Appunti di Philosophy of law

LAW AS KNOWLEDGE, KNOWLEDGE AS SCIENCE

But the typical modern idea of law finally represented by Kelsen is to look at

a special kind of formal knowledge just as science.

law as

What does "science" mean? If we look to empirical sciences or to inductive

science it is possible to claim the existence of something called science

particular kind of knowledge.

because it is absolutely a In this knowledge

specifical way:

we expect to find out that all the propositions are linked in a per modum

they are part of a system. And the link between them is given

dedutionis; so it is a deductive method. We may believe that in empirical

science there is induction and not deduction, but induction has to do not

but with the way we do know the world in itself.

with the theory itself In

fact in physic and biology and so on we use mathematic, which is a

deductive science using the language of number. Deduction in this case

in which there is a principle (axiom) at

refers to a particular type of system,

the beginning and a link between all the proposition and that principle

(axiom). And this is the idea we do find in Kant and then in Kelsen too. Don’t

neokantian philosopher!

forget that Kelsen is

Mario Losano wrote:

punti di contatto fra la concezione sistematica di Christian Wolff e

«I

quelli di Immanuel Kant scaturiscono dal comune interesse per le

scienze esatte e dal fatto che l’insegnamento di Wolff giunge a Kant

attraverso uno dei più importanti allievi di questo filosofo: Martin

Knutzen, che fu professore di filosofia a Königsberg nel periodo in cui il

giovane Kant frequentò l’università. Queste considerazioni permettono

di situare le concezioni sistematiche di Kant nel filone che partendo

dalla teologia protestante attraverso Leibniz, Wolff e Lambert ultima

nella filosofia classica tedesca».

We don’t have to forget that at the basis of science, of the scientific way of

there is Protestant theology.

thinking Do not forget that a certain idea of

hierarchy was developed by Dionigi Aeropagita. In Protestant theology the

idea of knowledge as system came out.

We cannot understand the philosophical debate of our era without looking at

the classical german philosophy.

If we remember Protestant theory, we know that it does not exist any

you may have a direct

Protestant church. The very basic idea is that

access to God's truth: you don't need a Pope, or a priest or someone able

to explain to you the real meaning of Holy Bible. You have to understand

self-made man religion.

everything by yourself: you may have a sort of But

how is it possible this kind of conception at the very basic and material

level? Everyone can read the Bible because it is printed; you need

Gutenberg. Before Gutenberg it is impossible to conceive Protestant theory,

because only priests and Pope had the possibility to have a Bible.

To have Luther you must have Gutenberg: it is not a case that the very first

book printed by Gutenberg was the bible.

Just think at the same way for law: it is possible to conceive law in the

we do have a Code.

modern way because Just imagine how without sense

would be the idea given by Bentham that everyone may know the content of

law without a code. You as a man must have the possibility to reach the

source of law by yourself, so you don’t need interpretation. Then, after a

it does not exist a text in itself

couple of century, the idea is that (as

but only different interpretations that is in the

Stanley Fish claimed)

interpretation itself.

Without Gutenber's invention we may not be able to understand Luther.

Without Gutenberg no idea of the law produced by the Code civil. But again,

according to Mario Losano without Luther is impossible to conceive the idea

of system we do find in Leibniz, Wolff, Lambert, in Kant and then in Kelsen.

Lozano wrote:

Kant il concetto di sistema subisce un’ulteriore duplice

«In

specificazione che verrà fatta propria dai filosofi successivi; il sistema

diviene l'ideale cui deve tendere ogni scienza: non v’è scientificità senza

sistematicità; in secondo luogo il sistema non è soltanto un insieme

deduttivo di proposizioni, ma è un insieme di proposizioni che deve

essere dedotto da un unico principio. Nel far coincidere la sistematicità

con la scienza Kant prende per modello la matematica»

To have science we must have a systematic knowledge. To have a system

deduct every

means not only to use the deductive method but also to

proposition from a single principle. The principle is the Grundnorm which

principle of knowledge.

is not only the basis of pyramid but the We must be

able to create a link between every kind of norm in that system and the

grundnorm and if it doesn't exist the link it means that that law is outside the

system. To have deduction mean this: you have one principle and all legal

propositions are deducted from that principle. From this point of view Mario

Losano is clear in saying:

[dottrina di Kelsen può essere considerata la] più esauriente

«La

descrizione del sistema giuridico realizzata in linguaggio naturale e il

punto d’arrivo della concezione sistematica del Novecento»

We are so involved in this conception that nowadays, again and again, we

if it has something to do with science;

think that we do have a knowledge

we do have a knowledge if we do have a system. It is clear in the so-called

«dogmatica giuridica», and one of the best example is given by civil

procedure. System in itself must be coherent without hole or antinomies. It is

possible in Kelsen because he is not involved in the problem of the real

meaning of norm but he sustains a formal theory of norm. We have only to

look at the norm in connection to Grundnorm: it is a pure theory of law.

Remember that this is a conception typical of legal positivism because there

is a great distinction between “is” and “ought” (between “essere” e “dovere

law morality.

essere”), and so between and To have a moral judgement on

would mean to look to the

law; to ask from a moral point of view on law,

content of law: is it just or is it unjust? The problem for Kelsen was not

morality in law, but validity of norms and validity in a system: this is why he

adopts a formalistic account, avoiding completely the question about

morality.

THE FAILURE OF KELSEN’S MODEL

As we already know this kind of conception is completely unable to be

considered valid. First of all because it is contradictory in itself: a pure theory

of law is not possible because or we make reference to metaphysical

assumption (as Grundnorm) or we make reference to empirical concepts (as

efficiency). If we say that law has nothing to do with fact we can't limit to say

that it works. Mirelle-Delmas Marty said that the idea of Kelsen is now

completely unable to explain the real state of affairs of our legal world. Just

have a look to the relation between the law made by the State and the

European law and International law. Imagine to be a Kelsenian and have a

look at Italian legal system and European legal system: which kind of

relationship is there between Europe law and Italian law? If we think as

Kelsen we are able to conceive only a hierarchical relation, but we know it is

We have to think, as Mirelle-Delmas Marty remembered us,

not true.

about cooperation: but the fact that Court of Justice can sanction us makes

the Kelsenian idea fall down.

As Mario Losano said:

il diritto interno e il diritto internazionale fanno parte del mondo

«Poiché

del diritto, la scienza giuridica non li può considerare due elementi

paritetici, cioè paralleli, come spesso avviene nella dottrina

internazionalistica tradizionale. Se fossero due ordinamenti distinti e

paritetici, ognuno discenderebbe da una sua norma fondamentale:

avremmo allora due norme fondamentali, due ordinamenti giuridici e

due scienze giuridiche. Questa dualità sarebbe però in contrasto con il

postulato dell’unità della scienza. Quest’ultimo esige che vi sia un’unica

norma fondamentale, da cui discendono sia il diritto interno, sia il diritto

internazionale; e di entrambi si occupa un’unica scienza giuridica.

All’interno della piramide discendente da un’unica norma

fondamentale, il diritto interno e il diritto internazionale non potranno

mai essere paritetici: uno dei due dovrà essere superiore all’altro. Qui

sta il problema: quale dei due deve essere considerato il superiore? Per

Kelsen, la posizione preminente spetta al diritto internazionale; negli

anni del totalitarismo egli si schierava così a favore del pacifismo e del

federalismo»

For Kelsen we cannot accept that European system and national system are

needs to point out that only a single Grundnorm

equal and parallel. He

exists and so one of the two system has to be superior to the other. And the

according to Kelsen the superior position is to be found in

fact is that

international law! Unfortunately, this theory can’t work: federalism and

pacifism are moral assumption, realized only because there was a bad

person called Hitler who stated laws that, according to the Stufenbau theory,

were valid! Kelsen thought that international system was superior because

but this has nothing to do with pure theory of

of pacifism and federalism,

law, which he had the aim to demonstrate: were

the fact is that nazist law

valid according to the theory of Kelsen, and that’s why he claimed (in a

way that is incoherent) that international law was superior. So the pure theory

of law doesn’t explain not only international law in relation to the law of the

in any case this conception of system is so rooted in

State; it is clear that

our mind that today too when we think about a good picture of law we

think about a system also if we know that the image by Kelsen is not a

good one. look to what happen in the real

The reaction of this was that we should

world. Again, as we see there is a problem between law and morality. Kelsen

is not able to avoid morality in his system even if he claimed he wanted.

LAW AND MORALITY IN POSITIVISM AND IN NATURAL LAW THEORY

According to Hart law may be confused with morality: they both aim to

govern human conduct, to give a bit of rules about what is better to do and

what not. We may criticize moral rules from a legal ground but according to

it is impossible to criticize legal rule from a moral ground.

someone

Maybe you may find that moral values are inside the legal system, but it

would be very difficult to say that moral norms are in some way legally

enforced. Law and morality seem to be the same thing but they have a lot of

difference.

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