PHILOSOPHY OF LAW

legal philosophy

program

L. Palazzani, A philosophical introduction to law, Aracne, Roma 2010

index

1. introduction: what is philosophy of law, terminology

2. theories of law (some authors, text)

3. philosophical concepts ‘for’ law (some applications)

1. philosophy of law

it is part of practical philosophy: the study of/reflection on human behaviour

- as expression dates back to 1821 (Hegel)

- as a reflection on law was born with the birth of philosophy

philosophy of law

• philosophy: reflection on the meaning of life, man, action

• law: a set of norms/rules, which regulates

human behaviour/citizens

philosophy of law

studies ‘why’ law (not ‘how’ law is)

reflection/clarification on the meaning and the essence/nature of law

(foundation, critical justification, formulation)

a. foundation (past)

the clarification of the basis/foundation of law, the conditions of the possibility of law

the preliminary question:

why does law exist rather than the absence of law?

why is it better that law exists rather than the absence of law?

b. critical justification (present)

(to criticise means ‘to express a judgement’)

the analysis of a juridical norm that exists (in force)

asking the question:

is this law acceptable or unacceptable; just/unjust?

c. formulation (future)

the planning of (possible) future law, investigating how the law must or should be

in order to draft a ‘better’ law than the existing one (if acceptable) and to formulate new norms where necessary or absent

what the law ‘ought’ to be

‘jurisprudence’

• juris = of law

• prudens = skilled, caution, prudence, balance

‘analytical’ jurisprudence: scientific analysis of legal structures and concepts

‘normative jurisprudence’: knowledge of nature, place, role of law within society, evaluation of legal rules and structures

terminology

• natural law

• positive law

• real law

natural law

negative definition: ‘non- positive’ law (not negative): the law that exists independently of the will and act of position

a)origin: nature

b)space: universal law, everywhere

c) time: unchangeable (it is the same, cannot be changed by man)

positive law

from positum, past participle of ‘ponere’ (to place, issue, posit): it therefore means ‘issued’, posited

a) origin: conventional (or artificial); it derives from the will of whoever imposes the law

b) space: particular, a certain group of individuals, and is in force in a certain political community

c) time: changeable law, contingent (variable)

real law

the ‘living’:a) origin: neither from nature nor from the

will, but from most widespread, repeated and frequent social behaviour (habits and customs, needs or interests); the application of laws by judges

b) space: a certain social context c) time: a specific perioddynamic and variable law

2. theories of law

natural law theory

legal positivism

legal realism

NATURAL LAW THEORY

(doctrine of natural law, ‘jusnaturalism’)the existence and the possibility to know

natural lawa bi-dimensional/dualistic conception of lawa) law cannot be reduced only to positive

law or real lawb) the existence of a law ‘before’, ‘beyond’

and ‘above’ positive or real law

natural law theory

natural law is the law that man does not produce, but discovers and finds in nature (‘given’)

nature is a dimension of reality that precedes and transcends man

nature is the horizon of man’s will, in which he finds himself

natural law theory

it doesn’t deny the existence and the juridical importance of positive law, but it denies its exclusiveness

it affirms the existence of a previous law in chronological order and superior/higher (ethically) in a hierarchical sense

(in case of conflict, it prevails)

natural law theory

natural law is the ‘unwritten law’

‘point of intersection between law and morals’

law should be based on morality and ethics

it has an intrinsic value; its obligatoriness is justified in itself (objectively) independently of the formal ruling of the legislator or of the judge’s decision

natural law theory

natural law is “discovered” by humans through the use of reason and choosing between good and evil

natural law finds its power in discovering certain universal standards in morality and ethics

theories of natural law

(history of western thought)

a)biological-naturalistic theories: natural law = impersonal biological law that governs nature immanently (all living beings)

b)theological theories: natural law = the supernatural divinity (will of God; divine knowledge, comprehensible by human reason)

theories of natural law

c) rationalistic theories (or jusrationalism): natural law is the norm set down by man’s reason

- reason as the faculty able to grasp the fundamental essence of reality and man,

- reason as the calculating faculty able to manage the modalities and procedures to guarantee social life

common elements

a) the reference to nature

(physical nature, knowledge or divine will, human reason, understood in the strong and weak sense)

as an objective limitation to the subjective will of man

common elements

b) connection between law and morals:

- natural law includes (implicitly or explicitly) a reference to ethics (values; good/evil)

- coincidence with ethics/non coincidence (minimal ethics in law)

common elements

c) the reference to justice (give each man his own): equality, fairness, equity

justice is/may not be:

(formal) legal validity

(social) social efficacy/effectiveness

natural law theory

- the justification of the foundation

(the sense of law)

- the explanation for the ends of law

(the common good)

- the obligatoriness of law

(the interior adhesion to the sense of the norm justifies the intrinsic obedience to it)

natural law theory

- Ancient times (VI BC – II AD)

- Middle ages (II – XIV)

- Modern age (XIV-XVIII)

- Contemporary period (XIX: till today)

Aristotle (384-322 a.C.)

nature = capacity for development inherent in particular things, aimed at a particular end

(teleological conception of nature)

“all beings by their nature have within themselves inclinations [or dispositions] which direct them to the end which is proper to them” (end = good)

Aristotle

natural law = what is just at all times and in all places independently of the fact that it has been decreed

‘just by nature’ and ‘legal just’

A., Nicomanchean Ethics, bk V

“With regards to justice and injustice we must (1) consider what kind of actions they are concerned with, (2) what sort of mean justice is, and (3) between what extremes the just act is intermediate”.

A., Nicomanchean Ethics, bk V

“We see that all men mean by justice that kind of state of character which makes people disposed to do what is just and makes them act justly and wish for what is just; and similarly by injustice that state which makes them act unjustly and wish for what is unjust”.

A., Nicomanchean Ethics, bk V

“Now 'justice' and 'injustice' seem to be ambiguous, but because their different meanings approach near to one another the ambiguity escapes notice and is not obvious as it is”

A., Nicomanchean Ethics, bk V

“Since the lawless man was seen to be unjust and the law-abiding man just, evidently all lawful acts are in a sense just acts; for the acts laid down by the legislative art are lawful, and each of these, we say, is just.

Now the laws in their enactments on all subjects aim at the common advantage either of all or of the best or of those who hold power, or something of the sort; so that in one sense we call those acts just that tend to produce and preserve happiness and its components for the political society”.

A., Nicomanchean Ethics, bk V

“And therefore justice is often thought to be the greatest of virtues, and 'neither evening nor morning star' is so wonderful; and proverbially 'in justice is every virtue comprehended'.

And it is complete virtue in its fullest sense, because it is the actual exercise of complete virtue. It is complete because he who possesses it can exercise his virtue not only in himself but towards his neighbour also; for many men can exercise virtue in their own affairs, but not in their relations to their neighbour”.

A., Nicomanchean Ethics, bk V

“Justice in this sense, then, is not part of virtue but virtue entire, nor is the contrary injustice a part of vice but vice entire. What the difference is between virtue and justice in this sense is plain from what we have said; they are the same but their essence is not the same; what, as a relation to one's neighbour, is justice is, as a certain kind of state without qualification, virtue”.

A., Nicomanchean Ethics, bk V

“The unjust has been divided into the unlawful and the unfair, and the just into the lawful and the fair.

But since unfair and the unlawful are not the same, but are different as a part is from its whole (for all that is unfair is unlawful, but not all that is unlawful is unfair), the unjust and injustice in the sense of the unfair are not the same as but different from the former kind, as part from whole; for injustice in this sense is a part of injustice in the wide sense, and similarly justice in the one sense of justice in the other”.

A., Nicomanchean Ethics, bk V

“Of particular justice and that which is just in the corresponding sense, (A) one kind is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another), and (B) one is that which plays a rectifying part in transactions between man and man”.

A., Nicomanchean Ethics, bk V

“This, then, is what the just is-the proportional; the unjust is what violates the proportion. Hence one term becomes too great, the other too small, as indeed happens in practice; for the man who acts unjustly has too much, and the man who is unjustly treated too little, of what is good”.

Aristotle

“justice is a state of mind than encourages man to perform just actions”

just = lawful, fair, virtuousnatural justice “is set by nature, which renders it

immutable and valid in all communities”conventional justice “comprises rules devised by

individual communities to serve their needs”conventional justice is subject to change

(depending on the form of government), and is subordinate to natural justice

Aristotle

distinction between various types of justice (commutative, distributive, legal and natural justice), recognising justice in the middleness and equity in the corrective application to the concrete case of the general and abstract law it is constant and stable in most cases

Roman period

definition of jurisprudence as ‘ars boni et aequi’, ‘iusti et iniusti scientia’

Cicero: natural law = rational natural law (or right reasoning/recta ratio): through reason man can know the laws of nature; positive laws must be founded on natural laws

“true law is right reasoning in agreement with nature: it is of universal application, unchanging and everlasting”

Roman period

justice = the constant and perpetual wish to render everyone his due

(Corpus Juris Civilis)

precepts of natural law: to live honestly, not to injure others, to give everyone his due

Middle Ages

- the influence of Christianity: natural law = the cosmic order created by God; eternal and unchangeable law; not impersonal and immanent but personal divine and transcendent (written in man’s heart)

St. Thomas (1225-1274)

- scholasticism: a complex synthesis between Greek and Christian thought

- natural law in a finalistic-creationist context: the order of the ends of nature (inanimate and animate) coincides with the sapiential plan that was God’s will at the moment of Creation

St. Thomas

1. (positive) divine law = the revealed truth (faith, scriptures)

2. eternal law = divine wisdom, rational guidance/plan for all living things

3. natural law = the ‘participation’ (of the rational creature) with eternal law, or ‘the ordination’ of human reason to good

St. Thomas

practical reason can know natural law on the basis of the observation of man’s natural inclinations:

the conservation of life,

reproduction,

knowledge of the truth

living in a society

St. Thomas

the first and fundamental precept of natural law is ‘good is to be done and pursued and evil avoided’

this precept is self-evident since all creatures act on account of their end, which is the good for them

St. Thomas

4. positive human law = particular provisions deriving (by conclusion and determination) from natural law; must be directed towards the common good

St. Thomas

different interpretations:- law that fails to conform to natural (or

devine) law is not a law at all; an unjust (unreasonable) law is not a law

- laws which conflict with natural law lose their power of binding morally; it is an abuse of authority; lacks moral obligation

‘corruption of law’: justification in disobeying an unjust law

ST, Ia IIae, q. 94, a. 2

the order of the precepts of the natural law follows the order of natural inclinations:

1) “in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law”

ST, IaIIae, q. 94, a. 2

2) “there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law, "which nature has taught to all animals", such as reproduction, education of offspring and so forth” (family)

ST, IaIIae, q. 94, a. 2

3) “there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination”

ST, IaIIae, q. 94, a. 2

the rational is natural, because it has a basis in human nature, which is rational

ST, IaIIae, q. 95, a. 2: “In human affairs a thing is said to be just by virtue of its being right according to the rule of reason. The first rule of reason is the law of nature”

Modern age

- birth of science: quantitative (materialistic conception of nature)

the passage from a universalistic/ metaphysical to an empirical conception of nature: no values in nature

- secularisation of thought (religious pluralism): autonomy in morality

natural law tends to pass from an objective interpretation to a subjective consideration (natural rights)

(natural law is not above man or outside man, but inside man)

natural rights

rights are not derivative from natural law but are the underived, primary, and fundamental moral feature of humanity

a beginning of such a theory of subjective rights is to be found in the seventeenth century in Grotius and Hobbes’s thought

rationalistic jusnaturalism (the problem of the compatibility between state authority and the recognition of individual rights)

natural rights

• there might be an ultimate and irresolvable clash between competing rights of single individuals as opposed to the picture of a moral world which, at least in principle, is well-ordered and harmonious.

• emergence of the idea of autonomy, that is, the idea that a human being is capable of imposing obligation upon oneself and that this capacity constitutes the foundation for all morals

Grotius (1583-1645)

‘reason as if God were not there’; even if God did not exist, natural law would have the same content (certain actions are intrinsically wrong or right)

natural law = the precept of sociability (do not steal, respect agreements) and tolerance (as a principle guaranteeing harmonious communal life among men)

‘school of natural law’

contractarian theories:

human society is based upon a social contract

- genuine historical fact

- hypothesis, logical presumption

T. Hobbes (1588-1679)

- materialist, mechanist and individualist vision- the state of nature: original condition of individuals

(individual acts according to his own interests, self-conservation/preservation)

natural law = liberty of each man to use his own power for the conservation of himself (the law of the strongest)

the constant danger (perpetual war of all against all: constant fear) postulates the need for the stipulation of a social contract (of union and subjection)

sovereign holds absolute power (unconditioned) with the task of guaranteeing peace (in exchange for the safety of one’s life)

T. Hobbes

‘natural right’: basic right of every person to preserve his own life

laws of nature (derived from them)

T. Hobbes

political sovereing has unlimited power (punishment the violation of contracts): objective determination of rigths and wrong

a theory of subjective rights:

• according to the logic of traditional natural law theory “certain basic rights are inalienable because they are duties under natural law, and all other duties / rights derive their ultimate justification more or less directly from these

• according to a proper theory of subjective rights, certain basic rights are inalienable because they are primary, underived features of the person.

a theory of subjective rights:

• a typical feature of traditional natural law theory is “the idea that obligation presupposes a superior authority. The common assumption was that a necessary condition for the obligation of natural law was that it issued from God’s authority and that all other obligations, that is, those undertaken by individuals, derived their force from the binding character of natural law

only very few early modern thinkers, Grotius among them, clearly articulated the idea that there could be obligation without reference to divine authority

a theory of subjective rights:

• a proper theory of subjective rights embraces the idea that human beings are morally autonomous, that is to say, the idea that human beings can impose obligations upon themselves without ultimate reference to a higher law and a supreme authority, namely God

the decline of natural law

from the triumph of natural law to its crisis (19th century)

a) scepticism about natural law: we cannot objectively know what is right or wrong (only subjective opinions: they could be neither right nor wrong, either right or wrong)

D. Hume (1711-1776)

moralist seek to derive an ‘ought’ from an ‘is’: facts (nature) cannot be used to determine what ought to be done or not done; we cannot derive law from nature

the decline of natural law

b) birth of legal positivism:

the codification process (the need for the posivitisation of rational natural law; systematisation of medieval law; formation of the absolute states) constituted the ‘involuntary bridge’ or a ‘non-intentional outcome’ towards legal positivism (opposite to natural law theory)

the decline of natural law

art. 12 of the Napoleonic Code (1804) prohibits the judge from refusing to judge in the case of obscurity, silence or insufficiency of the law

the implicit intention of the drafters: to admit the reference to equity as integrative (outside the code)

the interpreters understood ‘integration’ exclusively inside the code

contemporary age

the return of natural law

strong and soft

after the war

20th century (second half) witnesses renaissance in natural law theory

the return/revival of natural law (following the atrocities of Nazism in Germany; apartheid in South Africa) demonstrates the danger of the separability of law and morals

G. Radbruch claims the existence of a meta-positive law that justifies disobedience to a legal injustice (at least disobedience to the laws of the Third Reich)

a moderate version of jusnaturalism: unjust positive law must be disregarded only when it is intolerable

human rights

post-war recognition of human rightsexpressions in Declarations, Conventions,

Constitutionshuman rights: as (natural) limits/measure of

positive law (political power) each of us, as a human being, regardless of race,

religion, gender, age (…) is entitled to certain fundamental and inalienable rights

only by virtue of belonging to human species, of being human

human rights

whether or not such rights are legally recognised is irrelevant (from a moral point of view)

civil and political rights; economic, social and cultural rights; environment, health; women, children, vulnerabole; tecno-scientific progress

Nurnberg

- Nurnberg trials of senior Nazi officials: certain atcs, even if they do not violate provisions of positive law, constitute ‘crimes against humanity’

- not explicit reference to natural law theory: but there is an importan recognition that the law is not necessarily the sole determinant of what is right

J. Finnis (1940)

neoclassical doctrine of natural law

an accurate description of the facts makes it possible to assess them correctly

natural law as a fundamental requirement of ethical and practical reason in the protection of ‘fundamental good’

J. Finnis

principles of natural law: self-evident (not deduced from human nature)

justice = foster common good in one’s community; foster human fourishing

reasonable, in accordance with human nature

R. Dworkin (1931)

• theory of justice: law as interpretation

judge does not make law, but rather interprets laws; interpretation/evaluation = expression of values inside (not outside) the legal system

law includes: rules and principles (meta-rules, moral: justice, fairness = equality, liberty)

J. Rawls

begins with a fiction (the original position behind a veil of ignorance) to thematise the principle of equality (the defence of the rights to freedom) and difference (compensation for social and economic inequalities)

between liberalism and socialism

the return/revival of natural law

the need to fix substantial axiological limits to positive law, so as to avoid the dangers of a use of the law against man

the mere formal promulgation or social observance of law are not sufficient to justify the obligatoriness of it

awareness of possibile dangers: a) the law as a mere external recipient that can be

filled with any content b) the risk of the contents of law being decided

arbitrarily by a self-referential power

the return of natural law

the law has inalienable contents and minimum values which justify its obligatoriness

only the law that defends man, his existence and his coexistence has an authentic meaning

the return of natural law

not in the traditional sense but with a renewed meaning

the expression is little used and is often considered antiquated

in contemporary philosophical debate many theorisations which appeal to natural law consider that the law cannot be neutral, or normatively translate political will at a formal level (regardless of an evaluation of the contents and values) or institutionalise the desires and interests empirically arising in society (without taking a standpoint)

the return of natural law

the appeal to natural law is the appeal against the neutrality of law, in favour of a law that does not claim to choose one ethical perspective (delegitimising the others) from which to draw social rules, but of a law that thematises its own ethics, the minimum ethics of law, the ethics of human dignity and justice

the return of natural law

• the problem of justification in a pluralistic society

• even if a practical agreement exists on justice and human dignity, there is no theoretical assent with it

the return of natural law

‘strong’ orientations: human dignity is an intrinsic value and justice coincides with the recognition of the ontological equality among human beings

‘weak’ orientations: justice as a procedural search for public conditions of sharing modalities to peacefully negotiate controversies, making individual rights to liberty compatible

the return of natural law

no pretence of completely objectivising the truth, of an eternal and unchangeable truth, from which to systematically and analytically deduce norms and values, formulating a sort of complete and unchangeable code, valid for all situations, at all times and in all places

the return of natural law

jusnaturalism in a dynamic key, adjusting it to the complex, secularised, pluralistic society

human dignity as the objective criterion of justice and the justification of law

dynamically open to the historical-social demands which show the continuous need for new formulations

the return of natural law

human dignity represents the structural criterion that allows a rational attitude, in a critical sense with respect to the positive and social law

a limit for the formulation of positive, judicial and social law

the return of natural law

the declarations of human rights are the most suitable for the formulation of human dignity that have been expressed in our age

agreement and universal consensus on what is declared in the international documents

LEGAL POSITIVISM

• the reduction of law to only positive law and the superiority of positive law over natural law

• absolutization of positive law

• denial of the lawfulness/existence of natural law

a monistic theory of law: either law is positive or it is not law

theory of positive law

• application of the scientific method to the study of law (only judgements of fact and never value judgements)

• radical separation of law from ethics

theory of positive law

• validity: technical correctness of a norm

- legalism or formalism reduces justice to validity: the law merely because it is law is considered just;

- moderate version: legality is the criterion for lawfulness, as obedience to the law guarantees peace and social order

theory of positive law

• the source of law is the legislator: source of production and qualification of the law (law becomes hierarchically the priority source)

there are sources of cognition, such as custom or sources of delegation, such as the judge

theory of positive law

the citizen must obey the laws because they are set out by the legislator and because disobedience is punished (exterior obligation)

Nineteenth century

• the need for organicism, simplification, and clarity in the face of the fragmentation of medieval law

• process of codification (Napoleonic Code, 1804)

• the formation of the modern State

Napoleonic code

• article 4 that, “the judge who shall refuse to determine under pretext of the silence, obscurity, or insufficiency of the law, shall be liable to be proceeded against as guilty of a refusal of justice”

only self-integration

dogma of the completeness of the legal system

Hans Kelsen (1881-1973)

• the “pure theory of law” (normativism)

- “pure” means a scientific doctrine of law:

the only true theory of law is the science of law that is not contaminated by nature, political ideology, morality, sociology or economy

- legal science is and must be independent of other disciplines

- scientific legality is only the formal analysis of rules

Kelsen

• the pure doctrine of law is a science which provides a formal model of analysis of the rules (the theory of norms or the static principle) and the reciprocal relationship between the rules (the theory of legal order or the dynamic principle)

Kelsen

• normativism: “law is norm not fact”• what is important in a legal argument are the

norms not the facts• it is to these norms that legal cognition is

directed – norms that confer on certain material facts the character of legal (or illegal) acts, namely to know what the law includes and excludes

• the only criterion that Kelsen uses to distinguish what is legal and what is not is the norm

Kelsen

• this means that if an act is not regulated by the law it is considered an irrelevant act for the law: the jurist is interested only in those acts regulated by legal norms

• the key point for Kelsen is the existence of a legal norm that governs conduct

Kelsen

• the legal norm as a hypothetical judgement or hypothetical proposition: “If A, then B”

• norms are legal if they follow this formula where A is illicit, specifically, an illicit (in the sense of unlawful) act or condition, while B is the penalty, that is, the punishment for behaviour which has broken the rules or is the consequence, of illicitness

Kelsen

• either the norm carries a penalty or it is not legal• the most important element in the formulation of

the norm is the penalty: the illicit act constitutes the condition for which the penalty is applied

• the jurist does not take account of whether the behaviour is or is not licit but must verify if there is a penalty:

if the penalty exists this means that the behaviour is illicit (that is unlawful), or in other words if there is a norm that involves punishment for that behaviour then it can be said that this behaviour is illicit

Kelsen

- a formal analysis: the jurist does not examine the meaning of licit or illicit which presupposes a value, but rather examines the presence or absence of a punishment for that behaviour

licit corresponds to lawfulness; illicit to unlawfulness

illicitness is the condition A of a consequence Btherefore a fact or an act that really happens is not

in itself or by itself illicit, it is illicit because it is imputed

Kelsen

• “justice is an irrational ideal: an ideal because it is abstract, and irrational because it is not reasonable, but if anything the result of mere emotionalism or sentiment”

• the idea of justice is therefore a changeable idea• this is why Kelsen says that the jurist must put

aside references to ethics, values, and justice as they are variable ideas for each individual

Kelsen

• the inversion of primary and secondary norms is configured

• in the legal tradition - the primary norms (prescriptive) are the

rules that require certain behaviour by the citizens

- the secondary norms (sanctions) are the rules that establish a penalty for conduct that has violated the primary norms

Kelsen

the primary norms and the secondary norms are reversed

the formula “if A then B” is a secondary norm

the secondary norms are exclusive, that is, the only true legal rules: he calls them primary norms

they are addressed to the judges not the citizens, because for Kelsen the main concern is the imposition of the penalty

Kelsen

“ any content whatever can be law”law is a container to fill with any contentthis phrase therefore says that any norm can

become a legal rule, because there are no criteria to fulfil

it is also possible to imagine a law that does not punish murder: in this case the killing of a person would be licit

the criterion for legality is consistent with that of formal validity

Kelsen

Kelsen analyses the norm even in its relation with the others within the legal system

the system is structured in steps: it is a set of rules linked in a hierarchical and formal manner by relationships of production/delegation and execution

Kelsen

the hierarchal structure:

Basic Norm, which entitles the constituent power to produce

the Constitution, which in turn legitimizes

the law, which must be applied

by the rulings, regulations, administrative provisions and negotiating acts

Kelsen

the Basic norm is a mental construction, a methodological expedient that the jurist uses to close the system; in fact it is purely formal and has no content

LEGAL REALISM

realists study what the law “really” is:

- an empirical vision

- values as products of society and history

legal realism

• the historical school (von Savigny) which locates the source of law in history, in customs and the spirit of the people and considers the law as facts

Legal realism

• the “free law movement” (Kantorowitz) calls for the free pursuit of law by judges

• “Legal sociology” (Ehrlich) introduces the concept of “living law”, identified with the rules under which humans really behave in social life

• institutionalism (Santi Romano), initiates from an empirical consideration of law identifying the legal system with an “orderly social organization”

North American realism

• “revolt against formalism” inspired by the philosophy of utilitarianism and pragmatism

• the law is discerned with the recording of what happens in court and the prediction of what will happen

legal realism

• it is a movement which criticises rationalistic logicism, believing that the law is a means of ensuring social needs, in a ductile, variable and flexible manner

• case law is given priority over legislation and doctrine: the law is discerned with the recording of what happens in court (presupposing that what happens is different from what is expected on the basis of application of positive law) and the prediction of what will happen

legal realism

• real law coincides with the “prophecy” of judges, recognized as having an innovative and creative role

• it is empirical law, therefore variable and probable: it is the functional law of “social engineering”, designed for practical purposes (law in use) and identified by social actions (law in action) therefore it is structurally uncertain

O. W. Holmes

• the law corresponds to the “prophecies of what the courts will do in fact”, to the actual procedure, the experience, and the life of the law

Pound

• the law as an “edifice” built by men to meet needs and aspirations

• “sociological jurisprudence” seeks the adaptation of the law to social needs and interests

theories

• jusnaturalism

• legal positivism

• legal realism

definitions of law

• the law is a set of rules that regulate social behaviour according to justice

• the law is a set of rules that regulate behaviour enacted by the legislature

• the law is a set of rules which are actually obeyed by citizens and applied by judges

disciplines

• the philosophy of law that studies law in the dimension of meaning and value

• the general theory of law that analyses from a formal and logical perspective

• the sociology of law that examines the empirical-phenomenal dimension

categories

• justice

• validity

• efficacy