Riassunto esame Metodi matematici per l'economia e la finanza, Prof. Zanchi Giuliano, libro consigliato Introduction to Private Law , Pietro Sirena

The Dilemma of Unjust Law

A classic bone of contention between legal naturalism and legal positivism comes from the issue of "unjust law" and the attitude that citizens and officials could have towards it. It's evident that the doctrine of legal positivism can attract the criticism of condescending to unjust law, since from its point of view it must be considered as formally in force irrespective of its actual content—>accusation is not founded from a moral perspective; distinction between the "law as it is" and the "law as it should be".

A. The has enabled the positive law to be subject of criticism based on its irrationality or its inability to ensure the happiness of men. Hart has claimed that it is the legal positivism itself that could be able to denounce unjust law and to promote its reform. civil disobedience

B. Legal positivism is compatible with given that the separation between law and morality might lead to the conclusion that is the

Morally justified to refuse to apply and to respect unjust law, despite it being the law. Kant in general terms supports that a revolt against a legislator is wrong because it contradicts a categorical imperative, but it is also true that he justified civil disobedience for the case "human beings command something that is opposed to the ethical law); he concluded in such case that we may not and ought not obey them. Doctrine of natural law.

On the other hand, it's evident that the can be read as the expression of rational criticism of public power.

THE RENAISSANCE OF NATURAL LAW

One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.

I would agree with St. Augustine that "an unjust law is no law at all".

After World War II, it became quite evident in continental Europe that legal positivism was impotent to prevent authoritarian regimes from taking over civil societies and from causing the

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di 36fi fi ffi fi fideath of millions of victims: not only did soldiers die on the battle eld but also innocent civilians,deliberately annihilated "in accordance' with laws issued by legitimate authorities.—>thus legal science was faced with a dramatic urgency to radically change its paradigms.

This question was addressed by a German philosopher, Gustav Radbruch who made an attempt to hold legal positivism but also to draw a line beyond which obedience of the law had to be dismissed; these re ections led to the so-called Radbruch Formula: if it departs from justice in an intolerable way, positive law is no longer to be considered as law and therefore it cannot and must not be applied or complied with.

This result amounted to the legal basis that allowed the Nuremberg trials to obtain criminal convictions for those who had become complicit in the acts committed by the Nazi Party, in particular as regards the so-called 'final solution' that led to the

deportation and extermination of European Jews. Pagina 20 di 36fl fi fiChapter 6 28/11-29/11 LEGAL RULES, PRINCIPLES, SYSTEMS 1) LEGAL RULES A. STRUCTURE OF NORMS According to the tenets of legal positivism, law consists essentially of rules; the description of law normativism, which is known as can be qualified as idealistic, in that it conceives of law as an objectively existing reality that can be ascertained in itself, beyond practical cases or concrete judicial decisions. During the first historical stage of normativism, legal rules were conceived as commands issued by a sovereign and backed up by threats of harm, to be inflicted upon those who disobey (imperativism) — framed by Austin. During the 20th century, the Austin's conception of law was criticized because it didn't explain properly the distinction between a norm and an arbitrary imposition made through threat — that implies that the sovereign power was exempted from the law and don't explain how in the

modernRechtsstaat the law is respected also by the sovereign authority. Hans Kelsen stated that, contrary to what the layman could understand, a norm may be not "thou shalt not kill". properly incorporated in a norm as such: "Thou—>This kind of absolute imperatives may be appropriate to religion or to morality, but not to law.

• Law conveys a coercive social order, while religious binds only those who believe in it and morality only those who accept it.
• Kelsen's theory: a norm is such not because it stipulates a command, but because it stipulates the sanction to be applied in case the command is disobeyed by someone. Kelsen was the scholar that developed the theory of legal positivism, he put at the top the constitution—>his great idea was the envision of this triangle, and the top was the constitution.

The norm is in the default cases structured in a sort of composition, we have IF-THEN clause: When we analyze legal norms we recognize that they have a

common structure (if we observe the legal norms from a legal positivist prospective). According to the legal positivist prospective we tend to recognize that the legal norms is grounded in the IF-THEN clause-> IF is the hypothesis, so if you do not pay your debitore you will be sanction=IF describes the behavior that the individual should adopt in order not to be sanctioned. If you do not pay the jewelry, the jewelry is the right of credit (relative right): one one side we have the relative right and in one side we have an absolute right.

- Relative right = is valid or enforceable towards/against the debtor [one individual/one person —> legal person (company) and natural person]. There is a legal relationship (structured on the right in one side and in the other side there is the duty/obligation).

- Absolute right = is from a government entity towards people, it’s enforceable towards everyone else; ex. I can be the holder of this building (holder of an absolute right) and I can protect or

defend my right against everyone, so there isn’t a speci c legal relationship.

In the Italian civil code there is a legal norm that states that if you don’t pay then you will be sanctioned —>view of the legal positivism , because the theorists of legal positivism tends to imagine the legal norm as such, but there is another view ,which it’s opposite, stating that the sanction is an element of the norms connected also to religion.

—>according to the legal positivism sanction is a typical element of legal norms while according to another view sanctions are not only typical of legal norms.

Ex. Of when a norm is deprived of sanction: principle of solidarity is recognized by the Italian Constitution but in this kind of principle no sanction is provide, nevertheless the principle of solidarity has a legal value and is seen as a legal norm sometimes (not the view of legal positivism).

A legal rule is therefore to be brought back to the following logical scheme: IF a

state of affairs occurs (ex. someone will be convicted, an event takes place), THEN burdened with a sanction (ex. conviction, penalty). A norm is shaped as a "hypothetical independent period", whose protasis (=the IF-clause) consists of a state of affairs and whose apodosis (=the THEN-clause) consists of a sanction. By sanction, we mean a punishment meted out by an official acting within their authority (judge, policeman, etc). The norm attaches a (negative) reaction of the State to a possible event or behavior (ex. if a contract is breached by one of the parties which have entered into it, then that party will be deprived of their rights towards the other). B. THE SCOPE OF NORMS The norms are typically provided with 2 constant elements, that may have the same fundamental like cases alike -> treating: Generality Abstractness A norm is applicable to whatever event or behavior matches the state of a

Everyone who finds herself/himself in the state of affairs envisaged by the IF-clause —>=abstractness means that we will not (ex. if a good is stolen then the thief shall be condemned to give it back). This norm does not provide for the fact that a specific good is stolen but for the fact that any good is stolen. A norm is addressed not to individuals identified as such but to a class of individuals who happen to find themselves in the state of affairs envisaged by the IF-clause. Norm ad personam. So the is exceptional and likely to contravene the principle of equal treatment. There are, however, exceptional norms which definition cannot be applied analogically.

C. MANDATORY AND DEFAULT RULES

Since public law pertains to the state's authoritative power, most of it consists of mandatory rules.

Mandatory rules: Most public laws consist of mandatory rules, which cannot be set aside by the parties. The mandatory rule will govern the agreement. It may not be set aside by an agreement between the parties. In fact, the supremacy of the public interest over the interest of the individual is paramount for public law. Public law expresses public interest that must be respected and pursued.

Default rules: If an agreement is potentially regulated by a default rule, the default rule can be set aside by the parties. This is because the default rules are connected to a private interest. They may be set aside through an agreement between the parties. In a private agreement, if a default rule comes into play, this rule represents a private interest. It is grounded in private law, and for this reason, the default rule can be set aside. Nearly the entirety of private law consists of default rules. Default rules play a major role in supplementing agreements.

entered into by partiesEx.- 1)Decide in agreement the price of a good ,we are obliged to pay a minimum price establishedby the legislator, the price is not deregolate because that good is connected to an assessmentof the legislator—>expresses public interest(mandatory rule);2) If you buy an historical building protected by the government, you are not free to modify thatbuilding following your will because you will be obliged to follow the rules->mandatory rule thatare more important ,and expresses more interest- 1)When we are buying a good that none particularly cares about, we are deciding theprice(default rule);2)Make an agreement in Venezia, the judge that will decide our contract will be located inVenezia but we are also free to decide in advance(rule provided by the legislator) that the judgePagina 22 di 36fi fi ff fi fi ff fi fi ff fi fiwill be the the judge of another.