Course teached as: 0055005 - FILOSOFIA DEL DIRITTO 5-years Single Cycle Degree in LAW
Theories of legal validity, legal sources and legal interpretation.
The common law tradition.
Differences between the rule of law, the Rechtsstaat and the Etat légal.
Globalization and the Crisis of Rechtstaat and Etat légal.
Students can choose one of the following seminars:
Theory and history of penal execution
The rule of law between colonialism and post-colonialism
Theory and history of international law
Critical Legal Theories
Care labour and the exploitment of migrants
Students must study the following texts:
- A. Ross, Diritto e giustizia, Einaudi, Torino, latest edition, pp. 1-159;.
- E. Santoro, Diritto e diritti: lo Stato di diritto nell'era della globalizzazione, Giappichelli, Torino 2008.
and one of these volumes:
M. Foucault, Sorvegliare e punire, Einaudi, Torino 1993.
L. Re, Il liberalismo coloniale di Alexis de Tocqueville, Giappichelli, Torino, 2012
D. Zolo, Cosmopolis. La prospettiva del governo mondiale, Feltrinelli, Milano 1995.
M.G. Bernardini, O. Giolo (a cura di), Le Teorie critiche del diritto, Quaderni dell'Altro diritto, Pacini, Pisa, 2017.
A. Sciurba, La cura servile, Pacini, Pisa, 2015
Students attending classes, actively taking part in a seminar, and doing both the oral presentation and the written paper, will be exempted
from studying one of the last five texts required by the general programme
Knowledge of the main problems of legal language theory. Critical mastery of major twentieth century's legal theories. Knowledge of the history and nature of the common law. Knowledge of the main law thories and of the relationship between rule of law and legal interpretation.
Ability to analyse the social impact of law and to discuss today's problems related to the idea that law can limit power. Ability to draft a short paper based on a bibliography handed out by the teacher, and to discuss it in a seminar.
Knowledge of the different perspectives of western philosophy of law and of the relationship between law and power. Ability to compare different
approaches to this problem in the common law and the civil law traditions.
It is recommended to have passed the exam of General Constitutional Law and
Lectures: 52 hours
Laboratories: 4 hours
Seminars: 16 hours
The Professor presents the different subjects through the use of power point. She uploads slides and other documents relevant for the organization of the course and the study of the different subjects on the e-learning platform. Students are encouraged to ask questions at the end of each lecture. Some special lectures with guests on topics related to the course will be organized.
Students attending the seminars must complement the study of the seminar's textbook with the reading of other papers about related topics. Additional readings will be
indicated during a dedicated organizational meeting (esercitazione).
Students will be requested to:
- orally expose a brief report on the topic assigned to them
- present a written paper of 10 pages (2,000 characters per page) on the topic
- actively take part to discussion meetings, during which all participants' oral reports will be exposed.
They must attend all the seminar's meetings and actively take part to seminar discussions.
Students who attended the lectures, actively took part to seminar meetings, did the oral presentation and handed out the written paper to the teacher will be exempted from studying one of the last five texts required by the general programme for the oral exam.
Attendant students must enrol in the e-learning platform. Attendance will be verified by roll call. Students who intend to attend a seminar must enrol during the first 4 weeks of the course. Seminars attendance will be verified at each meeting by roll call. 4 unexcused absences at class meetings and 1 at the seminar will be allowed.
Type of Assessment
Non attendant students and students attending only the traditional lectures (and not the seminars) are expected to take an oral exam on the two mandatory texts and on one of the five texts among which students can choose. Students will be asked at least three questions (one for each book). More questions can be asked in order to better evaluate students' performance. For attendant students questions will mainly concern the topics discussed in class. Students will pass the exam only if they will show adequate knowledge of all the texts. Critical analysis will be appreciated.
Students who will attend the seminars are expected to take part in the seminars, orally present the chosen topic and the related bibliograpy and hand out a written paper of 20.000 characters to the teacher (at least ten days before the date of the exam). They will then get a grade for the seminar which will be made by the grade of the oral presentation, the grade of active participation and the grade for the written paper. This grade will be worth a third of the final grade. In evaluating the oral presentation the teacher will consider the achieved knowledge on the assigned topic and the ability of developing a critical analysis. Active participation will be evaluated on the basis of the questions asked by the students and of their interventions in the discussion. The written paper will be graded on the basis of its clarity, of the achieved knowledge on the assigned topic, of the quality of the arguments and critical analyses. Students getting a grade from the seminar will take the oral exam only on the two mandatory texts. The oral exam will be evaluated on the same basis of the oral exam for students attending the lectures.
- In the first part of the course the teacher will present and discuss the main theories of legal validity, legal sources and legal interpretation. The main source will be On Law and Justice by Alf Ross. The different perspectives of the theory of natural law, legal positivism and legal realism will be analyzed. A special attention will be given to Kelsen's normativism and to scandinavian legal realism
- During the first month the topics of the five seminars offered to the students will be presented once a week. Students will then be asked to choose one of the seminars and to enrol. A special meeting will then be organized to hand out the bibliography and assign the topics.
- The second part of the lectures will be devoted to the modern theory of European rule of law, the Rechtsstaat, the Etat légal and the English rule of law. The differences between the common law and the civil law traditions will be discussed. The teacher will also focus on the advent of the Constitutional courts, the crisis of the modern pattern of the rule of law, the changes caused by globalization and interlegality. Finally, the rule of law will be interpreted through the perspective of legal hermeneutics.
- The third part of the course will be organized in form of seminars. Students will choose one of the following seminars:
1. Theory and history of punishment - book: M. Foucault, Sorvegliare e punire, Einaudi, Torino 1993.
2. The rule of law between colonialism and postcolonialism. - book: L. Re, Il liberalismo coloniale di Alexis de Tocqueville,
Giappichelli, Torino, 2012
3. Theory and history of international law.
- book: D. Zolo, Cosmopolis. La prospettiva del governo mondiale,
Feltrinelli, Milano 1995.
4. Critical Legal Theoris
- book: M.G. Bernardini, O. Giolo (a cura di), Le Teorie critiche del diritto, Quaderni dell'Altro diritto, Pacini, Pisa, 2017.
5. Care work and the exploitment of migrants. - book: A. Sciurba, La cura servile, Pacini, Pisa, 2015