PHILOSOPHY OF LAW – Professor José de Sousa e Brito
1. Introduction. Idea and justification of philosophy of law. Refutation of
scepticism. Plan.
I – Philosophy of Jurisprudence
2. The traditional view of jurisprudence. Jurisprudence as a kind of doctrine
or dogmatics, i. e. as a set of practical principles: a) in the dialectic tradition
of topic and rhetoric, from Cicero to Vieweg and Perelman; b) in the scientific
tradition of hermeneutics, from Savigny to Gadamer.
3. The modern view of science: a) the epistemological idea of reason as
theoretical reason, which only admits deduction and induction, from Galileo
to Hempel; b) Hume’s law – discussion of Hume’s argument, constitutive
rules as non-logical passing from is to ought, the different meanings of ought
in law, in social morality and in ethics; c) the technological ideal: human
progress as a result of scientific progress. The modern negation of the
scientific character of jurisprudence from Galileo to Ross.
4. The Aristotelian theory of practical syllogism as a basis for the method of
interpretative sciences and specially jurisprudence. Savigny’s theory of the
elements of interpretation as a typology of practical syllogisms.
5. Science and technique in jurisprudence. Kelsen’s distinction between legal
norms and legal propositions: critique. Hart’s idea of a descriptive theory of
law: critique. The sentences of jurisprudence as inauthentic normative
interpretations, a kind of heteronomous norms.
II – The Concept of Law
6. Theory of legal norms. Legal norms and sources of law. Duty-imposing
rules, power-conferring rules and constitutive rules. Rules and principles.
Legal norm , positive and negative legal values, legal good.
7. Theory of legal positions. Logic of legal positions and logic of norms:
Leibniz, Bentham, Hohfeld. The normative definition of the legal concepts of
rights, capacity, status and legal person.
8. Theory of legal system. Structure, identity, existence and content of the
legal system.
III - Law and Justice
9. Positive and natural law in Aristotle and in the debate between legal
positivism and theories of natural law.
10. Theory of justice.
11. Legal reason and ethical reason. The forms of public reason. Law as a just
limitation of justice.