Giovanni Battista Ratti

In this paper I examine critically some theses on the incompatibility and the implication between norms that appear in a well-known article by Bulygin on the conceptions of the logic of norms elaborated, respectively, by Weinberger and Kelsen. I also analyze Bulygin’s thesis according to which the expressive conception of norms, defended by Kelsen in the last part of his career, is perfectly capable of explaining the relationship of justification that mediates between general norms and particular norms (especially, between legislated norms and judicial decisions) and, being capable of this, cannot be accused of “irrationalism”, as Weinberger argues instead. This Incompatibility and entailment in the logic of norms

It is sometimes claimed (in Anglo-American jurisprudential literature) that the rule of recognition sets the criteria for identifying legal norms and that this, therefore, means that canons of interpretation are also part of these criteria. Such a view then faces the problem of theoretical disagreements that call into question the rule of recognition itself and legal positivistic accounts of law. The paper argues that the rule of recognition sets the criteria only for sources of law and not legal norms themselves and that a theory of interpretation that distinguishes between normative texts (sources of law) and legal norms (as meanings of legal texts) can help explain why the rule of recognition might still be conceived as a conventional rule based on the convergent practice of officials and the fact that officials sometimes disagree about the correct interpretation of legal texts

This article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between rules and principles. However, as my analysis will demonstrate, its conclusion implies that it is impossible to distinguish between rules and principles. This is because the so-called weight formula and the law of colliding principles (i.e., the two main notions used by Alexy to explain balancing) cancel out any difference between these different types of norms.

El presente artículo pasa en reseña el libro “Teoría analítica del derecho” de Jorge Rodríguez. La primera parte está dedicada a ilustrar los contenidos del volumen, mientras que la segunda parte contiene algunas observaciones críticas en tema de aplicación de la lógica a las normas, relaciones entre positivismo y no-cognoscitivismo ético, jerarquías normativas, dinámica del derecho, interpretación jurídica y verdad de las premisas fácticas de la sentencia judicial. En las conclusiones se enumeran las principales virtudes del volumen comentado.

Il libro esamina i principali metodi e i problemi caratteristici del ragionamento giuridico, quali, ad esempio, la struttura e l'applicazione delle norme, i rapporti tra precedente e analogia, la fondazione della motivazione giudiziale e le inferenze in ambito probatorio realizzate dai giudici. Con un'ampia messe di esempi desunti dalla pratica giuridica, Schauer illumina le differenze tra l'argomentazione giuridica e il ragionamento tipico di altre discipline, offrendo al contempo utili strumenti operativi ai giuristi e a coloro che aspirano ad esserlo

Il volume raccoglie nove ricerche, volte, da un lato, ad analizzare, da una prospettiva giusrealistica, talune questioni classiche della teoria giuridica, quali lo statuto epistemologico dei discorsi dei giuristi, la demarcazione del diritto dalla morale, o la dinamica degli ordinamenti normativi, e, dall\u2019altro, a porre le basi per l\u2019esame di temi da qualche tempo trascurati in letteratura e senz\u2019altro meritevoli di una rinnovata considerazione teorica, quali la negazione nel discorso normativo o i rapporti concettuali tra coerenza, completezza, e coesione assiologia. Il volume propone altres\uec una vasta disamina del fenomeno dei disaccordi giuridici e dei problemi teorici che scaturiscono nel tentativo di ricostruire razionalmente tale fenomeno

The paper examines two conceptions of the legal system - the deductive conception and the interpretive conception - and explores their differences and analogies. In particular, the interpretive and logical treatments they apply to legal standards are analyzed. The paper also argues in favor of conciliating both conceptions, by showing that, when purified of any formalistic element, they are better regarded not as differing reconstructions of the same ideal, but rather as viable reconstructions of diverse ideals concerning different juristic activities: while the former applies to already construed normative systems, whose logical consequences are to be monotonically inferred, the latter mainly bears upon jurists' systematizing activities.

The paper is devoted to analyzing, by using basic notions of set theory, the problem of the identification of law and the notion of a frame of meanings attributable to legal texts. The main results of the inquiry carried out in the paper are: 1) that only a neutral, non-evaluative, definition of law can do from a legal theoretical viewpoint; 2) that the concept of law should not be seen as referring to a unitary set of norms, but rather as referring to a plurality of sets and of results of operations on sets.

Regarding his views on ethics, Russell is typically saddled with charges
of (mainly pragmatic) inconsistency for holding that ultimate ethical valuations are subjective, while, at the same time, expressing emphatic opinions on ethical questions. In this paper, I re-examine some of the ways
out of these accusations Russell himself proposed, mainly by pointing to
the weaknesses of objectivism (among which its failure in reaching Occamist rigour is paramount). I also put forward some other possible replies that he did not explicitly explore. In particular, I stress that the object-language/metalanguage distinction, which has its historical roots in Russell’s theory of types, can be used to hold that there is no possible
contradiction in maintaining a subjectivist metaethics and defending
substantive ethical claims. Along these lines, I argue that Russell should
have not been concerned with the charges of inconsistency of any kind,
for second-order claims about the nature of moral judgments are not
conceptually apt to ground first-order substantive moral views.

The essay examines five methodological theses which are found in the book \uabLe fonti di integrazione del contratto\ubb by Stefano Rodot\ue0: 1) the critique of conceptualism, 2) the methodological status of legal scholarship, 3) the differences between the intellectual operations carried out by lawyers, respectively, on laws and contracts, 4) the concept of integration of the contract, 5) the interpretation of the main provisions bearing upon the integration of the contract as metanorms

The paper analyzes Ross’s theses about three kinds of logical indeterminacy which affect the law understood as a set of norms. First, the logical status of logically derived norms in the light of some undesirable consequences which follow from the application of deductive rules of inference to the normative domain (so-called Ross’s paradox). Second, the indeterminacy of negation when applied to normative conditionals. Finally, the paper deals with the puzzle stemming from the application, to the rule on constitutional amendment, of the procedure that thesame rule provides.

This papers critically examines two theses defended by David Dyzenhaus: first, that Hobbes should be enlisted among the defenders of a «modern» version of natural law theory; second, that Hart shares with Hobbes the thesis according to which law has to be legitimate. Against the first thesis, this paper revives a Bobbian understanding of Hobbes, according to which natural law is, in Hobbes's conception, confined to providing legal systems with bindingness, and does not affect its content. Against the second thesis, the paper argues that Hart cannot be read as holding an interpretive nexus between law and morality.

It is sometimes claimed (in Anglo-American jurisprudential literature) that the rule of recognition sets the criteria for identifying legal norms and that this, therefore, means that canons of interpretation are also part of these criteria. Such a view then faces the problem of theoretical disagreements that call into question the rule of recognition itself and legal positivistic accounts of law. The paper argues that the rule of recognition sets the criteria only for sources of law and not legal norms themselves and that a theory of interpretation that distinguishes between normative texts (sources of law) and legal norms (as meanings of legal texts) can help explain why the rule of recognition might still be conceived as a conventional rule based on the convergent practice of officials and the fact that officials sometimes disagree about the correct interpretation of legal texts

In "Thinking like a Lawyer", Fred Schauer strongly defends the thesis according to which we should not conflate precedent and analogy, since both have different aims and work in different ways. In particular, precedent preempts axiological considerations about which would be the best solution for a legal case by imposing a certain solution to subsequent legal questions, whereas analogy is a persuasive tool in order to reach what appears the best solution (or, in any case, a good solution) to a certain legal case. In this paper, I shall try to show that, though Schauer is no doubt right in holding that precedent and analogy are many times different, there are some conceptual connections and similarities between both that deserve a closer look.

According to some authors (that we can dub “Believers”), some fundamental principles of logic, such as the principle of non-contradiction and the law of excluded middle, are also valid in their normative transposition into the legal domain. Based on such a view, they maintain that logic allows one to justify that legal systems are necessarily complete and consistent. Contrariwise, some authors (dubbed “Skeptics”) argue that legal systems are commonly affected by inconsistencies and gaps, and this is a reason to maintain that we have to deny that norms have logical relations. According to these authors, this also implies that, in general, logic cannot play any significant role in analyzing the law. In this paper, we show that this is a false dilemma. Far from being intrinsic to law, logic cannot justify that legal systems lack defects such as gaps or inconsistencies. However, it is logic what provides us with an unavoidable and powerful toolbox, which allows us to demystify the idea ...

El artículo aborda tres nociones centrales en la famosa obra Sistemas normativos de Carlos Alchourrón y Eugenio Bulygin: 1) el concepto de «complementario» por lo que concierne al consecuente de una norma y el consiguiente concepto de laguna parcial; 2) el concepto de laguna normativa que, al ser un concepto combinatorio, no permite dar cuenta de un concepto más amplio de laguna normativa que se encuentra a menudo en la discusión entre los juristas, y 3) las relaciones lógicas entre universos de casos de distinta finura o especificidad, por lo que concierne al pasaje de lo más fino a lo menos fino. Respecto de estas tres nociones, el presente artículo propone, respectivamente, enmendar parcialmente la primera, ampliar la segunda y reinterpretar la tercera.

This collection of essays contains the lifetime work of one of the most prominent legal philosophers – if not the most prominent legal philosopher – of the past 50 years in the civil law tradition. If you are interested in jurisprudence carried out with sophisticated logical tools and rigorous conceptual scrutiny, this is an absolutely ‘must have’ book for you. In addition to many articles previously released in English, some of which were not easily available, the volume contains translations from articles written in German and in Spanish, along with brand new material. The volume is generally organised chronologically, with some exceptions, to which I shall come back later. The style employed by Bulygin may not strike the contemporary jurisprudential reader as wholly familiar. The reader might not be accustomed to the ‘symphonies’ played by logical virtuosi such as Bulygin (who frequently appears in the book as a member of a ‘duet’ with his long-time friend and co-author Carlos Alchourrón). Logic and formalisation are not all that popular in contemporary legal scholarship – especially in the English-speaking world. However, I am confident that the book will have aficionados not only in the civil law tradition, but also in the common law world. This is so because, as the editors correctly remind us in their introduction, Bulygin has often discussed authors and problems which are usually associated with the

Legal Defeasibility: An Introduction PART I: GENERAL FEATURES OF DEFEASIBILITY IN LAW AND LOGIC 1. Defeasibility and Legality: A Survey 2. On Law and Logic 3. Defeasibility, Contributory Conditionals, and Refinement of Legal Systems 4. Is Defeasibility an Essential Property of Law? 5. Against Defeasibility of Legal Rules 6. Defeasibility in Legal Reasoning 7. Defeasible Properties PART II: DEFEASIBILITY AND INTERPRETATION 8. Defeasibility and Legal Indeterminacy 9. Defeasibility, Axiological Gaps, and Interpretation 10. Defeasibility and Open Texture 11. Exceptions 12. Acts, Normative Formulations, and Defeasible Norms PART III: DEFEASIBILITY AND THE CONCEPTIONS OF LAW 13. Legal Defeasibility and the Connection between Law and Morality 14. Rules, Principles, and Defeasibility 15. Defeasibility and Legal Positivism 16. True Exceptions: Defeasibility and Particularism 17. Principles, Conflicts, and Defeats: An Approach from a Coherentist Theory 18. Reasons for Action and Defeasibility PART IV: DEFEASIBILITY AND ADJUDICATION 19. Legislation and Adjudication 20. Defeasibility and Adjudication 21. Legal Defeasibility in Context and the Emergence of Substantial Indefeasibility 22. Defeasible Rules and Interpersonal Accountability

Los autores analizan las partes de Legalidad que abordan el problema de los desacuerdos jurídicos y la conexa teoría de la interpretación (y metainterpretación) desplegada por Shapiro con el fin de superar tal dificultad. La cuestión de los desacuerdos jurídicos, junto con las principales asunciones del positivismo jurídico, hace necesario, de acuerdo con los autores, prestar cierta atención a las versiones contemporáneas de tal concepción teórico-jurídica. En consecuencia, la estructura del artículo es la siguiente: en el primer párrafo, se trata el positivismo en el modo en que normalmente es explicado en la teoría del derecho angloamericana; en el segundo párrafo, los autores presentan su propia explicación del positivismo jurídico metodológico, deudora en gran medida de las obras de Bobbio y Ross; en el tercer párrafo, se resume el argumento de los desacuerdos y se analizan atentamente las dificultades que supuestamente plantea al positivismo jurídico; esto lleva al cuarto párra...

The following section includes articles based upon papers presented and discussed at the Civil Law – Common Law Forum in Legal Theory, which took place on 19-20 June 2019 at the University of Genoa, under the auspices of the Tarello Institute for Legal Philosophy. Despite the breadth of methodological and theoretical issues discussed, all these articles share a commitment to the rational reconstruction of legal phenomena through the fundamental tools of analytical jurisprudence – most importantly, a focus on conceptual analysis, attention to the is-ought dichotomy, and an appreciation of the distinction between empirical and analytical propositions

The essay examines five methodological theses which are found in the book «Le fonti di integrazione del contratto» by Stefano Rodota: I) the critique of conceptualism, 2) the methodological status of legal scholarship, 3) the differences between the intellectual operations carried out by lawyers, respectively, on laws and contracts, 4) the concept of integration of the contract, 5) the interpretation of the main provisions bearing upon the integration of the contract as metanorms.

The paper explores some possible applications of some elementary notions of set theory (such as “intersection”, “union”, and “difference”) to two age-old and intertwined problems of legal philosophy: the identification of law and the rational reconstruction of an ultimate rule of recognition. The main results of the inquiry are the following. (1) Contrary to a widespread view, “law” does not denote a unitary set of rules, but rather a family of sets, the main relations among which are examined in the paper. (2) Contrary to what the strong version of legal conventionalism advocates, there is a conceptual space to regard the rule of recognition as the overlapping of several sets of criteria of identification that are used within a certain community. Amongst other things, this thesis renders the famous Dworkin’s critique against conventionalism harmless.

The identification of law (as a set of legal norms) 1 and the analysis of the relations between law and morality (as normative systems) are two crucial and intertwined problems in legal philosophy. In this paper, I will explore how some basic contributions from logic – in particular, some elementary notions of set theory, such as “inclusion”, “intersection”, “union”, and “difference” – can help one approach these two problems from a new analytical perspective 2 . Set theory has proved relevant not only in the context of the foundations of mathematics, but also in other fields of scientific enquiry. Yet, although many legaltheoretical issues could be clarified by taking advantage of the achievements of set theory, legal theory has seldom used these achievements; and then perhaps only in relation to a very limited array of issues, most importantly the structure and the dynamics of legal systems 3 . In this paper, I will try to demonstrate that a set-theory approach to legal theory can...

The present paper examines some of the ideas contained in the volume Pragmatics and Law. Philosophical Perspectives, edited by Alessandro Capone and Francesca Poggi. In particular, it analyzes the contributions bearing on defeasibility, rational law-giving, legal disagreements, and logical relations between deontic modalities.

En este trabajo, sostengo que la teoría de la ponderación de Robert Alexy está afectada por una contradicción básica que la hace inviable como instrumento explicativo de algunos aspectos del derecho y del razonamiento jurídico que presuntamente quiere aclarar. En particular, trato de mostrar que una de las premisas sobre las que se basa dicha teoría resulta incompatible con la conclusión a la cual pretende llegar: la teoría, en efecto, parte de la distinción tajante entre reglas y principios para terminar demostrando (aunque sea implícitamente) que no hay manera de distinguir entre reglas y principios, ya que la fórmula del peso y la ley de colisión anulan toda diferencia entre los distintos tipos de normas.

The paper analyzes Ross's theses about three kinds of logical indeterminacy which affect the law understood as a set of norms. First, the logical status of logically derived norms in the light of some undesirable consequences which follow from the application of deductive rules of inference to the normative domain (so-called Ross's paradox). Second, the indeterminacy of negation when applied to normative conditionals. Finally, the paper deals with the puzzle stemming from the application, to the rule on constitutional amendment, of the procedure that the same rule provides.

Il lavoro esamina cinque tesi metodologiche che si rintracciano nel volume "Le fonti di integrazione del contratto" di Stefano Rodotà: 1) la critica al concettualismo, 2) lo statuto metodologico della dottrina, 3) le differenze tra le operazioni intellettuali compiute dai giuristi sulle leggi e sui contratti, 4) il concetto di integrazione, 5) l’in¬ter¬pre¬tazione delle principali disposizioni sull’integrazione dei contratti come metanorme.

In "Thinking like a Lawyer", Fred Schauer strongly defends the thesis according to which we should not conflate precedent and analogy, since both have different aims and work in different ways. In particular, precedent preempts axiological considerations about which would be the best solution for a legal case by imposing a certain solution to subsequent legal questions, whereas analogy is a persuasive tool in order to reach what appears the best solution (or, in any case, a good solution) to a certain legal case.
In this paper, I shall try to show that, though Schauer is no doubt right in holding that precedent and analogy are many times different, there are some conceptual connections and similarities between both that deserve a closer look.

In the first part of the paper, which comprises three sections, I analyse three themes that emerge from Brian Leiter’s Naturalizing Jurisprudence. In particular, I consider the following three theses defended in this book: (i) American Legal Realism is a kind of avant la lettre philosophical naturalism applied to the study of legal adjudication; (ii) (American) Legal Realism is not only compatible with, but in fact presupposes, an exclusive version of legal positivism; and (iii) moral objectivism is not compatible with a “realistic” general theory of law (and adjudication).

In the first section, I discuss thesis (i) in light of the argument that the two characteristic features of American Legal Realism – the search for an empirical epistemology and a predictive theory – are derived from philosophical naturalism and pragmatism. In the second section, I discuss thesis (ii) by engaging with two arguments. First, that, as a type of legal positivism, a “realistic” theory offers the best explanation of the cases in which more than one correct answer is available to the court. Second, that by focusing on the causes that determine legal decisions, American Legal Realism shares some methodological theses with “Continental” Legal Realism. In the third section, I discuss thesis (iii) in light of Leiter’s critique of Dworkin’s legal philosophy.

On the basis of my discussion of theses (i), (ii), and (iii), the second part of the paper analyses the difficulties faced by the naturalistic project vis-à-vis the analysis of the problem of demarcating law from morality, as recently presented by Leiter in his The Demarcation Problem in Jurisprudence: A New Case for Skepticism (2011).

The purpose of the second part of the paper is to find a possible way out of the stalemate inherent in Leiter’s naturalistic project. I submit that a possible way out consists in distinguishing between the substantive and the epistemic aspect of the problem of the demarcation of law and morality. In so far as the arguments offered in the second part of my paper are not affected by the problems in demarcating science from pseudo-science (as discussed in the first part of the paper), I conclude that the naturalistic project in jurisprudence remains a solid and fruitful one.

The paper addresses Eugenio Bulygin's legal theory, and in particular his theory of legal norms and legal systems, his theory of ‘legal science’, his theory of legal adjudication, the analysis and development of two different conceptions of the ontology of norms, and fully-fledged conceptions of the logic of norms and the logic of normative propositions (viz. descriptive propositions about the membership of norms to legal systems).