Universitat Internacional de Catalunya
Philosophy of Law
Other languages of instruction: Catalan
Teaching staff
Thursday 9.30 am
Introduction
The jurist is not a mere legal technician. In his practical work, he needs to have an in-depth knowledge of the problematic situation he has to resolve, the applicable regulations and the effects that his decision will produce in reality. The philosophy of law provides information on the ultimate foundation of law, on its root causes and its purpose. From this approach, the jurist can apply critical thinking to his own legal activity. In order to acquire this philosophical approach and this habit of critical thinking, we will first review the answers that philosophers in our tradition have given to the question of law and justice. Secondly, we will analyse the great contradictions faced by the jurist in his day-to-day work and, thirdly, the new challenges posed by society and the response given by the Law.
Competences/Learning outcomes of the degree programme
- 03 - To be able to express one's ideas and arguments in an orderly and coherent way both in oral and written form (written and oral techniques)
- 04 - To turn in documents that have been formally and thoroughly prepared to high standards
- 08 - To develop mechanisms that facilitate the adoption of ethical commitments
- 09 - To develop mechanisms that favour sensitivity towards issues related to fundamental rights as well as respect for other cultures and customs
- 13 - To develop critical analysis skills
Syllabus
A) Systematicall Approach
1. Philosophy of Law as knowledge. Function and raison d'être of the Philosophy of Law. Dimensions of Law. Distinction with legal science and legal sociology. The subject of Law. The jurist and his social function. The object of Law: legal reality and its knowledge.
2. Conceptions of Law. Presuppositions of Law. Philosophical foundations of law: purpose and anthropological and social roots.
B. Historical approach
B1) Legal thought in Antiquity
3. The desacralisation of law in Greece: from the order established by the gods to the order of reason. Socrates, justice and the democratic laws of Athens: Socrates against "natural law"? The iusnaturalist argumentation in Plato's Gorgias.
4. Theory of Justice according to Aristotle: Types of justice. Metaphysical theory: Aristotle's legal realism. How it influences ethics. The theory of Natural Justice: What are laws for? Aristotle and the political-educational purpose of law.
5. Rome and the civilising process. Fundamental elements of Roman legal thought. Cicero: the nature of laws and law as a constitutive political factor. The emergence of Christianity. The legacy of Hebrew legal thought. The encounter of classical culture with Christianity: justice and natural law in the writings of the Church Fathers. Influences of Christianity on Roman law.
B2) Justice and law in medieval theology
6. Augustine of Hippo. Precedents of the modern conflict between Church and State. The city of man and the city of God; the Augustinian theory of justice and the legitimation of the juridical-political order. The change of epoch: the Middle Ages.
7. Thomas Aquinas. Relationship between faith and reason. On the foundations of law: the natural order. The nature of laws. Divine law, human law and natural law: areas of application and modes of relationship. Theory of justice and law.
B3) Law and Freedom. The transformation of the medieval world and the rise of Modernity.
8. Medieval decadence: Duns Scotus and Guillermo Ockham. The Protestant Reformation. From theocratic voluntarism of the early reformers to rationalist Protestantism.
9. The second scholasticism. The School of Salamanca and the origins of international law.
B4) Law, justice and law in the context of the modern state.
10. Hugo Grotius and the birth of modern iusnaturalism. Nature as a rational criterion of good and evil.
11. Thomas Hobbes. From natural law to the law of the absolute state. State of nature, social pact and origin of the state. Power and authority. The reduction of justice to the dictates of law. John Locke. From the state of nature to civil society. Function and limits of law. Separation of powers and legitimacy of the political regime. The theory of individual rights and the natural right to property. Rousseau. From the kindly state of nature to the perverse civil society. The formalism of the ideal society.
B5) Contemporary thought on the law
12. The obscuring of natural law. Multiplicity of schools: from historicism to conceptualism. The rise of legal positivism in the 19th century and formalism. John Austin. Particular and general legal science. Counter-formalist schools.
13. The rise of legal positivism in the 19th century. John Austin. Particular and general legal science. Types of norms. Positive morality and the internal limits of law; Counter-formalist schools and other movements: socialism. Karl Marx, The history of mankind as the history of class struggle. Political and legal superstructures. Overcoming the state and law.
14. The crisis of positivism and the new currents of legal thought. Hans Kelsen's pure theory of law. Herbert L.A. Hart's analytical theory of law. Law and democracy in Norberto Bobbio. John Rawls' theory of justice. The "original position". Principles and their foundations. Egalitarianism.
15. Philosophy of law after the Second World War. Person and Law: Alterity and Law; Temporality and Law. The Universal Declaration of Human Rights as a philosophical and legal challenge.
16. Rediscovering natural law: Michael Villey; the return of Aristotle and the purpose of Law. Michael Sandel: the meaning of Justice and the common good.
Teaching and learning activities
In person
| TRAINING ACTIVITY | COMPETENCES |
|---|---|
| Classroom activities in order to follow up on students (both individual and in a group) | 03 08 09 |
| Presenting concepts and their practical application in the classroom | 13 |
| Student can study and work independently | 04 |
Evaluation systems and criteria
In person
The final mark for the course, out of 10 points, is made up of four parts, of which the corresponding percentage is indicated:
1. Written mid-term exam on 26 October
There will be a partial exam. Passed exams will be averaged with the final exam. The contents seen in class up to the date of the exam will be examined.
2. Final oral exam
The final exam will be worth 60% of the final mark.
3. Group work
A group presentation of an opinion analysing the philosophical and legal foundations and critical aspects of a current societal challenge will be carried out. It will also be delivered in writing. This work will be worth 30% of the final mark.
4. Continuous assessment in class
Continuous assessment will be obtained from small questionnaires that will be carried out each week on the subject taught. It will be worth 10% of the final mark.
*Continuous assessment will be taken into account in the second sitting.
Bibliography and resources
- Michel Villey, Filosofía del Derecho , Scire Universitaria, 2ª edición, 2003.
- AAVV, Filosofía del derecho: las concepciones jurídicas a través de la historia', 5ª ed., UNED, Madrid, 2000.
- Jesús Ballesteros, Sobre el sentido del Derecho, Ed. Tecnos, Madrid, 1986.
- Javier Hervada, Historia de la ciencia del derecho natural, Ed. Eunsa, Pamplona 1999.
- Javier Hervada, Lecciones propedeúticas de Filosofía del Derecho, Ed. Eunsa, Pamplona, 1995.
- José María Rodriguez Paniagua, Historia del Pensamiento Jurídico, Tomo 1 y 2, 9ª ed., Ed. Univ.Complutense, Madrid, 1997.