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   Course Title    Juridical Philosophy
Lecturer    Valeriu Capcelea
Institution    Balti State University
Country    Moldova


Requirements of students’ knowledge and skills

Knowledge: knowledge of the basic history concepts "Man and Society"; Philosophy studied in high school, college; Logic and Philosophy; General Theory of State and Law, studied in the first year at the faculty. Among the most important notions that must be conceived the following may be mentioned: Philosophy, Law, morality, juridical form, law, state, people, nation etc.

Skills: The ability of thinking abstractly, logically; to reveal the limits and divergences between different philosophical doctrines having the aim to clear up those correct ones.

The Place and the Role of the Course in the Training of the Specialist

Juridical Philosophy represents a basic subject of making up the fundamental concepts of a jurist, of making an appropriate juridical culture which would be based not on a philosophy of common sense, sometimes altered via loans not well-assimilated, but upon a well-grounded knowledge of philosophical aspects of the laws centered around the latest philosophical progress.

Juridical Philosophy is a new discipline in the social and juridical science system. This subject has been introduced recently in the programs of training jurists, but at our University it is studied for the first time. This is due to the following facts:

It is rather difficult to obtain evident progress in the studying of law in general without a solid knowledge of the philosophical problems of law;

It is difficult to study the notions and fundamental categories of Law in general without a solid study of the categories and the fundamental notions of Juridical Philosophy;

It is important to create a high juridical culture necessary for a modern jurist without a thorough study of Juridical Philosophy.

Aims of the Course

The communicating and synthesizing of knowledge that keep to the concepts and functions of the Philosophy of Law, its fundamental fields, of History of Philosophy of Law, of the essence and the content of the law notion, of its historic origin and evolution and of law rational base. The content of the present program has been established in full agreement with the structure of the Educational Plan, and especially of "general Theory of State and Law" and "Juridical Sociology", thus creating favorable premises for materializing the basic aim of our work – the training of specialists at the European standard level for different social institutes, via coherent specialization and professionalizaton.

Content of the Course

The subject matter of Philosophy of Law and its functions.

The interlocking of Philosophy of law with other social sciences.

The problem of the method in Philosophy in general, and Juridical Philosophy in particular.

Moments from the history of Juridical Philosophy

The concepts of Philosophy of Law in the works of pre-Socratic philosopher, at the sophists and Socrates.

The Philosophy of Law in the works of Plato and Aristotle.

Juridical Philosophy at elenist stage of Greek Ancient Philosophy.

The Philosophy of Law in the works of philosophers and jurists from Ancient Rome.

Christianity and Philosophy of Law in the Medieval Epoch.

The Philosophy of Law in the renaissance epoch.

Juridical Philosophical concepts in the works of English philosophers from XVII-XVIII centuries.

The Philosophy of Law in the works of German philosophers from the second half of the XVII century, the beginning of the XVIII century.

Problems of Philosophy of Law tackled in the works of the Enlightenment philosophers of XVIII century.

Philosophy of Law in the works of IM. Kant and I. Fichte.

Philosophy of Law in the concept of philosophical Historicism of F. Schelling and F. Hegel.

Political Historicism or Philosophy of Restoration in XIX century, and Historical School of Law.

Juridical Philosophy in England and USA in the second half of the XIX century and the beginning of the XX century.

Philosophy of Law in Romania in the XX century.

Contemporary Juridical Philosophy: general considerations (neokantian concepts, neohegelian, H. Kelsen’s pure study about Law).

Systematic Part

Theory of knowledge and Law.

Praxiologie and Law.

Law and social values.

Analysis of Law notion.

Law and moral.

Law in the objective sense.

Law coercibility.

Law’s sources.

Subjective Law.

Law and interest. Juridical intercourse and Law subjects. Juridical persons. Facts, acts and juridical affairs.

Society

State

The historic origin and evolution of Law.

Rational fundamental of Law.

Seminars’ Topics

The subject matter of Juridical Philosophy, its fundamental aspects and functions.

Philosophy of Law in antiquity.

Philosophy of Law in Medieval and Renaissance Epochs.

Philosophy of Law in Modern Epoch (English, French, Dutch)

Philosophy of Law within German Classical Philosophy.

Philosophy of Law in the second half of XIX century – XX century.

Notion analysis of Law essence.

Law and moral correlation.

Law in objective sense.

Law’s sources.

Society. Mechanical and Organic Society concepts.

State and its elements. Constitution and division of powers.

Origin and historic evolution of Law.

Evolution features of History of Law.

Law rational fundamental and its treatment within different philosophical theories.

Human nature as a fundamental of Law.

Evaluation

The present evaluation is performed via tests and checking of knowledge during the seminars. Final evaluation is performed under the form of an examination. The topics at the examination consist of two theoretical questions and some questions which refer to the knowledge of basic notions of Juridical Philosophy.

Lecture Synopsis

The Concept and the Function of Philosophy of Law

The genesis of appearance of Philosophy of Law.

Three dimensions of Philosophy of Law: logical, phenomenological and deontological.

The connections between the Philosophy of Law and Jurisprudence, Philosophy of Law and Theoretical Philosophy, Philosophy of Law and Psychology, Philosophy of Law and Ethics, Philosophy of Law and Sociology, Philosophy of Law and Politics, Philosophy of Law and Political Theory.

Philosophy of Law methods-induction, deduction, genetics’ method, comparative etc.

PART I

The Philosophy of Law in Ancient Epoch

The concepts of Philosophy of Law at the presocratics-Hesiod, Solon, Pitagora, Heraclit, Protegra, Trasimegos (notions of "measure"; "golden middle"; the "law of force".

The concepts of Philosophy of Law at Socrate - the intercourse between the written laws and customs; submission towards the law etc.

Philosophy of Law at Plato - state educational function; forms of state governing; the concept "the ideal state".

Philosophy of Law at Aristotle-the problem of equality; types of justice; the idea of equity; the intercourse between the right and equity etc.

Philosophy of Law at the elenist stage – Epicure – the concept of state usefulness; the concept of justice as convention. Stoicism – cosmopolitanism, natural right.

Christianity and Philosophy of Law in the Medieval and Renaissance Epoch

Philosophy of Law in Medieval Epoch – the intercourse between the state and church; patristic and its concepts about the Law (Augustan – law as emanation of Justice and Moral); scholasticism (T. D’Aquino – types of Law; the connection between the natural law and positive law; law – goodness – common).

Philosophy of Law in Renaissance Epoch – Philosophy of Law and Humanists (the theory of social contract at Marsilius from Padova); At N. Machiavalli (the connection between the moral and politics, the methods of state governing); at J. Boding (the concept of natural law, the connection between state and Church).

Philosophy of Law in Modern Epoch

Philosophy of Law in the works of Dutch philosophers. Grotius (the concept of natural law, the coercive force of law, the principles of natural law). B. Spinoza (natural law – physical power, the connection between state and citizen).

Philosophy of Law in the works of English philosophers from the Modern Epoch. F. Bacon (common law, natural law, positive law etc.) T. Hobbs (the concept of social contract). J. Lock (the concept of liberalism, the problem of separation of law in state).

Philosophy of Law in the German Philosophy – XVII – XVIII centuries. Pufandorf (the aim of the state, the law basis). C. Tomasis (the connection between law and moral). C. Wolf (the moral and juridical duty, the human right).

Philosophy of Law in the works of Modern Enlightenment philosophers. G. Vico (phases of state and law social development). CH Montesquieu (the concept about laws; the connection between law and custom, the classification of governing forms etc.) J. J. Rousseau (natural state, social contract, natural human rights, the separation of laws in state etc.)

Philosophy of Law in the works of Kanto and Fichte. Im. Kanto (the theory of penal law, the natural reasonable law, separation of forces in state, the problems of international law etc.) J. Fichte (juridical imperative; law and freedom; state functions etc.).

Philosophy of Law in F. Schelling and F. Hegel historicism concept. F. Schelling (state – a perfect creation of spirit; state – reunion of freedom and necessity). F. Hegel (absolute approach of natural law; historic concept of the state and law formation and development.

Political historicism of XIX century. The law is not abstract, but it is a historical fact, which is gradually developed.

Juridical istoicism – law historic school. Savigny (the concept "popular juridical conscience"; juridical custom).

Philosophy of Law in the second half of the XIX – XX centuries

J. Bentham (the concept of utilitarianism; the connection between law and citizen). J. S. Mill (the legislation and its connection with the person, the concept of punishment justification). H. Spenser (the concept of sociobility, human morality, empiric utilitarianism; rational utilitarianism).

Philosophy of Law in Germany. A. Schopenhauer (the difference between moral and law); F. Nietzche (the will towards power law and moral etc.

Soviet legislative (law as a totality of power).

Contemporary Philosophy of Law (A. Verderass – Philosophy of Law –juridical discipline; V. Cubes – general philosophical and juridical problems). Neocantian concepts (Radruch – formal equity and equality treatment as moments of the essence of Law). Neohegelian concepts (Binder, Croce, Gentile – substantiation of moral and political legitimacy of the war; national state self - confirmation via war; racial right). "Pure study» about H. Kelsen’s laws (law positive theory elaborated from the position of jurisprudence and logic – analytical).

PART II

Essence and analysis of law notion

The theory of cognition and law (juridical epistemology, juridical truth).

Praxeologie and Law (the specific of juridical actions; the degree of juridical actions efficiency).

Law and social values (definition of value; value system and its function; the specific of juridical values).

Analysis of notion of Law (law as a formal equality; law as freedom; law as equity; juridical and legal determination of law; law and force; right and not right).

Law in the system of social norms (religious norms; moral norms; esthetic norms – their specific in comparison with law norms).

Law and moral, their reciprocal interaction (similarities and dissimilarities between law and moral, their social functions).

Law in its objective sense (law characteristics – bilaterality; generality; imperativism; coercibility).

Law coercibility (juridical sanction treatments; types of sanctions and their specific).

Positive Law Sources

Law sources. Jurisdiction, formal and material law; constitutional and organic laws (material and formal sources; potential and actual; juridical custom; jurisdiction; normative act; laws).

Subjective law and its elements (internal element – possibility to want and to act; eternal element - possibility to claim to respect from the parts of others).

Law and interest. Juridical connection and law subjects. Juridical persons. Facts, acts and juridical negotiations (active and passive part of juridical connections; juridical persons; types of juridical persons).

State system and its relation with Law System

Society. Mechanical and organic concept of society; values and limits of organic concepts (society concept; mechanical and organic concept of society; typology of society).

State concept and its elements (the essence of the term "state"; elements of territorial state, population; organized power).

Juridical relation and sovereignty, constitution and power division (order power; sovereign power; state functions; state forms; state structure).

State and Law relationship (polemic regarding state existence before law and vice versa; state and law connection).

State aims and Law state (concepts regarding the aims of the state in History of Philosophy; law state fundamentals; law state features; law state drawbacks).

State and state society (genesis and historic becoming of state society; international juridical organization and sovereign state connections).

Law Historic Origin and Evolution

Law and state historical formation (the means used at the research of the Law origin; phases of juridical organization – horde; matriarchate and patriarchate).

Law historical evolution and its characteristic aspects (four aspects of juridical evolution).

Juridical progress and its criteria (social progress; social progress criteria; the specific of juridical progress; criteria of juridical progress).

Juridical feeling and its aspects (internal and external connections at the formation of juridical feeling; juridical feeling as a primary source of law development.

Philosophical Theories Referring to Law Rational Fundamental

Skepticism empirical realism theories (the appearance and development of these theories in Antiquity (Archeleus, Trasimacos) in Modern Epoch (Hobbus Kirchmann; arguments oriented against these concepts).

Historicism theology theory referring to the law rational fundamental (philosophical historicism; law historic school; simple and semirational theologism).

Utilitarian theory concerning law rational fundamental (Epicur, Bertham, Mill, Spenser; moral and law foundation on Biology and the drawbacks of these concepts).

Human Nature as Law Fundamental

Human nature as law basis, causative and theological concept (the principle of determination; metaphysics conception; finalist or theological concept).

The determinism and freedom in law rational fundamental context (social determinism and human freedom; juridical freedom; freedom realization plans).

Moral and Law principles (moral principles and their nature; their connection within the regulating social relationships).

Law realization and existence of human aims (correspondence between the ideal and empiric reality; the law of heterogamous goals).

Correlation between natural law and positive law (opposition and correlation between positive and natural, law positive and natural principles connection).

Pedagogical Approaches

During the lectures mostly cognitive dialogues and arguments, heuristic method are used.

During the seminars tests, brainstorming, "focus group", case study, exercises and problems are used on the basis of remarkable works from the Philosophy of Law field (for example, the works of Plato "Republic", Aristotle’s works "Politics", "Ethics"; Hobbes’s works such as "Leviathani", the work of Montesquieu "About Law Spirits"; the work of J. J. Rousseau "Social Contract", the work of Im. Kant "Metaphysics of Manners".

READINGS

Craiovan I. Întroducere în filozofia dreptului. – Bucuresti, Ed. ALL BECK, 1998

Craiovan I. Finalitatile dreptului.-Bucuresti, Ed. Continent XXI, 1995.

Capcelea V. Filozofie. Întroducere în istoria filozofiei si în studiul principalelor domenii ale filozofiei.-Chisinau, Arc, 1998.

Giorgio del Vecchio. Lectii de filozofie juridica.-Bucuresti, Ed. Europa Noua.

Georgescu S. Filozofia dreptului. O istorie a ideilor. Partea I.-Bucuresti, Ed. ALL,1998.

Hart H. L. A. Essays in Jurisprudence and Philosophy. -New York, Claredon Press-Oxford, 1983.

Feinberg J., Grass H. Philosophy of Law. - Wadsworth Publishing Company, -Belmot, California, 1991.

Schwarz-Liebermann vor Wahlendorf H.A. Elements d’une introduction a la philosophie du droit. Paris, 1976.

Smid. Einfhiirung in die Philosophie des Rechts. –Miinchen, 1991.

Lorca-Nazarette J.F. El derecho natural Roy. Aproposito de les ficciones juridicas. Madrid, 1976.

Dworkin R. Taking rights seriously. London,1986.



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