Philosophy of law - Puppo, Appunti di Filosofia del Diritto

Scarica Philosophy of law - Puppo e più Appunti in PDF di Filosofia del Diritto solo su Docsity! PHILOSOPHY OF LAW Norberto Bobbio (died in 2004) said that when we think about POL we have to distinguish between: · The one of the philosophers = it’s not made up by legal experts, philosophers study what law is from an ideal point of view. They study ontology, gnoseology, ethics by applying theories to the law · The one of jurists = jurists are not less than philosophers. POL starts from the needs of the jurist; they use the legal practices to understand what is POL METAGIURISPRUDENCE = over (meta) smt which is legal Something which is functional to learn to do = AIM of POL Ex: we know how to use a car or a computer but we don’t know what is inside -> how is it possible to be a lawyer without knowing what is inside the law ? POL uses the tools of legal tradition in order to understand law; its aim is to create free jurists as they are responsible of what is gonna be their job because they know deeply what is law ; POL is like a tool. jurists know what is inside the box. Gilbert Ryle pointed out the difference between : a) Knowing b) Knowing how Metaphor of the latter: POL is a tool useful for jurists. -Example of the unpaid motorway: in legal reasoning nothing is certain 🡪 Jurists’ method is skeptical: it means that they can’t take anything for granted. MARIO ROSSI’S STORY We start from the bottom and apparently it seems a normal story 1) Our life takes place and is intelligible within a network of rules = every word of the text is full of rules (name, money) 2) Not all the rules are legal rules ; legal rules are enforced by authorities ; social and good manners rules are not legal rules. If we start from a practical level we can distinguish legal from non legal rules without the civil code; the common sense says that there are rules Social rule, legal rule = turn off the lights It is not about the content of a rule, it’s about formality, structure. Unpaid motorway = in legal reasoning there is something which is not certain What is the criteria for which a rule is a legal one ? In the history of the legal thought there are some recurring elements: 1. Externality = a rule is a legal rule because it deals with human actions ; the law does not regard what is in the conscious of the human being but only what men do 2. heteronomy = rules are established not by myself but by external authorities 3. Coactivity = cohesion, obligation, assumption = there is a rule , a legal one, if I’m obliged to do something; it is related to the content of the rule and it is not distincting to recognise a legal rule. There are many rules that are without a sanction; there are rules that provide a reward. ‘The child must respect the parents’ : moral or legal? It is a norm in the civil code ; the content of the rule is moral but it is a legal rule. If the child doesn’t help the child, there is no sanction. Art.1 cost. It = there is no coercion even if it is a legal rule [ sanctionary theory ] coercion is not useful to individuate a legal rule. The element of coercion is not crucial because the distinction is not made by content but by structure. Legal system= wall made by bricks rules= bricks ; the bricks could have different qualities. The quality of them all depends on how they are related. The rule exists when it belongs to the legal system so when the brick is inserted into the wall, the content could be different Claudio Luzzati elaborated a theory about a rule belonging to the legal system. The evaluation criteria of the rule can be three: 1. Validity = a rule is valid if it has been produced by an authority with respect to the procedures . if a norm is in conflict with some higher norms, it is not valid. If a norm is declared unconstitutional it is not valid. Validity is a matter of procedure and competent source. 2. Efficacy = the law is effective if it is respected by citizens and it is applied by the court 3. Justice = the legal rule responds to certain higher values, something which corresponds to ethical ideas. The legal rule is correlated to justice if it is conformed to values. The problem is when we represent the combination of this criteria: there are 6 possible combinations. There are 3 main theories of law that explain this criteria of law. There is no chronological distinction but only conceptual because they reconstruct the criteria of evaluation of legal rules in different ways. 1) Natural law = it reduces validity to justice 2) Legal realism = it reduces validity to efficacy K. Olivecrona : Law in fact: all the legislation is a complex mechanism that can be compared to an electric power station ; the behavior of the population is the river currant in the power station; then the current is transformed into electricity and it is distributed into the territory. Power lies = law Source of legislative machine = river= behavior of the population Legal Positivism The most important theory of law is legal positivism; it’s not something monolithic but it is a possible way to define the different criteria of valuation of a rule. There are different kinds of LP. Legal validity is something independent from justice. For legal positivists: · It’s important to separate morality from existing rules · It’s important to separate valid law from effective law Bobbio defined 3 kind of Legal positivism: · Methodological positivism = the legal positivist has a commitment , it has to be value free and he has to adopt a scientific approach in studying the law; from this point of view we can call legal positivism that theory of law that traces a distinction between law as it is and law as it should be, between law as a fact and law as a value ; legal positivists approach the law as it is. · Ethical or Ideological positivism = there is always a possible connection to values · Theoretical positivism = it describes a class of theories that all include references to sovereign as the foundation of legal system Uberto Scarpelli says : Imagine a building in front of you, that building is the house of positive law. You are a positivist lawyer, if you decide to enter you can move in the hose but when you decide to enter into the house, you are making a choice. Make a choice = consider a value/ an idea / a moral commitment There is always a possible connection to values Law depends on the state Law must be treated in a scientific way = when we talk about law we have to avoid abstract considerations, we have to avoid our consciousness, our individualistic ideas of law Validity, efficacy and justice are considered independent criteria. Law as a liquid\fluid = in the practice it’s very difficult to realize what are the legal provisions that regulate a case. The reasoning is more important than the content of a law; argumentation is a way of reasoning LEGAL ARGUMENTATION Legal norms exist because they are directed to society. It is impossible to imagine a set of legal norms without society/subjects . The purpose of legal norms is to guide the behavior of subjects, preventing them from some actions. We can’t look at legal norms without looking at the same time at us; the legal question implies an anthropological question. How are we? What does it mean to be a human being? Often once you have a definition, someone is excluded. It’s the problem of ontological definition. If we look back, we can say that human being is : · Subject as a member of society = human being conceived as zoon politikòn (human being a political and linguistic animal) . Human beings who are in relationship with other subjects; this relation exists by herself, by nature. You cannot look at human beings without looking at this relation with other people by himself. The society or the state are not created by us, but it is we who come to be in a society or state that precedes us. Society is a set of relations and you can’t look at human beings without looking at these relations. · Subject as an individual = it was supported by sophists and will be the basis for the conception of the modern natural law of the 17th-18th centuries, conceives the relations between us , and therefore the society and the state, as created by us. By nature a human being is an individual, he lives alone, and relations are created by him. The state is created by us A) HOBBES : The basic idea is that the state is created by us( men in the state of nature) ; there is no political state but only a collection of individuals. The experience of each individual is bad, there is no justice, no rule, just fear. Homo hominis lupus B) LOCKE : he sustained the liberal state, the individual is different from the Hobbes’ one. According to Locke what we have by nature is what we call APPETITUS SOCIETATIS; we look for others but we are individuals C) ROUSSEAU : in the state of nature man lives alone; this is the typical modern idea about human being ; the myth of the good savage The relation between men and the state is created by us for different reasons : · Hobbes to escape war · Locke to maintain our IURA CONNATA (liberty, property, life) · Rousseau to manage consensus Robert Alexy, one of the most important legal philosophers says : imagine a state with a Constitution. 1 article = is it possible for a constitution to say that the state is unjust? By necessity every kind of legal norm claims to be correct. «Individual legal norms and individual legal decisions as well legal systems as a whole necessarily lay claim to correctness» (R. Alexy, Law’s Dual Nature, in Rivista di filosofia del diritto, 239). Massimo la Torre says that: “ Law is a set of norms - that is, of rules, principles and normative arguments - that claims to be correct: a norm that was not able to satisfy fundamental requirements of justice, which represented a case of intolerable injustice, would be defective (M. La Torre, ibid., p. 236)” We can’t accept the idea of an unjust law. Legal system must have a minimum of justice because if there is no justice we can’t accept a legal rule. Massimo la Torre adds that law is about searching for justice. If not, the jurist remains without orientation. He suggests that we can’t be jurists without looking at justice/ searching for justice. «Therefore the jurist, without some understanding of what is just, or what is unjust, and intolerably such, remains without orientation. […] The law cannot be stopped in the face of the non-cognitivist and Pilatesque “Quid est veritas?”. On that quid one must rack his brain, and try to identify an object or a principle. The norm without truth or correctness, the weakest normative truth, is unjustifiable» (ibid.). QUID EST VERITAS? Pilatus was wrong because once he made the question he didn’t look for an answer. Moral judgment can’t be considered real judgment. Everyone has a moral judgment but it’s not the real one, it’s only opinions. It’s impossible to answer the question in only one way because we can have different opinions. There is no justice, no truth ; that’s why Pilatus didn’t look for an answer. Veritas depends on us. If a jurist says “you are guilty” = it’s true, you can’t escape. “I like wine” “ the bottle is on the table” it’s true that the bottle is on the table. Every kind of statement / judgment implies truth ! you don’t need truth when there is an agreement. You need truth when there is a disagreement. The disagreement can be also explained as one of the main features of social relations. Massimo La Torre says that you can’t accept the idea of studying law without questioning law and asking about justice. DURING ww2 legal positivism said that we could define law without taking into consideration justice and truth. The discussion about justice is the discussion about law. After WW2 we discovered that considering law without justice can be a problem because the justification of law without justice is power. We as jurists cannot avoid asking about justice and law.. Thomas Hobbes said ‘ auctoritas non veritas facit legem’ so the law is made by auctority. The human being is a being that speaks. This definition was not invented by Aristotle… Already before Aristotle, the Greeks saw human beings as a being that speaks… When the Greeks said that the human being is a living thing that speaks, they do not mean, in a physiological sense, that he utters definite sounds. Rather, the human being is a living thing that has his genuine being-there in conversation and in discourses. The Greeks existed in discourse (M. Heidegger, Basic Concepts of Aristotelian Philosophy, 2009, p. 175). our living is always being there together. the human being is a living thing that has his genuine being- there ( mit da sein = essere con = to be in relation with) we live in a particular time, space, In the Rhetoric, we have something before us that deals with speaking as a basic mode of the being of the being-with-one-another of human beings themselves (ibid., p. 185). were born human beings in relation with the others. One of the basic aims of law is to protect the relations, the ones who are in relations but can’t speak (the weakests). the possibility of speaking against one another in being with one another is thereby brought about. The possibility of speaking-against-one-another in being-with-one-another is thereby brought about (ibid., p. 212). our being together deals with opinions, points of view therefore disagreement. What we need to do is to avoid disputes, therefore law from the model perspective needs to solve disputes. Heidegger is saying that being in a dispute is deeply connected with being in a society. It has to build up a technique which is able to solve disputes. The aim of law from a rhetorical point of view is to create a space and time in which parties can have a dispute according to certain rules. living peacefully does not mean living without dispute= living in a society presupposes contrasts between individuals. This is why Greek society is deeply connected with an agonistic dimension: agon (conflict) is not excluded by the political life of human beings, but it is part of it. Words can be weapons and the orator can build or destroy. the anthropological model is linked to the linguistic part of ourselves Man is more of a political animal than bees or any other gregarious animals ... Nature, as we often say, makes nothing in vain ( he is saying that nature has an aim ), and man is the only animal whom she has endowed with the gift of speech. And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state… the state is a creation of nature (Arist., Politics, II) human beings: ● have a voice ● discuss what it is just or unjust = animals say i do what i need to do. justice in nature does not exist. The state is a creation of nature. Heidgger said that human beings are to deinotaton. rhetoric deals with the matter of deliberation. rhetoric deals with how to live in society. In the modern idea, Hobbes says that in the state of nature we live like beasts ( homo hominis lupus). What is the subject of our deliberation? deliberation is something that makes sense. There is no deliberation about scientific knowledge. deliberation is about things like law, justice, as they are things that more or less happen in the same way. sometimes deliberation about how we can do things = it is something that deals with practical matter Do we deliberate about everything, and is everything a possible subject of deliberation, or is deliberation impossible about some things? .... Now about eternal things no one deliberates, e.g., about the material universe or the incommensurability of the diagonal and the side of a square. But no more do we deliberate about the things that involve movement but always happen in the same way, whether of necessity or by nature or from any other cause, e.g., the solstices and the risings of the stars; nor about things that happen now in one way, now in another, e.g., droughts and rains; nor about chance events, like the finding of treasure... For none of these things can be brought about by our own efforts. We deliberate about things that are in our power and can be done... And in the case of exact and self-contained sciences there is no deliberation, e.g., about the letters of the alphabet (for we have no doubt how they should be written); but the things that are brought about by our own efforts, but not always in the same way, are the things about which we deliberate. Deliberation is concerned with things that happen in a certain way for the most part, but in which the event is obscure, and with things in which it is indeterminate (Arist., Nic. Eth., 3, 1112) The relations we have in dialogues, conversations are not chosen by us but by nature. In the modern view we are modern individuals and the relationship is made by us. We can choose to be with others or to be alone,. rousseau said that in the state of nature we live alone. According to Aristotle it is impossible as we are political animals. living alone means to be exiliated in aristotle’s view. Hobbes stated that in the state of nature we are beasts. agon is not excluded but it is a part of ourselves. every being. logos are something typical of human beings. it means discourse, reason, something that deals with a dynamic way of reasoning and experience. To live in society means that we are always exposed to discussion about what we want to do or avoid, between the just and unjust. rhetoric is for this reason a way to being. When we deliberate, deliberation is about the things that are in our power and can be done. The problem is that things can be different, therefore we can have different opinions. In this case we deliberate. rhetoric is a matter of persuasion therefore how is it possible to persuade ? According to Aristotle persuasion is made by logos, ethos, pathos. logos is made up by the person speaking, the topic spoken about, and the person who listens. The speaker is the orator or one who speaks, mainly in an assembly. The topic spoken about can be the logos too. The person spoken about deals with pathos as when you speak you want to persuade the hearer. These three elements are the components of the speech. speakers and listeners are not the external users of the discourse. we believe that discourses are something said by someone to someone else.Logos (=speech) is constituted by three elements, by the person speaking, by the topic spoken about and by the person spoken to, and the objective (telos) of the speech relates to the last, (I mean the hearer) (Arist., Rh. 1358a 37-b1) We have the person speaking, the person spoken to and the topic spoken about: they are the components of speech (logos). And so, speakers and listeners are not external users, and are not external to the logos. In this way, the discourse seems to only coincide with one of its elements, the “message” or “what is said”. Instead, here Aristotle is saying something different: logos is not only “what is said” but it is made up of all of the three elements, speaker, listener and topic. Each of these plays a crucial role in building the speech that gains its real consistency only thanks to the relationship between these three elements. In this way, speakers and listeners can be considered as internal components and not only as external users (F. Piazza, Rhetoric as Philosophy of Language). Francesca piazza says that the listener is more important. I speak because someone is listening. Heidegerr says that this is true even when I am alone because I'm the speaker of myself . The most important role is played by the discourse which is made up of the three elements. the three elements come together. you cannot have one without another. it is impossible to have language without someone who speaks or listens. We are beings who speak and listen. rhetoric is always speaking ad alterum. it is not by chance that in the classical conception that aristotle says that justice is the most important virtue because it is ad alterum. it does not make sense to say you are just with yourself. you are only just with others. Law, Rhetoric and Justice are always ad alterum. speech is a public activity and it is a part of extra linguistic praxis. Having an extra-linguistic goal (persuasion), rhetoric makes it clear that to speak is always to speak to someone [AD ALTERUM]. Therefore, thinking about language from a rhetorical point of view allows us to emphasize that to speak is an intrinsically public activity and that it is a constitutive and inseparable part of an extra-linguistic praxis (F. Piazza, Rhetoric as Philosophy of Language.) The triad speaker, listener, topic is also the basis of the well-known triple-partition of the entechnoi pisteis (means of persuasion embodied in art or “artistic proofs”): ethos, pathos and logos. They are the rhetorical means of persuasion (pisteis) (F. Piazza, Rhetoric as Philosophy of Language.) Each of the three pisteis corresponds to one of the three elements of the triad: the first, ethos, is the proof based “on the character of the speaker”, the second, pathos, consists “in disposing the hearer in some way” and the third, logos, is the “argument itself, by showing or seeming to show something” (Rhetoric 1356a 2-5). The truth rhetoric is dealing with is never a universal and necessary truth but always a contingent and fallible one. This feature is strictly dependent on the nature of the rhetorical issues that are, using an Aristotelian terminology, issues that can be otherwise and have a for the most part regularity. These are those things that precisely because of their nature (and not only because of our cognitive limits) cannot be a subject of a stable and ultimate knowledge. The issues at stake in rhetorical discourses are, by definition, issues on which there is no agreement: the truth we are dealing with is, by definition, a precarious one, it is a truth always exposed to failure (F. Piazza, Rhetoric as Philosophy of Language). It is a matter of opinions. In rhetoric we may expect to find truth but we may understand what truth is. If the things you say are true I trust you. it is possible to make a distinction between emotion and reason but not a total separation. When we think of truth we usually think about an absolute truth. absolute comes from latin “smt that has no relations” . when we talk about the possible or impossible existence of absolute truth, we may say absolute like “unquestionable”. absolutely this idea is wrong. absolute means also ”smt that everytime we try to put it into discussion, it is impossible to deny it” an example can be the phrase “truth does not exist”. everytime you try to deny the existence of truth you use truth. Truth is not about fact. What is a fact? we have to distinguish between fact and event: event = everything we can see, prove ecc. fact = the true description of an event Wittenstein. Truth deals only with discourses or prepositions. A proposition is the meaning of a sentence, a statement, a discourse. We can have different statements but the same proposition. “a proposition is an affirmative or negative expression that says something of something”. [Artist,Prior An, 24a 16] Not every kind of statement can be true or false . every type of prescriptive statement can be true or false. “close the door!” is not an alethic statement. The descriptive statements are alethic. “close the door” is not a statement but the door is closed is. Law is made of prescriptions. legal rules are examples of prescriptive statements. a rule in itself has no alethic value but in law we use reasons in support of that. apophantic /alethic statements. 4 types of statements: 1. “ it rains” it has an alethic value 2. “whales are mammals” 3. the door is open or it is closed” 4. “to kill is evil” = it is not a good example of an apophantic statement because it depends. We usually think that this phrase is a moral judgment. it is actually an evaluation so it is a matter of opinion that depends on our opinion, education. The first two are apophantic discourses. The third is a tautology, it is always true. if it was “ the door is closed and open “ was a contradiction and it is always false. all the four are different example of different types of truth 1) contingent truth = a truth that is typical of empirical statements. They are called contingent because of the fact that they quickly change. today rains tomorrow it wont 2) extra contextual truth = they do not depend on the events of the world but by external knowledge. In that case it was related to biology, in ‘Julius Caesar was an emperor’ history. 3) logical truth or analytical statements = as it depends on logic. In classical logic, the logic that admits only two types of truth, this statement is always true. 4) controversial as the things we discuss can be in different ways; each type of truth depends on something external . the principle in itself does not count so much, the thing that counts is the argumentation. (Ex: abortion, pro life- pro choice). If everyone agrees and does not ask about the truth, terrible mistakes will come. Truth and certainty are not the same thing. Imagine considering all the coins we do have in our pocket. If we count the number of coins in this room, the number could be odd or even. We do not know the number of coins. But we may say that, since we don't know how many, if it is an odd number, then it is true that 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 numbers are odd or even, there is no certainty either way. So whichever proposition that the number is odd or even is true, is not certain. Truth? Yes. Certainty? No. He believed that whales are fishes but he was wrong. you can be sure of something but you can be wrong . you can’t be true of something which is false. Truth cannot depend only on what we think. The only way to know if a preposition is wrong or right is to discuss. if it depended really on what we think, it is impossible to change your idea because what is true is what I believe is truth. Truth by itself is something that needs to be discussed. Karl Popper said that it is impossible to know the truth. The best you can do is to approach the truth. maybe you can reach it, but you cannot reach it 100%. If truth was equal to certainty, I would have to admit that if I’m not certain of P,P is false. But it is not the case! imagine to consider this proposition P “There is life in the Universe”. May you be certain about P? No, you cannot. But it does not mean that P is false. Popper = truth exists but we cannot know it. The best thing we can do is to go near it. we need to search for it but we can never state that a statement is 100%. if we don’t know the truth how is it possible to say how near or far we are from it? Evranda Agazzi : Saying a statement that is true, it means relating it to something other than itself […]. This is what we mean by saying that to say that a sentence is true is to say something of a sentence, but in an incomplete way, as when we are stating someone's fatherhood. Being a father is, in a certain way, a property of an individual, but only insofar as this individual is in some relationship with other individuals […]. In exactly the same sense, being true is a property of a proposition, but only insofar as this proposition is considered in a certain relationship with something else [...] that must be understood as extra-linguistic, as belonging to the world […]. Truth is […] actually a relationship between a proposition and […] reality. it is true and it depends on something external. Truth is actually a relationship between a proposition and reality. there is always something external to the statement that makes it true or false. Popper argued that there is truth in itself, which is inherently unattainable, despite the fact that subsequent theories come ever closer to it in an infinitely asymptotic process. The misunderstanding here lies in having made the truth a thing, so that the cognitive enterprise is not a process that tends to know reality, but the truth. Now, while there is nothing strange in affirming that the enterprise of knowing reality can be an ideally infinite task […], at the same time it seems absurd to declare that we are sure to get closer to the truth even if we do not have the possibility to consider the knowledge of reality as a term of comparison, to ascertain if we have really come closer to it (Ibid., p. 450) What is Popper’s mistake? Noumeno is the real essence of a being according to plato; what we know is just a little manifestation of a being called phenomeno. we cannot know everything. How is it possible to say that we can’t know the truth if we are making a statement about the truth? To check if a statement is true or false we have to see if there is something external that guarantees its validity or falsity, so we have to see at the piece of reality we are talking about. Popper focused on truth. Truth is not a thing. To say that we do not know the truth is wrong. The problem we have is not to know the truth but the reality ! First of all we need to search for reality . by itself an apophantic spell can be true or false. Popper argued that there is a truth by itself. how can i say that a statement is 80%- 90% if truth is a thing? our problem is not to know the truth , but reality!! we have tried to deny not the principle of non contradiction in itself, but its logical value. we want to deny so we need to make a discourse : we want to deny the definition of the principle of non contradiction given by Aristotle. 16 years ago a philosopher wrote a book about the principle of non contradiction and stated that there were 240 definitions of the principle of non contradiction. Why do we have to accept the definition by aristotle? if i change the definition i would not be obliged the logical value of the principle of not contradiction is not the only one; it is impossible that Principle of noncontradiction : ● LOGICAL VALUE: The most certain of all basic principles is that contradictory propositions are not true simultaneously. ● ONTOLOGICAL VALUE: It is possible that the same attribute belongs and at the same time does not belong to the same reality on the basis of the same criterion and that therefore contradictory characteristics can be predicated of the same entity it’s a relation between language and reality. it refers to the essence of each discourse. the feature of a discourse is speaking of something. it’s a set of sentences or one sentence . «Those who are preparing to discuss with each other must understand each other: in fact, if this is not achieved, how will a commonality of discourse between them be possible?» (Arist., Meth., K 5, 1062a 11-13) When I make a discourse I always think about something as the thought is external to the being . If we want to have a discourse together we need to understand each other. There is “speech” only when the speaker designates something [in a valid way] and for himself and for others: which is necessary when something is said. Otherwise, in fact, it would not be possible [...] a discourse, neither [addressed] to himself or to others» (Arist., Meth., G, 4, 1006a) We need to speak of something . Whoever wants to deny the validity of the principle of non-contradiction must utter any speech, that is, he must designate something in a way that is valid for himself and for others. But, in doing so, he will be obliged to use the very principle of which he intended to deny the validity. Indeed: a discourse is truth when it says how things stand = alethic realism ; this is true by the ontological value of the principle of non contradiction . We use words to say the same thing : there are often disputes about the understanding . When we are sure we are talking about the same thing ( for you bottle = bottle, for me bottle = table) we can have a discourse. ‘What you need is someone who speaks’ Aristotle. A discourse being a discourse needs to be a discourse of something: it has to be univocal and not a contradictory relation between what it is said and reality. The act of designating implies in any case that the related object is something specific, that is to say, defined with respect to everything that is distinct from it R. Gusmani, Il principio di non contraddizione e la teoria linguistica di Aristotele, p. 40 reality makes our statement true or false because of the principle of non contradiction which is undeniable The last step is to move from metaphysics to ontology. there is between soft fact and hard fact. 1) to be ≠ to exist (Meinong, Berto): soft facts and hard facts. e.g. Gandalf is, but he does not exist ; my tie is and it exists. 2) different way of being (Agazzi, Husserl): we have entities which are real, even if they do not refer to a real state of affairs OBJECTS : ● Abstract = (e.g. Gandalf, who is and exists relative to The Lord of the Rings) ● Concrete = Material, Tangible Immaterial, Intangible (e.g. my tie) (e.g. laws, institutions) Gandalf is , but he does not exist ; my tie is and it exists. EVERYTHING WHICH EXISTS IS, BUT NOT EVERYTHING THAT IS NOT ALWAYS EXISTS. These entities can change their ontological status > e.g Naptune was supposed to be existing, but it existed only in the moment in which it was discovered. soft facts can become hard facts like in this case. The alethic realism deals with soft facts the difference between being and existing is too hard > Agazzi says that the distinction is now by looking at objects abstract object = gandalf concrete objects exist : ● material concrete objects = artifacts = tie, they have a precise ontological status ● immaterial concrete objects = laws, institutions, the consequences of intangible things are tangible it is a matter of common acceptance: you cannot meet italy, you meet this man who is in charge of that institution. institutions are concrete objects but are immaterial. we need to recognise a rule as a social body otherwise it is not a rule. a rule cannot exist without a context so its validity depends on the context. the existence of a being is always relative.even the truth of a statement depends on something external. John Searle states that relativism is unacceptable. RELATIVISM : Relativism is the theory that the truth (or falsity) of any proposition is always relative to certain sorts of psychological attitudes on the part of the person who states, believes or otherwise judges the truth of the proposition. [….] A proposition which I state is true only relative to my interests or my point of view. Thus according to relativism so defined, a proposition might be true for me but false for you ” a proposition may be true for me but false for you. The first type of controversial truth is the phrase ‘ truth does not exist’ . We have different points of view. all claims are made from a point of view and there is no superior view like the god’s eyes. if all claims are made from a point of view so they are relative. if i say all judgements are perspectival, is itself perspectival > it contradicts itself. Relativism must imply the relativity of itself. Relativism is not just a logical mode. The relativity of something relative is absolutism. “Relativists are possessed of an important insight... The insight has to do with the perspectival character of all knowledge claims. The idea is that all claims are made from a point of view, from some perspective or other and there is no superior or master perspective from which to judge all other perspectives. The relativity to perspectives is all the relativism they need and the fact that the judgment ‘all judgments are perspectival’ is itself perspectival does not seem to them a decisive refutation”. It rains : examples of things that can be true or false. From a relativist’s point of view, this means that every proposition, even this one, could be true for me but false for you. From a relativist’s point of view it does not matter. when i say if it is true or false i look at reality; from relativist’s point of view 2 exist two points of view: ● it rains is true ● it rains is false a relativist it is/ it is not raining from my perspective: if truth is relative to a point of view , disquotation makes the real world dependent on this point of view. Reality does not depend on us but relativism makes reality depend on us . that is strengthened by one's own, and that of others, ignorance (you cannot say that it is not so, therefore it is so, I tell you). audatur ad altera partis esempio pasta carbonara e bambino : relativism, epistemicism and alethic realism has a problem with reality: ● in epistemicism reality doesn't not matter, we look at what we believe ● in relativism reality is something i make up for myself there is one way to escape violence : reality does not depend on us QUESTION : how can you convince someone of everything? rhetoric was born with sophists which stated that they were able to convince you of everything. it does matter from your point of view, i can convince you of p or non p. Rhetoric is the ability to pronounce speeches and guide actions, characterized by the ability to know how to produce consensus on one's opinion by resorting to the stimulation of passions ... The Sophists, thanks to the speech, believed that they could shape the body of the polis, whatever the starting state, in its individual components and as a whole (D’Avenia, L’aporia del bene apparente in Aristotele, p. 40) at that time aristotle struggled with sophists In the polis, he who knows how to handle the speech is able to dominate a force, that of the passions, and thanks to this domination he can intervene to modify the actions of his listeners ... Gorgias in fact stated that «a speech that has persuaded a mind, forces the mind that has persuaded to believe in speeches and to consent to facts”. Knowing how to govern and persuade with speeches coincides with knowing how to control facts. (ibid., p. 72). The man of the Sophists is a puppet of the gods, of chance, of necessity, of the strongest, of passions, of irrational nature ... He is entirely passive towards the reality that surrounds him and his behavior responds to the stimulus-response pattern. This implies the thematic indistinction between a properly human horizon and natural becoming: man and nature are perfectly homogeneous, man is part of nature, indistinct from it (ibid.) sophists believed to change the shape of the polis the man promoted by aristotle is a free man : free to ● discuss ● decide in a passage of Rhetoric he says that truth and justice are the strongest. To be in society means that we are responsible for one another . Law is something that is done in order to take care of society and of the weakest. When I choose a word to express a concept, I become part of a relation with reality. The subject cannot be considered independent. When I say that this is a table I’m describing something. I'm not just expressing a description of something, I'm choosing the meaning of the words. This is an action of the subject. When I choose a word in order to express a concept, I’m part of the relationship of knowledge. the subject cannot be separated from reality. What is the role of the subject? Rhetoric is described by Aristotle and it has a lot of faculties including the kairòs > It is a matter of time but also it is a matter of doing something in a specific time. It's about saying the right things at the right moment. It is also translated into ‘persuasion’. you can act against what people say, you can act against fate but it’s up to you. you don’t have to wait for the right moment. it could be passive kairos > you have to stay silent. We always use silence between the words : silence is a gap between the words. THE AWARENESS OF LAW IN PRE- SOCRATIC THOUGHT How was the life of communities in Ancient Greek before law was born ? In Homeric poems we understand what kind of conception of law existed ? Many civilisations were governed by the so-called ‘culture of shame’ which is opposed to ‘the culture of guilt’. both concepts are introduced by many anthropologists. These concepts are the explanation of psychological mechanisms. ● shame culture = society where the respect of the rules is achieved through recurrent patterns of behavior; someone who does not fit into this model receives the blame of the community. people behave all the same way. The rate on individuals and also the rate on rules depends on timé and areté. ἀρετή= virtue, value and τιμή = honor -> it is connected to the popular opinion and reputation. Popular opinions guide moral conduct. when a man takes revenge, it earns social glory. if the victim feels ashamed he has to take revenge. In order to have glory you have to take revenge. In the iliad revenge gives the possibility to solve disputes through a compensation , the poinè, which is an amount of money that can work as a substitute for revenge. This was an evolution. ● guilt culture = people respect rules as the authorities told so ; who does not respect the rules has a sense of remorse - ἀρετή = virtue, value ; ἀρ = prefix that means something that came in principle. courage, value, has the idea of origin. Paola Mittica, a philosopher of law, speaks of hetero reflection of ()= this value cannot be hidden in nature, intimate. virtue, value comes first but - ὕβρις = the individual stops seeing himself as a member of the community and becomes the meter for his actions. hubris means violence towards the gods. The only measure of my actions is myself. - = the right measure, deals with justice and proportion Law in Homeric poems 🡪 theory of law in ancient Greece can be described as strongly linked with society, morality; there was awareness of the importance of law between the citizens. Iliad and Odyssey represented the so-called “Ellen Middle Ages” - Iliad: symbol of the archaic, power of the kings. Here we find the convention according to which gods appear when men don’t observe justice. - Odyssey: another kind of structure, law is much more important than gods 🡪 the legal organization becomes a distinctive trait of the city. Homeric theory of law 🡪 tribal law and sacral law based on 3 concepts: 1. Command: Theo-centric theory of law, at the center of the legal system there’s God. 2. Revelation: sacral derivation of law which is revealed to kings by Gods through dreams and oracles and then transmitted as law from generation to generation (vertical conception of law as Themis rule). In Odyssey there is a change of society: the society of warriors Is transformed into a peaceful society; also law changes 🡪 law as dikai and justice as something that regards humans. 3. Retribution: remuneration theory of the sanction * Crucial concepts - Concept of will: the Homeric norms is the divine command, the Homeric order of law is the define revolution, Homeric sanction is the divine revenge 🡪 the law is always achieved as a command. Divine will is a command 🡪 law is a matter of God’s will 🡪 God, Zeus: king of all mortals and immortals. Divine and human commands are not on the same level; divine always prevails because the intent of Zeus is always stronger than the intent of men. Norm= divine will, command for the divinity and has no limits 🡪 only exceptionally is limited by natural necessity (moira). Law is a decree of sacral nature. Eva Cantarella (linguist) affirms that theism is a rule of behavior: not just a matter of command but it is a rule of behavior that is conformed with divine will. Behaviors produced by the community are always in accordance with the divine will. Zeus is the cause of everything: everything derives from him, and he is the creator of each individual. The shield has the shape of a circle: it is related to the topography of the polis; the polis is made by the acropolis (=center) and of the countryside which develops around it. Harmonious structure, there are not edges. When we talk about law we usually think about positive law which is the law enacted by the State; in the Eumenides there isn’t the representation of positive law but of the law in its origins instead. 🡪 law is themis (rule), this kind of rule is a command issued by the gods but it is also a rule of behavior regarding men (concept of law as a social fact). There are two levels of law: supernatural and human. Most extensive description of law in the Homeric poems 🡪 shield of Achilles: in the city there is a dispute but we find also a resolution. 2 pictures in comparison: 1. Peaceful situation 🡪 there is a trial (first appearing in history 8th century B.C.) 2. In the crown there is a noisy crowd; the judgment stops the noise and produces the law 🡪 resolution of the conflict. Premise: law as a wall; law is a set of legal norms, there are no whole otherwise the wall would collapse. Conclusion: law is a complete and perfect set of rules 🡪 Modern law 🡪 static idea of law = positive law Premise: law as a vivid debate, a discussion that ends with a solution. Problem: concrete representation; it is impossible to elaborate a law able of covering every single case so the case comes before the law 🡪 classical view of law 🡪 law dynamic, in constant evolution. EUMENIDES, AESCHYLUS it's a tragedy, literary genre 🡪 5th century B.C. It is the last play of the trilogy “Oresteia” 🡪 all of them are linked to the concept of justice. This tragedy is connected to the city of Athens in the 5th century B.C. because at that time Athens was full of conflicts: on the military front there were the Persian war and the war against Sparta, on the domestic front it was taking place a shift from oligarchy to democracy 🡪 both the external and internal conflicts are reflected by the struggles in the tragedy. Struggles in Oresteia: multiple tensions, disorder ● Tension between private and civil form of justice ● Tension between individual and state ● Tension between God and men ● Tension between men and women (All these conflicts still exist today) Aeschylus tried to give a response to the sense of disorientation resulted from the change of order 🡪 it was necessary to find a new harmony. The tragedy doesn’t simply represent the city, it also has an aim which is restoring a form of order. References to the plot of the “Agamemnon” and of “Coefore” (rileggili) Eumenides 🡪 -eu is a prefix related to the concept of good. It is the new name given to the Fures that are persecuting Oreste. Why is this change of name from a negative to a positive meaning happening? Because in his last tragedy Aeschylus describes how a series of events ends up in creating a new social order 🡪 birth of a proper judicial system. Oreste arrives in Athens and asks for the intervention of Athena (as Apollo told him to do) and the goodness organizes a trial in the Areopagus which is composed by citizens and supervised by Athena. At the end of the discussion the citizens vote but the final and decisive vote is expressed by Athena which decides that Oreste will not be killed. Her judgment doesn’t satisfy the Furies because they represent the old legal order and so Athena convinces them to accept the decision by changing their name and by giving them the important task of protecting the Areopagus. On that occasion Athena also established that all trials must include a court that decides the case; trials are no longer an individual matter. Conflicts in the Oresteia : 1. The individual v. the State: The ancient system of justice was based on revenge, the responsibility of a punishment relies on the relatives of the victim which must act in accordance with the gods (Oreste-Apollo). Human beings have no choice: they have to take revenge and also to suffer due to the persecution of the Furies (which is the consequence of the revenge) 🡪 in this system the family is crucial. Key word is dike: Goddess of justice; this name is used to represent a wide spectrum of meanings. Dike = justice, revenge, punishment 🡪 concepts that nowadays are contradictory. In the first 2 plays of the trilogy dike is used in the sense of revenge: every act of revenge recalls revenge 🡪 it Is a non-ending process. In the last play Athena stops this circle of violence; the solution is the trial. Athena for the first time decides to formally submit the problem to jurisdiction in light of the idea that disputes must be resolved by impartial judges instead of with violence. The existence of the judges of a human court shifts the responsibility from the individual to the State because the court is an institution. This shift is also evident in the setting of the trilogy: at the beginning we have the oika = house in which Clitemnestra is, at the end we have the polis 🡪 justice is based on the community. Athena: Injustice, I mean, should never triumph thanks to oaths. Leader: Then examine him yourself, judge him fairly. Athena: You would turn over responsibility to me, to reach the final verdict? Leader: Certainly. We respect you. You show us respect. (Eum. 445–9) 2. Gods v. humans Gods dominate all humans affairs 🡪 humans evoke divine assistance for revenge. Oreste always stresses the fact that he was forced to kill his mother by Apollo. The Areopagus, the court of the law, is made of citizens and not of gods 🡪 disempowerment of gods in favor of humans. The final decision, presided by Athena, is still up to the mortals. In the trial Oreste is the only human that speaks, in all the rest of the trial speak Apollo and the Furies 🡪 the discussion is leaded by the gods. Final vote: who decides the sort of Oreste is Athena even though the Areopagus is made of mortals because gods are unwilling to give powers to mortals and mortals are reluctant to take these powers. 🡪 in this sense the trial of Oreste is not the end point, but it Is the first step of an emancipation process of humans by gods. What of the future? What of the Prophet God Apollo, the Delphic voice, the faith and oaths we swear? Make all mankind your enemy, not the gods. (Lib. 887–9) So it stands. A crisis either way. Embrace the one? expel the other? It defeats me. (Eum. 495–6) The solution is to set up the Areopagus, a court of law presided over by Athena, but with a jury consisting of mortals. 3. Old gods v. young gods There is an intergenerational conflict both between gods and between mortals; young generation: Oreste and Clitemnestra 🡪 murder of the old generation: Clitemnestra. Divine level: struggles between the Furies (old gods) and Apollo (young god defending Oreste) 🡪 representation of the struggles between the old and the new order. Athena, waiting for the decision of the jury, argues that the fear of gods will be replaced by the fear of the law 🡪 time to replace one fear with another. Law is respected because it is a source of fear: law is always connected with a form of sanction, if a legal duty is not respected there will be a punishment. No more divine sanctions but legal sanctions. At the end of the play: harmony 🡪 the Furies dance and sing; the old and the new order co- exist, there is not a polarization between the old and the new order. […] Where is the righteous man who knows no fear? The stronger your fear, your reverence for the just, the stronger your country’s wall city safety. (Eum. 713-5) Old and new will co-exist: absorbing private justice into the rule of law 4. Men v. women Athens in the 5th century was a men prevailing society. In the Eumenides the female power is represented as an element of reconciliation; at first the society was marked by polarization and conflicts but in the end Athena, which is the symbol of women power, says that she is operating at peace because she is able to detach herself from the genre division. She is associated with wisdom, she hasn’t a male partner: she is far away from the classical image of the female figure. “Daughters of nights pass on to your homes now under this kind escort of all mortals silence…come gracious, compassionate, enjoy on your ways this burning torch” 🡪 Furies turn to peaceful entities. PLATO He is well known for his polemics against the Sophists because they were the persuaders who gave speech regardless of the truth; for them you can say anything but truth doesn’t exist and if it exists you cannot know it. Truth doesn’t exist but opinions do 🡪 opinion (doxa) is not truth; persuasion means make your opinion prevails. But this is a relativist conception because if I say that truth doesn’t exist and there are just opinions, then every opinion can be possible. It is also a form of nihilism because you are presenting a negation of truth. First Plato: shares the theory of thought (which is also the theory of being) developed by Parmenides 🡪 this was a dualistic theory from an ontological point of view: truth v. opinion. Sophists: truth doesn’t exist, there are only opinions 🡪 this vision was supported by the philosophy of being according to which there is this the idea of a perfect and self-identical being completely separated from the world. God, unit, knowledge, perfection, identity /world, mortals, opinion, difference. There is a gap between God and mortals, between being and not being, the one and the multiplicity. It is not possible to know the truth, it is just possible to create opinions. It is a Dualistic view because it is grounded on opposite concepts. This view was revised through Plato’s Parasite; Plato subclasses the theory of Parmenides for better. His dualistic view was supported by the pupils of Parmenides, this new vision is explained in the fragment of the dialogue called “Sophists'': “Being in a certain way is not, not being in a certain way is”; it means that “non being” is not the negation of “being” but is a way of being. e.g.: I qualify myself through identity, but I can qualify myself also from a relationship with other so through a difference 🡪 I am me because I am not you; not being you is not a negation of you, but simply my way of being. This idea shows that absolute opposites do not exist. Yin and yang: each side has a small dot of the other element 🡪 the opposite coexist: there is light in dark and dark in light. The absolute reciprocal negations (the opposites) do not exist, they coexist in a perfect balance. Parasite: the thought of being is changing, is not just a dualistic vision anymore but a different philosophy of thought. This platonic parasite produces a different view about truth: the dualistic view is compatible with the Sophists’ view, according to the Platonic model truth has a conflictive nature. Fragment from the Gorgia: “Truth is possible, it exists. How is it possible to reach the truth? Through the logos, the argumentative structure of speech and in particular by dialectics” Technique of distinguishing: something that jurists do to find differences and similarities between cases. Dialectic process: analyze the differences. Justice Dike: it included contradictory elements. For Plato the concept of justice was much broader than what we now conceive 🡪 it is not reduced to legal justice in modern sense. If I say justice today, I think about equality in the sense that we are all different but at the same time we must be put in an equal condition 🡪 justice as the regulation of relations between individuals. Plato’s concept of justice is different: justice is the perfection of the soul, the perfect harmony. REPUBLIC The “Republic”: dialogue in which Plato introduces Socrates which is in a dialogue with different people who are discussing justice. Socrates is not satisfied with the definitions of justice given: - 1st definition given by a poet: justice is to give to each his own “sum cuique tribuere” 🡪 Socrates criticizes it because it would include doing evils to enemies and doing evil cannot be considered just. - 2nd definition given by a sophist: justice is the profit of the stronger🡪 justice is a matter of authority, of force. Socrates proposes that we have to figure out justice as a more complex concept because justice is in the soul of the individual and of the state. First we consider the State, then we consider the individual. Plato introduces the concept of justice speaking of the State: justice is a political concept for Plato. The State for Plato is not something existing but and ideal State in which there are 3 categories of people: 1. Producers of goods: farmers, artisans 2. Defender of the city: soldiers, warriors 3. The wise rulers of the State Three part scheme in which the first category of the city are the rulers 🡪 people that because of their education are capable of ruling the city because of their wisdom; the 2nd category are the warriors whose virtue is the courage, a corporal strength: andreia; the 3rd category is made of producers of goods. All the citizens must dominate the passions, in fact everyone has the virtue of temperance 🡪 capacity of dominating the passions. Justice is dikaiosune and it is a social and political harmony; the city is happy when each category of citizens stick to their duty, everyone has his own place in the structure. For Plato there are differences in the city, there may be conflicts because of the differences between the three kinds of citizens but there is harmony and balance instead. -Plato creates an analogy between the parts of the city and the individual soul. In the individual there are three different virtues which correspond to three different souls: appetitive, spiritual, and logical soul. These three different souls are located: logic is located in the head and it is related to reason, the spirit is located in the chest, and it is related to emotions, the appetitive is located in the stomach and is related to desires. The logical soul is the thinking part, the spirit is the part of the soul by which we are angry, we get into a temper etc. and the appetite is characterized by innate tendency towards excess 🡪 it is the penetration of the body into the soul. What is justice? It is a matter of harmony and individuality. There are 3 virtues and justice is the harmony which takes place between these three virtues. There are different types of people in the city because we have different parts in our soul. This concept of justice is broader than the concept of justice related to law; harmony between the elements that makes up an organism 🡪 organism is the State or the individual. When Plato considers the elements of the State, he recognizes that there is an analogy between the roles of the citizens and these three … Then there is another kind of harmony: the allegory of good government What is the law? In this dialogue Plato figures out an ideal state and the value of the law is completely ignored because in an ideal State citizens spontaneously act well, are educated to do so; therefore, the State doesn’t need laws. Laws are provisions in order to regulate behaviors, they are not needed in a State in which citizens act perfectly. LAWS In another dialogue, the “Laws”, Plato gives a definition of law: law as nomos 🡪 explained with the metaphor of wool and … : it is a resistant fabric, they are the two basic composer used in a wedding. A union of these two elements allows us to create a resistant fabric; the metaphor is that in order to build a concept of law we need to elements that apparently have different directions but they stay together 🡪 law is a work of wedding, it is a rule which must be general; this is the static sense of the law. But the law must also have the mobility to adapt to a changing reality 🡪 a general rule must also be specific, dynamic sense of the law. Law is a matter of politics; putting together general and particular means is up to politicians. A good ruler is the one who can produce a law which is suitable in general and in particular, the law must be suitable for the community. 🡪 A good law is a law which can speak for everyone. The concept is that we have two different elements and have to build them together exactly as the fabric. Law is a rational persuasion of the community; it has to do with words and it is a matter of persuasion 🡪 this is described with the word Logos (matter of reasoning) but persuasion is commit any crime 🡪 he was just teaching people how to reason but when he faced the trial, reasoning didn’t have any value anymore. Philosophy is that discipline that teaches to face problems and understand reality with the strength of reasoning and intelligence, then why was he unsuccessful? Why wasn’t he able to demonstrate his innocence? Why doesn’t he escape condemnation? Because there is a categorical imperative to respect legality 🡪 this imperative also stops him from asking to turn the penalty from death to exile because he said that he belonged to the Polis. The process lasted just 1 day 🡪 different than trials in modern times. Another difference is that nowadays it is impossible for a person to defend himself without a legal assistant. It is possible to make a declaration but not to make questions. Nowadays proceedings are just matters of justice. There is a conflict between a philosopher and a city which does not know to listen to him because he did not find the right words to be heard. ARISTOTLE Aristotelian concepts of justice (384-322 b.C) . It’s the pupil of Plato but the attitude towards reality is different. For Plato the two realities are transcendent and absolute ; the reality is just an imitation of the world of Ideas. For Plato it’s not possible to reach knowledge. For Aristotle reality is something which is immanent, it does not transcend things because it transcends the essence. Aristotle does not give a solution for politicians; perfection of the soul is not accepted . The method is more sociologic : it consists in empirical observation. We see people in community and we are searching for a solution about well living: Aristotle talks about justice as the most important virtue . we can have a list of the definitions of justice : 1) justice as legitimacy, conformity, compliance with the law = law are aimed at common utility ; they have some kind of target which is the common good. laws are precepts of virtues. something is just because it is conformed to the laws. 2) equality- proportionality = it’s a total virtue. it’s the sum of all virtues. When we say justice we talk about equality. 3) matter of politics = justice is what is correct from the point of view of the city. If we talk about justice , we talk about something that regards the people. It's similar to Plato teaching. 4) particular virtue = justice, prudence, temperance etc. 5) political virtue = justice is a matter of politics. Justice is always a matter of people: individuals or society. justice is a social virtue that takes place in the community ● Justice kata auton: justice in relationship with himself 🡪 harmony with our ideals. for Socrates justice kath’auton was following the law. e.g.: I’m vegan and I think it is just to not eat meat 🡪 justice as compliance with our values. ● Justice pros eteron: justice is the rule of intersubjective relationship; it is a social virtue which takes place in communities. This concept of justice is very relevant to law, in particular to Roman Law. 🡪 Ulpian was a roman jurist who said that justice is a matter of three leaning rules: - honeste vivere > live honestly - alterum non laedere > do not harm others - suum cuique tribuere > give each its own. This conception comes from Aristotle which introduced two concepts: 1. distributive justice : justice that takes place in the distributions of honors, good. aristotle compares this form of justice to the geometric proportion because in the distribution there must be proportion 🡪 ison= suum cuique tribuere = give to each according to their own merits and demerits. This is substantial equality. 2. commutative justice : Aristotle compares this form of justice to the arithmetic proportion. it calls for fundamental fairness in all agreements and exchanges between individuals or private social groups. 🡪 ison= equal= give everyone the same. this is formal equality. Art. 3 italian constitution 🡪 2nd paragraph; the 1st claims that all citizens have equal social dignity and are equal among the laws (formal equality), he 2nd claims that it is the duty of the Republic to remove those obstacles of an economic/social nature which constrains the equality (substantial equality). There are 2 kinds of justice according to this concept of equality and proportion: 1. Synallagmatic justice: equality which takes place between citizens in Private law, between the giver and the taker 🡪 concerns the exchange, the concept of sale. There must be proportion between the giver and the taker; if there is not equal correspondence the contract must be broken. (Private law) e.g.: if the landlord doesn’t fix the house so the tenant doesn’t pay rent. Min 9 2. Rectifying-corrective justice: the punishment is just when it inflicts a penalty which is proportionate to the crime. (Criminal law) There must be a proportion between the offense and the sanction. Summus ius summa iniuria: if we apply the law with rigidity we get injustice; fairness is the concept considered to be very important to introduce a corrective to justice 🡪 law is general, but it doesn’t provide commands in the particular cases. Legal justice is not sufficient, it needs correction 🡪 it doesn’t depend on the application of the law but on the nature of the law. The nature of the law is such that it is not possible to foresee all the individual cases to which law must be applied. How is it possible to correct the lacunas? The corrective given by Aristotle is what is called epieikeia=aequitas=fairness 🡪 the ability to adapt the abstract norms to the particular case. Law is insufficient alone. Equity is described by Aristotle with an image; equity is like the “lesbian rule”: a leaden which is not rigid but adapt to all surfaces. Justice cannot be rigid, when we look for justice we search for something that perfectly adapts to the case. When you look for justice you look for something which is adaptable to the case. Equity is a form to correct justice, but Aristotle recognized that there are dangers in the generality of the law and in the power to correct the law and to adapt it to the cases. It is up to the legislation to draw a very general law, but this is difficult because it is not possible to take into account all the possible cases. How is it possible to correct this defect of the law? Aristotle says that justice is a matter of equity, equity must be capable of adapting to the cases. Law is too general, we need a form to correct this generality, the corrective is equity. There is another defect: it lies in the power of who will interpret the rule and adapt it to the case. e.g.: In these days, debate on the law against raves 🡪 Is a sentence of imprisonment proportional to a meeting of people? How is it possible to prevent arbitrariness in the application of this law? If a law is too general, it can be applicable to every case in which there is a reunion of people 🡪 how is it possible to prevent this danger of adapting the law? In Criminal law there is a precept which doesn’t allow discretion in identifying the conduct: there is no room for unclear elements in laws. The Nicomaechian ethic closes with a sentence in the last chapter: how is it possible for men to practice virtue? Men often follow their hearts; they are affected by their emotions 🡪 reasoning is not enough. In the last chapter there is the essence of law according to Aristotle: we must adapt an empirical view of the city; men live in community, the state is not ideal (as Plato thought) but is something concrete, it is what allows people to live safe and well. 🡪 The best government is the one in which everyone lives well. How to evaluate the good standards of living (and so those of the government)? Referring to a concrete way of living. Law is necessary for politics and justice. Aristotle doesn’t care about the ethical and educational civil value of the law; law is practical, is a tool of social coexistence 🡪 it is fundamental to live in community. When we think about the law, we think about something that is equal both to the citizens and to the rulers. It is not possible to make a distinction between different categories of people in the same community. 🡪 modern conception of law. For Plato, law is an ethical value. For Aristotle is a technical device necessary to live in community. Is law something rational or not? What is the law? What is the essence of the law? Law is not a matter of will but of reason. law is aliquis rationis. The essence of the law is reason and not arbitrary will. Law is about thinking and will is about wanting. The speech about the essence of the law starts with a problem: it is necessary to explain that law is not a matter of will but of reason, the essence of the law is reason. - 3 objections that says the opposite of his opinion: It seems that law is not something that belongs to reason (non sit aliquid rationis). - His opinion:law is something that has to do with force > law is something that belongs to reason as commanding belongs to reason. commanding = want someone to do something. It is law’s function to command and forbid.  But as was established above commanding belongs to reason. Therefore, law is something that belongs to reason. Why is commanding something that belongs to reason? Because there is a concept of natural law according to which we know what is wrong and what is right 🡪 it is not a matter of wanting something, but of recognizing something. Before I want something, I have to think about something, the “something” is logically here before the act of willing that “something” 🡪 thinking about something is logically the prior action to the consequent action which is willing. There is a natural law through which we know what is good and bad. Before I want something I have to think about what I want. reason is ALWAYS precedent to will. If I want a bag, I need to think about it. first i have to know something and then i want. e.g.: before wanting to buy a bag, I have to think about the bag. Law is something that belongs to reason because first I must know something and then I may want or may not want to obey it. Now he writes his claim introduced by “I respond” and explains why is correct and the previous three objections were unsuccessful: I respond:  Law is a certain rule and measure of acts in accord with which one is either induced to act or restrained from acting.  For ‘law’ (lex) is derived from ‘to bind’ (ligare), since law obligates (obligare) one to act. By law I know what to do or not.  *1 Now the rule and measure of human acts is reason, which, as is clear from what was said above (q. 1, a. 1), is the first principle of human acts.  *2 For it belongs to reason to order things to their end where, according to the Philosopher, the end is the first principle in the case of things to be done (agenda) *3. But in every genus, that which is the principle is the measure and rule of that genus.  For instance, one is the measure in the genus number, and the first movement is the measure in the genus movement.  Hence, it follows that law is something that belongs to reason. ● *1 Law is a certain rule and measure of acts: by law I know what to do because law is a criterion for action 🡪 law is a word which comes from “ligare” which means to bind. Law obliges us to do or not to do something. It has the same root as binding. ● *2 Reason is the rule of human acts, every action is a matter of reasoning. when🡪 we do something, we do something rational. ● *3 It is due to reason that we do something aiming at an end. ● Everything due to reason aims at an end, law is a part of everything. law🡪 belongs to reason. Reply to objection 1:  Since law is a rule and measure, there are two ways in which it is said to exist in something. First, law exists in that which measures and regulates.  And since this is proper to reason, law taken in this sense exists in reason alone. Second, law exists in that which is regulated and measured.  And this is how law exists in all the things that are inclined in any way by any kind of law.  As a result, any inclination that stems from any kind of law can itself be called a law—not by its essence but, as it were, by participation.  And it is in this sense that the very inclination of the members [of the body] toward sensual desire is called ‘the law of the members’. It is a matter of participation; if the reason is the first principle and every kind of action is rational, law is rational and everything that comes towards its end is rational too.   Article 2. -Objections: It seems that law is not always ordered toward the common good (bonum commune) as its end. There are people saying that law is formulated for individual goods, particular interests, for private good. -His claim: Contrary to this, law is not formulated for personal advantages but for common law, for the citizens. He is Christian, though his main concern is to connect law to reason and not to faith 🡪 law has to do with human acts I respond:  As has been explained (art. 1), by virtue of the fact that law is a rule and measure, it has to do with the principle of human acts.  Now just as reason is the principle of human acts, so too within reason itself there is something which is the principle with respect to everything else.  Hence, this must be what law is principally and especially concerned with. Now in actions, which practical reason is concerned with, the first principle is the ultimate end.  But, as was established above (q. 2, a. 7), the ultimate end of human life is happiness or beatitude.  Hence, law must have to do mainly with an ordering that leads to beatitude. Common good (which is the ultimate goal) is happiness meant in the sense of beatitude which is something transcendental, you cannot find it in this world. Law is something which has to do with ordering human actions towards an end which is happiness, it leads to happiness because the principle of reason is the ultimate call, and the ultimate call needs to be happiness in the great sense (beatitude). Happiness is the ultimate end because it belongs to the universe, human life is just a part of the universe which is covered by God. Lex aeterna has divine source and aims at beatitudine, lex humana is included in lex aeterna, therefore the ultimate end of human life is beatitudine. Article 3. Whose reason is it that makes law?  Objection: It seems that everyone’s reason makes law Reality is the mirror of something else 🡪 our life corresponds to an action which has an universal respective His claim: But contrary to this: “A law is an ordinance (constitutio) of the people, by which the elders (maiores), along with the common people (plebes), have sanctioned something.”  Therefore, it is not just anyone’s function to make law. The essence of law is reason, but the law must be communicated; law is an ordinance, an order given by someone 🡪 who is the person who can give this ordinance? The elders and the common people. I respond:  Law has to do properly, primarily, and principally with an ordering toward the common good.  Now to order something toward the common good is the role either of the whole multitude or of someone who is acting in the place of the whole multitude.  Therefore, establishing a law is something that belongs either to the whole multitude or to a public personage who is in charge of (habet curam) the whole multitude.  For in all other cases as well, ordering something to an end is the role of one for whom that end is his own. Law has to do with an ordering towards a common good 🡪 happiness. The role of giving this ordinance is either of the old multitude or of someone who acts in the place of the old multitude. Ordinare autem aliquid in bonum commune Curam habet 🡪 the ruler has the role to give importance to the common good of the people 🡪 happiness of people. Not a subjective will but the will that correspond to the whole population. Happiness is the end because it is the end of the universe. Reply to objection 2:  A private person cannot efficaciously lead anyone to virtue.  For he can only issue a warning, and if his warning is not heeded, he does not have the sort of coercive power (vim coactivam) which, according to the Philosopher in Ethics 9, law must have in order to lead someone efficaciously to virtue.  Now, as will be explained below (q. 92, a. 2), this coercive power is had by the multitude or public personage whose role it is to inflict punishments.  Only someone like this is in a position to make laws. The ruler has a coercive power, and this power is a matter of will; Law is an ordinance that has a content which can be an assumption and coercive power is the power of those who are In charge of the control the community. System of law: different kinds of law 🡪 lex divina, naturalis, aeterna humana. - Lex Humana: a rational order and has the same essence of the universe which is reason 🡪 reason is the principle of everything. It is rational in its nature. Law is dictate of practical reason. Now practical reason and speculative reason proceed in similar ways, since, as was established above (q. 90, a. 1), both proceed from given principles to given conclusions. (logical deductive reasoning). Accordingly, then, just as, in the case of speculative reason, conclusions in the diverse sciences, which are not naturally known to us but are instead discovered by the activity of reason, are brought forth from naturally known indemonstrable principles, so too from the precepts of natural law, which are, as it were, common and indemonstrable principles, human reason must proceed to determine certain matters in a more particular way. And these particular determinations, devised by human reason, are called human laws—assuming the preservation of all the other conditions, described above (q. 90, a. 4), that are relevant to the nature of law. Human law is promulgated by man but there are two errors: there is a constant effort to put together the act of will (lex divina) and of reasoning (lex naturalis). The content of the law promulgated by the man who is in charge to make laws can be understood in 2 ways: by faith or by reason, through natural law or through divine law. There is a universal order, a hierarchy; the rationality is repeated in all the parts of the hierarchy. The most inclusive world is the aeternal law. Aeternal law is divine ratio (divine reason); he doesn’t speak about divine will but about divine reason. All the things we want are in nature and are explained in the Bible: there is a coherent relationship between the rationality of God and the rationality of human law. Human law can understand the rationality of God by reason or by faith believing in the divine law. Will + reason; lex naturalis (matter of reason), lex divina (matter of will) 🡪 I decide to believe in God but I know that the content of the divine law participate of a more general reason which is the aeternal law. Through faith and reason, I can understand the content of the law; the divine law is the information that God gives about what we must do or mustn’t do and again faith is an act of will, but what guarantees our free act of believing in God is the rational content of the divine law. This is not the only way: Individuals can have not faith, cannot believe in God and yet they can identify the contents of divine law by reason. Here there is the concept of natural law which is a rational concept on which is grounded the whole modern perspective of law. Rational because both human law and divine law are forms of participation: they are just a piece of a greater universe which is rationality. Does every humanly made law stem from the natural law? (Question 95 article 2)  As Augustine says in De Libero Arbitrio 1, “A law which is not just does not seem to be a law at all.”  Hence, something has the force of law to the extent that it shares in justice. Now in human affairs something is called just by virtue of its being right (rectum) according to the rule of reason.  But as is clear from what was said above (q. 91, a. 2), the first rule of reason is the law of nature.  Hence, every humanly made law has the character of law to the extent that it stems from the law of nature.  On the other hand, if a humanly made law conflicts with the natural law, then it is no longer a law, but the corruption of law. If Human law contradicts natural law then it is no longer a law but the corruption of the law because in the system of law, law is always a matter of reason 🡪 always a matter of participation in this universal rationality. Note, however, that there are two possible modes in which things (lex humana) can stem (derivari) from the natural law: ● 1st mode: it is called “modus determinationis” and it is the specification of general principles. 🡪 similarity to the way in which general forms are narrowed down to something more specific (determinationes of something more general) ● 2nd mode: it is called “modus conclusionis” and consists in elaborating general principles starting from specific elements. We are dealing with the method of 🡪 science - Some norms come as conclusions from universal principles of natural law. e.g.: the conclusion “do not kill” derives from the universal principle that is not good to harm others. - Other norms derive as specifications of more general principles of natural law. e.g.: natural law established that those who kill must be punished; natural law specifies how they must be punished. This universal intelligence can be derived and can be put into human law in 2 ways: 1. Deduction: there are principles which are self-evidence and don’t need further demonstrations; these principles are general and from these general principles reason deduces particular principles. e.g.: general principle 🡪 do not kill; specific principle 🡪 do not kill your mother 2. Induction: determination of common principles starting from specific elements. Through deduction and induction, the individual reason participates in this transcendental and universal intelligence. Once the piece of lex aeterna has been reconstructed through deduction or induction by natural law or by faith through divine law, human reason has everything it needs to promulgate the law. Justice of the law is rationality and rationality is a matter of reasoning (deduction and induction are ways of reasoning). LAW AND MODERNITY Modernity is characterized by a hierarchical view of legal systems 🡪 it is homologous to the idea of order: a system is basically the representation of modes and inner relations according to which a complex set is ordered. The term “hierarchy” was unknown in classical ancient time; it is absent in ancient Greek, and it is not used in the New Testament. The term started to be used in the 6th century A.C. only thanks to the Corpus Dionysiacum and its Latin translation. Modern conception of law has a sort of terror for diversity and multiplicity 🡪 it tends to a unified and hierarchical order, unified since hierarchical. 🡪 in jurist’s mind we may find the pyramid of norms which belongs most of the time to the modern conception of law. This is the shape of the law which was developed by the philosopher of law H. Kelsen: At the top: Basic norms At the bottom : derived norms <<A legal order is an aggregate or plurality of general and individual norms that govern human behavior, that prescribe, in other words, how one ought to behave [..] A plurality of norms is an order if the norms constitute a unity, and they constitute a unity if they have the same basis of validity […] The basis of the validity of a norm, an “ought”, can only be another norm, another “ought”; it cannot be a fact, an “is” […]. The forgoing remarks show that a legal order is not a plurality of valid norms on the same level but rather a hierarchical structure (Stufenbau) of superior and subordinate norms. […] The unity of a legal order is the unity of a network of generative relations. […]. A conflict between legal norms at different level in the normative system cannot take place. Only a competent authority can create valid norms; and such competence can only be based on a norm that authorizes the issuing of norms. […] A legal norm is […] valid […] because it is created in a certain way. For this reason alone does the legal norm belong to the legal order whose norms are created according to this basic norm>> H.Kelsen, Pure theory of law. This is what we think about law in Modern age: law is a set of norms which needs to be organized in a hierarchical structure. The thesis is that legal system has a pyramidal structure, the validity of a legal norm N1 depends on the existence of a superior norm N0 which authorizes the existence of N1. N0 is a power-conferring norm which entitles a subject (e.g.: a legislative organ) to create new norms. Norberto Bobbio 🡪 <<the pyramid which Is inside the legal system should be extended outside the legal system when some systems are subordinated to systems of a certain kind. […]. In this way, the picture of the pyramid of norms can be completed with the picture of the pyramid of legal systems>>. Modern age means system of law, a kind of order which is hierarchical 🡪 this idea belongs to Saint Thomas It is also the way of thinking from Middle Age to Modern Age; the transition from Middle to Modern age takes place in a long period of time: between the late 14th century and the first part of 15th century 🡪 a key date is 1555 when occurred the Peace of Osbourn; Period of turbulence across Europe generated by contrast between catholic Cristian and protestant Cristian 🡪 not only religious war but also political. social contract is called pactum unionis 🡪 all individuals conclude a contract, not private but social. It was unbelievable for Saint Thomas because the sovereign is still the expression of God’s will. c) State: men in the state of nature tend to live in community, reasonably and rationally respecting the rules 🡪 they tend to establish a pact in which they unite and designate a sovereign 🡪 the sovereign dictates the rules . The state is a structure condition for government. Saint Thomas talks about republic, there wasn’t the idea of state 🡪 state is the result of an agreement between individuals and this idea belongs to Grotius. Constitutive elements of theory of natural law: ● Individualism: society of individual persons; the contract is an agreement between 2 or more individuals, the state came into being through a contract that was made between individuals. The word “individual” it is the sign of this theory and of this era 🡪 Grotius was an individualistic theorist on different level: - on religious level: he was protestant so there is the idea of an individual and personal relation with God. - on legal point of view: the world of law is a world of men making contracts, law is a matter of business and transaction which happen among individuals. - on political level: this contract model comes from the private field and is considered to be suitable also for private law 🡪 private law becomes the model for public law. ● Rationalism + voluntarism: considering Saint Thomas thought, reasonable is not a matter of will; Grotius introduced a new concept 🡪 man is by nature reason which Is the guarantee of truth (not guaranteed by God or his intermediaries). Political model is a matter of contract: contract is by definition an encounter between wills. There is a rationality but also a will, will and reason come together. ● Secularism: the theological vision is the matrix of a political vision 🡪 God not seen as a guarantee for the contract; the contract is guaranteed by the will 🡪 people who want to reach an agreement. Therefore, State takes the place of Jesus. The thought about law of Saint Thomas is replicated in the modernity but there is a difference between him (first thinker of modern age) and Grotius: not rationalism or secularism but individualism 🡪 distinctive element which separates Sain Thomas view and the following natural law school. - Saint Thomas and Scholastica: there is a classical anthropology 🡪 it is impossible to think of men outside of a community. - Natural law school: man seen as individual, independent from the community. Men considered them as atoms, isolated entities. Political community is nothing more than a sum of elements, the community doesn’t come before men (as Aristotle and saint Thomas thought) 🡪 individuals come before the community which is created by a contract between individuals. Number is nothing more than a sum of atoms: quantitative approach to community 🡪 it is a matter of individuals, more individuals more the community is relevant. The sum of individuals is the society 🡪 logical prior in the classical though was the community, in the modern view is the individual which comes before the society. 🡪 society is simply the outcome of individual’s will. Society exists to governate relations between individuals 🡪 this idea Is fundamental in modern Age. Thomas Hobbes (1588-1679) 09-11-2022 He lived in the period of the 30 years war and so he lived all the religious troubles and the problems between the sovereign and the Parliament Grotius was a lawyer, interested in rules (both for internal laws and external laws); Hobbes was a philosopher who had a huge impact on political thinking 🡪 he developed a justification of the absolute power; he was Interested in conceiving a form of power which is a unity power 🡪 conceived as the man of the restoration of the strong monarchical power. In his opinion power should not be constrained, should be absolute. Not a jurist but a philosopher who had great impact on political thinking 🡪 important difference with Grotius. Method: he is known for introducing the “political geometry” 🡪 matter of philosophical rationalism; he argues that what is good for scientist is also good for scholars in politics and in law. There should be the same method in science and in law Starting point is the empirical method (from Galileo): 1. Empirical observation of reality through the using of our sense and of instrument 2. Make a hypothesis 3. Test the hypothesis through experience 4. Make a conclusion Hobbes also knew the Cartesians’ rationalism 🡪 real knowledge can only be reached through reason 🡪 mind is independent from the body. - Res cogita: there is a subject who thinks these two things are separated - Res extensa: secondly there is something around it. The rationalist method excludes the problem of the subject, it assumes the subject as an external observer 🡪 characteristics of the subjects are irrelevant in the process of knowledge Kantian noumenon: I cannot say what the world is because I always know the world through myself. I can only know the world according to myself. 🡪 this is not possible according to rationalism. -Hobbes applies this principle: subject alone is not relevant; science is objective and so is legal subject. 1st critical question: what is the state of things that you as a political scientist can observe? In that historical period the political observer is faced with chaos, war, uncertainty and conflicts between different powers 🡪 these are the data reached through observation. Law exists because there is conflict 🡪 in this moment law becomes an instrument of social control. Hobbes thinks like a scientist: he gives primacy to the object with empirical observation and then there is the formulation of a hypothesis 🡪 this process is called annichilatio mundi: after observing the world we have to abstract from it because we need to formulate a hypothesis. For Hobbes it is important to develop in law the scientific method. Why? Because he believes in reason which is at the basis of confutational thinking which is the kind of reasoning on which is grounded modern philosophy. Reasoning is nothing else but conceiving a sum of elements from addition of parcels; it is nothing else than a mathematical operation and its object aren’t only numbers, this way of thinking concerns all manners of things that can be added together. Analytical way of thinking can be used in all contexts, not only in scientific subjects because it is not a manner of number but a manner of reducing things to unity 🡪 everything can be reduced to unity 🡪 also right and wrong are portion of a legal discourse. Law, politics etc. are places for reasoning. STATE OF NATURE 🡪 application of scientific procedure: observation, hypothesis, conclusion a) Ius in omnia: observation; every man is an individual (all individuals are equals) in the sense that every man desires, wants something 🡪 self-determination. In nature the man is conceived as an individual able to do whatever comes to his mind because every man has the right to everything (ius in omnia). This concept of right to everything Is connected to freedom which is conceived in a physical concept 🡪 freedom is a matter of movement for Hobbes. E.g.: a chained dog can’t move therefore is not free. Freedom is the absence of constraints in movement; this is a physical idea and a negative concept of freedom because freedom means no constraints, no limits 🡪 freedom is conceived in a negative way as the absence of constraints; the logical antecedent of the concept of freedom is the constraint: I can’t be free if I wasn’t constrained before. Freedom means not to be constrained by something. b) Homo hominis lupus: hypothesis; Men in nature has this tendence to take everything but this could be possible only if I were alone 🡪 there are other people, if everything has the same claim on everything, liberty will be denied 🡪 anarchy because men are without “guardians”. From equality proceeds diffidence which is a condition which occurs between individuals which are equally free to do whatever they want. If two men desire the same thing, no one of them will enjoy it and they will become enemies. c) Bellum omnium contra omnes: conclusion; from diffidence proceeds war because if everyone has the right to everything, everyone will fear that someone will take his goods What is peace for Hobbes? It is the opposite of war which for Hobbes is the natural condition of men, it belongs to men because they consider themselves as individual atoms and therefore are diffident towards the others. Men which don’t feel trust and have fear 🡪 mutual fear defines the state of nature as a state of war. This precept to seek peace is found by reason 🡪 it is reasonable for men to seek for peace. By all means we can, we have to defend ourselves 🡪 men are afraid to die. The second law of nature: we have to lay down this right to all things 🡪 we have to renounce to it, otherwise we will have to face war. Lay down has to do with the content of the contract; renounce our right to everything and transfer it. The concept of the Thing (the State) Chapter 15 3rd law of nature: justice 🡪 before the names of just and unjust can take place, there must be some coercive power and such power doesn’t exist before the erection of a Commonwealth. Coercive power: the Leviathan is a powerful monster; coercive power is functional to justice (which can’t exist in the state of nature) because it is necessary to have someone who secure order and peace. <<Justice is the constant will of giving to every man his own>>. 4th law of nature: gratitude Commonwealth 🡪 chapter 17 - What is the aim of the Commonwealth? Security The only way to erect such a common power able to defend men from the invasions of the foreigners and the injuries of one another is to confer all the power upon one men or one assembly of men that reduces all their will to one single will. Men authorize and give up their right to govern themselves to this man/assembly; the multitude united in one person is called a Commonwealth 🡪 this is the generation of the Leviathan, of that mortal God to which we all trust the maintenance of our peace and defense. Commonwealth: an institution established when all agree in the same manner; the content is declared (I offer and give up my right etc.) 🡪 Hobbes rejects the idea of a separation of power, he is explicitly in favor of all the means a man could have in order to promote order. In this view the coercive power can also introduce restrictions to the right of speaking The sovereign exists because the majority has consented his rule and because its aim is peace, it has the right to do whatever it thinks it is necessary to preserve peace and security. 🡪 so, it may judges who shall be allowed to think, it may censure aversive opinions etc. This is a theory which supports and claims that there could be one man/assembly who can decide who can speak and who cannot. It is not just a matter of prescribing rules of Civil law, Private law etc. but to prescribe rules for everything in order to preserve peace. Rights of the Thing: “to make war and peace as it sees fits and commands the army”, executive powers, legislative powers, judiciary powers. 3 types of Commonwealths: - Monarchy: the representative is one man - Aristocracy: when only a part of society comes together - Democracy: when everyone come together Difference consists not in the difference of powers, but in the difference of convenient 🡪 it is a matter of utilitarianism; the monarchy is the best to secure peace because the private interest is the same as the public, it is the best solution 🡪 Hobbes is the man of the restoration of the monarchical power The idea of a single man is the maximum affirmation of individualism. LOCKE (1632-1704) Hobbes expresses a form of rationalism, but this is just one way of scientific process. For Locke empiricism is the best idea of explaining the existing, the reality. They share the same period of the Cromwell revolution and the restoration of monarchic power by James I. The evolution of English parliamentarism also happened in this period; Hobbes thinks that to solve disorder a strong ruler is necessary (after the civil war William of Orange is a weak sovereign because of the presence of the Parliament which was growing more and more powerful). - Locke is the theorist of the constitutional monarchy - The juvenile Locke was a pupil of Hobbes but unlike him had a very strong religious spirit, he was a puritan and represented the radical expression within the protestant reform 🡪 this religious aspect shows why he followed Hobbes: puritanism is the expression of radical voluntarism, the puritans voluntarily abstain from certain behaviors. - He came from a rich family but was a radical 🡪 he later moderated this approach, much less voluntarily and more tolerant of religious diversity. - Tolerance key theme of his thought: constitutive concept of parliamentary democracy. What he meant for tolerance is different from our conception: he claims that we must be tolerant but not towards everything (tolerant towards everyone, except towards those who are really intolerant such as Muslims and Catholics), tolerance is never indiscriminate. Not an absolute concept of tolerance, not a generalized concept because it has a religious sense. - Political thought formed on a religious view of the world; when he changed confession in favor of a much more radical Anglicanism also his political thought changed. - Juvenal phase: puritan voluntarism and moderate rationalism which is connected to his major works. - Empiricism as a method of thought: knowledge comes from experience. - Good is not what God wants: it is a matter of command, is an order but <<qui facit legem cadit sub lege>> so also the sovereign is bound by the law. STATE OF NATURE Hobbes: pessimist from an anthropological point of view (negative view of men) while Lock is an optimist. Men are naturally characterized by reasonableness, tolerance, desire to become rich and to improve their condition in a peaceful way 🡪 positive state of nature in which all men are equal. In this respect he is similar to Grotius (appetitus societatis); they also have similar religions positions. Men need a set of conditions which allow them to live well: freedom (to do, to grow economically, to do business) and they need someone to impose rules to maintain this condition. Original condition of equality: he is not interested in theoretical hypothesis but in concrete observation of reality. Not interested in building a political geometry but only in understanding how things concretely work in the real world. State of nature is a state of property, of equality 🡪 not in a theoretical way there is not the annichilatio mundi (abstraction from reality), this condition comes from observation of reality. Hobbes: we must renounce this hypothetical state of nature to enter society. Locke: I live in a civil society, and I want to establish rules to preserve this state of nature. 🡪 state of nature is not a theoretical situation we renounce in an abstract way, it is a concrete condition and it is the starting point to recognize authority. Hobbes: every religious consideration must be removed, and a political theory must be exactly similar to a scientific theory and free from religious aspects 🡪 neutral subject. Locke: precisely because I empirically observe reality, I see that men want to carry out activities in peace. There is not the idea of the condition of war as something ordinary, conflict is not a physiological but a pathological state. Different meaning of power: for Locke is not absolute, we need power, but it is necessary only in some conditions. The ordinary condition is peace but when a problem occurs, we need someone that can secure order. We need someone to judge in controversial situations. The power must intervene when it is needed; the sovereign must be light in the sense that it must act only when necessary 🡪 non-interventionist state: the better things go, the less we need authority. State conceived as if it was a doctor 🡪 medical idea of the Sovereign, metaphor very strong throughout the 18th century. Even the emperor Friedrich of Germany defined himself as the Doctor of his own nation. This metaphor is useful because it perfectly describes this weak form of power. state that claims obedience by citizens citizens must be persuaded that obedience is good. there is mass communication that persuades citizens that is good to obey the state PROPERTY: Historical conditions: rise of the mercantile bourgeoisie, capitalism, Glorious Revolution -> strengthening of the relationship between freedom and property. Economy is relevant in social living -> property is the most important right. Our political order is not that of the state of law (classical liberal state), but the one of a social state. Economic rights are important. Freedom is one of the liberties and the natural rights: material approach to reality. Relationship between individualism and empiricism: possession as a factor of self- determination. Individualism: modernity is characterized by it, the community is simply a sum of individuals -> homo faber: active concept of man, what is important is the product of his activity. We always speak of equality as primary conditions, after which a competition can start. We need equal conditions, but we also need a judge to set the rules. No one can remove people from this condition of rights (life, freedom, property). Freedom is strongly connected with equality since it is the absence of constraints -> “freedom from…” -> removal of obstacles, so the same star condition. The purpose of law is not to repress freedom, but to increase and protect it -> no law, no freedom. There is no law if the law deprives someone of its property. ROUSSEAU (1712-1778 -> right before the French Revolution) Pre Romantic philosopher -> sentiment rather than rationalism. Nature is not the equivalent of reason (vs Saint Thomas). The modern state is not a state of rationality, it is governed by the amour propre. Nature and reason are conflictual concepts. Nature has no equal reason. The scholastic said ‘natura est reason’ ; for rousseau nature and reason are conflictual concepts. STATE OF NATURE : the man in the state of nature is an uncivilized man> le bon sauvage. It is one man in the sense that it does not have technology, the right to private property. it has a positive character (bon). When Rosseau qualifies this man he is rejecting the idea of progress and nostalgia for the state of wildlife. He is not talking about a particular man, but an ideal man of wild man. Ideal condition, not a concrete man -> ideal wild man. · Loneliness is the best condition of living in order to be happy The man believes in his uniqueness. Le bon sauvage is unique, amour de soi = nothing but himself to love. If we talk about nature, we talk about a natural state in which the man is alone so there is no reason for conflict -> positive individualism Modern western culture carried out a pre social condition where society did not exist and the idea of society was not explored. Nostalgia for a pre-social condition, society does not exist and there is no need for it. At the basis of the modern idea of state there is no society. Marx> this is the idea of utopia. Marx knew rousseau. the idea that the technological political social idea of imperialism developed by western european is combined with nostalgia. UTOPIA: no place as basis of the concrete reality (later used by Marx) -> pre-social condition as a non-existent reality; the nostalgia for that pushes the man to behave and organize his life in a certain way, but the basis of that nostalgia is something unachievable and inexistent. In reality self-determination is always expressed by property (Locke) vs all the evils come from the moment in which someone says “This is mine” (Rousseau): this is the moment in which the social conflict begins. I live freely in the state of nature -> I wanna eat, I eat; I’m cold, I search for shelter. Regret of this state of nature in which the man is free to do what he wants, everybody lives according to the amour de soi BUT this condition is impossible, it is a utopia -> this state of nature is ideal, does not exist. Men look for this uniqueness, but it does not exist. Inspiration for the French Revolution Social contract as a tool to redemption of the natural condition. We need the social contract to erase inequalities -> real problem, at the level of existing individuals. Men have already established private property -> they are no longer le bon sauvage. Amour propre: love of individuals that recognize the existence of other individuals; love of individuals that are no longer unique. Feeling that I have towards others. Pity as a necessary feeling to recognize the other: not the concept of Saint Paul -feeling of sorrow and compassion caused by the suffering and misfortunes of others-, but the possibility of recognizing the other man because of a process of identification -> “what would I feel if I were him?” (We are the measure of things -> individualism) Nature and individualism : - Rousseau: ideal state where man is alone so he lives without conflict. loneliness is a constituent condition of the individual. Rousseau notices that we always live together: this coexistence generates passions - Hobbes thinks about individualism as a bad condition> reason for war. - Locke : favorable condition but in reality self determination is always expressed by possession. He thinks of a liberal state in which individuals never give up their personal rights.. Nature (feeling, ideal state) is a regret that man has towards himself, it is a non-existent condition. Reason (reality, artificial state that is society) is necessary to bring people in a certain condition. When I enter the society, I am in a different state from the state of nature, I depend on society (vs in the state of nature I am alone and free). What are the reasons for men to enter society? · Self-preservation: not a principle for reason but a natural principle · Pity: ability to empathize, it becomes the way to coexist with other individual SOCIAL CONTRACT For Rousseau the problem is property: when someone says ‘this is my property’ the social conflict begins. Private property is the origin of unhappiness. What is different from the empirical view is that at the basis there is a political utopia which is considerable from a liberal point of view as the liberal is an empiricist. This theory is based on a non-existing condition. nature is not the realm of the things as they are, but it is a regretting idea and a social condition. men in nature regret sociality. The social contract is a real redemption of the state of inequality. Amor prop is a feeling expressed by people who are no longer unique. If we want to recognise a noble man we have to recognise pity> it’s not the concept of caritas but it is the possibility of recognising another man by a process of identification. ‘what would I feel if I were in his shoes?’ We are the measure of all things. If I want to understand another man, I need to have pity. state of nature (when i am unique)> state where there are other people = i need to think that the others are like me. loneliness is the best condition for living. HOBBES> abstract sovereign LOCKE> liberal state in which individuals had natural rights and did not give them up.he discusses the concept of passion> for Locke the solution of passion is social contract. locke thought that passion was a internal problem ROUSSEAU> passion is the result of the presence of other people. Difference between: - amor de sua= loving oneself > compatible with happiness Whatever I say about the object of my knowledge depends on who I am and how I am processing the information. The process that makes me know something: I can never place myself outside the subject-object relationship, if I do it I will never be able to say what the object is like from a point of view external to me. The object, the world, anything external to me is impossible to know > it is the noumenon e.g.: with green glasses I see the world in a shade of green; if the glasses are removed from me my view of the world changes. The object is never absolute in itself, it is always giving me the possibility that I have to perceive it. it is given to me as a phenomenon, as something that appears. According to Kant is not interesting to say how the object appear but what are the receptive forms within myself that makes the world appear in a certain way more interesting to move from the level of the things to those internal structures of the subject In the end there is no external point of view that allows me to say that the world is in a certain way. It's my ability. between the subject and the object there is knowing. whatever i say about of the object of my knowing depends on who i am and For me the object of my knowledge is always something from my point of view. the object is never absolute to myself. Knowledge is a matter of perception. the object is something that appears, that it is shown to me, it’s a phenomenon. The subject is the legislator of the world. The starting point of knowledge is the subject, not the object. the empiricist tradition was based on the object: here the perspective is different: What I have in front of me depends on the perspective of my point of view. we do not produce the laws that govern our knowledge but those rules have always been in us, they are a priori, they are the constitutive laws of our knowledge. they are not a product of society but they have always been in us. The laws that come from the legislator are the forms of knowledge; they are not products of men because if I say that the forms of knowledge were produced by men, we would also ask who is the last producer? There will be a regressio ad infinitum. We do not produce the laws that govern our knowledge, these laws are always in us. They are A PRIORI which means that they are before any process of knowledge and are the constitutive laws of knowledge processes. They have always been with us. Different from the object of knowledge: if the object is material the law of knowledge is sensitive because I have to touch it etc. We don’t know in abstract the world, but we can perceive something through the forms of time and space they are within us and are transcendental. They are different according to the object of knowledge. Those forms of knowledge are constitutive of all men, are TRASCENDENTAL. the form of time and space are trascendental, they are within us. what does trascendental mean> it is not like trascendent - trascendent= something that is beyond the phenomena (GOD) - trascendental= universal, that belongs to all the subjects. Critique of pure reason How is it possible to resonate? How does mental activity work? three different ways of reasoning 1. formal knowledge= a priori analytical knowledge > a work of analysis, of breaking up and dismembering. it concerns something that has always been in us. a priori means trascendental and if it is transcendental it is about all men, it is universal. It is a way of reasoning that will produce a valid result of knowledge which will be accepted by everybody. Everyone is meant to work like this. it has a flaw> tautology. ex: All men are mortal> socrates is a man> socrate is mortal. It is a tautology. Everybody will accept the result of a deduction but it doesn't produce NEW KNOWLEDGE. it is not useless, it makes explicit something that was implicit. 2. empirical knowledge= i discover something that i didn't know before . Why does Kant name it synthetic a posteriori? it’s synthetic as i know something only afterwards. it is particular but it is valid only in some contests but it depends only on the reference area. ex: All the crawls are black> it could be but it is not universal> it did not give me new knowledge. 3. I can know the objects in a universal and not tautological way> it’s synthetic a priori. it has the forms of knowledge that are universal as it is a priori. It is synthetic as it follows observation and experience. It works like the analytical but the effect of the operation has a synthetic nature. it’s the kind of knowledge that is a priori. 2+5=7. logical operation but I know the result after an experiment. We have data, theorems but the effects of the universal theorems are visible only after an operation. A priori because I use something which is universal but is also synthetic because I discover something new, it is not tautological. It is not only a matter of discovering something through experience but through the application of a priori forms. Kant is interested in action> practical reason means moral and ethics. What does it mean to act morally? It means knowing the principles of moral actions. There are forms of theoretical knowledge but there are also forms of practical knowledge. for Kant moral actions are always rational> if they are not rational, they will not have nothing to do with the essence of man which is rational. moral action takes place in two place: - hypothetical imperative> i have the target i want to achieve. I act with respect to an end> i want to avoid violence in the stadium so i will not allow people who enter with dangerous objects. ‘If you want A do B’. it is the way in which men naturally operate. in the level of the state of nature: do a do b if you want a. This is the way through which men naturally operate at the level of state of nature. The purpose of the legal norm is to achieve a target. My behavior is hypothetically good but it is good to the extent that he fulfills the target . it corresponds to the utilitarian vision. The external actions are the only ones that govern the hypothetical imperative. They concern hypothetical imperative. all the laws are forms of hypothetical imperative. The respect of the law derives from my subjection to a legal system. I act for the result, the result is recognized by reason; Actions governed by this hypothetical imperative: just the external actions of individuals, that part of our external moral life > the relationship that I have with other people. e.g.: you must believe in God, could be the content of the law according to Kant? NO because it regards internal and unconscious acts. Any imperative concerns the intersubjectivity and relates to the external actions. All laws have the form of a hypothetical imperative; if it achieves the goal of the legislator, the law is valid. Obligatory nature of the law: the respect of the law doesn’t derive from a free subjection to an internal thought, but by a free subjection to an external thought I freely subject myself to a legal system which concerns the external action. What obliges me to respect the law is not internal but external: it is the existence of the legal systems. e.g.: you are a driver and you are in front of a red traffic light; the road is free, do you stop or not? Yes, because obeying the law is my duty matter of categorical imperative - Categorical imperative: type of action which has a different structure; men don’t act on the basis of the result but on the basis of something which is in my conscience, and it is right in itself. It is a different kind of freedom: not freedom as absence from constraints > I am free because I am in the condition to do whatever feels right to do; not to do anything but to be I am. Not a liberty to do, but a liberty to be. It is the original freedom of the subject, the higher form of freedom. Love is a typical example of categorical imperative: if love is true love, it is not conditioned to a result. The actions governed by categorical imperative are not external actions but internal à it is an imperative internal to conscience. ● Practical reason of external actions (sphere of legal norms) ● Practical reason of internal actions (morality) Law and morality are different; rationally I act on the basis of hypothetical but voluntary on the basis of categorical imperative. Morality is a matter of will, law is a matter of reason concerning the external actions I use the form of hypothetical imperative while when the internal actions are concerned I use categorical driver davanti al semaforo rosso >obeying the law is my duty> this is a categorical imperative. men do not act on the basis of the result but on the basis of what is right for them. it is a type of freedom as i am in the condition not to be who i am, it’s not a liberty to do but a - obligation is a matter of morality, it is something addressing a psychological element. if we think about being obliged, this is a matter of belief or a matter of doing something instead of doing something else. There is the model of the social situation: he wants to present a different model of the law which is separate from morality and detached from coercion. law must be obeyed in a way which is independent of my will, of my thought. the statement that someone was obliged to do something has the implication that he actually did it; it is clear.. PAG 85. Social rule> not speaking during lessons. if you start speaking, they can oblige you to be silent. If we understand that there is a social rule, there is also a social pressure. social rules are the combination of regular conduct (i see all people staying quiet at lessons) + a distinctive attitude to that conduct as a standard( everybody realizes that this conduct is a standard). Social habit (greeting your neighbor)> is not a social rule because there is no social pressure. Law is a matter of social rules and participation into social rules. we can have two different views : 1. observer view> one who limits to observe a behavior and to record the regulation of a behavior without taking into account the internal attitudes 2. members of society view> people rule is a combination between regular behavior reflective attitude PAG 88 indeed, the internal… The internal point of view is a combination of rules + rules following. i we adopt a mere external point of view ma questa fa gli sboccaciucci col culo pag 91 How is it possible to distinguish primary and secondary rules? we don’t use customary rules , but we talk a primary rule= imposing on individuals positive duties defects of social life - if we found a society on regularity of behavior law is uncertain - static character of the rule ( the only mode of change will be the slow process of growth, rules become habitual and then obligatory, it’s matter of time) - inefficiency of the diffuse social pressure by which rules are maintained 1. The remedy is this simple form of social structure consists …. PAG 93-94 we have to include secondary rules in order to move from the pre legal to the legal world. The rule of recognition is a texting rule that we can use in order to realize if there is a rule and if this rule is subject to social pressure. the rule of recognition recognises the rule of a legal system the rule of recognition can be a list of rules found in a document the secondary rules are forms of acknowledgement of primary rules. 2. remedy> introduction of rules of change. individuals…. 3. remedy> secondary rules empowering individuals to make authoritative determination> judges. Law is a matter of participation. The foundation of the legal system is based on the rule of recognition. Kelser> the foundation of legal system is Hart> the ultimate basis of a legal system is based on society and the rule 23 11 Hart> law is union of social rules (primary + secondary rules) There are three types of secondary rules that are necessary to fill the gaps of primary rules that we can find only in civil society. between the secondary rules there is the rule of recognition. How can a rule belong to a legal system? It is possible to test the rule if we consider law as a complex social situation. secondary rule> accepted and used for the identification of primary rules> acceptance is a reflective attitude on the regular behavior. The foundation of a legal system is in society, it’s not logical. Shown> the rule of recognition is not a logical preposition, it is seldom declared as a rule but it is shown. when we say that the rule of recognition is shown,Hart is saying that it is a matter of social - by judges - officials - private persons - their advisors rule of recognition= scoring rule of a game > analogy if we want to understand the concept of law of recognition, we have to say that rule of recognition is characterized by an internal point of view; it imposes acceptance acceptance = means that people share a will to use a regularity of conduct as a guide to his own conduit. people can accept rules as they think that they are good > approval PORCODIO GUARDA FOTO efficacy is a matter of acceptance; validity is the function of the external point of view. according to hart the rule is valid when it passes the controls, the checklist provided by the rule of recognition He is rejecting the idea of sovereign as an ultimate power like Hobbbes thought. the rule of recognition is the ultimate and supreme rule> it is a secondary rule and a test rule for a LEGAL system HART VIEW OF LAW: ● Law is a social construction. ● law is made of social rules> primary and secondary rules. ● rules have an external and internal point view. ● Law is a matter of PARTICIPATION. ● if law is a legal practice it should be understood> people should record a regularity and understand the rules ● Law is a matter of COMMUNICATION > communicative> rules standards are instruments of social contract and social practice. communication has four elements: - made of an author who formulates a communications - medium carry seat - message, content - audience that receives the message. if we apply this model to law, at least the 1st and 3rd element are problematic: - The rules of law frequently lack a definite author and in many cases the message is unclear. The author of a communication is a person or body that consciously formulates a message to be delivered. But who is the author of the law? e.g: in customary law. The authors of (customary) law are a group of people with different goals. Both status or customary law lack an author. The central role of communication is inappropriate in law as we cannot realize who is the mind of the message. - message of the law, content: is a message of a law always clear? a message has normally a core of unproblematic meeting and then a penumbra of unproblematic uncertainty where the meaning is vague; this uncertainty is explained by using the concept of ‘ open texture of the language’ > open question of the law is open to possible interpretations and this way of thinking… discretion of a judge= according to Kelsen and all the positivists judicial reasoning is a syllogism, legal syllogism is smt very binding as is it made out of norms that have to be applied to the case> then there is a conclusion which is the judgment so the judgment is a pure logical operation, a logical deduction. The problem is that the rule is not always clear, it is made of words and language > language has an open texture and therefore also law . content: no vehicles in the park; by law is forbidden for vehicles to enter in the park. Can a child toy car enter? How is it possible to understand the purpose of the law? In order to interpret the content of the law, you need to look at the social function of the law. The social functions of a child car and a car are different. ‘park’ is a broad concept, and can include lots of different objects; it is a social institution. Our understanding of the content of the law is always related to cultural aspects. object of discussion of Dworkin > Hart legal positivism. Dworkin describes Hart position in three points: 1. the pedigree (source) thesis > i can say ‘this rule belongs to a legal system’ if i test it with a pedigree test. the pedigree does not consider the content but the manner in which the rule is adopted or developed. The test can be useful to distinguish valid from spurious legal rules. In every legal system there exists a rule to distinguish rule from non law. 2. discretion thesis> all the legal rules define a complete legal system. The positivist argue that law consists mainly in legal rules which are a set of complete . if a case is not clearly covered by an existing legal rule, the judge can exercise the discretion. 3. obligation thesis > it is the counterpart of the discretion thesis. legal obligation means that there is a rule that requires to do or not to do something ; this is the skeleton of legal positivism. Difference between rules principles and policies His position is to create a theory of law based not only on rules but on rules, principles and policies. ‘ I want to make a general attack on positivism and I shall use Hart’s version as a target’ this is how the chapter starts. we can speak on principle in general terms including principles, policies, standard rather than rules. Difference between principles and policies policy> standard that has a goal to be reached and regards improvement in a political, economic, social feature of the community. It regards improvement. (gender policies) principle> standard that has to be observed because it is a requirement of justice, of fairness, or of some kind of morality in a broader sense . Difference to distinct principles from rules: - Riggs vs Palmer : Francis Palmer made a testament in which he gave most of his legacy to the two daughters and the remaining part to his grandson palmer. Palmer had poisoned him so it is controversial. Can Palmer receive the hereditary even though he poisoned him? according to the court there are two principles: 1. it is a matter of justice, it is fair to follow the law. We have a statute law which is clear so we can follow it. 2. it is not fair that he profits from his crime In the end, Palmer didn’t receive the money; the judgment was grounded on the principle, not on the rules. - Henningsen v Bloomfield motors > the contract contained a limit about warrant> warrant could be used to repair defective parts and not damages caused by defective parts. the car was damaged, the manufacturer refused to repair it under this clause. 1. there is a contract, it is up to you if you did not read everything 2. concept of warrant> if we limit the warrant we also limit the state security. He agrees with Henningsen : the contract is valid but it was a form and therefore Henningsen didn’t have the possibility to negotiate it. There is inequality between the seller and the customer. According to D. in both cases the standard to which the judge appeals is not the legal rule but the principle> courts are relying on the principle that no one should profit from these crimes or the principle that it is not just to have an unequal relation between buyer and seller. the court is relying on the principles There is a logical distinction between rules and principles; this distinction appears clearly when we consider principles that don't even look like rules. 1° difference: principles have a dimension that rules do not have, the dimension of weight or importance -> when principles are in contrast, one must resolve the conflict by taking into account the relative weight of each of them. if we take into account the principle, is it legitimate to ask: how important is this principle? Rules do not have this dimension, they all weigh the same; they are functionally important or unimportant -> when 2 rules conflict it is not possible to apply both; it is not a matter of comparing the dimensions, If 2 conflicts then one of them can't be a valid rule. if you have a conflict between 2 rules, the solution must be that only one of them is valid. In case of conflict between 2 principles you can weigh, you can apply the two of them. it is problematic but it is also important to distinguish principles and rules : rules can be applied or not, principles can be overrated in different forms.