HISTOIRE DE LA PHILOSOPHIE MODERNE DU DROIT
The course suggests mainly a historical overview on the formation of modern legal thinking, from French Revolution to our own era. This overview fosters on the question of what Law is and how it should be interpreted.
The course is divided in two parts.
The first part has a historical orientation. It examines
a) the transition from the rational legal philosophy of the Enlightenment toward the legal positivism in 19th century;
b) the contestation of legal positivism by newer currents of legal thought, from the end of 19th century and onwards;
c) the appearance of innovative theories on legal reasoning after the II. World War.
The second part tries to fertilize the aforementioned rich constellation of ideas, aiming to offer a reconstructive approach on contamporafy legal reasoning.
DIAGRAM OF LECTURES
1) Kant’s legal philosophy, as the most representative model within the political philosophy of the Enlightenment.
2) The gradual appearance of legal positivism during the 19th century; its basic features and undercurrents.
3) Currents of thought critical to legal positivism:
a) objective and teleological theory of interpretation,
b) theory of legal interests,
c) free interpretation of law.
4) The analytical theory of law in the after-War Britain. The interpretive model of R. Dworkin’s legal theory in the USA.
5) “Hermeneutic” theory of law, the “topic” legal theory and “New Rhetoric”.
6) The language of law after L. Wittgenstein’s “pragmatic” turn in the philosophy of language.
7) The legal syllogism in the framework of contemporary theory of legal argumentation.
8) Guidelines of a normative theory of legal reasoning and a critique against the decisionist model of legal interpretation (especially H. Kelsen’s).
9) Conditions of possibility for right answers to legal matters.
10) The possibility of critical assessment of Constitution.
11) From legal theory to philosophy of justice.