The aim of the course is to improve students' capability of comprehension, analysis and critical thinking upon the law in force, and to introduce students to both theoretical and practical skills and abilities, by means of investigating and learning some main legal concepts and their uses and functioning in the domain of law and legal reasoning. In particular, the course will deal with some fundamental concepts such as the concept of norm, legal principles, legal system, validity, sources of law, showing their mutual relations and their effects on some pervasive problems of legal interpretation.
Expected learning outcomes
- Knowledge and understanding of the problems relating to the definitions of the most important legal theoretical concepts, their mutual relations and practical effects - Ability to apply the tools of conceptual legal analysis to new concepts and issues - Critical judgment acquired through practical tests - Development of a communication skill and excellent mastery of legal concepts, acquired through discussions - Independent learning acquired by managing the main tools of conceptual analysis
Objects and methods of general jurisprudence; legal interpretation and its problems; the concepts of provision and norm; the concepts of law; theories of legal norm; the concepts of validity; the concepts of effectiveness and applicability; legal system; coherence and congruence; the problem of legal gaps; the difference between law and morality; the concepts of right; dynamic and static theories of rights; rights and principles.
Prerequisites for admission
There are no specific prerequisites
Lectures, practical exercises, group discussions
Attending students Bibliography available online (www.ariel.unimi.it), that will be indicated at the first lesson. Not-Attending students (1) F. Poggi, Concetti teorici fondamentali, Pisa, ETS, 2013; (2) G. Pino, Diritti e interpretazione, Bologna, Il Mulino, 2010, except chapters 2 e 3.
Assessment methods and Criteria
Attending students: oral exam or (optionally) two intermediate tests consisting of a practical test and a written test with closed and open answers, plus a final exam consisting of a written test with one open answer. Attending students: oral exam Evaluation criteria: exposition quality; ability to organize knowledge; ability to manage the concepts and methods of conceptual analysis and to apply them to new legal problems.
1st Lesson (2 hours) Introduction to the Course. Legal Method: Theoretical Models and Legal Practice
2nd Lesson (2 hours) Rules and Principles as Legal Concepts and Conceptions, Typologies
3rd Lesson (2 hours) Legal Systems and Orders, Doctrinal and Judicial Activities devoted to Systematization
4th Lesson (2 hours) Concepts and Conceptions of Sources of Law
5th Lesson (2 hours) The Notions of Normative Hierarchy and Competence
6th Lesson (2 hours) Legal Adjudication ("in abstracto" and according to the circumstances)
7th Lesson (2 hours) Legal reasoning, Justification, and Legal Arguments
8th Lesson (2 hours) Arguments based on Principles (Constitutional, Fundamental, Supreme)
9th Lesson (2 hours) Judicial Precedents and their Uses by Upper Courts
10th Lesson (2 hours) The Notion of Interest; Relationships with Principles and Rights, and its Relevance for Legal Practice
11th Lesson (2 hours) Written Q&A Open Test for students who attend lessons
12th Lesson (2 hours) Analysis and debate upon the Principle "patere legem quam ipse fecisti" in CIEU Case Law
13th Lesson (2 hours) Analysis and debate upon the decision of the Tribunal of Milan on the possible Application of Article 138 It. Cost. to the Constitutional Reform subject to the Referendum held on 4 December 2016
14th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. 32/2014 and the Constitutional Case Law related to the so-called "Appearances of Laws"
15th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. 238/2014 on the matter of the International Immunity of States in case of War Crimes
16th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. 52/2016 and the System of Sources of Ecclesiastical Law
17th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. 286/2016 on the matter of the Attribution of the Mother Surname to Children
18th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. 123/2017 and the efficacy of the Strasburg Court decisum on internal res judicata
19th Lesson (2 hours) Analysis and debate upon the Abuse of Right in Tax Law: the example of the German figure and its influence on the European jurisprudence
20th Lesson (2 hours) Analysis and debate upon the General Adversary Principle as applied in Tax Proceedings by the "Law in Action"
21th Lesson (2 hours) Analysis and debate upon case It. Cost. Court no. ord. 184/2017 and its Judicial Precedents concerning the Criminal Law Reserve and the Revival of Repealed Rules
Prerequisites for admission
Preparatory courses: as per Regulation of the course degrees. In particular, Private Law Institutions and Constitutional Law are considered as preparatory courses,
The course will have the form of classroom-taught lessons, but the active participation of students will be always stimulated and incentivated, as well as the discussion among them and with the professor. In particular, the second part of the course, which will be devoted to case law analysis, will have a practical and interactive approach and, therefore, a proactive participation of the students will be strongly recommended.
Teaching materials: L. Gianformaggio, Filosofia del diritto e ragionamento giuridico, Giappichelli, rist. 2018; S. Zorzetto e G. D'Alessandro (a cura di), Percorsi in tema di fonti del diritto, Giappichelli, Torino, 2017. For those students who attend lessons, the text of judicial decisions to be analysed during lessons will be available in PDF copy in the Ariel page of the course.
Assessment methods and Criteria
Method of evaluation: final exam at the end of the course will be in oral form and the evaluation will be in numbers 18-30/30 cum laude. Students who attend lessons up to at least 80% will have the faculty to sustain the final test alternatively in oral form, or mixed form, writing-oral. In this second option, the student shall take: (i) at the middle of the course, a written test consisting in open Q&A concerning the subject matters illustrated during lessons, and (ii) at the end of the course, an integrative oral test having as object the entire course. In every case, criterions of evaluation will be the correctness and the consistency of the learning matters, the clarity of speech and reasoning, as well as abilities of analysis and critical thinking.