Filosofia del Diritto: Concepts and History

Filosofia del Diritto Topics

• March 11: Exam with 10 multiple-choice and 5 open-ended questions
• April 15: Exam with 10 open-ended questions
• Contemporary legal positivism encompasses pathways of legal positivism
• The course explores syntax of law
• Module topics include definition of law (tools of logic), fundamental concepts, and argumentative processes

Terminology and Definitions

• Herbert Hart's work delves into the concept of law
• Natural law theorists view law as aiming for good
• Moral abjection removes the essence of law from certain systems
• Definitions are either value-free or evaluated according to a certain aim or purpose

Historical Perspectives

• Early 1900s definitions seen as value-free, example: Norberto Bobbio
• From 1970s, the value-free concept came under scrutiny, example: Gustavo Zagrebelsky
• The course explores the question of whether law needs to be coercive
• The course explores who creates the law, legislator or judge, legal positivism vs realism
• Philosophy, according to some, is a general discipline in space and time, example: Kelsen
• Other philosophers believe their theory is defined by criteria like the rule of law, example: Hart and Bobbio

Methodological Tools in Legal Study

• Rational Reconstruction: Clarifies concepts through analysis
• Analytical Method: Analyzes language over metaphysics, relevant to law's linguistic nature

Logic and Language

• Originates from theoretical need for logical foundations in mathematics
• Russell's theory of types divides object language and metalanguage
• Object language: Language being spoken about
• Metalanguage: Language used to conduct the analysis

Use and Mention

• Use: "The cat is lying on the desk," is about the object
• Mention: "'Cat' has 5 letters," is about the word
• Philosophically divides discourses into descriptive and prescriptive
• Descriptive Discourse: Statements with truth values, characteristic of natural sciences
• Prescriptive Discourse: Statements without truth values, associated with law, morality, religion

Scenarios Combining Descriptive and Prescriptive Language

• Descriptive Language & Metalanguage as Descriptive: Natural Sciences
• Descriptive Language & Metalanguage as Prescriptive: Critiques of science

Legal and Normative Frameworks

• "De lege lata" describes the law as currently written
• "De lege ferenda" offers critique leading legislators to modify the status quo
• Prescriptive Language & Metalanguage as Prescriptive: Critiques of laws or judgments
• Prescriptive Language & Metalanguage as Descriptive: Describing authoritative linguistic content

Semantic Dimensions

• Syntax: Sentence structure relative to language rules, constantly evolving
• Semantics: Meaning of words and statements
• Pragmatics: Language use/function, especially in statements
• Semantic meaning does not always align with pragmatic meaning

Descriptive vs. Prescriptive Discourses

• Syntax is insufficient for distinguishing between descriptive and prescriptive discourses
• Indicative or imperative modes and deontic terms serve as limited indicators
• Semantics offers criteria: logical values differentiate effective vs. ineffective statements and true vs. false

Adaptation and Reaction

• Direction of Fit:
  • Descriptive aims for words to match the world
  • Prescriptive for world to match words
• Reaction:
  • Descriptive elicits cognitive assent or dissent
  • Prescriptive aims for practical effectiveness

Pragmatic Approach

• Pragmatics acknowledges "Great Divide" between prescriptive and descriptive is illusory, framentation of legal categories.
• It bases this on language facilitating various actions
• Linguistic acts are distinguished from non-linguistic ones by actions, like declaring or gesturing

Speech Act Categories

• Expressive statements
• Interrogative questions
• Prescriptive commands
• Descriptive statements
• Performative utterances

Differentiating Descriptive Statements

• Empirical Statements: Truth or falsity depends on correspondence with empirical reality
• Analytical Statements: Truth or falsity depends on conceptual reality, either formal or informal

Analytical Falsity and Logical Consistency

• Contradiction, or stating an assertion together with its opposite, leads to analytical falsehood
• Analytical formal and informal statements concern themselves with conceptual rather than material reality
• Conceptual reality need not exist in empirical reality

Analytical Statements: Formal vs. Informal

• Analytical formal: Determined value of truths
• Analytical informal: Value is parasitic/dependant on language structure and prone to uncertainty

Linguistic Principles

• Principle of identity: Every statement implies itself
• Definition: Statement equating a term with another
• "Definiendum" identifies that which must be defined.
• "Definiens" offers the term for definition.

Types of Definitions: Lexical vs. Stipulative

• Descriptive lexical definitions gather and collate meanings, locating usages present in vocabularies
• Prescriptive stipulative definitions recommend the use of a term with a specific meaning, further broken down into redefinitions or stipulations

Analytic Philosophy: Motives and Reasons

• Motives: Social or incidental factors that drive one to a belief or conclusion
• Reasons: Justifications communicated to legitimize conclusion or belief

Justifications in Reasoning

• Motives and justifications do not always meet, potentially giving reasons that do not suffice in drawing conclusion
• There is a conception of law called legal realism
• This dictates those who arrive at particular decision do so for reasons external to the judiciary, then justify their decisions on the basis of reason

Models of Reasoning

• Models of reasoning vary with certainty requirements
• The nature of the logical model applied to reasoning changes according to the needs of certainty
• These consist of deductive, inductive, and abductive reasoning

Types of Reasoning Models

• Inductive: Does not rely on certainty and is more so founded on probability, where statements are truthful and the conclusion follows. -Moves from particular premises towards general conclusions, probability is key
• Abductive: Least certain but crucial for how one reasons used in the sciences to formulate scientific hypothesis based on awareness.
• It poses theories, yet is fallible because the set of facts are susceptible to numerous explanations

Deductive Logic

• The bases of deductive logic: seeks certainty in specific schemas of reasoning or inference, capable of preserving truth from premises to a conclusion and descriptive discourse.
• Correctness and determination of coherence and completeness, and formal characteristics of normative system.
• Since Aristotle, logic to determine inferences for the preservation of truth during transition of expressed assumptions is associated to another valuable conclusion.

Logic and Validity

• When premises are false, the conclusion may be true of false.
• The unit of logic is the atomic statement, simple in that it connot be simplified, and unachieveable in its reduction to others.
• Combine sentences through connectives or to logically sustain truth, molecular of composite.

Connectives

• Negation alters truth values of prepositions from true or false.
  • In logic is noted by "is false" or more effetely by "not" and remains is monodic connective.
• Conjunctions are a polyadic connectivity requiring more predicates for its applications and and are the most trustworthy.
  • As it is veritable when its compounds the propositions are truthful, and false otherwise.
  • Compounds under this rule are called conjuncts.
• Disjunctions are either true or possible for two combined statements .
  • Which makes its disjoints accurate unless false.
  • EX: Peter is either Frace or Italian.
• Conditionals are not commutative and cant change in position.
  • Without the value of truth shifting, it asserts that the certainty to a preposition P demands a certainty to a result Q, which makes the truth of its antecedent (P) sufficient.
  • These hold and is false only when P is certain and q is false: Ex. If payment (p) is rendered goods (Q) shall be served
• Biconditionals presents relations or the conditions.
  • To which proposition P and the total number and value of preposition Q are relevant to the falsity of the conditional, and truthful to their similarity to one another; -"If and only if p. then q" (P -> Q) ^(Q ->P) (p W q) with statements (P and Q)

Conditions

• Dissjunctions, similar in structure to conditionals with statements (P and Q) that value the contrast or falsity of each to demonstrate the ultimate truth values, where the values are truthful there are conditions
• Laws of thought suggest prepositions are immutable; that for all statements, the statement itself and its negation are relevant
• It dictates if one implies their self it is not the fact for all statements is true of not.
• They are a tool of logic used in determining the ultimate values
• Used in logic to determine complex propositions

Logical Connectivities (Negation)

• Connectivity's have the values truth of the proposition to which it is applied.
  • The value of truth to preposition which is applied (functions, equivalents and truth-preservation).

Truth Tables

• Truth tables allow determination of how a proposition acts in reference to the values of the propositions.

Proposition Equivalences

• Double negation: the negation of the proposition is canceled out
  • ~(~p) <-> p
• Conditionals and Conjunctions: can be made with negative counterparts and values
  • (p vq)-> (~p^q) -> (p -> q)

De Morgan's Laws

• De Morgan's states negation for products of logic to propositions and logically equates them, with the sum logic for negation to each propositions.

Deductive Validity and Soundness

• A valid deductive Argument conclusion that must come from there premises. If a reasoning is solid is that the result of of its accuracy is guaranteed.
• Proving validity of results isnt tasks for deductive logic but the sciences, but rather to uncover with scientific truth, that it primarily is abductive and generates hypothesis
• Whether accuracy or result impacts in validity of the premise, it still remains a deductive valid argument .

Fallacy

• It states it when an argument may not determine is self.
• Consider that it lacks the power for the reason that it claims to assert in that.
• Ex a: all fish are mammal, all wells are fish, then, all whales are mammals.
• It is to say one may be incorrect to its position to its most common view Is correct if preferred by a common person is and wrong if preferred by a judge.

Truth- Preserving Methods

1. Modus Ponens (separation): if p guarantees q, then p and q guarantees the consequence of q.
2. Antecedent Strengthening: logic cons of modues which bases relati0n between prepositions such taht is sufficiently correct to give consequentially to truth to the consequence a. If that has no additional prepositions.

-  It also may be added 

3. Modus tollendo tollens- that one may dismiss truth by removing truth from another.

Models

• Modous tollendo ponens/ disjunctivze syllogism to agree with one dismiss is negative that is either elements receives an affirmation from others, which it is as an inclusive disjunction which removes elements (ii) not a. (p -> q) and (ii) not q that means III) not p
• Modus ponendo tollens (denied is affirmed).
• Where its inclusive in disjunction, the initial composes distinct with negations, dismissing one of another, and double down
• • Syllogysm: it allows to eliminate mediums. That is through a passageway for a reason, If p then q. and If q then P that means P>r
• Fallacis: It can be separated that can occur where a is an form other than a substance, immaterial is ignoti or elencic.

Erros

• When an is ignored its valid for what it can not be determined either.
• • Consequent Affirmation: A mistake for the moodes ponence which reversed the conclusion with low assertions.
• Antecedent Affirmations- The fault aligns with that of "not affirming", that dismiss is not, and obtains negation by its consequence.

ENTRMAI

• It would is truthful id the bi preposition relationship of the sufficeness of necessity
• Non sequitur (non follows) is dismissed as the mayor premises of affirming what may not be guaranteed as an affirmation.
• Fallacis is ensembled by theory
• Kalsen Applies its own propriety, which is bound and tied to an ordination
• *Argument Is not of their contents but that of characteristic the one the support it, and it if does refer to those statements in court, the goal is underline lack of skills and misrepresentation of character to whomever

FORM (MODES PONENS)

• Normally abuses and is distinguished abused in the same right that is to make a proposition sound due to preconsenting circumstance .
• • Arguments of Compassion- is used in supporting regulatory thesis, where it functions because the demand or exigence for it to introduce of certain exception is derived.
• A statement is valid due to the authority figures support of statements, which in logical terms suggests:
• the entirety of a statement is factual
• A IS AN ASSERTION

_ it is nearly impaction as those statements are truthful to which it will there is great value

• ** JUR DE FACTO (is a field of value/truthful)
• Jure (is a field which to attribute control power that in legal presedence this is the way to to pass a decision of jure from decisions as a tool
• *Ad Igor-
• Is to suggest that the propotion is truthful in its assertion and what not being demostrded, has versions. 1- Affrimintive
• Consisting from evidence derived from what it is
• Negative- consists as evidence of not finding support
• The fallicy derives from non derived conclusions

Necessarily is inductive. A in depth look is key in perspective lacked confirmation for what one conducts to refutation if done under consideration

• Baculum Agruement/Force - to have one side or subjcet support a point for the consequence of it support could result to harm.
• To Poplum - All one or all feel that fact 2 is correct. Where there are to types- is to emotionally sway of to sway from opinions
• • It establishes one that wants its truth in a certain result with fact that relate t its acceptation.

Requirements to social norw

• *Social norms requires: that their members hold and is to have equal behavior, under by equal treatment and actions on its parts
• Pure legislative body - for state constituted body of rights. this is is measured to show that opinions share many common characteristics
• Conformed to an agreement which there it exist the state which must have an outside support
• ** Logical to prescriptive there is some passage 1 - logical is formed by descriptive results that have values of truth
• **2 is by deduction