Appunti di Philosophy of law
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
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
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
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
we have law without connection to morality; so in Hart's view law
on social facts. according to positivist we must avoid an
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.
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
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
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
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
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
last century, which is
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
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
look from this point of view to legal reasoning, it means that
think to legal reasoning as a syllogism. We already said that Cesare
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
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
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
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
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
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
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
according to them we are speaking about
objective facts, while we use the world «morality» for subjective values.
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
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
(pluralismo and the idea that judges are the lawmakers becomes
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.
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
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
morality from a theoretical point of view; legal positivism is against natural
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:
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,
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
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
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.
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
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
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
with and so legal positivist share the same opinion of legal
ethical subjectiveness ethical
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
some interest to remember that at the very beginning of its career
positivism was not in favor of ethical subjectiveness: Bentham and Austin
(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.
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
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
subjectiveness. And to understand why we should analyze
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
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
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
• 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
started to say that the we use to justify our actions
reason. human reason is
Obviously Puﬀerndorf and Leibniz believed that
(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
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:
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
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
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
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
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 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
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
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
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
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:
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
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
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.
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
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.
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
Englaro case: what it had to do was to use and by
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
but for (ragionevolezza). How many times reasonableness
or «reasonable use» are used as arguments by Constitutional court. The real
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
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
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
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
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
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
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
(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
THE HABERMAS-APEL DEBATE
During the 80s there has been a discussion between Habermas and Karl
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
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
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.
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
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
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
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
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
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
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.
Aquinas, who was a Dominican, wrote those things in
Franciscans had another idea: theorists like Occam or Duns Scoto thought
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
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
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
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
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
«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
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
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
• 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
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
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
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
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
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
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
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
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
Il motivo per cui abbiamo visto il film è che ci introduce al problema dello
Stato e della società
MODERN NATURAL LAW
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
(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
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
It is a typical idea of man: if you want something, just go and do it! It is a
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
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
(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
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:
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
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).
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
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
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
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
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.
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.
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
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
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,
imagine to live in such a condition; the main emotion we feel is So the
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
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
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
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
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
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
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
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
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
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
If we reflect a bit we will conclude that «libertà da» is not really freedom.
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
idea promoted also by certain idea of law as the one of We
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.
According to Heidegger we should think of freedom as .
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
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
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
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
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.
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
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
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.
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
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
this point of view is similar to the Aristotelian idea of ζῷον πολιτικόν even
we need other man according to Locke
that there is a diﬀerence:
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
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
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
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
• 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
possible for the Parliament to state law about We see how in
Locke individualism is at its highest level: if we look at we
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
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
In Status absolutus the citizen does not know what is right and what is
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
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
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
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 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
very important role played by especially he uses some “strange”
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
about the idea of the so called “bon man at the beginning of the
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
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-
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
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
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
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
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
+1 anno fa
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher coluichenonsa di informazioni apprese con la frequenza delle lezioni di Philosophy of law e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Trento - Unitn o del prof Puppo Federico.
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