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recognize in our (legal) statement them: just imagine the debate about the

declaration of human rights or to the constitution; are they principles

because they are written in constitution (positivism) or are they written in the

constitution because they're principles (natural law theory)? If we are in a

moral principles external

natural law tradition we have to say that there are

to our knowledge. The constitution is just something that make a principe

stronger, but we don’t need a constitution to state that something (as the

due process of law) is principle. If we are in natural law tradition we don't

refuse the power of law being naturalist; one of the problem is the

enforcement of law ET veritas

that is solved in the sentence «auctoritas

confirmed by

facit legem». From this point of view the authority of law is

morality: law in a natural law account needs a moral ground.

John Finnis said:

is often supposed that an evaluation of law as a type of social

«It

institution, if it is to be undertaken at all, must be preceded by a value-

free description and analysis of that institution as it exists in fact. But

the development of modern jurisprudence suggest, and reflection on

the methodology of any social science confirms, that a theorist cannot

give a theoretical description and analysis of social facts, unless he also

participates in the work of evaluation, of understanding what is really

good for human persons, and what is really required by practical

reasoning»

It is impossible to have free values description and so it is impossible to have

an analysis of facts completely free from values. In every kind of positive

approach there is always a moral account. However this assumption is

rejected by legal positivism, according to whom there is no a necessary

connection between law and morality. It means that it may be the case that

depends

we have law without connection to morality; so in Hart's view law

on social facts. according to positivist we must avoid an

But absolutely

evaluation of law from a moral pint of view. As John Austin said:

«The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not

conformable to an assumed standard, is a different enquiry» the

If we look to law from a legal point of view, you must only ask about

validity of law (Stufenbau for Kelsen, Rule of Recognition for Hart, etc.) but

not about any kind of standard or values and so on. So according to legal

as law is

positivist tradition one thing is to look at law and another thing is to

as it should be. doing a

look at law If you adopt the first account you are

description assuming that description free from values (analytic

jurisprudence will arrive to say that if you assume that the law is just the

lawmaker discourses, what you have to do is the analysis of language!); the

evaluation you do is just on the basis of science. moral judgement,

To have an evaluation on law as law should be is a a

political one. And you as a scientist cannot have this kind of evaluation.

In legal

There is a different between description and evaluation of fact.

positivist morality is not a condition of legality: in natural law tradition

morality is a condition of legality. This is why according to someone it was

in legal positivism that nazist arose.

We may say that legal positivist tradition is a sort of conventionalist one: law

is produced by men: there is an agreement between us and we decide time

non veritas facit legem).

by time about law (auctoritas If you are in a natural

foundationalist.

law tradition you must say that your approach is more In

this tradition is not about the stipulation in law, i.e. how the law is made, but

how the law is discovered,

about how is it possible to find out that principle

according to which my law is a good one. The criterion of legality, being

already exists:

based on a moral ground, we don’t create principles! moral

principles do not depend from our decision (autoritas et veritas facit legem).

Veritas is really near to our theory of realism: we accept law if and only if it

doesn’t contradict principle, which exist independently from us. You use

reason to know about principles but not to create them.

In a legal positivist tradition you use reason to create principles. According to

Scarpelli, one of the pupils of Bobbio, it is important to distinguish between

law as it is law as it should be:

and obviously there is a choice but it is before

the analysis of fact. According to Scarpelli when you do the analysis of, e.g.,

Italian law first of all there is a choice for the Italian system; to accept a

we believe in that system,

system means that so at the very end it is

impossible to avoid the moral ground of law, but the law itself does not need

morality: the system needs morality: when we practice the system, we do

believe that system is a good one.

From a Kelsenian point of view you cannot answer this question: you may

say that the system made by mafia is a better system in terms of efficiency

than the statal one. But we can't accept this due to morality: we cannot

avoid morality, looking at the system as a whole. Hart spoke about

minimo di diritto naturale»

«contenuto and today in legal positivism we

inclusivism.

have the s.c. We can't avoid morality to justify the existence of

law: every time you choose there is a value. This is why argumentation is

inside law.

Natural law theory and positivism are absolutely the two main approaches in

philosophy of law. But there is a third one that became very prominent in the

legal realism.

last century, which is

LEGAL REALISM

THE REFUTATION OF BECCARIA’S VIEW ABOUT PERFECT SYLLOGISM

Legal realism is the newest approach. In the USA legal realism was

developed by some philosophers and some theorists in law as Llewellyin,

Pound, Cardozo, Dewey, Holmes Jr. They rejected the formalism approach in

empirical philosophy.

law and they adopted an According to legal realists

law not only isn’t a system of rules law is not a

(e.g. Dworkin accepted it):

system at all, ambiguities, antinomies, contradiction,

because law is full of

gaps conflicting rules of interpretation.

and The formalistic view in law is

regarded as a false myth of our era, something that we do believe but in the

real world doesn’t exist, right because a system of law does not exist. If we

you cannot

look from this point of view to legal reasoning, it means that

think to legal reasoning as a syllogism. We already said that Cesare

perfect

Beccaria claimed that in deciding process judges have to do

syllogism. But what is a perfect syllogism? According to Aristotle syllogism

way according to which we put together different

is a «special

discourses» (συν + λόγος). Reasoning is made by premises and conclusion,

particular kind of reasoning:

but perfect syllogism is a very it is the typical

deduction,

way of where if premises are true and valid it is not the case that

conclusion is false. Major premise: all men are mortal

Minor premise: Socrates is a man

Conclusion: Socrates is mortal

If it is true that all men are mortal and Socrates is a man, it is not the case

that Socrates is immortal. It is a typical way of deduction. According to

perfect

practical reasoning, it can be the case that we can may have

syllogism in practical reasoning. Practical reasoning is a way of reasoning

in which we discuss about rules; the reasoning by which we decide in law

general rule;

and politics. In this case major premise is a minor premise is a

particular fact; subsunction.

the conclusion made by the judge is Let’s

make an example:

Major premise: If you kill a person you will be condemned

Minor premise: you kill a person

Conclusion: you will be condemned.

This is the way by which Cesare Beccaria thought about legal reasoning: a

is to

perfect syllogism. The best thing we may do with this kind of reasoning

obtain certainty of law (certezza del diritto). Law as rule is made by the

lawmaker; only the duty to apply and not to interpret the law.

the judge has

According to all the formalistic tradition in law, law is a system of rules (or of

one right

rules and principle as Dworkin claimed): so there is always

answer: the application of law to a fact is something that is possible,

judge has the possibility to look at law as a system.

because We are not

discussing about sources of law or identity of law. According to the

do not create law; they deduce law from a

formalistic view in law, judges

system of legal rules.

JUDGES AND LAW AND THE SEPARATION THESIS

According to American legal realists all this is false! It is not something that

judges really do, but just something that they only claim they are doing!

Judges do create law every time they interpret the law: statute law is

only dead letter, which exists in a proper way only after the interpretation of

the judge (be careful: Dennis Patterson had a different view about legal

realism, which was for him a sort of anti-realism). For American legal realists,

judges in deciding cases are not simply making deduction: they do not

they create law

simply interpret law but also by giving the interpretation of

law is produced by judges and not by lawmakers.

statued law. In every case real world of facts:

This is what happens in the formalistic view is just an

something

ideal image of law, it is law in the books; while law in action is

completely different. If we want to have a scientific approach to law, we

look at law as a fact

must and not as an ideal picture. This means for realist

to have a scientific account of law, adopt an empirical

which means to

perspective every kind of relation between law and

and so to refuse

morality. Also according to legal positivist law and morality are separated:

but in legal realism we find a stricter position. Especially in Scandinavian

law and morality are

realism (with Axel Hägerström and Half Ross)

separated from an empirical point of view.

• According to legal realism law and morality are separable from an

empirical point of view;

• according to legal positivism law and morality are separable from a

theoretical point of view; different thing.

Law and morality for realists are If we speak about law

We use the word «law» for

facts.

according to them we are speaking about

objective facts, while we use the world «morality» for subjective values.

fact;

But law and morality are different in nature: law is for morality is for

values; we may look at law from an empirical point of view, while morality

it is not possible to look at morality

depends on our system of beliefs. So

from an empirical point of view, i.e. to have a scientific evaluation of

morality, because morality is not a fact, and we know that we may have

science only about facts.

It is very narrow view of knowledge from empirical point of view. We have to

the same typical tools (from a

look at law as a fact, and we must use

methodological point of view) of empirical scientist. Law is understood as

an empirical phenomenon, just as the rain.

MORAL JUDGEMENTS a sort of form of

And the law understood as a physical phenomenon is

moral motivation of human behavior. You use law to modify the world, and

the one able to modify the law is the judge. Moral judgment is something

different:

completely subjective in

• according to legal positivism moral judgments are

nature; emotional in nature:

• according to legal realism moral judgments are

they simply express the emotions of the subject.

If we speak about morality by looking at it by a realistic account, it means to

speak about something that is really neglectic, something completely far

from science which has to do only with facts. To look at law as an empirical

a predictive theory

phenomenon means (as Holmes claimed) to «develop

of law» teoria predictive del diritto):

(una we cannot reach certainty in law,

probability statistic, psychology, neurosciences.

but just by using Legal

realism cannot accept natural law theory, because according to the natural

law theory we have a connection between law and morality. Legal realism

discusses a lot with legal positivism: Hart and Kelsen defended the idea of

system against realism.

THEORY OF LEGAL INTERPRETATION

From the theory of the interpretation point of view, legal realists adopt the so

interpretive skepticism interpretativo):

called (scetticismo it is a position

proposed for example in Italy by Giovanni Tarello and Enrico Pattaro. What

a set of many legal proposition with

do we have is not a system, but

different meanings. he has

This implies that when a judge decide a case,

the free power to state about the content of law.

We have to be very careful: that of interpretation was also Kelsen’s opinion.

When Hans Kelsen thought about Stufenbau, he was living in a time in which

law was made by the lawmaker, who represented bourgeoises; not

we must recognize the judges to be free in

surprisingly he said that

interpreting law: it is not a contradiction! for Kelsen actually the problem

judges and the lawmaker shared the

was not interpretation, because the

same culture, being both bourgeoise (i.e. values promoted by lawmakers

and judges were the same).

The situation with Beccaria is quite different: the problem of his time was that

what there was arbitrariness in law and Beccaria wanted some certainty in

law; this is why Beccaria theorized the perfect syllogism, as the only way to

guarantee a certain judgement.

What happened in a few years after Kelsen was that a completely new world

about the system of values born: it borns the axiological pluralism

assiologico)

(pluralismo and the idea that judges are the lawmakers becomes

uso

stronger and stronger: just think at the Italian movement called

alternativo del diritto promoted by Ferrajoli, according to which the judges

the duty to overrule the system of law,

have that only defends bourgeoisie:

judges must use the power they do have to promote the interest of «classe

operaia»: in that era was founded the movement called Magistratura

Democratica, which proposed that judges shall promote a system of law in

which workers are protected by law.

The idea of legal realist is that system of law does not exist, and so every

time judges decide cases, they create law. Judges are responsive to non-

legal reasons while they decide a case. If we look to Letter’s view we find out

the core of realism is that judges decide not on legal ground (although they

look at law), but on principles grounds.

And so, is legal realism a good account of law? Friedrich Shower said that

the picture of law given by legal realist is no more actual: maybe it’s hard to

conceive law as a coherent system but it is not true law is so full of

contradiction and gaps as realists claimed.

Moreover sometimes (as Hart and Patterson demonstrated) in law is not hard

to decide, and the case is simple. Hart is against the predictive theory of law

law is a social practice,

because according to him so when the judge has

to decide a case, she looks at law just to find out something that guides her

own decision and with a legal decision you may not modify the world!

However, we have to recognize some merits to legal realism, because they

refuted a sort of mechanical deduction in legal reasoning: it is true, as legal

realist stressed out, that when judges arrive at their own decision they

appeal to factors different from legal ones.

that it is better to look at law as it is

It is true (i.e. at what judges do), than

at the ideal picture of law. We must say that legal realism is right when he

moves against legal formalism.

legal realism is a theory of law that adopts a

To sum up, in a narrow way

very strict version about separation thesis between law and morality.

ethical subjectivism.

We should adopt the There are no objective moral

properties: it doesn't exist something that is ”right in nature”, but it all

ethical statement are produced by this system

depends on our emotion:

of emotion according to realists. Moral statement have nothing to do with

truth (and this is interpretive skepticism).

LEGAL POSITIVISM AND NATURAL LAW

THEORY IN COMPARISON

SEPARATION THESIS

If we look at legal positivism we may use the same criteria we used for legal

realism. They both adopted the separation thesis.

legal positivism is necessary to distinguish from law and

According to

morality from a theoretical point of view; legal positivism is against natural

necessary

law tradition, in which there is a link between law and morality (law

rests on a moral ground). According to positivists this connection between

law and morality is not necessary first of all from an analytical point of view:

something

when you speak about law, in positivist view, you are speaking of

different from morality. you must speak about law

From this point of view,

against morality.

also if you think that law is something iniusta non est lex sed est

Nevertheless, in a natural law conception «lex

corruptio legis» (Aquinas): you cannot define law an unjust law: the definition

law iustum, est quod

of is just for something that is as Ulpianus noticed (ius

must use the word law also

iustum est). But in a legal positivism view you

if you think that law is iniusta: there is no

from an analytical point of view

connection between law and morality.

But there is not such a connection from an historical point of view: if we look

at the codification process done in Europe with Code Napoleone and so on,

don't use moral judgement but we just look

to understand what law is we

at sources of law (code, etc.). If you are a jurist (e.g. judge, lawyer, etc) you

justify law and legal decision by using only the system of law. For

since

example you say that something is law (or a decision is legal decision)

it belongs to the legal system, and not because you think it is morally just.

Again at the end if you are a legal positivist you believe that you must

according to the law itself

interpret law and not by using something that is

outside law. There are a lot of reasons, according to legal positivism, to say

that law and morality are different.

according to positivism there is a connection between

But pay attention:

law and morality, even if it is not necessary (and that’s what differences

realists, who refuse any kind connection, from positivists): there are

contingent (or accidental) relations between law and morality: e.g.

nowadays a big part of legal positivism thinks that there is a connection

between law and morality and that if you look at the development of law, we

morality the

see that development is based on and at the same time

system of law has some impact on morality. Just think, if you look at the

Italian debate, to the concept of "atti osceni in luogo pubblico" in penal law.

the

To tell the truth it exist a sort of other kind of legal positivism called

exclusive legal positivism (positivismo giuridico esclusivo) that doesn't

admit relation between relation and morality, but the biggest part is

inclusivist, thinking at least that moral values are inside legal system!

According to positivist, if we think about "human dignity" we may see it is in

the constitution and it is a moral value, but it is not necessary: from an

since it

hartian point of view it is better that system has some moral values,

is easy for us as a society to obey law if it shares the morale values: Hart

speaks, even if in an utilitarian account, about the «contenuto minimo di

diritto naturale».

THEORY ON MORAL JUDGMENTS moral judgments are subjective in

As we saw, legal positivism thinks that

nature (while according to legal realism moral judgment are emotional and

not empirical). For legal positivism moral judgment have something to do

subjectiveness

with and so legal positivist share the same opinion of legal

ethical subjectiveness ethical

etico):

realists about the (soggettivismo

statements have to do with our subjective points of view and there is no

objective moral ground.

But between subjective and objective is there something or not? Actually

nowadays most part of legal positivism recognize we can have an

intersubjective ground for moral judgement: e.g. we may say that we do

believe in human dignity because it is a shared opinion: however is still very

hard to appeal to shared opinions in single cases. Obviously the problem is:

you may think that something is a value if and only if it is shared by the

majority but we know sometimes see that it is false: this picture given by

Hart and Dworkin is something we may accept in modern era, but only 60

years ago it was Impossible to think something like that. But it should be of

legal

some interest to remember that at the very beginning of its career

positivism was not in favor of ethical subjectiveness: Bentham and Austin

ethical objectiveness

(first legal positivist in the history) were in favor of

(oggettivismo etico): they believed in separation thesis but still thought of

ethical objectiveness. We may now ask how is it possible.

What does it mean to adopt objectiveness in ethic? According to natural law

using human reason.

discovered

theory, law is essentially by The opinion

expressed by Bentham and Austin is very near to this kind of position. If as a

natural lawyer you think that your reason is used to discover something that

the sources of legality is to be found in

is in nature, then you say that

nature and do not depend on any convention.

LEX DIVINA LEX HUMANA

LEX AETERNA LEX NATURALIS

lex naturalis lex aeterna

Aquinas thought that is that part of (i.e. the law

created by God), which we may find using reason: another part of lex

aeterna is lex divina, and it is in holy bible. Lex humana according to Aquinas

is the law created by man using reason, and it cannot be against lex

humana non est contra legem naturalem»;

naturalis: «lex if this happens, lex

iniusta lex sed corruption legis.

humana is and so it is not But at least,

reason is just an instrument in this theleological conception (concezione

teleologica).

From this point of view you cannot be subjective in ethic, because it would

mean that criteria used to understand if an action is good or not depend on

my beliefs; but in a natural law perspective the criterion depends on lex

naturalis and so we do believe that something is good or not because it is

There is something outside our

not in contradiction with lex naturalis.

reason, that is reality. For Bentham and Austin was quite the same; they

believed that there is something that does not depend from our reason: it is

utility which according to them is an objective

no more God but (utilità),

value. it is possible to mathematically calculate the

It is so objective

utility of our action. And it is clear that it is possible to have a calculus

is the same for everyone just lex naturalis.

about utility because utility

Bentham and Austin are legal positivism but not follower of ethical

subjectiveness. But before Bentham and Austin there was Enlightenment: at

a certain point of the legal history legal positivism became ethical

rationalism in

subjectiveness. And to understand why we should analyze

law (giusrazionalismo)

RATIONALISM IN LAW

Rationalism in law (giusrazionalismo) is something different but at the same

natural law theory

very similar to and legal positivism. Rationalism in law

comes before legal positivism. We can imagine a scheme like that:

Natural law theory (Aquinas; seconda scolastica) —> Modern natural law

theory (Grotius, Hobbes, Locke, Rousseau) — rationalism in law (Puffendorf

and Leibniz)—> legal positivism —> crisis of positivism (after Nuremberg

2

trial) —> neoconstitutionalism.

2 Actually we still have legal positivism: just think to Hart-Dworkin debate is a sign that there is

crisis in positivism natural law exists,

Pufendorf and Leibniz believed that but they claimed that

The sources of natural law

ordered by human reason.

natural law has to be are to be found in human reason,

are no more in lex naturalis but used not

organize

just as an instrument to know the content of natural law, but to

natural law, to create natural law. We have to be careful: both naturalists

and rationalists in law believed in the existence of natural law, but

doesn’t depend on our

• according to natural law theorists, natural law

reason;

• according to rationalism in law, natural law depends on our reason.

It is a sort of first step to legal positivism and subjectiveness in ethic. They

depends on our

criterion

started to say that the we use to justify our actions

reason. human reason is

Obviously Pufferndorf and Leibniz believed that

universal universalis):

(ratio lex naturalis

• according to rationalists the content of made by human

is the same for us since our human reason is the same for

reason

every man. lex naturalis

• according to natural law theorists, the contest of is the

since it depends on God.

same for us

If we look at the history of reason in modern era and in post-modern era we

have just to wait to recognize that reason in itself is not universal but

individual: there is no universal reasoning and in fact we do have different

opinions about what is just and what is unjust. To recognize the use of

is the first step we have to do to arrive to ethical subjectiveness:

reason the

development of ethical subjectiveness follows a sort of secularization: at the

beginning they spoke about on natural law as independent from our

judgement (we may know about the same content because we use the same

that reason is not

reason). Then, in postmodern era we start recognizing

universal: subjective in nature.

and so, moral judgment are But first of all

according to rationalism in law we have to remove something that is outside

our reason: if you reduce everything to the realm of rationality, God becomes

an hypothesis and then you don’t need but reason only!.

It is a very coherent claim: this is the way by which law itself has begun in

universal

Roman era; Roman law had a power of expression; then you may

look at the history of Europe and say that that idea of rationality became just

Christianorum);

one thing with the idea of God (societas then we started to

say that we still recognize the existence of nature, but we look at the only

from a rational view. But if we think about it, we may found out that reason

needs something more to work: it doesn't works for itself.

THEORY OF LEGAL INTERPRETATION

Realists used interpretative skepticism: law is not a system but every case is

an hard case. Law as proposition does not exist before the interpretation

given by judges. It is the kind of position described by Patterson when he

speaks about Dworkin and Fish; they are anti-formalist because every type

of interpretation of a statement is a creation of the interpreter: when you

since you create the

interpret a statement, you create that statement,

meaning of that statement. Legal positivism nowadays is not really

antiformalist: also if at the beginning of its own career legal positivism was a

formalistic account of law, where interpretation is the process we use to

discover the meaning, which is only one. It is the typical account of

Exegesis school in France.

interpretation given by

On the other hand legal realism view, judges create law. Nowadays one the

most shared opinion in interpretation in legal positivism is a sort of «teoria

mista», a mediation

which has been developed first of all by Herbert Hart as

between formalism and antiformalism: we may have interpretation as

only in easy cases; in every hard case the

discovery of meaning but

interpretation is a creation.

HART’S REJOIN or the case is easy or the case is hard:

But according to Hart so or there is

interpretation as discovery or there is interpretation as creation (this is a very

strong dualism). Hart makes the example of the vehicle in the park, which

became a real topos in legal debate.

Imagine that there is a law, according to which it is forbidden for vehicles to

circulate in municipal parks; imagine also that in every park of the

municipality there is an officer who is responsible for getting that statement

respected (i.e., every time the officer has the duty to interpret law): it all

depends on the meaning of the term vehicle. According to Hart there are a

lot of easy cases in which the officer would have no problem to interpret

«vehicle» and to state that the law is violated (e.g. if I enter the park with my

car, the case is easy and in it, the interpretation process is just discovery,

because there is a pre-existent meaning according to which it is sure that my

nucleus of certainty that is

car is a vehicle): legal terms have a sort of

clear: car is a vehicle: in its own meaning vehicle denotes car.

But according to this particular theory of language legal terms have also a

penumbra (a twilight zone) in which we are not sure if something is a vehicle

or not. Imagine a little child with a little pedal car (which has engine) that

enters the park: is it a car or not? There is a penumbra in our language,

which is vague in nature: we cannot avoid the vagueness of language: it

should be the case that that officer has to decide an hard case.

And again, what if an ambulance enters in the park? An ambulance is

absolutely a car, but is it possible to state that an ambulance cannot enter

the park to save a person who is dying? In hard cases what you have to do

reasonableness

is a judgment based on (ragionevolezza). And in those hard

a creation of meaning.

cases there is no discovery about meaning, but To

say that there is a creation of meaning means it is possible to dispute about

reasonableness,

it and the criteria we have to use to solve the disputation is

This is what everyday

and so, for example, the moral ground of law.

Constitutional courts do! When there is no clearness, it is the case to

create a meaning. vagueness of

In hard cases we have to face the

language. And vagueness of language is one of the main problem for

contemporary legal theorist, because you cannot solve it. You have to decide

time by time about the meaning of a vague world: but what is the criterion to

decide about that? you have to offer good argument to say that

The answer is that

something is a X (e.g. a car) and something else is not: law is an

argumentative process! From a general point of view we may say that

separation thesis is a good thing and we may accept legal subjectiveness; in

interpretation you may accept the elenctic theory of interpretation. But again,

one of the problem legal positivism poses is again the separation thesis: the

relation between law and morality. It is true that from a methodological point

of view it is better to distinguish between facts and values: you may evaluate

something only if you know that thing and it is a mistake of thinking to make

a confusion between thinking and evaluation.

There is just one big set of traditional theory in law: natural law theory. But

today we will se a sort of neogiusnaturalismo called neoconstitutionalism.

NEOCONSTITUTIONALISM

Neoconstitutionalism is one of the main account in law: we will meet it in

constitutional law and in public law; it is a theory discussed by Dworking,

Alexy, Zagrebelsky, Ferrajoli, etc.

This account emerges in the last two or three decades and according to

someone it is a sort of new version of natural law theories, but according to

someone else it is simply the coherent development of legal positivism.

The very starting point of neoconstitutionalism is to look at law and to say

after the Second War World in many countries we had the

that nowadays

creation of new constitutions. New constitution are rigid one, because if

you want to change them there is a long and hard process, and

Constitutional courts (or the principle of diffused judicial review) were

instituted to defend the constitution.

ART. 138 ITALIAN CONSTITUTION

amending the Constitution and other constitutional laws shall be

«Laws

adopted by each House after two successive debates at intervals of not

less than three months, and shall be approved by an absolute majority

of the members of each House on the second vote.

The said laws are submitted to a popular referendum within three

months of their publication, when requested by one fifth of the

members of a House or five hundred thousand electors or five

Regional Councils. The law submitted to a referendum shall not be

promulgated if it is not approved by a majority of valid votes.

A referendum shall not be held if the law has been approved in the

second voting by each of the Houses by a majority of two-thirds of the

members» (translated by Jens Woelk)

To guarantee law in a stronger way law we have to create constitutional

states. Obviously it depends on what we do mean with the world law. One of

the main characteristic we find in constitutional state is that our constitutions

have principle inside.

(and Italian constitution too) According to

neoconstitutionalism the new constitutions show that the distinction

between rules and principles does not count anymore. You may say you

have rules as law and principle are something different, but with new

principles are part of the legal system because they

constitutional state

inspire the creation of law. If the lawmaker create a law does not respect

principle established in constitution, then that law will be stated as

unconstitutional by constitutional judges. Principle, so to say, do have a

legal value.

Let’s use the same three criteria used to describe legal realism: separation

thesis, ethical judgement and theory of interpretation

SEPARATION THESIS law and morality

According to neoconstitutionalism since principle are legal,

are not separated. It seems that neoconstitutionalism is a new version of

natural law theory, where there is no separation between law and morality.

But it is not true: once again we would be missing the word «necessary»: law

is simply related to morality and not, as natural law theorist claim,

necessarily connected to morality. At the same time to say that law is

related to morality means that this kind of position is different from the

positivistic one, because according to legal positivism the relation is

contingent; neoconstitutionalism is weaker than natural

but to say the truth

law theory and stronger than positivism.

T h i s re l a t i o n b e t w e e n l a w a n d m o r a l i t y e x i s t s a c c o rd i n g t o

from three different point of view:

neoconstitutionalism

if you assume a neoconstitutionalism point of view on law you must say

1. impossible to define law without any kind of reference to

that it is

morality: a moral point

when you want to define law you must assume

of view: to define law means to look at law not only from a formal point

that law just or unjust?».

of view, but to look at law asking «is And so,

law is related to morality because if law is so unjust at the point you

cannot obey it, law is not really a law (the same thought was made by

lex iniusta non est lex sed corruption legis).

Aquinas: It is possible to have

a moral judgment on law. You define law by assuming a moral criterion.

Law is grounded on

So, the justification of law is on a moral ground.

2. morality; at least you as a judge make the interpretation of law by using

morality. It means that when you have to interpret a law, you have to

interpret law by using the principles stated in the constitution. If you want

in conformity

to understand if a law is really a law you have to interpret it

to the constitution If law is against the principle stated by constitution, it

is unconstitutional and you can't accept it as law.

According to many theorist as Mario Barberi, if you look at

3. neoconstitutionalism at the very end you may find out difference between

natural law theory and neoconstitutionalism itself but you would say that

is

this relation between law and morality in constitutional states

necessary because what we find it Constitution is the value of morality

inside the legal system, in the form of legal principle. Obviously you may

also say that constitutional state is a contingent product of legalistic: they

do exist now but for several centuries we didn’t have something like

constitution. So this relationship can't be said to be necessary from an

historical point of view.

Neoconstitutionalism is against separation thesis, with the caveat about

related and necessity.

MORAL JUDGEMENT

Neoconstitutionalism is in favor of ethical objectivism. An so, another

time it may seem that neoconstitutionalism is near to natural law theory,

which is in favor of ethical objectivism too; but that’s just a part of the truth.

According to neoconstitutionalism it is necessary to speak about ethical

values are no more in nature or in human reason:

objectivism but they do

built up by using critical discussion.

exists, but they are It is really

important to understand this point: when we speak about critical discussion,

we mean to speak about a special interrelation between individual, that is

dialogue (Habermas, Alexy, Rolls, Walton, etc). According to

neoconstitutionalism we do have values in objective way (that’s why we have

ethical objectiveness) by using the critical discussion. If we look to the public

debate in Constitutional state, it is quite impossible to find someone who

does not agree the value of human life, freedom, human dignity, etc.: we find

no dissensus on it: everyone shares the same opinion; and so according to

neoconstitutionalism those kind of values exist in objective way because

critical discussion.

they were produced with

But this kind of general agreement is something that we miss when we pass

from a general sphere to practical reason: when you have to decide a case,

for example, you'll find a lot disagreements. When you have to translate the

general principle of e.g. human dignity to a legal case, you find a lot of

disagreement: someone says that we share principles but we discuss about

rules. If we look at the biological debate on euthanasia, there are two part:

pro-choice thinks that as human, in force of the human dignity, we should

in the name of the

decide our end; and then pro-life, according to which

same principe you must respect life: the principle of human dignity is not in

discussion; what we do discuss is the rule to adopt by using that principle.

pluralism.

topos,

And this kind of situation is explained by using a which is

We discuss about concrete values because we do have axiological pluralism

in values: we don’t have monism in value. And so, we cannot have just one

answer to legal problem; just remember our Constitutional court about

balancing technique,

Englaro case: what it had to do was to use and by

equilibrium

using balancing it had to find out a sort of between two different

by using the same principle,

values and then to search no more for truth

reasonableness

but for (ragionevolezza). How many times reasonableness

or «reasonable use» are used as arguments by Constitutional court. The real

di ragionevolezza)!

criterion becomes so reasonableness judgement (giudizio

There is a balancing.

According to Rolls and Habermas critical discussion is the right way to

obtain this kind of reasonable decision and so resolution of cases (Habermas

wrote about «agire comunicativo condiviso»): by using the dialogue we

ensure critical discussion.

But is it really a dialogue? According to the definition of dialogue given by

negative:

Berti the answer would be if dialogue in our philosophical tradition

is an «rational and argumentative process used to discover truth», and not

for reasonableness: when they speak about dialogue, so, they refer to weak

pluralism is another name of

dialogue. What we do have now is that

relativism; maintain

according to that position now the important is just to

the discussion open by discussing it again: they do believe in the validity

in the name of the procedure only.

of the procedure, but

According to Aristotle dialogue is the best way to reach truth and this is so

deny it

important because you cannot (transcendental situation): we cannot

say that dialogue is important because it is the rational procedure we do

have to assume reasonableness nowadays: because at the very end the

ground of the procedure is the procedure itself: it’s like claiming that you

cannot deny dialogue in the name of dialogue. But that wasn’t the point of

Aristotle there is no

And then if we say that the validity of procedure is validity in itself

truth but we may speak only reasonableness. So, what is the criterion that

we use to judge the position into the debate? In the classical view we say

that something is true or false because of its correspondence on reality,

which at the end does not depend on my opinion. But if we are not able to

speak about truth and the reference of your position is another opinion, then

impossible:

how is it possible to judge about an opinion? It is the winner in

the critical discussion is simply «the winner» and not the truth-bearer (etica

del fatto compiuto): I assume a certain position because it is shared.

Because many of us think that something is good, then it is good. There is

no reference at the dimension outside the discussion itself. And so according

to neoconstitutionalism the only important thing is to respect procedure, to

guarantee balancing. So, it is possible to say that a position is no more

it becomes reasonable because it is

accepted because it is true but

accepted.

In the classical view of dialogue we refuse something false and we accept

something true (being correspondent to reality); now we say that something

becomes reasonable because it is accepted.

But the problem starts when you ask: why do you believe in this value? You

no law, just decision by

cannot find an answer: in fact what we have is

judges; to make a law on that topic means to discuss about the value of that

principe; but Parliament doesn’t discuss and so decision is up to the judges,

who have different opinions: it all depends on judge’s perspective.

So, we speak about ethical objectiveness but only procedure at the end is

objective we speak about reasonableness and no more about truth. In

argumentative contest today if you speak about truth you are considered

dogmatic: this is again relativism.

you may interpret the procedure itself.

The final step is that We all agree

about values but «the importance is not asking why» as someone once said.

At the question «why do I accept the procedure?» there is no answer.

THEORY OF LEGAL INTERPRETATION

Theory of legal interpretation according to neoconstitutionalists is

interpretive formalism; neoconstitutionalism has the idea that (e.g.

one right answer,

according to Dworkin) there is the one we find looking to

principles.

However, according to other constitutionalists, the "one right answer" thesis

is not good, because we may have more than one answer; but obviously

since we do have a relation between law and morality we have to choose the

one who best fits with morality; the problem is that morality is not self

evident in itself. One of the problems we may have it is: how is it possible to

check that kind of statement about morality, and this is a problem Bobbit

tried to solve with Recursion to Conscience: you may solve constitutional

cases by using conscience, which is at the very end arbitrary. And so in any

case this is one of the most common philosophical position nowadays and

obviously it has a very huge problem: how is it possible to have a rational

control on that judgment if you say that you must decide using moral values

which are not objective? We cannot accept the idea that it is the judge the

one who decide about morality. stressed out that

Neoconstitutionalism though has the merit to have

morality is in law. After the Hart-Dworkin debate everyone agrees about the

fact that you cannot deny the presence of morality in law: from an historical

were the same

point of view, if we look at the Middle Ages law and morality

thing (also from an empirical point of view) then with the codification process

separation;

(with the legislative state) we had the but nowadays according

even to positivist it is possible to find moral in law when we speak about

public order, or public policies and morality: they all are general clauses to

maintain open law to morality. If you want to criticize neoconstitutionalism

you may say it is simply a consequence of legal positivism as constitutional

state is an evolution of legislative state: and so this is why in the realm of

legal philosophy legal positivism is the largest account in law.

But even neoconstituionalism does not solve all the problem: the debate is

still open.

THE HABERMAS-APEL DEBATE

During the 80s there has been a discussion between Habermas and Karl

Otto Apel.

According to Apel every time someone is involved in a critical discussion,

admit every kind of position justified by using

she has the duty to

argumentation. The important is that your opponent is able to justify his

But the point is that at the

own position by using rational argumentation.

same time you, involved in the same critical discussion, have the duty to

justify your position by using rational argumentation. Every time you

listen

discuss you have to and you have also the duty to justify your position:

to give argument. Apel has a quite similar idea to Berti and Aristotle: to argue

in favor of is to have the duty to motivate our own position.

only as far as technical discussion is

Habermas agrees with Apel

concerned (scientific discussion, philosophical discussion), but not in the

field of public discussion. In the social sphere according to Habermas this

kind of basic rules doesn't work. This means that when you are involved in a

no duty to justify your

critical discussion in a social contest you have

position, because it is believed that the procedure is sufficient in itself.

We can demonstrate that Habermas was wrong just using ἔλεγχος: if you try

to deny Apel position, you have to use Apel’s position. Stefano Petrucciani

explains also that Habermas is wrong because it seems so strange to think

that it’s possible to have a real good critical discussion in scientific theory

without thinking that if you don’t have this kind of discussion in society, that

discussion in scientific is impossible. Scientific discussion is in society and it

is something made in a social contest and so it is not possible to agree with

Apel for scientific discussion without agreeing with him about social

discussion: or a discussion is always rational or it is not a discussion.

The problem with neoconstitutionalism is that if you dismiss the real meaning

you cannot build up a grounded theory:

of dialogue (the search for truth)

from an historical point of view we can say that in constitutional states things

are not so bad: but in other parts of the world it is impossible to justify

certain models of States. The problem is that we are not in the position to

rational point of view

justify our model to our opponents from a (we only

use empirical method, i.e. violence).

It is a problem since the beginning of democracy in our era: according to

State of nature

Rousseau we have to leave the (the original position of man

social contract.

in nature) by using the We do have different models of

social contract but if we look to Rousseau, the father of modern state, he

stated in favor of democracy by saying that when we do agree with all other

have all the same power and there

individuals by using social contract we

is no difference between us cives.

as must

The problem is that obviously everyone sign social contract: and

a tool of freedom:

according to Rousseau social contract is we maintain our

by signing social contract.

freedom as citizens It is the tool we use to

create society in the form of the state.

But the problem is: imagine you are in the State of nature and you don't

agree with others; is it possible not to sign the social contract? The answer

NO: you will be

would be if you don't want to sign the social contract

obliged to do so; will be obliged to obtain your freedom;

i.e. you it is a

paradox obviously: a problem never solved by Rousseau.

Modern and postmodern legal and political theories are not able to solve the

problem: it would mean to dismiss the idea of relativism but we keep

only

maintain procedure avoiding dialogue and not asking why.

At the best we should say that we cannot deny human rights as principles:

but in practice every day we have violation of that principle also if we look to

globalization. It is not possible by using tool to enter discussion, but it is best

procedure.

to maintain export democracy

When modern men have to in the world, they use

violence: just think at the colonization of Northern America. If you dismiss

the idea that is possible by using dialogue to show that something is true

and something else is false you must use violence: and don’t forget that

dialogue is not relativistic: there is always something that is wrong!

Classical natural law theory did: but if we have to discuss about natural law

theory nowadays it is not such a common position in legal philosophical

theory because it is possible to make a marriage between

neoconstitutionalism and natural law theory. Many of the problem discussed

by neoconstitutionalism and legal positivism were not problem of natural law

theory. Just think about the three criteria seen before (separation thesis,

moral judgement and theory of legal interpretation), and let’s start from legal

interpretation.

If we look to the history of natural law theory, it was not a problem because

the discussion about interpretation was born just one century ago: so when

we say that we are interpretive formalist we are saying that we are not

natural law theorist but neoconstitutionalists.

NATURAL LAW THEORISTS AND SEPARATION THESIS: A PROBLEM

Let’s turn to separation thesis according to natural law theorist: it means to

understand if there is a necessary connection between law and morality; and

the answer is yes. There is a connection between law and morality and it is

necessary.

not contingent nor a relation, but it is This mean we have to judge

law from a moral point of view (every time we meet something called law we

have to ask «Is it a just or an unjust law?» ): in this perspective if and only if

law is just you must obey it, but if it is unjust you have no duty to obey it (lex

iniusta non est lex sed est corrupt legis): but in a legal positivist/realist

account you cannot ask.

Now we do have two kind of problem:

what does «just» mean? according to Aristotle and Aquinas we

a) understand if something is just or unjust using the criterion of nature

lex humana lex naturalis).

(according to Aquinas can't be against lex aeterna

According to Aquinas we may know something about by

lex naturalis; lex

using our reason and it is we may know another part of

aeterna lex divina.

because God revealed it in Bible and it is called So, lex

naturalis and lex divina are made by God and we may know something

about God thanks to reason given by God himself. Then we do have to

create lex humana, and here we have the problem of lex iniusta because

it may happen that lawmaker is not such a good man and that lex

lex

humana is against lex naturalis: in this case according to Aquinas

humana iniusta non est lex sed est corruptio legis! Lex

is and so is the

iusta.

name only of lex Obviously, the problem is that you may be in favor

of ethical objectivism but this doesn't imply you are a natural law theorist

(e.g. Bentham and Austin). lex iniusta?

Are we supposed to obey even to Aquinas says that

b) we have to obey to

anyway lex iniusta for the greater good of society and

there is just one case in which you don't have to obey to it: when it is

against lex naturalis but against lex divina too. It is not the answer given

by modernity, because according to Aquinas lex is grounded on reason.

Summa theologica.

Aquinas, who was a Dominican, wrote those things in

Franciscans had another idea: theorists like Occam or Duns Scoto thought

voluntas

that law is grounded no more in rationality but on and this is the

same idea shared by Hobbes, according to which law is made by the

lawmaker by using voluntas, which is self-evident and doesn’t require

non veritas facit legem,

discussion (auctoritas so the lawmaker has no duty

ratio voluntas.

to justify it). It is an idea of man really divided into and

But if law is grounded on will you cannot ask about it: you cannot ask if it is

just or unjust: because of it is law you have to obey it. This is why at the

beginning of legal positivism there is no space at all for questioning about

justness of the law: no way not to obey the law.

But the rules of this kind of law are not only in Hobbes but in Franciscans

too: it is very impressive what Scoto thinks (the so called hypothesis of the

hate of God): Scoto says that if God will command us to hate him we would

have to do it! The idea is that voluntas is what made law, so if the summa

voluntas of God ask not to love him, we should anyway obey it: it is a

lex

paradox but it explain how in that kind of vision there is no space for

iniusta: you may ask about lex iniusta if and only if you use reason.

THE RADBRUCH’S FORMULA

A philosophical position really similar to Aquinas is the one discussed by

Gustav Radbruch. Before nazism Radbruch was a positivist and stranded

against natural law theory. But after Nuremberg trial (where nazists always

ist Gesetz»;

answered «Gesetz «law is law»), he completely changed his

view: for Radbruch you can't accept that nazist laws are laws and so you

don’t have to obey them: there must be a place for consciousness in law and

lex iniusta

so Radbruch became natural law theorist and said something like

non est lex: if law is unjust, then it is not law, also if it is formalistically valid:

so you always have to ask from a moral point of view about law: but as

Aquinas Radbruch said that to disobey the law you need a special level of

unjustness and he says that you have to disobey only that law that is

unjust» ingiusta).

«intolerably (intollerabilmente When is a law so

The problem is you may ask: what does intolerably mean?

unjust it's impossible to obey it? Actually it’s something vague; the only

sure thing is that nazist law are not really law and so the justification made by

nazist during Nuremberg trial were not good.

You may be positivist in law and at the same time be in favor of ethical

objectivism as it is the case of Bentham; so it seems that we don’t need to

discuss a lot about natural law theory. But we do have unsolvable problems

using legal positivism and neoconstitutionalism and modern natural law

theory: so we need to have a look to the classical natural law theory.

THE SEPARATION THESIS ACCORDING TO HUME

The separation thesis is the main criterion we may use to distinguish legal

positivism and natural law theories and it is is involved when we have to

describe legal realism, legal positivism and so on. At the very beginning of

our discussion we made the name of David Hume, an English philosopher

who made the separation thesis for the first time.

ogni sistema di morale in cui finora mi sono imbattuto, ho sempre

«In

trovato che l'autore per un po' ragionando nel modo più consueto e

afferma l'esistenza di Dio, o fa delle osservazioni sulle cose umane; poi,

tutto a un tratto, scopro con sorpresa che al posto delle abituali copule

è e non è incontro solo delle proposizioni che sono collegate con un

deve o un non deve; si tratta di un cambiamento impercettibile, ma che

ha, tuttavia, la più grande importanza. Infatti, dato che questi deve e

non deve esprimono una nuova relazione o una nuova affermazione, è

necessario che siano osservati e spiegati. Occorre cioè fornire una

ragione, per quanto sembra del tutto inconcepibile, ovvero che una

nuova relazione in termini di dovere possa costituite una deduzione da

relazioni completamente differenti. Ma poiché gli Autori non seguono

abitualmente questa precauzione, mi permetto di raccomandarla ai

lettori, e sono convinto che un minimo di attenzione a questo riguardo

rovescerà tutti i comuni sistemi di morale»

(D. Hume, Trattato sulla natura umana)

When you speak about morality you speak about «to be» but then what you

«Since it is, it

do is to deduce from that “to be” something that "ought".

ought». to deduce prescription from description

It is not possible, though,

or description from prescription: you cannot deduce something passing

from “to be” to “ought”: it is a fallacy. If you don't respect the division

between “is” and “ought” and you deduce “ought” from is you are doing

naturalistica).

naturalistic fallacy (fallacia You cannot look at the world as it is

from an empirical point of view and then to say that "we have the duty to X".

Hume believes that when we speak there are just two kind of statements:

• empirical propositions, which describe. They are typical of science

(«is»);

• norms, which prescribe («ought»).

Law in itself does not describe the world, but only oblige the world to be in a

certain way: you cannot have deduction from prescription to description or

it is impossible to

vice versa. In other words, what Hume points out is that

deduce lex humana from lex naturalis

But the problem is that we do have more than two kind of proposition, and

we already know.

To tell the truth deduction is just one tool to relate lex naturalis to lex

humana, and we may use induction too.

This is typical of legal rationalism: Pufendorf and Leibniz, rationalists,

deduction is the best way: this is why Hume says that is impossible to

deduce morality from nature.

The problem is that we have more than two kinds of statements: empirical

propositions are just contingent truth; then we have extra-contextual truth

and logical truth and controversial truth. Logical truth, for example, are

typical of analytical proposition: they are true in the name of their own

meaning and there is no reference outside themselves. Then we do have

moral judgement which are not norms: norms are prescriptive of a conduct;

moral judgement are that kind of proposition by which we say that

something is good or not without prescribing anything about it. So the

picture is more complex than the one given by Hume.

There is another aspect: Hume speaks about deduction: but is deduction the

only thing we do find in logic or not? Are we sure that there is logic just when

we speak about deduction or maybe is possible to have a larger view on

logic and to speak about logic also when we don't use deduction? The

answer is that we may have other kinds of logical operation given by

inductive method or by argumentation. The form of reasoning we do find in

argumentation is not often deduction, which is the typical form of

mathematic, in which you may have truth at its maximum level. In deduction

by stating premises you cannot refuse conclusion: it is necessary. In

induction it is possible to refuse conclusion. The typical form of induction is

given with the use of words like «probably», «generally», etc. And then there

is a third form of reasoning, which is abduction, and it is weaker than

induction. We don't explain it, but abduction is the typical form of reasoning

used by Sherlock Holmes, with which you search the explanation for that

case only: it is a sort of reasoning able to express rules that count for a case

only. In deduction the rule found is for every kind of case. In induction the

rule found is for general case. In abduction the rule found is just for the

specific case. So, we do have more than induction. it’s possible

So, if we move our attention from deduction we may find that

to have relation between description and prescription, by taking into

account we do have more than two kinds of proposition. At this point is it

possible to maintain the big division given by Hume and to state that we

don’t have any kind of logical relation between description and prescription?

The answer is no. And it is what we already saw studying legal positivism:

just think: are norms related to judgement of values? Nowadays it is

impossible to say there is no relation between norms and principle, so there

is a relation (according to someone it is necessary); but it is not a deductive

values to justify norms in argumentative way;

relation: we use then it's

clear that empirical statement are not value-free as descriptions; unlike what

Hume stated. We do have a lot of value and argumentation in science. And

this is why legal positivism and legal realism were so in crisis in the second

part of last century, because you cannot accept anymore Hume's view.

To have a deduction means that there is no space for discussion; once you

have accepted premises you can't refuse conclusion; and in mathematic for

example premises are self evident.

You cannot have deduction but at the same time it's right to say that there is

a relation between descriptions and prescriptions. But we see that law is not

self-evident: maybe it is still possible to conceive values in rules domain, but

that kind of pyramid does not exist between principles and rules: there is a

dynamic relation. So, the modern idea of law completely fails.

RIFLESSIONI SU ARANCIA MECCANICA

Arancia meccanica è stato fatto nel 1971. Tratto da un libro distopico. Film è

distopico: si pensi alla scena del teatro; lì c’è la spettacolarizzazione della

violenza, di cui Kubrick era maestro. La violenza è fisica ed è anche

psicologica: quella a cui viene sottoposto Alex. C'è visione deterministica del

buono.

Il titolo del libro “Arancia meccanica” è un espressione che l'autore del libro

aveva sentito dire in un pub in una sera; l'idea dell'arancia meccanica è di

qualcosa che sembra normale all'apparenza (arancia) ma che però ha

all'interno un meccanismo che viene caricato come una macchina ed

obbliga gli uomini a fare delle azioni (buone o cattive che siano): è qualcosa

che uno non sceglie. Alex, non ha libertà di scelta e lo dice anche nel libro

dopo aver subito la cura Ludovico; c'è il tema della libertà di scelta, che è

l'idea del film. Nell'intervista che fecero a Burgess egli disse

meccanica doveva essere una sorta di manifesto, addirittura

«Arancia

una predica, sull'importanza di poter scegliere. Il mio eroe, o antieroe,

Alex, è veramente malvagio, a un livello forse inconcepibile, ma la sua

cattiveria non è il prodotto di un condizionamento teorico o sociale - è

una sua impresa personale, in cui si è imbarcato in piena lucidità. Alex è

cattivo, e non solo traviato, dunque in una società organizzata in modo

corretto azioni crudeli come le sue devono essere punite […] La mia

parabola e quella di Kubrick vogliono affermare che è preferibile un

mondo di violenza assunta scientemente - scelta come atto volontario -

a un mondo condizionato, programmato per essere buono o inoffensivo

[…] Imponete a un individuo la possibilità di essere solo e soltanto

buono, e ucciderete la sua anima in nome del bene presunto della

stabilità sociale».

Ma allora è meglio un mondo in cui si possa fare soltanto il bene o un mondo

in cui è possibile scegliere fare del male? La risposta è difficile da trovare.

C’è un altro film, Minority Report, con Tom Cruise in cui c'è la «psicopolizia»,

ossia persone capaci di prevedere i crimini prima che questi fossero

commessi: la polizia interviene sul luogo del delitto prima che questo venga

commesso.

È giusto privare una persona di fare del male, pensando che sia il modo per

ottenere una società buona oppure dobbiamo pensare ad altro? Questa è la

domanda che dobbiamo porci.

In fondo, dopo la scena del teatro nel libro il prete afferma:

«In realtà lui non ha scelta, vero? Era il proprio interesse, la paura del

dolore fisico che lo hanno spinto a quel grottesco gesto di

autoavvilimento. La sua insincerità era anche troppo evidente. Cessa di

essere un malfattore, ma cessa anche di essere una creatura capace di

scelta morale»

Alex è un esteta, e coltiva la violenza stessa. Lui sceglie coscientemente il

male ed il malvagio. Alex dopo la cure vuole sempre commettere il male ma

non riesce a farlo: si trova solo un artificio medico per far sì che il soggetto

che vuole delinquere smetta di poter farlo. Alex ad un certo punto dice:

io, io. E io? E a me non chiedete nulla? Sono forse una specie di

«Io,

bestia o un cane? - Allora partirono a sprolare tutti insieme e a

lanciarmi una valanga di mottate. Così io scricciai ancora più forte,

scricciando: - Devo forse essere soltanto un’arancia a orologeria? - Non

so cosa fosse che mi fece adoprare queste mottate, fratelli, che mi

vennero così, tipo senza volere nel planetario. E chissà perché questo

chiuse il truglio a tutti quei martini per un paio di minutos. Poi un poldo

bigio e secco tipo professore si alzò, col collo tipo un fascio di cavi che

portavano l’energia dal planetario alle macerie, e disse:

- Non hai motivo di lamentarti, ragazzo. Hai fatto la tua scelta, e tutto

questo non è che una conseguenza della tua scelta»

L’idea in Arancia Meccanica è che lo Stato non rigetta la violenza, ma la

usano in un altro modo; i drughi stessi diventano poliziotti.

Il film non finisce come il libro. Kubrick lesse il libro nella sua prima edizione

priva dell'ultimo capitolo e divenne quella la sceneggiatura del film. Nel libro

di Burgess (che nel film è lo scrittore a cui i drughi violentano la moglie) dopo

l'accordo con lo Stato, Alex rifonda la banda dei drughi, soltanto che i tempi

sono cambiati e non gli piace più l'ultraviolenza; la fine del libro è questa:

«Immagino che ormai la vecchia ultraviolenza e gli sgaraffi fossero in

ribasso dato che i rozzi erano così brutali con chi gli capitava a tiro,

anche se tra moschetti e cerini c’era una specie di guerra e spesso

erano i cerini i più guizzi con lo sgarzo, la lisca, il bastone e anche la

pistola. Ma in quei giorni il mio problema era il fatto che non

m’importava nulla di nulla […] Qualcosa mi stava accadendo dentro e

mi chiedevo se era tipo qualche malattia o se forse stavo per diventare

scardinato sul serio dato che mi avevano tanto pasticciato il planetario

[…] Pensando a questo cià ebbi a un tratto tipo una visione di me che

stavo seduto in una poltrona accanto a un tamagno caminetto glutando

questo cià, e quello che era buffo e molto molto strano era il fatto che

sembravo un martino molto bigio sui settanta circa, perché potevo

locchiare il criname che era diventato molto bianco, e avevo pure i baffi,

e anche questi erano bianchi. Così locchiai me stesso diventato un

vecchio seduto accanto al fuoco, e poi questa visione svanì. Era tutto

molto strano»

Poi Alex racconta che va al bar e ivi incontra Pete uno dei drughi, che nel

frattempo si era sposato e aveva messo su famiglia; si immagina sposato

con un figlio e si dice essere maturato;

per le strade buie in quel freddo inverno bastardo dopo

«Camminando

aver pistonato fuori da questo sosto per il cià e caffè, continuavo a

locchiare delle specie di visioni, tipo queste vignette nella gazzetta.

C’era il Vostro Umile Narratore Alex che tornava a casa dal lavoro e si

metteva davanti a una buona cenetta calda, e c’era questa quaglia tutta

sorrisi di benevenuto e saluti tipo amorosi […] nell’altra stanza c’era

una culla con un bambino che gorgogliava gu gu gu. Sì sì sì, fratelli, era

mio figlio. E ora sentivo questo gran tamagno vuoto dentro le macerie,

ed ero molto sorpreso. Sapevo quello che mi accadeva, O fratelli miei. Io

stavo tipo maturando.

Sì sì sì, proprio così. La giovinezza deve andarsene, oh sì. Ma la

giovinezza è un po’ come essere un animale. No, non proprio come un

animale ma come uno di quei migni giocattoli che vendono per le

strade, tipo dei piccoli martini fatti di latta e con una molla dentro e una

chiavetta fuori e tu lo carichi trrr trrr trrr e quello pistona via, tipo

camminando, O fratelli miei. Ma cammina in linea retta e va a sbattere

contro le cose, sbam, e non può farne a meno. Essere giovani è come

essere una di queste migne macchinette.

Mio figlio, mio figlio. Avrei spiegato tutto questo a mio figlio quando

fosse stato abbastanza bigio da capire. Ma d’altra parte sapevo che non

avrebbe capito o non avrebbe voluto capire e avrebbe fatto tutte le

trucche che avevo fatto io, sì, forse avrebbe perfino ammazzato qualche

povera pulcella bigia circondata da ràttoli e ràttole miagolanti, e io non

sarei stato capace di fermarlo. Né lui sarebbe stato capace di fermare il

figlio suo, fratelli. E sarebbe andata avanti così fino alla fine del mondo,

gira e rigira, come un tamagno martino gigantesco tipo Zio in Persona

(per gentile concessione del Korova Milkbar) che girava e rigirava tra le

granfie gigantesche una lezzosa arancia saloppa»

Non c'è speranza: il mondo è questo e noi siamo come arance meccaniche;

e Alex tremendamente l'ha capito, a tal punto che si immagina di avere un

figlio cui spiegherà che certe cose non vanno fatte, ma questi comunque le

farà!

Il motivo per cui abbiamo visto il film è che ci introduce al problema dello

Stato e della società

MODERN NATURAL LAW

THEORY

For legal positivism and neoconstitutionalism the State is not in discussion,

since we do live in a modern legal era. The problem of the State and of the

society was one of the main problem for modern natural law theory

moderno),

(giusnaturalismo represented by Hobbes, Locke and Rousseau.

How is it possible to justify the existence of society and the existence of the

State? society is something that we have in

Society and state are not the same:

nature; then we create state. It is the same idea claimed by Hobbes,

Rousseau, Locke and Grotius too. The problem is that we may have different

kinds of society, of State and at the very beginning of human being.

Just keep in mind the model of Alex and drughi: it is a model of society, in

which we may find rules and maybe also a King (Alex himself), governing

with the use of strength: he uses violence to solve problems, but there is an

auctoritas non

order into that kind of society, in which the very level of law is

veritas facit legem (if you don't obey then you will have a physical

punishment).

It is a typical idea of man: if you want something, just go and do it! It is a

jus in

typical idea of man and society in which the basic rule is the so called

have the right to have everything not asking if it is

omnia: you as a man

good or not. At the same time the use of strength is the rule inside that kind

of society and it rules relationship between that society and other kind of

drughi

society: when meet another kind of society they use strength, which

is the basic rule to keep order. This is something that it is really coherent with

the idea of the society explained by Thomas Hobbes.

At the very beginning Hobbes thinks that man in society only uses strength

homini lupus);

(homo and in that kind of society the only way to solve

non veritas facit legem);

problem is strength (autoritas against this type of

society you may think that it's better to have a State, and the best idea of

State able to think of you,

state we may have is a a State who really loves

you! That State wants you to be a good man: it wants goodness for you.

That State tells you not to mind about anything: it will be your father and you

paternalistic idea of State.

will be its child: this is a very

chooses for you.

It is a state that I as a state decide what is good and what

is wrong: this is something that we may find also in Rousseau: he has the

idea that the decision about what is good and what is wrong depends on the

State, which is made by us; while in Hobbes the idea is that the State is not

us but the King.

So, we decide as a State about law, about what is just or unjust and so on.

But the real problem is who is the choice maker, the lawmaker? And this is

exactly the problem of choice.

There is another possibility about the idea of State, and maybe is little bit

different from the one claimed by Rousseau: it is the model of the State

there is a lot

developed by John Locke. In this idea we do have a State but

of space free from the power of the State, a lot of things we may do as

individuals: the State has always power to solve conflicts but there is a

space which is ours (a sphere of human people that is maintained as the

sphere of our power, and that the State cannot enter: privacy). It is the idea

of the liberal state. And again the problem may be the space of that freedom!

My freedom has to be balanced with yours: you may think you are free in

doing something but you may conflict with my freedom, so we have to find

out day by day the way to live in peace.

This is the main problem for modern natural law theory: the justification of

the existence of the state. Until that time State didn’t exist; the idea of

modern sovereignty was given for the first time by Jean Bodin; there is

something that is common to all natural law theorist: the idea that at the

the

very beginning of the history of man there was something we may call

state of nature. In the state of nature we find something that is new in the

the idea of individual.

history of thought: In the classical picture of society

man is not alone, but lives in society.

All the classical idea about society is denied in the modern account of

man is alone. and then we do

society: First of all we have man as individual

have society; and then, again, we do have State. In the modern account of

natural law theory State is something artificial and created by man. If society

exists in nature, State does not but it is something created by man and in the

modern typical of all modern natural lawyer the instrument used to create the

State is the social contract.

So we do have: State of nature->social contract->State. the idea of

Modern law theorists have in common, despite their differences,

individual: man is alone. The basic idea is that man is alone; society is not

by the sum of different individuals,

before man but it's something given

something that is before individual. In the classical view society was before

individual: just think to poleis and to the idea of principle given by Plato:

polis

society is like the principle: the identity of a is not given, as modern

natural law theoirst claimed, by the sum of our common beliefs (the idea of

tot capita tot sententia):

the democracy, there is a principle that is before the

man who lives in that society.

It is something we find in Antigone: Creon is the sovereign seen as Hobbes

sees it (the city as the property of the King); the classical idea of society is

represented by Antigone herself: she sees the polis not as property of the

ius and law;

state: she sees a difference between there are unwritten law and

written. The idea Creon has about law is that law is created by his auctoritas.

At the very beginning of the tragedy Antigone represent another kind of

there is something you cannot comprehend in our will; an

conception:

unwritten law: the religious consuetudo. At the beginning of the tragedy

that is the idea of the society in classical dimension: the idea that since I

don't know by myself what is good or bad, I have to discuss in society to

decide about something. law is created by

The modern idea of law is something completely different:

man by using will as Hobbes said (auctoritas non veritas facit legem).

homo homini

According to Hobbes individuals live in the state of nature as

lupus: jus in omnia

the only rule in State of nature is that everyone has. At the

very beginning of the society, which is an hypothesis in Hobbes’s mind, man

stayed not so bad; but at one point someone said «this is mine», and

the

according to jus in omnia it is not possible to solve this conflict: so

strength is the only way to conceive that kind of society: and that is an

idea we cannot accept.

What I have to do is to find out a solution to this situation: and the solution is

contract, everyone

to have a and obviously since your situation is like mine,

signs social contract, ne cives ad arma

because we need to live in peace,

ruant: but how is it possible? We have to create someone who is the

strongest! The strongest is the State, the King! The King does not exist in the

homo

State of nature and State do not exist in state of nature: the State is

artificialis. In the state of nature we all live in the dimension of strength, and

so we are all obliged to sign social contract and say that the State is the only

one who has the power; If the State (or the King) lived in the state of nature it

would mean that he is someone like us, and it is not possible.

The state is represented like a man, and the body of that man is formed by

single men (as we see in the frontespizio of Leviathan). The State, who is

homo artificalis, is the one who has the natural power we had in the State of

nature (it has jus in omnia); this is is why the State is able to decide by using

its will: he has not to justify its action, but has the power of doing everything

princeps placuit, l habet vigorem).

(quod The only thing we ask to the State

is to maintain the social order, to maintain us safe in any way; then the

State is free to do whatever it wants.

In that dimension, the most important thing to consider is that when I sign

enemy!

the contract I look at you as an When I sign the contract, I do it with

myself, and decide with myself that I will respect the state! I cannot sign the

contract with others, because you in the state of nature are my enemies. So,

to give to the state my jus in omnia and everyone

I as individual, decide

does the same thing: at that point the State exists. is the use of strength.

And the best way to maintain order by the State

Obviously the problem is that I may disagree with the State and so If I don't

respect the will of the state, what happens? It means that I come back to the

state of nature and I pretend to have another time jus in omnia, but at that

the state is free to kill me.

point Remember! the only reason I signed the

contract was to be alive! And so the State is able to force me and even to kill

in the name of the respect of order and safety.

me

Before the law of the state it is impossible to think about what is legal and

just is what is legal;

what it is just or unjust: when we do have the state,

unjust is what is illegal. If my action is against the law, it means that it is

unjust. In the state of nature we do have something different from jus in

omnia: that is lex naturalis. According to Hobbes there is one big rule in lex

pacta servanda sunt.

naturalis: When I sign the contract I cannot think to

violate it, because pacta sunt servanda!

The State is able to maintain social order because it has jus in omnia: you

are not free to do what you want.

THOMAS HOBBES

IN THE STATE OF NATURE WE HAVE FEAR

The basic point of modern natural law theory is individualism: before society,

the person is the unity! Society is build up by the union of single persons.

The union is made possible by social contract, which we use to exit from

state of nature and its problem: so we create the State. According to

bellum omnium

Hobbes, before the State, in the state of nature do have

contra omnes. In Chapter 1 of Leviathan Thomas Hobbes wrote:

gli uomini non provano il piacere di stare in compagnia, laddove

«Inoltre

non esiste un potere, capace di incutere a tutti soggezione. Quando gli

uomini vivono senza un potere comune che li tenga in soggezione, essi

si trovano in quella condizione chiamata guerra: guerra che è quella di

ogni uomo contro ogni altro uomo»

This is the idea of the State of nature we do find in Thomas Hobbes. Now,

fear.

imagine to live in such a condition; the main emotion we feel is So the

white

main color for Hobbes in the State of nature is (it’s clear that when we

feel fear we become white). According to Thomas Hobbes we have to sign

made in two section.

social contract, which is

pactum unionis. pactum

The first one is called The second one is called

subiectionis.

THE SOCIAL CONTRACT society.

According to p.u. with the State we create a corpus, which is

Immediately by creating society we sign pactum subiectionis, which in

Hobbes in more important thant p.u.: just creating a State we have the

possibility to live free: without a power man is in the state of nature, but we

have jus in omnia. In the sec

«L'unico modo di erigere un potere comune che possa essere in grado

di difenderli dall'aggressione di stranieri e dai torti reciproci... è quello di

trasferire tutto il loro potere e tutta la loro forza a un solo uomo o a una

sola assemblea di uomini. [Gli uomini] sottomettono, ognuno di essi, le

proprie volontà e i propri giudizi alla volontà e al giudizio di

quest’ultimo. Questo è più che consenso o concordia, è una reale unità

di tutti loro in una sola e stessa persona. [Un’unità] realizzata mediante

il patto di ciascuno con tutti gli altri, in maniera tale che è come se

ciascuno dicesse: Do’ autorizzazione e cedo il mio diritto di governare

me stesso a quest’uomo, o a quest’assemblea di uomini, a questa

condizione, che tu, nella stessa maniera, gli ceda il tuo diritto e ne

autorizzi tutte le azioni.»

So, we do sign the contract first with ourselves; I decide to give to the State

pacta sunt

jus in omnia and since in the state of nature it exist the idea that

servanda, I ask you to do the same thing. It is not possible for someone not

to sign the social contract. And with this contract I give away my right and I

authorize all the action.

«E’ questa la generazione di quel grande LEVIATANO, o piuttosto (per

parlare con maggior rispetto) di quel dio mortale, al quale dobbiamo,

sotto il Dio immortale, la nostra pace e la nostra difesa. […] Infatti,

grazie a questa autorità datagli da ogni singolo uomo dello Stato, egli

dispone di tanta potenza e di tanta forza a lui conferite, che col terrore

da esse suscitato è in grado di modellare le volontà di tutti i singoli in

funzione della pace. […] In lui risiede l’essenza dello Stato, che, per

darne una definizione, è: Una persona unica, dei cui atti [i membri di]

una grande moltitudine si sono fatti autori, mediante patti reciproci di

ciascuno con ogni altro, affinché essa possa usare la forza e i mezzi di

tutti loro nel modo che riterrà utile per la loro pace e per la difesa

comune. Chi incarna questa persona si chiama sovrano e si dice che ha

il potere sovrano; ogni altro [si chiama] suo suddito»

So, the situation we found in the state of nature is the same we do find in the

State, but with one important difference: there is now only one man able to

maintain jus in omnia! The idea of man, from anthropological point of view, is

White is

always the same: the Leviathan maintains peace because of fear.

again the color of the State.

It is not a case that the frontespizio of the Leviathan the State is represented

with a body made up by little men. According to Hobbes Leviathan is like a

artificialis»

man, but he is «homo

«[…] L’arte procede oltre, imitando l'opera razionale ed eccelsa della

natura, l'uomo, infatti con l'arte è creato il grande Leviatano, detto

Stato (in latino civitas), che non è altro che un uomo artificiale, sebbene

di statura e di forza maggiori di quelle dell'uomo naturale, per la cui

protezione e difesa fu inteso. Ed in esso, la sovranità è un'anima

artificiale, che dà vita e moto all'intero corpo; i magistrati e gli altri

ufficiali giudiziari ed esecutivi, sono delle articolazioni artificiali; le

ricompense e le punizioni (che, fissate al seggio della sovranità,

muovono ogni articolazione ed ogni membro all'adempimento del

dovere), sono i nervi, che fanno lo stesso nel corpo naturale, la

ricchezza di tutti i singoli membri, è la forza; salus populi (la sicurezza

del popolo), è la sua occupazione; i consiglieri, che gli suggeriscono

tutte le cose che ha bisogno di sapere, sono la memoria, l'equità e le

leggi, una ragione ed una volontà artificiali; la concordia, la salute; la

sedizione, la malattia; e la guerra civile, è la morte. Infine i patti, per

mezzo dei quali le parti di questo corpo politico furono per la prima

volta fatte, poste assieme ed unite, assomigliano al fiat, al facciamo

l'uomo, che Dio pronunciò nella creazione»

Leviathan does not exist in nature: this is a very different conception from

classical one. According to Aristotle the polis is something that exists in

nature before individuals (man is a social animal). The idea of sovereignty

developed by Jean Bodin a century before Hobbes the society is in nature;

individual and no more

according to Hobbes however what is natural is

society: when we do create the State, as Hobbes remember quoting Book

est potestas super terram quae comparetur

of Job in the Bible «non

ei» (non esiste potere sulla terra che possa essere comparato al suo). This is

why State is not a natural man.

This kind of State is created by man by using social contract: man does so

rational act. ratio

because it is a But we do sign the social contract by using

and will. reason

So, we do have (since it is reasonable to sign social

will.

contract) but to obtain the aim we do have to use The main faculty we

do use in signing (any) contract is will and reason is under it: we do fin the

same structure in Leviathan: he knows he has to maintain peace, but since

auctoritas non veritas facit legem, the State itself is not obliged to explain:

we have to respect its will, because we have fear. From this point of view, in

lex iniusta.

Thomas Hobbes we don’t have the possibility to discuss about

«Il fare buone leggi dev’essere costante preoccupazione del sovrano.

Ma qual è una buona legge? Con una buona legge non voglio dire una

legge giusta, poiché nessuna legge può essere ingiusta. La legge è fatta

dal potere sovrano e tutto ciò che è fatto da tale potere è garantito e

riconosciuto come proprio da ogni suddito e ciò che ognuno vuole,

nessuno può dire che sia ingiusto […] Le leggi di uno Stato sono come

le leggi del gioco: qualunque cosa su cui si accordano tutti i giocatori

non è ingiusta per nessuno di essi»

Law is made by the State, and so from a certain point of view if we do agree

with pactum subiectionis it is impossible for us to discuss the law. Thomas

Hobbes also said that

«Il sovrano non è tenuto all’osservanza delle leggi dello Stato»

absolutus + ab):

And this is why he is (solutus the man as person was free in

the state of nature; what we have in State we have a special conception of

we speak

freedom. When we speak about freedom in that conception,

about «libertà da» (as Heidegger claimed): we are free because we can

remove something which is against our will (e.g. when we destroy the chain).

As Hobbes said, law is just voluntas. Everything is made possible by certain

conception of reason: the idea promoted by Hobbes is mathematical reason.

It is what we may call «ragione calcolante»: I do have a specific aim posed

by will, and I want to be free: so I use social contract. But in that particular

conception, the basic point is that we do deny the existence of something

external to reality: it is really an anti-metaphysical conception of reality: it is

reductio ad phenomena.

THE REALITY IS THE SUM OF THE OBJECTS

We should remember that for Galilei and Descartes God is something that

we use to justify the use of reason. In mathematic, so, we are like God; the

next step is to remove God from our conception and become ourselves God.

Man is able to do everything.

What Hobbes thinks is that if we were able to use the mathematical reason

order.

also in political domain we would be able to obtain

«Quando si ragiona, non si fa altro che concepire un totale

dall'addizione di particelle, o concepire un resto dalla sottrazione di una

somma da un'altra […] Queste operazioni non si riscontrano solo nei

numeri, ma in tutte le specie di cose che si possono addizionare

insieme l'una con l'altra e togliere l'una dall'altra […] Gli scrittori di

politica addizionano insieme le pattuizioni per trovare i doveri degli

uomini, e i giuristi, le leggi e i fatti per trovare ciò che è cosa retto e ciò

che è torto nelle azioni dei privati. Insomma in qualsiasi materia in cui

c'è posto per l'addizione e la sottrazione, ivi c'è pure posto per la

ragione; e dove queste non trovano posto, ivi la ragione non ha niente a

che fare»

If and only if we are able to use reason (i.e. mathematics) we have reason:

but where there is no space for mathematic we don’t have reason. The State

reduced to the sum of every single man.

in itself is Another time it is not a

classical conception. It is a very different idea from the one given by Plato

about principle; that is because according to Hobbes reality is like an object,

so you can scompose it to understand it, being reality made up by the sum

of each single part. In the classical view the principle is not given by the sum

of each object but there is something that is further. In classical view, we

may conceive something and say “this is a polis”, because polis is not

reduced to the sum of the parts. So that if we lack one of the part the thing

remains the same! And the same discourse is to be done about man.

SOME CRITIQUES TO THE CONCEPTION OF FREEDOM GIVEN BY

HOBBES

If we reflect a bit we will conclude that «libertà da» is not really freedom.

homo

Image we are able to remove every kind of obstacle to our will, just like

artificialis: at that point there is no more freedom: if we remove everything we

have no possibility to make our freedom something useful. So, better than

Hobbes, it may be said that we are free as far as we have something that

obstacle our will. According to Martin Heidegger the idea of «libertà da» is

something which is contradictory to freedom itself: unfortunately this is the

diritti soggettivi.

idea promoted also by certain idea of law as the one of We

diritti soggettivi

claim our and so we continually ask to our State to remove

obstacle: but freedom is not something we have to use to remove obstacle.

From a theoretical point of view it is no more freedom but a trick made

possible by the idea of individual and reason promoted by modern science.

«libertà per»

According to Heidegger we should think of freedom as .

3

HOBBES AND ANTIGONE

The position we found in Hobbes is the same we find in Antigone. The

character very similar to Hobbes’s view is Creonte, Antigone’s uncle. But we

may ask: is Creonte right or wrong? Is Antigone right or wrong?

The first thing is to define tragedy. We may speak about tragedy when we do

contraposition

have a between two different point of view, when we do

have a dilemma. From this point of view, Antigone is a tragedy because we

do have a contraposition between Antigone and Creonte; Creonte and

find out solution.

Emone, etc. but it is impossible to A dilemma offers good

reasons to choose alternative position. So, it is not possible to state who is

right! Antigone has not a moral reason but a legal one: she sustained that

unwritten law exists before written law: we have conflict between two

different legal systems. Tragedy in classical time was not a simple text but an

occasion for the polis to reflect. The main problem of Sophocles was to

show that what was happening in Athen in that time (struggle between

demos [Creonte] and aristoi [Antigone]) could end up in a bad way. The

3 “Libertà per” significa che la qualità del nostro essere liberi non si misura dal risultato delle nostre

azioni. Nella “libertà da” io sono libero nella misura in cui la mia azione mi consente di rimuovere

l’ostacolo, cioè produce un certo risultato che io voglio ottenere, esercitando la mia libertà. La

nostra epoca dei diritti è fatta da questa continua volontà e noi siamo incapaci di produrre diritto. Il

diritto non sono i diritti; il diritto per definizione è ciò che tiene insieme le differenze; ma essendo

nell’età del relativismo noi oggi pensiamo che sia giusto che ognuno reclami i propri diritti. E così

abbiamo una pletora di istituzioni deputate a creare diritto, che spesso entrano in conflitto tra di

loro; tale conflitto peraltro sarà risolto dal giudice. Ognuno reclama i diritti, ma nell’idea di diritto

non è che non vi fossero differenze; ma oggi c’è l’idea della «libertà da» e ogni capriccio viene

reclamato come diritto: la volontà si fa ragione a sé stessa. Ma la vera libertà si misura rispetto a

sé stessa; il valore dell’atto libero si misura in sé stesso, anche se io non ottengo niente: è ciò che

realizza la mia soggettività.

contraposition between Antigone and Creonte is not immediately solvable:

but at the beginning of the tragedy it is absolutely clear that what Creonte

shows is Leviathan: when Chorus speaks with Creonte it is said:

«Puoi fare per la città quello che vuoi; per i vivi e per i morti»

Creonte’s power was perfectly valid from a legal point of view. The idea is the

modern one: the polis in itself is an object at the disposal of my will: you

have to obey to me because I’m the king. But Antigone speaks about

another necessity: you cannot think that laws you made are right, only

because you made it: there is a principle behind and above human will. It

does not mean that written law couldn’t go against unwritten law. At the

beginning we do have immediately good reasons; but at the certain point

Creonte has hybris (the idea that everyone, included Gods, has its own

limits). But this does not imply that Antigone is right: she is wrong too when

she kills herself, because it means to refuse dialogue when Creonte changes

idea after Tiresia spoke with Creonte. The message given by Sophocles is

that Aristos should discuss with Demos: the good thing is to obey to written

law and unwritten law: we should find another kind of jus; in other case there

is tragedy.

As a modern natural law theorist from a theoretical point of view he has

something in common with Locke and Rousseau. Hobbes thinks that for

some reason we exit from state of nature and sign a social contract. The

social contract is made up in two parts:

pactum unionis and pactum subiectionis, which in Hobbes is the most

jus in omnia

important part: we give to the State (Leviatan) the we had in the

state of nature. The state has only the duty of maintaining safety; in itself it is

absolutus.

Fear is the main feeling among people: the color of the state in Hobbes is

white. Fear is at the same the main feeling of man in the State: we obey the

Leviatan because we have fear; State is able to maintain order and peace

because we do have fear of it.

From this point of view we may stress out is a contradiction in Hobbes: just

imagine to live in the state of nature: we do have fear, because everyone may

use violence against us; at a certain point we do decide that is better to have

fear, just to be afraid of one man than of everyone. In the State only the

a rational

Leviathan is able to have jus in omnia; so to decide for the State is

act, But in itself fear has nothing to do with reason.

calculus.

a As a

we use reason but

feeling, fear is not rational! And here is the contradiction:

the primum movens is not rational but feeling.

And it is a feeling that is in everyone. There is no one who is freed from fear.

To look at Hobbes’s theory from this point of view means to understand

Hobbes's theory of one of the prominent example of the so called theory

of political evil"

called “theory (teoria del male politico), according to which

man is bad and when he lives

first from an anthropological point of view

without laws, he just uses strength omnium contra omnes)

(bellum ; the

so we need a state

second step is that we need law, and whose main duty

law is an instrument of politic.

is to maintain peace: We use law to make

bellum omnium

possible for us to live in peace: without law we would have

contra omnes. Since law is an instrument of politics, it is produced by will

Status absolutus

and not by reason. The has to do with the anthropological

idea Hobbes had about man, who is according to him bad. Law at the very

end is produced by someone who is very powerful.

JOHN LOCKE

THE SOCIAL CONTRACT IS TO MAINTAIN THE STATE OF NATURE

If we move to John Locke we find something completely different. If Hobbes

is the theorist of the absolute State; Locke is the theorist of the liberal State.

The theoretical structure is quite the same: the State of nature and the social

contract, and then the State. But everything else is different. according

The very basic idea from an anthropological point of view is that

to Locke man is good. What we do have in the State of nature is not fear

man has from a

but something we find in Grotius too and it is the idea that

natural point of view an appetitus societatis: it means that when we live in

search

the State of nature what we do is not to avoid other man, but just to

for other men we need someone else. Appetitus societatis

because from

this point of view is similar to the Aristotelian idea of ζῷον πολιτικόν even

because of

we need other man according to Locke

that there is a difference:

business; property

according to Locke we need society to promote and the

man is homo oeconomicus.

idea is that at the very basic level This is

to live in society is something good.

something that is really inside man: because we trust each

We may live in peace in society without feeling fear

other. freedom, property

In the state of nature, according to Locke, we find

and equality. And so we have to maintain this state; when we do sign social

we want maintain the state of nature;

contract according to Locke and we

don't use the social contract to exit state of nature, unlike what Hobbes said.

By the social contract we render the state of nature something possible.

we don't have

According to Locke, the problem in the state of nature is that

an authority who guarantee the resolution of conflicts. The difference

between Locke and Hobbes is that according to Hobbes conflicts are

physiological; according to Locke conflict is something that may exist but is

usually we live in peace

pathological: but sometimes we may need

someone who is able to solve conflicts, especially in business.

In Hobbes, the power of Leviathan has no limit. In the idea promoted by

it cannot enter our life

Locke, the State has precise limit: (privacy): there is

a sort of personal sphere that must be maintained free from the state. But

we ask

sometimes, though, we need someone who solve conflict and so

State to make law just not to have conflict and then we ask to the State

to judge; and then we ask also the State policeman but that's all: this is the

idea of liberalism and libertarianism. The state must very far from our life, but

have the power to decide and to make law to solve conflict.

it must absolutus;

In Hobbes the power is just for one man (the King), which is in

Parliament the

Locke there is the idea of a that must respect what is called

rule of law: rule of law is something connected to the idea of liberal State; it

is typical of English system. The rule of law is the rule according to which the

power has precise limits. If we look to trial, we may say judge must respect

fair trial and rule of law: otherwise we have something else and not trial,

which we cannot accept: due process of law, fair trial and habeas corpus are

typical example of rule of law.

Then, when it comes to legislator, the rule of law implies that parliament has

precise limits in rule of law: the lawmaker is subject to law: unlike what

happened in Hobbes, where lawmaker was itself law. to state about

In Locke the main power we recognize to the Parliament is

the law: there is the division of power, which there wasn’t in Hobbes. In

we decide to give to the

Locke when we sign the social contract

Parliament the power to state about law (legislative power, the main one);

but the parliament cannot decide about the executive branch or judiciary

branch.

Parliament has precise limits: it is not free to use the law and to fill himself

it is under the law

outside law but, (the idea is that if I state a law, I must

respect it). There is something which is more powerful than Parliament,

absolutus: jura connata

which is not are something that we maintain for

ourselves and do not give to the State; they basically are

• freedom,

• life

• property. jura connata.

The State according to Locke cannot enter We must be free to

decide about our property, about our life, about our freedom. It is not

jura connata.

possible for the Parliament to state law about We see how in

jura connata

Locke individualism is at its highest level: if we look at we

jura connata.

decide by ourselves and it is not possible to conceive law in In

Locke view expropriation cannot exist. In liberal state the idea of collective

property doesn't exist. jura connata.

But the State may not respect social contract and may enter in

And what we do have in Locke is the possibility to make a sort of

«supervision» of the Parliament: by saying this Locke is saying also that it is

possible that the Parliament won’t respect its limits; in this case we have the

«appeal to heaven»: and we have it in case of war on in case of tyranny.

When the state does not respect the social contract we came back to the

state of nature and re-sign another social contract: that is what we do every

election.

time there is an

That is because we need to trust our governor and our governor must be

elected: it is not a monarchy and so, every time Parliament we have the

possibility to check them; it need consensus. So the Parliament has its

problems. Governor know that they need our consensus, which is based on

the respect of the social contract. In Hobbes it was different: Leviathan as

homo artificialis is something that we create and that social contract is like

contratto a favore di terzi.

the is more similar to a normal contract,

Social contract in Locke because

parliament every time signs a social contract with us: in Hobbes social

contract was just an hypothesis; in Locke it exists in the normal political life

between us an the

of the State and it is something we always do

Parliament. This is why Parliament must respect the rule of law: because it

is a part of the contract; otherwise we have election or revolution, if there is

no way to make the State respect the contract.

Revolution in Locke is not something outside the State but it is inside

the State, as «appeal to heaven». The contract is something similar to the

arbitrato.

Italian

In Status absolutus the citizen does not know what is right and what is

The process

wrong: you simply know what the State wants. Just think about

by Kafka, where the character K. doesn't know why he is in a process

is clear.

because he is in an absolute state. In liberal state everything

As we can see, everything is different in Locke because the idea of man is

different! According to Locke man is not bad but he is good: there is no more

red.

appetitus societatis.

fear of someone else, but The color in Locke is

red is the color of the shame.

Pay attention: According to Locke man feels

shame and not fear in society. First of all we don't have to forget that Locke

was a Puritan, and so had a strict view about life. we don't

One of the thing that makes possible for us to live in peace is that

act in a certain way. We don't steal because of shame, according to Locke;

even when we are alone, we don’t steal because of the eye of

consciousness.

If in Hobbes we find fear, in Locke we find shame. If you don't feel

shamed you tell everything. It is something we find in Kant too: an act is

public when we don’t feel shame for our act, and we cannot accept that the

State does not tell me what is doing, otherwise it is doing something wrong.

But the concept of shame is possible because we think that man is good:

and again, we have emotion. Even legal enlightenment was made up of

emotion: we search for truth because of emotion and fear. This is why there

nothing is secret.

is the rule of law:

JEAN-JACQUES ROUSSEAU

Jean-Jacques Rousseau was from Geneva and also if he lived in the full the

Enlightenment, he can be considered a sort of romantic because he was

rather devoted to emotion more than reason. In Rousseau we do have a

emotion;

very important role played by especially he uses some “strange”

happiness love.

words in legal debate such as and

We may use the same theoretical structure of Locke and Hobbes, but first of

a complete different meaning of the word nature

all we have to underline

as it used in Rousseau.

In Hobbes, in Locke, in Grotius and other natural law thinkers, the word

Nature and Reason

nature has something to do with reason. In Rousseau

are two different things. id est ratio; id est

According to Aquinas «natura

Deus». For Locke we do have a deep role played by reason in the State of

nature and in Hobbes too: we decide to sign the social contract by using

we don't find reason in the state of

reason according to them. In Rousseau

nature; or better to say we have the state of nature that is described in two

different phases: there is no room for reason.

In the very original state of nature When

Rousseau speaks about the state of nature in the first phase, he speaks

sauvage”:

about the idea of the so called “bon man at the beginning of the

savage,

State of nature lives like a and so he is good. It is a situation we

shall not destroy: in that state of nature man is happy; in that initial condition

according to Rousseau man lives in a sort of «uniqueness». When we speak

man in the state of nature lives completely

about savage,it is the idea that

alone: lives in peace there is no occasion for

being alone, the savage and

conflict, he

not having relations with others. When man is alone in nature

lives in harmony with nature, completely independent.

because he is In

this kind of condition, according to Rousseau we live in the so called "self-

de soi),

love" (amour loving ourselves and doing what according to me is

necessary and sufficient for our own conservation.

«Let us conclude that savage man, wandering about in the forests,

without industry, without speech, without any fixed residence, an equal

stranger to war and every social connection, without standing in any

shape in need of his fellows, as well as without any desire of hurting

them, and perhaps even without ever distinguishing them individually

one from the other, subject to few passions, and finding in himself all he

wants, let us, I say, conclude that savage man thus circumstanced had

no knowledge or sentiment but such as are proper to that condition,

that he was alone sensible of his real necessities»

It is something that we can simply imagine: it is not so strange to think to

that kind of condition. According to Rousseau the state of nature is good.

we were happy:

When we lived in that kind of state amour de soi is about the

capacity of ourselves determination: when I love myself only I’m able to

have self-determination. It is something completely different than Hobbes

and Locke's view of state of nature.

In Locke we may speak about self-determination too: but according to him

someone is self-determined in terms of property (richness, etc). In Rousseau

there is no attention to property: I'm happy (and self-determined)

because there is no property about anything. In the model of the first

phase of State of nature there is no property at all. In that condition property

does not exist.

«In this primitive state, as there were neither houses nor cabins, nor any

kind of property, every one took up his lodging at random, and seldom

continued above one night in the same place; males and females united

without any premeditated design, as chance, occasion, or desire

brought them together, nor had they any great occasion for language to

make known their thoughts to each other»

I. Since there is no occasion for language, there is no great occasion to

we live happy since we are alone, technology,

discuss: without so

without science, without any needs about our self condition and

without using reason to change the world. Don’t forget that at that

time the idea they had about reason is of something that we use to

modify the world in better (the idea of progress): according to

Rousseau no need about science or techniques: everything we need is

in nature. The problem is: is this condition existent or not? In Hobbes

the state of nature is a mere hypothesis to justify the absolute State; in

Locke the state of nature exists and it is always present. In Rousseau

the state of nature never existed. But pay attention: is it possible to

imagine such a situation? According to Rousseau yes, it is possible. It

is strange to speak about the existence of this State of nature: it never

we do have nostalgia of something that never existed:

existed but utopia,

this is why Rousseau is romantic; it is but in Rousseau the

main idea is that we may think about that state of nature and we

impossible for us to obtain it in the real world.

decide it: but it's This

is why we speak about utopia: it never exist but we organize our life to

arrive to that point that never existed. It is not surprise that Marx read a

lot about Rousseau and in Rousseau he found his point: we are happy

because there is no private property. According to Rousseau this first

phase of state of nature is inside us and we have to work to have it

again but it's impossible to have it in the real world. The important

a good

thing we have to remember is that to speak about utopia is

thing for Rousseau. We may build up a new kind of society by

thinking about something that (we know) it is impossible to have. And

why is it impossible to have this kind of situation? Because it happens

sometimes we need someone else;

that and when we need my

I start to loose l’amour de soi,

counterpart and I start to feel

I meet you

envy):

something different: new kind of feeling (pride and

and I think you are better than me, so I want to be like you. And to

be like you I have to say: «this is mine and not yours». This is the

moment in which private property rises up.

is the beginning of the end.

II. Private property rises up and it Rousseau

is very clear in this point

«The first person who, having enclosed a plot of land, took it into his

head to say this is mine and found people simple enough to

believe him was the true founder of civil society. What crimes,

wars, murders, what miseries and horrors would the human race

have been spared, had some one pulled up the stakes or filled in

the ditch and cried out to his fellow men: "Do not listen to this

imposter. You are lost if you forget that the fruits of the earth

belong to all and the earth to no one!”»

The beginning of the end is property. Private property is something that

antitethical to the first phase

is of state of nature. In the first phase it

was impossible to say that something was mine and something was

yours. But in the new situation, in which where is property we loose

amour propre proprio),

self love and the new feeling is the (l'amor the

selfishness: I start to love myself and to be jealous of you. What I want

is to be like you and you want to be like me and it is impossible; so we

egoism

start a struggle between us because the new love is a kind of

and egotism. It is a false love, not a pure love. We

It is a very terrible situation: this is really what is happening today.

cannot be happy. It's impossible to be happy in such a condition because

everyone of us has the selfishness.

which concerns itself only with ourselves, is content to

«Self-love,

satisfy our own needs; but selfishness, which is always comparing self

with others, is never satisfied and never can be; for this feeling, which

prefers ourselves to others, requires that they should prefer us to

themselves, which is impossible»

We cannot reach that point of self determination to tell "I'm happy”: in every

moment of our life we will always miss something. In the second phase there


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DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Trento - Unitn
A.A.: 2018-2019

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