of nature is white because while you feel fear you became white, this is the main passion in the state of nature: fear please consider that it seems very pessimistic maybe but is also for granted fear is one of the most powerful passions absolutism is a political model based on fear it is so strong that you may think that if you live in an absolute state first of all we will see it fear will not disappear you feel fear continuously and if there is no enemy you need to create one just to try to read the world war with this is view you need an enemy to justify the creation of an absolute state without enemies this kind of model doesn't work anymore and you know it is very easy to find enemies more than to find friends and remember that in such a state of war nothing is unjust this war of every man against every man makes it so that nothing can be unjust since the notions of right and wrong justice and injustice in the state of nature don’t have a place because law doesn’t exist in order to have law you need a power but you need a common power in order to have criterion on what is just and unjust and in the state of nature there is plenty of power but it is the power we have as individuals there is no common power but it is clear that we cannot live in such a place, we need to find a way to exist and solve the situation and obviously the main instrument is to use will to sign a contract and the passion that incline us to this is fear it seem a paradox: you search for peace because you feel fear not because you feel safe fear of what? fear of death so powerful is the fear of death that a certain point we decide to sign a contract to create something that doesn’t exist in the state of nature: a common power someone powerful and reason suggests that convenient articles of peace to which man could be drawn finally there is reason but reason is after fear after will in saint thomas we find will but it is after reason and based in reason in this model reason is based on will first of all man is characterised by his own will and then reason what does it mean? Does it mean that I use reason in order to satisfy my will? I want that ok. In order to take what I want I need to use the reason the model was very different in Aristotle and Saint Thomas, that is just? what is true? and then i direct my will in order my will to reach it now i want it so i don’t ask myself if it is right and just also because there is no place in the state of nature for justice injustice and so on i want and i use my reason in order to reach what i want: reason became an instrument i have no time now in order to go in that but basically what happens with the scientific revolution is more or less the same reason is an instrument and i use this instrument in order to describe the world to understand how the world works functions in order to become as descartes maître et possesseur de la nature the the reason of god and it is incomparable to our reason since ours is very tiny but there is a part of that knowledge guaranteed by reason where we are like god it is mathematics since in those we can think in complete way so now you see that you can have some trouble but he says god is matter of faith knowledge is a matter of reason what kind of reason? mathematics you will see how strong this belief is and so at the very beginning of the modern era there is a big division between faith and reason. faith became a matter of will i decide to believe i want to believe in the existence of god but at a certain point my reason will stop because it is something that cannot be said if you want to maintain reason you don’t need to deny the existence of god galileo didn’t but you say just say you cannot search you cannot explain the nature of god using reason, saint thomas is completely far from this point of view he used his reason, because there is a materialistic reduction of men from a certain point of view reason without faith is really really stronger than reason with faith because the reason with faith is something is something you could say oh i am not so sure about it it is better from a certain point of view to live metaphysics and to look at just the little part of knowledge but in that part of knowledge you will know everything you can use reason at a really high level you will become as a god the master of nature the master of the universe it is just a matter of time it is what we call progress voltaire would say one day everything will be better one day just use reason and gone without stopping one day it will be better and you know what basically it is it is better now or is was it better when we lived in the middle ages and died for a cold it is better now thanks to science the matter is not science but the background you have to reduce the materialistic reduction of the man of everything this is the matter now what we need to do is to find another bridge between faith and reason between will and reason they are not so distinct as we believe at the beginning of modern times so your liberty is the power you have to do anything which is in your own judgement and reason we shall conceive to be the utmost member so liberty is understood according to the proper signification of the world the absence of external impediments which impediments might have taken away part of manpower for want i want to do that my liberty is when i can do that but cannot hinder him from using the power left to him according to his judgement and reason shall dictate who he is the reason is dictamer ractioni and we see from a certain point of view we use the same word but with different meanings because now reason is under the power of will i use reason in order to realise my will i need reason to do that but it is after i already told you and this is what heidegger explained to us is that this kind of explanation about the nature of liberty it is really short probably you believe that our library can be measured using the power we have but that is wrong do you remember why if one day you remove all the impediments you have then no more liberty guys you need an impediment and then you will use the power to remove the impediment but one day you will remove all the impediments you may have and that day your liberty will die the liberty is the use of power again the mechanistic account of men we are free until we can use power and this is what i told you before the most interesting thing we have now it is that reason is used to use up a power but which kind of reason the one explained by science when a man reasons he does nothing else but consider a sum from addition to subtraction and these operations according to hobbes are something that can be done by arithmetician, geometricians, logicians but also from writers of politics who have factions to define man’s duties and lawyers who needs to find what is right or wrong in the actions of private men by having a sum between laws and facts what is legal reasoning according to this view to the one of modern legal science and mainly the view developed by legal enlightenment by Cesare Beccaria for example by Jeremy bentham for example it is a sort of mathematical operation you have law you have fact and you need to combine law and facts in order to see if someone for example is guilty or not there is a major premise which is the law there is a minor premise which is the fact and legal syllogism is simply the assumption la sussunzione in italian of the fact into the law and then we have the conclusion of the reasoning which is the decision of the judge it is a sort of mathematical operation because if you want to use reason this is the basic belief of the modern time if you want to use reason you need to act as a scientist it is not by chance that the department in which we are now is called department of legal science not legal knowledge or legal jurisprudence or legal prudentia but legal sciences in what matter whatsoever there is place for addition and subtraction so mathematics there is also place for reason and where these have no place reason has nothing there to do so philosophy ethics justice nothing to do with reason just a matter of opinion now you see when and why a very bad account about for example philosophy about for example in philosophy the rhetoric relation between morality and law was born because at a certain point we decide that it exists only one form of reason one given by numbers the reason has nothing at all to do with philosophy morality ethics and all the discussions we may have about justice or god, remember it is a matter of faith you can believe justice exists but in the real world it doesn’t there there is just the power of the state and the use of the power of the state is a legal matter not a moral one what i can ask the state is to manage the power without surpassing the boundaries of the law it is matter of validity not justice and this is why hobbes says it would be better for moral philosophers to use reason and again in this conception it is clear that you have a bad reputation of rhetoric (slides) is or isn’t this the idea of rhetoric we have nowadays rhetoric it is abou eloquence it is what lawyers use in a courtroom to put in the judges’ eyes a bit of fog you know because you know because i don’t want that you will know the truth i want you to believe me and i will not tell you the truth because i know my client is guilty i want to make to build up a different kind of images a new world which doesn’t exist and you will believe me and i am able to use language and act in public thi is the same opinion athens had of socrates he was a very good speaker but doesn’t tell the truth, this is the idea of rhetorics hobbes had because this is the idea and this is the idea of rhetoric we have this is the modern account of rhetorics a certain kind of eloquence we use but nor to search for truth but to search for a certain kind of personal benefit to mask things to change reality it is not rhetoric you know what rhetoric is what is the name of this kind of bad habit: sophistry there is a distinction and sometimes we forget it 3/11/2021 Professor Florin Coman-Kund, from Rotterdam University, Master in International and EU law. comankund@law.eur.nl RECONCEPTUALISING EU SOFT LAW INSTRUMENTS FROM A LEGAL- ARGUMENTATIVE PERSPECTIVE EU have only limited powers, given by State. The Eu do not have strong competences in every field, so in some areas it operates with soft law instruments. They are recommendation, not binding. CURRENT SITUATION: CRISIS European Union governance has been relying for at least a decade for more than 10% on soft law instruments. Yet, the intensity of enacting soft law instruments, particularly by the European Commission, has never been higher than in the first month of 2020 after the outbreak of the COVID 19 pandemic ( about 60% of the COVID 19 related to EU legal instruments) Soft law enacted are deemed particularly suitable to deal with the complexity and diversity of European affairs in a rapidly changing emergency situation. CONCEPTUAL ISSUES ● Legally binding/ legally non-binding acts/instruments (Art. 288 of the Treaty on the functioning of the EU) = founding treaty of eu. they make this kinds of deisions ● Soft law and hard law (bindingness as a matter of degree) basically hard laws are legally binding and soft law not legally binding but this is not totally true because they have some effects. ● Sof laws as a contested/legally ambiguous category There is a famous international lawyer that says that soft laws are bullshit but it is not totally true, because it depends on the situation which they apply. Ex. The commission is very happy to apply soft laws in competition. Formally they are not binding, nevertheless the court says that they dictate some behaviour for the companies. EU SOFT LAW INSTRUMENTS ● Easy to adopts ● flexible ● Might arguably entail far-reaching consequences due to their contentious capacity to produce legal and practical effects despite their legally non-binding nature (art. 288 TFEU) Questionable hardening of Commission soft law instruments, raccomandati on, same pattern observed during COVID pandemic. ● Suffer from legitimacy instruments, the Commission cerate rules by themselves without questioning the legitimacy of those norms ● Imbalance between their formal non-binding status and their actual intended meaning/effect. Disguising genuine binding measures?? According to the art. 288 They cannot review these instruments because they are not legally binding, therefore they are not substantive laws. Belgium vs Commission 2016 ● Problematic legal review ● Likely to affect legal certainty and raise issues of institutional balance, as well as issue related to the limits and exercises of Eu competences. EU COMPETENCES EU soft laws instruments in pandemic times remain vital as voluntary instruments prompting quick responses to an emergency crisis situation, if only in view of the light EU competences In the ares of public health (Arts Arguments should be reasonable; identify, understand and avoid arguments that manipulate and induce compliance through fallacious means; arguments should convince due to the relevant and sufficient evidence, not due to their power for manipulation (a) Precise criteria need to be developed to identify fallacious arguments (b) A typology of fallacious arguments applying to EU soft law instruments needs to be developed (evasions of the burden of proof, fallacies of omission, false dichotomy, uniformization proposals, etc.) - E.g., in the preamble of soft law instruments the Commission acts as if the Member States and the EU, just by acknowledging the same problems, also share the idea that certain coordinated action needs to be taken (cf. Recommendation (EU) 2020/518 on a common Union toolbox for the use of technology and data to combat and exit from the COVID-19 crisis, in particular concerning mobile applications and the use of anonymised mobility data) Conclusion It has yet to be tested whether the current EU (Commission's) soft law instruments are a credible long-term arrangement. The Commission seems to take a short-sighted strategy by adopting fast but problematic soft law instruments that lead to more credibility loss. Experts recommend more monitoring by the Commission and reporting by addressees to ensure compliance, but nothing to the Commission itself to improve its own instruments The effectiveness of EU (Commission's) soft law instruments should not depend so much on their 'hardened' ambiguous status, but on their capacity to act as argumentative tools persuading addressees to adopt the desired course of action. 09/11/2021 The main idea about individualism: individualism is at the base of the state and so what we call community is made by ourselves and, according to Aristotle, we need to speak of community (SOCIETAS for polis) which is made ‘of’ us and not ‘by’ us. This distinction is of great importance because of the fact that one thing is to consider the State given by nature, as Aristotle does, another thing is to consider the state something like a program of our will and reason. And then, the speech of reason parts in a very different way from the way by which Aristotle or St. Thomas consider reason, because what we have now it’s because of the scientific revolution. It is very clear in Hobbes. The last time we saw what Hobbes thinks about reason and it’s the same for John Locke who is an empiricist: empiricism is the main scientific approach by John Locke. Thomas Hobbes considers that we are all equal in the state of nature which is the natural condition of mankind. Aristotle says that “the man without the state is like a god or a beast”, for sure Aristotle didn’t know Hobbes, wdk if Hobbes knew Aristotle, but Aristotle was right: without the state the man is like a beast. Because there is a very typical legal situation which is that everyone has what he calls IUS IN OMNIA (right in all) and so what is good it’s what it seems good to be because I want. As you see also in this very basic account of the state of nature, will is the most typical identity of man, not reason. We use reason in order to realize our will, we use reason when we need to decide what to do and what it is better for us to maintain (it is what is called IUS NATURALE) but reason is under will. In Saint Thomas we meet will, but first of all we have reason. It is very clear that it is a very different account because it is to say “first of all I use reason in order to know what is good, what is just, and then I use my will”. Saint Thomas says that “first of all law in itself is a measure of reason” well, not in this case. In this case, at the very beginning what we need is will. I do what I want or I do what I want until I have the power to do that and that’s why sometimes I need to have a confederacy with others. From this kind of equality for sure what we have is diffidence. We cannot trust everyone. Everyone is or could be an enemy and this is what diffidence is, this is why from this kind of diffidence we have war. BELLUM OMNIUM CONTRA OMNES. It is a condition which is not about an actual biting. We cannot live in a very peaceful and safe way, one day or another for sure someone will knock my door and will ask me what I consider to be mine and I’ll learn that that thing is mine until I have the power to defend it. Nothing is unjust, because in order to have a criterion to find the difference between what is just and unjust I need law, but in order to have law I need a common pact. None can be considered to be a lawmaker in the state of nature because we are all equal. I will not accept any kind of rules by someone else that is like myself and this is why I need to create this very big power, the most powerful man in the world, which is the Leviathan. Where there is no common power there’s no law and where there’s no law there’s not injustice. In this kind of situation fear is my main action. Because fear is one of the most powerful feelings that we have; because of fear we have to search for peace and in order to do that we need to exit the state of nature the only way we have is to use our will. The contract is signed with myself because I cannot trust you, because what you want is what I have and so how is it possible for me to sign a contract with you? It is impossible according to Hobbes and so what I do is to give the leviathan the state and the power I have. What I told the state is “please, try a way to maintain the society in peace and I’ll do what you want” (AUCTORITAS NON VERITAS FACIT LEGEM). The main justification for law is will. I need to obey, we need to respect what our lawmaker says and we cannot discuss it. In such a kind of legal picture there is no space for LEX INJUSTA, unjust law is something that we may meet, we need to see if the law made by lawmakers is against LEX NATURALIS or principles, but it’s clear that LEX NATURALIS is that part of LEX AETERNA which is not made by us and what we call nowadays principles are only considered by us, but are not created by ourselves. We don’t need a constitution in order to recognize a principle, but in order to legally enforce the principle, it is different. In this kind of conception, you cannot ask about that. There doesn't exist any law outside the law which is made by us, what happened is that from a certain point of legal history it became the only account of law. LE CODE CIVIL (1804), promulgated by Napoleon, was considered to be the only source of law, you cannot search the law outside the code. This is the main difference between the modern account of law when I look only at legal history and for example what I meet in classical ages or in middle age. The modern account of law is that the law is made just by one subject, the state, and there is no law outside the state. In Hobbes the state is the leviathan, we created it, it doesn’t exist in nature, it is called HOMO ARTIFICIALIS and is a bit paradoxical because this kind of man is the only one who has the IUS IN OMNIA. The main natural feature of man in the state of nature now is the main feature of the homo artificialis. In the cover of the book written by Hobbes the leviathan has the sword and the pastoral staff, this means that he has the power to decide everything (I am free until I have the power to do what I want). Fear doesn’t disappear, we feel fear of the state and the leviathan needs our fear because we don’t change our nature, we obey the law because of the fear. When you are in a legal domain someone can ask you to obey the law and she or he has the power to oblige you. What we lose is the possibility to believe in law, I don’t need to share law to obey it. If I say that the law is just it means that I share the law that I decided to obey, it doesn’t make sense to ask about law, what we need to do is to know law, and it’s enough. This kind of model is wrong because it forgot an important part of man: we need to ask about things. When we obey the law without sharing it, it is very hard to maintain it. Soft law is about that, it is not a legal product because there is no power in there, but is a sort of reason and will. The assumption of the lawmaker is that sometimes it can be better to ask you to maintain the law without being obliged. It is easier to ask you to respect the law if I have the power to sanction you. Pay attention: each state is a leviathan. And so, what Hobbes didn’t see is for example the international level. We created a sort of state no more between a man and a woman but between states, we use contracts, treaties, but it is the same. We decide not to give to other nations or to the European Union all the power we have, because in order to be recognised as a state we need to maintain a certain level of power, but a little part of that we give it to this HOMO ARTIFICIALIS. It is so strong that we believe it in order to escape this kind of trouble that we find in the absolute state because it is not such a good way of living, to keep feeling fear and to not trust others. This is the model that we find in communism, where leviathan is the party, I don’t need a man any more, I need a sort of abstract body (the party) and so we think that the main way to escape absolutism is liberalism. The cold war is a stunning example of that. USSR (communism) vs USA which is the best example of liberalism we have. Hobbes gives us a very exact portrait of men because we are made of fear. From the epistemological point of view scientific reasoning became the only way that we have to conceive reason. John Locke The period is more or less the same. John Locke was an English man, as also Hobbes was, and at the very beginning of his life, again his life as a political scientist, John Locke wasn’t a lawyer, he was a doctor, but he was always interested in political matters and he knew a lot about them. At the very beginning of his career, he believed that the Hobbesian account of the state was right. He believed that absolutism can be considered a good account for political thought. Then he changed idea. He moved from England, he went in France, in the Netherlands, and he went back in England after the glorious revolution and this is when he changed his idea, because of his religious thoughts he wrote a lot about tolerance, and after the glorious revolution, what he found when he come back in England was a different political situation, no more a civil war. Locke understood that it is possible to conceive a different natural status for the mankind, no more the HOMO HOMINI LUPUS model, no mor the BELLUM OMNIUM CONTRA OMNES, but a man who has what is called APPETITUS SOCIETATIS. It seems to be similar to what we found in Aristotle but it’s not the same. To have APPETITUS SOCIETATIS doesn’t mean that we are no more individuals, we are individuals, but we know that it is possible to live in peace. To search for others to have something, but basically, we are individuals. The main distinction between the state of nature in Locke and the state of nature in Hobbes is the idea that men live according to reason, there’s none superior to us, there’s not a political authority, but despite that, we can live in peace according to reason, to the law of reason. The law of reason in Locke is about Addition regarding the matter of feeling in the state of nature of absolutism and of the liberal state. While in Hobbes the colour of the state is white, representing fear, in the state of nature we also find the colour red, which symbolises shame. Locke was a puritan, the religious account is very important in Locke with regards to tolerance and having a good opinion on mankind, and this can also be used to understand why we don’t need a high degree of control by the state. According to puritanism – this can also be reconnected to a certain picture of American society, for instance – you act in a bad way not because of fear, but because of shame. One of the primary rules is that society should respect you, in puritanism the social control is very deep and constantly present. When you are in your house, your sphere, to a certain extent you are free to do what you want, but if you really are a puritan, you don’t do that because you are ashamed of the opinion someone else could have of you if they walked in on you. You don’t act in a certain way not because of the power of the state, but because of shame. Locke does not need a powerful leviathan to avoid behaviours because he believed that, by myself, I can avoid what I think is bad. Addition regarding fear: Thomas Hobbes justified the need for a Leviathan because of fear. It may be possible to make a different kind of reasoning. Hobbes was right: if you want to establish an absolute state you need to create fear; when you feel fear it is easier to have an absolute power. No matter what you decide, the most important thing is to live peacefully. There is a strong relation between fear and absolutism. From fear to Leviathan, and from a practical point of view fear can be instilled to obtain absolutism: this is what happened during the Cold War. Liberalism can be dangerous as well: we need to escape capitalism. The last natural law theorist presents a third opportunity. Rousseau Jean Jacques Rousseau is best known for his support of democracy. Rousseau lived through enlightenment and died before the French revolution, even though it shares several of his ideas. Rousseau was born in Switzerland but spent his life in France. He has a very different theoretical approach than the ones we found in Hobbes and Locke, but the structure is still the same: state of nature, social contract and the creation of the state. In Hobbes the state of nature is an hypothesis, in Locke it still exists and we want to stay in it, Rousseau has a totally different approach. Even though Rousseau lived through enlightenment, he is not a man of that century; he had a much more romantic approach to nature and mankind. Romanticism was explicitly against enlightenment, with a strong emphasis on feelings, passions and so on. The romanticism of Rousseau is pretty clear in what he says about the essence of the state of nature. According to Hobbes in the state of nature we live in bellum omnium contra omnia, we are all enemies; according to Locke in the state of nature we live peacefully. When Rousseau speaks of nature he means something different from Hobbes and Locke; he is speaking of sth similar to what we now believe to be nature: a peaceful world. When we discussed the difference between physis and nature, we said that physis is not nature in a static way, but it is what is going to be, it’s a dynamic concept. Nowadays the conception of nature is a world without mankind (it may be referred to the concept of locus amoenus). When Rousseau refers to the state of nature, he is thinking of something similar. When we are in the state of nature we were like savages, this is the idea Rousseau has of individuals. “Let us conclude that savage man (bon sauvage) wandering about in the forests, without industry, without speech, without any fixed residence, an equal stranger to war and every social connection, without standing in any shape in need of his fellows, as well as without any desire of hurting them, and perhaps even without ever distinguishing 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 sentiment but such as are proper to that condition, that he was alone sensible of his real necessities…” This is the idea of man in the state of nature given by Rousseau, and this is the idea we have of nature. The savage man finds in himself all he needs, without knowing was and social connections, without speech. Now we see how big the distance between the classical and modern conception of mankind is. From the Aristotelian zoon politikon, according to which man is the only one endowed with the gift of speech, to the good savage of Rousseau, by nature we don’t need speech because we are alone. We are alone not because we cannot meet someone else; as a matter of fact, our passions lead us to meeting other people in order to satisfy them, but there is no fixed relation. Contrarily to Hobbes, in Rousseau’s state of nature we are strangers to war, we live in a peaceful condition. We don’t know property either. “In this primitive state, there were neither houses nor cabins, nor any kind of property, everyone took up his lodging at random, and seldom continued 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 their thoughts to each other.” It seems a really good situation, and this feeling is just as deep as fear was with Hobbes and as shame was with Locke. We live alone in a peaceful way, and when we meet another man or woman it is not a problem because we are always in peace, and we are always in peace because we live alone; when I search for someone else is because I want it, I need to satisfy my feelings and passions, but then I am alone again and everything is perfect. No war, no conflict, no disputes. How can I have disputes if there is no need for language? If I live by myself I don’t need a dialogue. Zoon politikon v bon sauvage. There we have the great division between the anthropological conception given by classical philosophy, and the modern conception. “Cogito ergo sum” is the same. That kind of being who is cogitans does not need any other but himself: ego cogito ergo sum. The cogitare of Descartes is not a dialogue. Descartes’ doubt is not the same we found in Socrates, who constantly searched for interaction through questions. Descartes is alone and knows that the best way to discover truth is through the method of mathematical sciences, with which I can have my demonstration by deduction moving from the basic truth which is impossible to not believe as true. The main truth Descartes is referring to is himself. I can doubt everything except one: it is impossible to put in discussion that I am having a doubt. I am, I think and until I think in this way I am. As long as I have res cogitans (Ego, myself) I have res extensa. In Rousseau it’s similar, but the explanation by Rousseau is not epistemological. Rousseau is not talking of a model of knowledge; he is talking of a model of man. The solution remains the same: we are alone, and it is a good thing because until we can live in such a kind of state of nature, we are happy. Happiness is one of the most important feelings we find in Rousseau; but one day we will lose our happiness because of property. [In this state of nature there is no fear at all because nature is good. This is the basic assumption of romanticism. Giacomo Leopardi, for instance, was one of the most important romanticists because he believed that Nature was evil; also the personification of nature is a typical way of conceiving Nature of that period. In this situation man is good, we are not animals (no homo homini lupus), this is the state of nature.] One day we will lose everything because of property. “The first man who, after 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.” What is believed to be a very good thing according to Locke – property – for Rousseau is the damage for mankind. We still are in the state of nature, not yet in the political state, we enter civil society because of the first man who said “this is mine and what we lose now is equality. In the very first stage f the state of nature we are all equal, as it was in Hobbes and in Locke: in Hobbes because of ius in omnia and fear; in Locke because of iura connata (property, life freedom); in Rousseau because there is no property. “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 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.” By looking at history, what happened during the civilisation of both Americas is exactly this: the Europeans arrived in a land with no boundaries and said, “this is mine”. But land is nobody’s, it cannot be yours, by nature we are all equal because no one is the owner. The planet belongs to everyone means that no one is the owner. Regarding the conception of property in Locke and Rousseau, we have two very different backgrounds: one was an empirical, practical man from England, the other came from the continent (Switzerland) and his philosophy is more romantic, more attached to feelings, not empirical. This distinction represents the two different types of philosophy we have. “Harmony becomes impossible. Forced to combat either nature or society, you must make your choice between the man and the citizen, you cannot train both.” You must make your choice between the man and the citizen. Harmony is impossible, because harmony only existed in the state of nature, and the state of nature never existed. It is not a hypothesis as it was in Hobbes, it is a utopia. Rousseau was the first political thinker to develop the concept of utopia. The state of nature is not a hypothesis because according to Rousseau we need to search for a way back to the state of nature even though we know that it is impossible, because we are citizens. It is a utopia because we feel nostalgia for something that never existed and that is impossible to reach. Both Rousseau and Hobbes were right, they are speaking of the way by which we are made: we feel fear, shame, we have nostalgia. We search for something even though it is impossible. In the end what we are looking for is harmony, we want to live in peace, no one is happy to live in an unsafe way or unsatisfied you want to change this state of affairs. Of course, we need to change mankind but we know it is impossible to go back to the state of nature. There’s plenty of political thoughts based on utopia. The theory of the permanent revolution is based on this concept by Rousseau according to which every revolution enacted to reach a better, more equal world will inevitably end up being unequal and lead to revolution after revolution. Plus, it is not by chance that only four years after Rousseau’s death the French revolution outbroke, and the French revolution is deeply connected with this kind of ideal, and in this context, dissent was silenced with death penalty. This is really coherent with the basic assumption that in the state of nature there is no language, language and dialogue are made by us. Now we see why dialogue is a transcendental structure because here I choose dialogue not because I want to talk with you, but because by myself I am alone. Dialogue is just an option, and sometimes it is better to live in a society where you know that instead of dialogue you have a guillotine, it’s clearer. Nowadays the solution is the same, we no longer have a proper dialogue because Rousseau had a very huge problem. Imagine that we are able to create such a kind of political state, that we change the nature of mankind and become a homme dénaturée, a denaturalised man, we cannot be man in a political state, we can only be citizens. One or the other, we cannot have both. Huge problem: imagine that we change the nature of mankind, we obtain a denaturalised man, a citizen. You cannot have both man and citizen. But once in a democratic state, how do we decide what is good or not, what is just and unjust? Now it is better than when we had a Leviathan, the Leviathan decided whatever he wanted, auctoritas non veritas facit legem; now we know that we have the power altogether. The problem we have in democracy is that we have to decide by ourselves, there is no Leviathan. We are the numerator of a fraction, and the main conception is that my idea is equal to everyone’s (in reality, the French revolution was made by the bourgeoisie, not everyone voted at the time), but the problem still remains. Who can decide? This is the matter of the general will. 11/11/2021 Recap: As I told you yesterday, in the state of Nature we live in a very good way because basically no trouble between men, no speech, no war, no social connections. We alone are sensible of our own necessities, we are like savages, good savages (le bon sauvage). In this state there is no such thing as property, but we are in trouble in the moment one (the first civilised man) says “this is mine” and this historical moment marks the shift from the state of nature to civilised society. What happens is that individuals lose their equality and the self-love (amour de soi) they used to feel is replaced by selfishness and greed (amour propre). According to Rousseau amour propre is a bad feeling because unlike amour de soi does not lead to happiness. From that moment, men try to build up again the unity that in the state of nature was made by individuals. By contrast, now in the new body of the State unity consists of the society and men count as the numerator of a fraction. By accepting the social contract, men change their nature, they become hommes denaturés. You can either be a man or a citizen, there is no middle ground, you have to choose because you can’t have both. They stop being men and they become citizens. Citizens and the concept of Citizenship are artificial, they do not exist in nature. According to Rousseau, the state of nature never existed, it is a utopist idea of life. And by definition, what is utopist is beautiful and perfect but also unattainable and impossible. Jean Jacques Rousseau identifies the condition of the citizens inside the state as a condition of perpetual alienation, the alienation of our rights to the community. Alienation is also an alarming psychological status. The reason why we are alienated is very simple: if we want to live in a state which is impossible to reach, a state of perfect equality, a state of happiness, we cannot help but feel alienated. The social contract has different clauses but the most important is definitely the total alienation of our rights to the whole community. In Thomas Hobbes we saw that the social contract implies that we give all the rights we have to the Leviathan, who will be therefore the owner of our rights, the sole owner of the ius in omnia. In JJR it is different, here the two components of the social contract, the pactum unionis and the pactum subjectionis are merged in the pactum unionis because being citizens means giving all the rights we have as men to everyone but at the same time we are the owners of everyone’s rights as citizens. The conditions are the same for all, therefore the community recreates equality. The alienation is absolute, the unity is perfect and each associate can ask for nothing else because they already have everything. Society is made by us. We are the Leviathan. It is impossible to escape the social contract and to live alone. Social Contract: “Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole''. Society is a moral and collective body. Marta Nussbaum: The idea of Rousseau can also be regarded as a religion under a certain point of view, a civil and moral religion. The state has the duty to take care of us and we need to believe in the state, we need to have faith in the state. Those who are associated in the social contracts are not individuals anymore, they take collectively the name of people and they are citizens. We created the society, the assembly and we vote for that and it is by this kind of mechanism that we can express our decisions, our will, our identity and life. In the state we are both citizens and subjects: we are citizens because we all share the sovereign power, but we are also subjects as we are under the law of the state. The problem is the general will, each of us submits to it. The best thing would be if the General Will were the will of everyone, but unfortunately it is not. It is impossible to have the total will, the will of everyone. From a philosophical point of view, the general will is the will of the party who understands, we may say, what is the common good. Therefore, when we look at the general will, we may think that it is the vote of the majority that binds everybody else. The citizen gives his consent to all the laws and he is punished when he breaks the law. In our society it is possible to live under a law whose content we do not share. “Therefore, when the opinion that is contrary to my own prevails, this proves that I was mistaken, and that what I thought to be the common good, it was not so in the end. Whoever refuses to obey the general will shall be compelled to do so by the whole body, the punishment for going against the general will is death”. When I vote, I think that what I’m voting for is the common good, not only what is best for me but for society as a whole. However, if I am in the minority, I must be wrong. This reasoning is perfectly coherent with the idea of general will and in order to survive you need to change your mind. Those who don’t want to change their minds, will be “forced to be free”. They will be forced to be free because, since it is by virtue of the general will that we are citizens and we are free, being free means to accept the general will. It may also be a paradox, after all how can I be free if I’m forced to comply with a rule I do not share. Still, it is coherent with the idea of general will and of state provided by Rousseau. As it is impossible for a man to escape society and the social contract, it is impossible for a citizen to escape the general will. Marta Nussbaum: “to keep citizens united and to establish egalitarian institutions, the most intense bonds of sentiment inspired by love for the homeland are required”, which we could summarise with a very redundant concept, because of its recurrence, that we may find in 1984 by George Orwell. I’m referring to the idea that “you need to love the state”. Your obedience and your faith are not enough, it is not sufficient that you obey the law and believe in the state, you need to love the state. The question is: How do I show that I love the state then? What is the proof of my total and unconditional loyalty to the general will? The answer given by Rousseau is: unanimity. Because you see, unanimity means precisely that everyone loves the state. But why is it so important to love the state then? Because if you love the state, you love yourself. By loving the state and by respecting the -right: this means asking whether the norm reflects higher values or certain ethical ideas. But the problem is that where there are public parameters asserting the first 2, we cannot say the same for justice, there is no general consent on justice, this is why individual opinions are divided by ideological contrast about justice. Each of these criteria has its own area of legitimacy. The problem arises because the different conceptions of law represent the relationship between these types of evaluation of law in different ways. In particular -natural law: theory of law that reduces validity to justice. -legal realism: theory of law that reduces validity to effectiveness -legal positivism: theory of law according to which validity, justice and effectiveness are independent and are not reducible criteria. This tripartition is a model theory to begin to understand the problems of philosophy of law. depending on the boxes we find different visions of the law, different legal approaches. Schematic definition of the conceptions of law 1. natural law: reductionist conception, according to which a norm cannot be legally valid if it’s not also correct (just). The most extreme form of reductionism is simplified by saint Augustine, in particular in a very short passage from the city of god. In this passage he draws a parallelism between the ruler and the thief. If justice is not respected, what are the states but just large bands of thieves? The states are connected to something which is very morally wrong. Saint Augustine said that even the bands of thieves are still small states; it is still a group of individuals that is governed by the command of a leader and governed by text – applies laws by convention. Pirate example: according to St. Augustine, there is a parallel between the pirate (thief of the sea) and the ruler, in which they are both thieves but what is different is that the former used a small ship and the latter is a leader with a large flee, but according to St. Augustine, state investiture does not matter, because if you do something wrong the state investiture will not save you. A convention/idea of the same type is found in Gustav … He renovated the conception of natural law. very important because he created a new formula to express the distinction between legal rules and non-legal rules this formula is based on reductionism that natural law reduces law to justice. Different elaboration of his formula -first formula: positive law, which is the one that comes from legislation, takes precedence even when the content is unjust unless the conflict between a state and justice is so intolerable that the statute becomes flawed law. So the law found in legislation is always valid unless the conflict is intolerable, in that case flawed law. The second elaboration of this formula is an integration of the first statement: the core of justice must prevail - when in the law there isn’t even an attempt at justice, when equality which is the core of justice is deliberately ignored, the statute is not law, because it lacks the very nature of law. so positive, written law, cannot be defined as a system, as an institution, if the meaning of law is not to serve justice. This is the main idea of reductionism. The second elaboration integrates the first one, they are not contradicting; the second one is simply just a clear application of the first. Natural law doesn’t deny the existence of positive law. It demands that positive law should conform to a higher order of values, so while for legal positivism there is only one positive law, for the school of natural law there are two levels: level of positive law and level of ideal law. This distinction emerges very well if you read article 2 of the Italian constitution: the law must recognise the inviolable rights of the person. The law recognizes something pre- existing. Natural law models don’t imply that any dissonance, any contrast between positive law and the higher ideals automatically gives rise to the invalidation of unjust law. invalidity is the consequence just in most dramatic cases. Not every unjust case causes the nonexistence of norms. Discussion on vaccines: an argument can be that it’s not correct to impose vaccines on people. It could be unjust but you can’t invalidate it. Because there is no general consent on what justice is: different from countries, cultures, people. The idea for which it’s possible to know ethical values, ethical cognitivism is weak. Dissenting opinions on justice are always possible and this is why you can’t say that unjust norms are automatically invalid. Natural law was born from a conception of an ordered world in which each man is a social animal living in a community who then decides to sign the social contract to eliminate the conflicts. Natural law tradition connects the concept of justice with the concept of rationality. The problem is that the dissent on justice is universal: not possible to create a general agreement on justice 2. legal realism: it’s again a reductionist theory, because realists think that the only valid rule is the one that exists in fact. So just the effective right, the one that is respected by citizens and the one that emerges from the decision soft court and practiced of public authorities is valid – only effective right is valid right The majority of realists didn’t try to reduce validity to the effectiveness of law, but tried to eliminate from their vocabulary all their normative concepts, because they reflected something which is not in fact, which is ideal. They explicitly consider the legal language and all the normative concepts as ideological and totally inadequate for the investigation of law because the investigation in this framework must be scientific. They consider notions of norms etc. as deceiving ideas because they distort the reality of the facts. The only object of investigation is the reality of the fact: all notions that aren’t supported by empirical verifications are magical entities and therefore creations to be eliminated. The father of Scandinavian realism: metaphysics must be denied, avoided when it comes to jurisprudence. This passage also emerged in passages of another philosopher, Oliver Croner Law as fact. Quite famous because it describes the mechanism of legislation compared to an electric power station where the current is a product derived from the behaviour of the population. The behaviour of the population corresponds in the metaphor to the river current in the power station – transformed into electricity. The source of law is the behaviour of the population which is a matter of fact. The idea of the realist is that legal language must be completely rethought because the realist claims that legal language must discover the power, the power that is beyond the relationship. What is important is what happens in fact, and the relationships in fact are always governed by power. An important American legal realist, a lawyer: Jerome Frank, argued that legal certainty is a myth, and doesn't exist, because the generality of law, the generality of legal norms, is something which is completely abstract and considered to be an illusion. If we think about the law on the basis of knowledge which is a normative language, we can’t form reasonable expectations on the law (the jurist might change his mind). What is important is fact. Law depends on the decision of that court at that moment. What we need for correct decisions is empirical facts, we must talk about the practice not abstract legal rules. Legal rules are valid only if they’re effective. 3. legal positivism: the positive law is not a reductionist theory. It means that positivism doesn’t try to eliminate legal validity and replace it with another value, but it considers the three evaluation criteria in a distinct way: so the validity of the norm isn’t dependent on the justice or reduced to a factual situation. The first thing to know is that legal positivism as an approach to law keeps the criteria distinct and independent. Therefore, the legal positivist separates law from morality and existing law from reformed projects. There is not just one way to intend legal positivism. There are diff ways to characterize this approach to law and a clear definition of the three main conceptions of legal positivism is offered by Norberto Bobbio. He explained that there are different ways to be a legal positivist, at least three: -methodological positivism: we consider a particular way to conceive the function of legal knowledge. The legal positivist is characterized by a commitment: in studying law he must use a value free approach, scientific. Therefore, legal knowledge must be very objective: the aim is to consider just the actual law and not the ideal or natural law. -theoretical positivism: cluster of theories about nature of law related to a stateliest conception of law because it includes the imperative theory of law, so the ideal that the key concept is the sovereign/command. Includes the theory of legal crouches in which statute law