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Philosophy of Law 2017/2018

  • 5 ECTS
  • Taught in Portuguese
  • Both continuous and final Assessment

Objectives

1.Define and question the epistemological status of Law Philosophy as a critical, meta-theoretical, metasystematic
discipline;
2.Relate Philosophy and Law, as a methodological alliance in order to deepen the examination of the ethical, axiological, social and political foundations of legal systems;
3.Understand and analyze, both historically and philosophically, the constitution of legal naturalism and legal positivism, as well as their decline with the contemporary crisis of absolute foundations;
4.Characterize the philosophical positions underlying the contemporary ethico-juridical and socio-political order,
with special emphasis on the Hobbesian, Rousseauean, Kantian and Hegelian ways of concatenating and distinguishing Science, Ethics, Law and Politics;
5. Train philosophical skills applied to questioning Law, and develop this attitude as the cognitive and existential mode of being a citizen/jurist, able to build and justify a balance stance between absolutism and relativism.

Recommended Prerequisites

Students should have a good command of Theory and Methodology of Law as well as general knowledge on the History of Political Philosophy.

Teaching Metodology

The teaching methodologies include mostly an interactive and incremental joint construction of learning through individual and group research assignments, with regular written exercises and philosophical discussion in class. The research assignments are congruent with the topics studied in the lecturing classes which must guide students through the examination of historical and systematic contents.

Body of Work

1.Law Philosophy: object and method
2.Relationships and distinctions: Law, Ethics, Socio-Political Sciences and Philosophy
3.Essence of "Just Right"
3.1.Juridical Naturalism and Positivism
a.Plato and Aristotle
b.Medieval Christianity
c.Modern natural law
3.2.Kant and Hegel: Practical Reason and objectification of Spirit
3.3.Reconstruction of Justice in Rawls, Sen, Habermas and Honneth
3.4.(De)construction and relativism: Crisis of foundations
3.5.Ethics and Justice in Levinas, Ricoeur and Derrida
4.Epistemology and Logic of Law
4.1.Law between Science and Art
4.2.Formal Logic and Juridical Hermeneutics
5.Validity of Law
5.1.Duty of obedience
5.2.Right of resistence
6.Justice, Politics and Freedom
a.Justice: equality, equity, common good, legal peace
b.Freedom, action and responsibility
c.Law and State
d.War and peace
e.Cosmopolitan Justice
f.Love and Justice
g.Eco-Feminism and justice
7.Order and Utopia: Life, Person and Future as absolute goods

Recommended Bibliography

Cohen, G. A. (2008). Rescuing Justice and Equality. Cambridge, MA: Harvard UP.
Englisch, K. (2008). Introdução ao Pensamento Jurídico. Lisboa: F. C. Gulbenkian.
Hespanha, A. M. (2009). O Caleidoscópio do Direito: O Direito e a Justiça no Dias e no Mundo de Hoje.
Coimbra: Almedina.
Feldman, F. (2016). Distributive justice: Getting what we deserve. New York: Oxford University Press.
Kaufmann, A. (2007). Filosofia do Direito. Lisboa: F.C.Gulbenkian.
Moncada, L. (2006). Filosofia do Direito e do Estado (2 vols.). Coimbra: Coimbra Editora.
Neves, A. C. (2003). O actual problema metodológico da interpretação jurídica. Coimbra: Coimbra Editora.
Nussbaum, M. (2015).Political emotions: Why love matters for justice. Cambridge, MA: Harvard UP.
Rawls, J. (1999). A theory of justice: Revised edition. Cambridge, MA: Harvard UP.
Sen, A. (2009). The idea of justice. Cambridge, MA: Harvard UP.
Sousa, M. T. (2012). Introdução ao Direito. Coimbra: Almedina.

Complementary Bibliography

Dworkin, R. (2000). Law’s Empire. Cambridge, MA: Harvard UP.
Dworkin, R. (2012). Justiça para ouriços. Coimbra: Almedina.
Foucault, M. (2007). Vigiar e punir: o nascimento da prisão. Petrópolis: Vozes.
Habermas, J. (2014). Teoria da racionalidade e teoria da linguagem. Coimbra: Almedina.
Hart, H. (2007). O Conceito de Direito. Lisboa: F.C.Gulbenkian.
Kelsen, H. (2009). A justiça e o direito natural. Coimbra: Almedina.
Kelsen, H. (2008). Teoria Pura do Direito. Coimbra: Almedina.
Larenz, K. (1997). Metodologia da Ciência do Direito. Lisboa: F. C. Gulbenkian.
Ricoeur, P. (2010). Amor e justiça. Lisboa: Ed. 70

Weekly Planning

1st Week
Theoretical lecture:
Philosophy of Law: object and method
Disciplinary relationships and distinctions: Law, Ethics, socio-political Sciences, and Philosophy
Practical lecture:
Discussion of Chap. 1 Kaufmann (2007)
2nd week.
Theoretical lecture:
The essence of Just Right
Natural law vs. legal Positivism: the solidity of the foundations
a. Plato and Aristotle
b. Juridical onto-theology in medieval Christianity
Practical lecture:
Reading and discussion of extracts from the "Nicomachean Ethics" (Aristotle) on justice and law.
3rd Week
Theoretical lecture:
c. Modern natural law
Practical lecture:
Reading and discussion of selected passages of Hobbes and Rousseau on "natural state", "social contract" and
"lawful-civil order".
4th Week
Theoretical lecture:
Kant and Hegel: Morals, Justice, Right, State
Practical lecture:
Analysis and discussion of the Kantian definition of "transcendental philosophy" (criticism) and the definition of
the Hegelian "dialectic" in the context of the "subjective-objective-absolute spirit"
5th week
Theoretical lecture:
Kant and Hegel: the architecture of Practical Reason and the dialectical objectification of the Spirit
Practical lecture: Analysis of passages from the "Rationale Metaphysics of Morals" "Critique of Practical
Reason" (Kant), and "Lectures of Law Philosophy" (Hegel)
6th week
Theoretical lecture:
The legacy of Kant and Hegel: the reconstruction of law and justice in Rawls, Habermas and Honneth
Practical lecture:
Reading and discussion of excerpts from "Theory of Justice" by Rawls
7th week
Theoretical lecture:
Assessment of learnin (Written Quiz 1)
Practical lecture: Supervision of research projects
8th week
Theoretical lecture:
(De)construction and relativism: the crisis of Reason
Postmodern reconstruction: Law and Justice in Foucault, Levinas and Derrida
Practical lecture:
Reading and discussion of some passages from "Discipline and punish" (Foucault) and from "Humanism of the
other man"
(Levinas)
9th week
Theoretical lecture:
Epistemology of Law: "Science" and "Art"
Practical lecture: supervision of research assignments
10th week
Theoretical lecture:
Logics and Hermeneutics of Law
Practical lecture: supervision of research assignments
11th week
Theoretical lecture:
Validity of Law: Duty of obedience and right of resistance
Practical lecture: supervision of research assignments
12th week
Theoretical lecture:
Justice, Politics and Freedom: a systematic approach
a. Justice: equality, equity, common good, peace
b. Freedom, action and responsibility
c.Right and State
Practical lecture: supervision of research assignments
13th week
Theoretical lecture:
Second Quiz / Written Assessment
Practical Lecture: supervision of research assignments
14th week
Theoretical lecture:
d. War and peace
e. Cosmopolitan justice
Order and Utopia: life, person, and future as new absolute values
Practical lecture: Critical analysis of the 2nd section of Kant's "Groundwork of the Metaphysics of Morals" on
the "Kingdom of Ends"
15th week
Theoretical and practical lectures:
Presentation and discussion of research assignments

Demonstration of the syllabus coherence with the curricular unit's objectives

The formulation and sequencing of learning objectives follows a logical and hierarchical principle which is reflected in the selection and organization of the syllabus. Indeed, the first two chapters clarify the epistemological identity of the subject, placing it within a system of interdisciplinary relations (Objs. 1 and 2). Then, in order to characterize and discuss the contemporary crisis of the foundations of all cognitive and ideological systems, including, more acutely, the legitimacy of legal systems we follow the historical thread of the formation and decline of natural law and legal positivism, between the third and seventh chapter (Objs. 3
and 4). Finally, we adopt a more systematic oriented approach, instead of a historical one, to apply the philosophical "training" to the thematic core of the philosophy of law, i.e., the idea of justice and freedom, and thus exercise the heuristic and critical strength of Philosophy (Obj. 5).

Demonstration of the teaching methodologies coherence with the curricular unit's objectives

The teaching and evaluation methodologies emphasize the importance of student involvement in the teaching-learning
process which is intended to be cognitively meaningful, independent, critical and creative, in line with the objectives and contents of the Course. With this purpose, we resort to a predominantly inductive, maieutic, method, where students build their learning trajectories through historico-philosophical research, written assignments and a argumentative debates. The research, focused on authors and core texts of philosophy of law, especially Kant and Hegel, constitutes the driving force of the pedagogical process, carefully guided by the teacher and shaped by Theoretical lectures. The final scope lies in the formation of a lawyer-citizen with problematization and justification skills, able to articulate their legal, ethical and socio-political thought, under the horizon of cosmopolitan critical rationality.

relevant generic skillimproved?assessed?
Analytical and synthetic skillsYesYes
CreativityYesYes
Information and learning managementYesYes
Problem Analysis and AssessmentYesYes
Problem-solvingYesYes
Research skillsYesYes
Self-assessmentYesYes
TeamworkYesYes
Understanding multiculturalism and valuing diversityYesYes
Written and verbal communications skillsYesYes
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