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 period
dynamic 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 law
a bi-dimensional/dualistic conception of law
a) law cannot be reduced only to positive
law or real law
b) the existence of a law ‘before’, ‘beyond’
and ‘above’ positive or real law
 natural law theory
natural law is the law that man does not
produce, but discovers and finds in nature
(‘given’)
nature is a dimension of reality that
precedes and transcends man
nature is the horizon of man’s will, in which
he finds himself
 natural law theory
it doesn’t deny the existence and the
juridical importance of positive law, but it
denies its exclusiveness
it affirms the existence of a previous law in
chronological order and superior/higher
(ethically) in a hierarchical sense
(in case of conflict, it prevails)
 natural law theory
natural law is the ‘unwritten law’
‘point of intersection between law and
morals’
law should be based on morality and ethics
it has an intrinsic value; its obligatoriness is
justified in itself (objectively) independently
of the formal ruling of the legislator or of
the judge’s decision
 natural law theory

natural law is “discovered” by humans

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

moralist seek to derive an ‘ought’ from an

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

begins with a fiction (the original position

behind a veil of ignorance) to thematise
the principle of equality (the defence of the
rights to freedom) and difference
(compensation for social and economic
inequalities)
between liberalism and socialism
 the return/revival of natural law
the need to fix substantial axiological limits to
positive law, so as to avoid the dangers of a use
of the law against man
the mere formal promulgation or social observance
of law are not sufficient to justify the
obligatoriness of it
awareness of possibile dangers:
a) the law as a mere external recipient that can be
filled with any content
b) the risk of the contents of law being decided
arbitrarily by a self-referential power
 the return of natural law
the law has inalienable contents and
minimum values which justify its
obligatoriness
only the law that defends man, his existence
and his coexistence has an authentic
meaning
 the return of natural law
not in the traditional sense but with a renewed
meaning
the expression is little used and is often
considered antiquated
in contemporary philosophical debate many
theorisations which appeal to natural law
consider that the law cannot be neutral, or
normatively translate political will at a formal
level (regardless of an evaluation of the contents
and values) or institutionalise the desires and
interests empirically arising in society (without
taking a standpoint)
 the return of natural law
the appeal to natural law is the appeal
against the neutrality of law, in favour of a
law that does not claim to choose one
ethical perspective (delegitimising the
others) from which to draw social rules,
but of a law that thematises its own ethics,
the minimum ethics of law, the ethics of
human dignity and justice
 the return of natural law
• the problem of justification in a pluralistic
society
• even if a practical agreement exists on
justice and human dignity, there is no
theoretical assent with it
 the return of natural law
‘strong’ orientations: human dignity is an
intrinsic value and justice coincides with
the recognition of the ontological equality
among human beings
‘weak’ orientations: justice as a procedural
search for public conditions of sharing
modalities to peacefully negotiate
controversies, making individual rights to
liberty compatible
 the return of natural law
no pretence of completely objectivising the
truth, of an eternal and unchangeable
truth, from which to systematically and
analytically deduce norms and values,
formulating a sort of complete and
unchangeable code, valid for all situations,
at all times and in all places
 the return of natural law
jusnaturalism in a dynamic key, adjusting it to
the complex, secularised, pluralistic society
human dignity as the objective criterion of
justice and the justification of law
dynamically open to the historical-social
demands which show the continuous need
for new formulations
 the return of natural law
human dignity represents the structural
criterion that allows a rational attitude, in a
critical sense with respect to the positive
and social law
a limit for the formulation of positive, judicial
and social law
 the return of natural law
the declarations of human rights are the
most suitable for the formulation of human
dignity that have been expressed in our
age
agreement and universal consensus on
what is declared in the international
documents
 LEGAL POSITIVISM
• the reduction of law to only positive law
and the superiority of positive law over
natural law
• absolutization of positive law
• denial of the lawfulness/existence of
natural law
a monistic theory of law: either law is
positive or it is not law
 theory of positive law
• application of the scientific method to the
study of law (only judgements of fact and
never value judgements)
• radical separation of law from ethics
 theory of positive law
• validity: technical correctness of a norm
- legalism or formalism reduces justice to
validity: the law merely because it is law is
considered just;
- moderate version: legality is the criterion
for lawfulness, as obedience to the law
guarantees peace and social order
 theory of positive law
• the source of law is the legislator: source
of production and qualification of the law
(law becomes hierarchically the priority
source)
there are sources of cognition, such as
custom or sources of delegation, such as
the judge
 theory of positive law
the citizen must obey the laws because they
are set out by the legislator and because
disobedience is punished (exterior
obligation)
 Nineteenth century
• the need for organicism, simplification, and
clarity in the face of the fragmentation of
medieval law
• process of codification (Napoleonic Code,
1804)
• the formation of the modern State
 Napoleonic code
• article 4 that, “the judge who shall refuse
to determine under pretext of the silence,
obscurity, or insufficiency of the law, shall
be liable to be proceeded against as guilty
of a refusal of justice”
only self-integration
dogma of the completeness of the legal
system
 Hans Kelsen (1881-1973)
• the “pure theory of law” (normativism)
- “pure” means a scientific doctrine of law:
the only true theory of law is the science of law
that is not contaminated by nature, political
ideology, morality, sociology or economy
- legal science is and must be independent of
other disciplines
- scientific legality is only the formal analysis of
rules
 Kelsen
• the pure doctrine of law is a science which
provides a formal model of analysis of the
rules (the theory of norms or the static
principle) and the reciprocal relationship
between the rules (the theory of legal
order or the dynamic principle)
 Kelsen
• normativism: “law is norm not fact”
• what is important in a legal argument are the
norms not the facts
• it is to these norms that legal cognition is
directed – norms that confer on certain material
facts the character of legal (or illegal) acts,
namely to know what the law includes and
excludes
• the only criterion that Kelsen uses to distinguish
what is legal and what is not is the norm
 Kelsen
• this means that if an act is not regulated
by the law it is considered an irrelevant act
for the law: the jurist is interested only in
those acts regulated by legal norms
• the key point for Kelsen is the existence of
a legal norm that governs conduct
 Kelsen
• the legal norm as a hypothetical judgement or
hypothetical proposition: “If A, then B”
• norms are legal if they follow this formula where
A is illicit, specifically, an illicit (in the sense of
unlawful) act or condition, while B is the penalty,
that is, the punishment for behaviour which has
broken the rules or is the consequence, of
illicitness
 Kelsen
• either the norm carries a penalty or it is not legal
• the most important element in the formulation of
the norm is the penalty: the illicit act constitutes
the condition for which the penalty is applied
• the jurist does not take account of whether the
behaviour is or is not licit but must verify if there
is a penalty:
if the penalty exists this means that the behaviour
is illicit (that is unlawful), or in other words if
there is a norm that involves punishment for that
behaviour then it can be said that this behaviour
is illicit
 Kelsen
- a formal analysis: the jurist does not examine
the meaning of licit or illicit which presupposes a
value, but rather examines the presence or
absence of a punishment for that behaviour
licit corresponds to lawfulness; illicit to
unlawfulness
illicitness is the condition A of a consequence B
therefore a fact or an act that really happens is not
in itself or by itself illicit, it is illicit because it is
imputed
 Kelsen
• “justice is an irrational ideal: an ideal because it
is abstract, and irrational because it is not
reasonable, but if anything the result of mere
emotionalism or sentiment”
• the idea of justice is therefore a changeable idea
• this is why Kelsen says that the jurist must put
aside references to ethics, values, and justice as
they are variable ideas for each individual
 Kelsen
• the inversion of primary and secondary
norms is configured
• in the legal tradition
- the primary norms (prescriptive) are the
rules that require certain behaviour by the
citizens
- the secondary norms (sanctions) are the
rules that establish a penalty for conduct
that has violated the primary norms
 Kelsen
the primary norms and the secondary norms are
reversed
the formula “if A then B” is a secondary norm
the secondary norms are exclusive, that is, the
only true legal rules: he calls them primary
norms
they are addressed to the judges not the citizens,
because for Kelsen the main concern is the
imposition of the penalty
 Kelsen
“ any content whatever can be law”
law is a container to fill with any content
this phrase therefore says that any norm can
become a legal rule, because there are no
criteria to fulfil
it is also possible to imagine a law that does not
punish murder: in this case the killing of a
person would be licit
the criterion for legality is consistent with that of
formal validity
 Kelsen
Kelsen analyses the norm even in its
relation with the others within the legal
system
the system is structured in steps: it is a set
of rules linked in a hierarchical and formal
manner by relationships of
production/delegation and execution
 Kelsen
the hierarchal structure:
Basic Norm, which entitles the constituent
power to produce
the Constitution, which in turn legitimizes
the law, which must be applied
by the rulings, regulations, administrative
provisions and negotiating acts
 Kelsen
the Basic norm is a mental construction, a
methodological expedient that the jurist
uses to close the system; in fact it is purely
formal and has no content
 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