GBPGBP (Global Business Program)

Legal theory is a discipline that uses tools, concepts and methods from philosophy, sociology, political science, economics and critical studies, in order to study the concepts that are centrals or deemed the most importants to talk about Law in a general way : authority, rule, norm, obligation, and the concept of law itself.

But as a specific discipline, Legal theory’s vocabulary is distinct from the Legal vocabulary, so it is therefore important to be able to understand the texts of the founders of the discipline among whom we will find Hart, Kelsen, Dworkin, Finnis, Fuller… and be able to keep the discussion ongoing.

This class will accompany the student into one of the most fundamental branches of this discussion : how does analytical philosophy of law, and especially the tools provided by Herbert L. A. Hart's theory (1), one of the most influential positivist approaches of legal phenomenon, deal with contemporary problems such as :

(2) the persistence of law in a era of seemingly never ending crises
(3) the new forms of law usages by NGO and governments
(4) the reluctance of justices to strike down arguably unconstitutional rules
(5) the concurrence between the three branches of government
(6) the complexities of interconnected legal systems, and the challenges posed to States, by private corporations
(7) the way to scientifically account for injustices, especially ones rising from global warming
(8) the role of law as a mean to avoid violence, and the stimulating challenges posed to legal positivism by jusnaturalism

By the end of the course, students are expected to have acquired:
1. The skill of being able to find in library and online databases research articles
2. A firm grasp of some of the core notions of legal positivism and jusnaturalism
3. Comprehension of some of the greats doctrinal debates of the discipline
4. A way to use theses analytical tools to face contemporary problems

英語 / English

Classes consist in discussion, documents study, and lecture.

Students will be required to apply analytical frameworks they learned during class by conducting a research on an subject of their choice that will result in a little essay that will be submitted at the end of the semester.

Use of AI tools is forbidden, but feedback by the professor will be given at the beginning and the end of the class (are sources reliable, is the problematic sound, how to organize your study schedule...) in order to accompany the students in their research and homework. Mail can be written to the professor anytime if the student doesn't want to ask in front of the other students.

Course contents will vary depending on number of students presentations to be performed in class.

A final test will check if the notions are understood.

あり / Yes

なし / No

授業形態/methods of teaching：対面/face to face

※各回の授業形態は予定です。教員の指示に従ってください。

1[対面/face to face]：MODULE 1 - WHAT IS LEGAL THEORY

A) General definitions
B) Main themes and questions of legal theory

2[対面/face to face]：MODULE 2 - METHOD OF LEGAL THEORY

A) Intuition and the choice between a lawyer’s or a societal point of view
B) The importance of working on the great texts of legal philosophy.

3[対面/face to face]：MODULE 3 - HERBERT L. A. HART
and research project choice

A) Biography
B) Bibliography

4[対面/face to face]：MODULE 4 - SOCIAL RULES

A) The notion of “Habits” doesn’t account for the persistence of law
B) The internal aspect of a social rule

5[対面/face to face]：MODULE 5 - FROM SOCIAL TO LEGAL

A) The necessity of secondary rules in a “complex” legal system
B) A specific social rule at the base of all legal rules : the rule of recognition

6[対面/face to face]：MODULE 6 - LEGAL RULES

A) The choice of the strict internal point of view
B) Who needs to recognize the rule as a legal rule ?

7[対面/face to face]：MODULE 7 - SECONDARY RULES AND PRIMARY RULES

A) The relationship between the rule of recognition and other secondary rules.
B) The difference between rules that create obligation and rules that confer power

8[対面/face to face]：MODULE 8 - THE EXISTENCE OF LAW

A) The union of primary and secondary rules
B) Hart vs Kelsen conception of validity

9[対面/face to face]：MODULE 9 - THE OPEN TEXTURE OF LEGAL LANGUAGE

A) A few words on realism and their scepticism about rules
B) Open texture, it’s not bad to have some leeway

10[対面/face to face]：MODULE 10 - THE INTERPRETATION OF LAW

A) Wittgenstein's paradox and the distinction between to follow and to interpret
B) The realist’ confusion

11[対面/face to face]：Research project advice. Help with homework.

Open discussion.

12[対面/face to face]：Presentation of the final report

Group A

13[対面/face to face]：Presentation of the final report

Group B

14[対面/face to face]：Test

Final test in class to check student's knowledge and skills.

In addition to the research project to be presented in class, students will be required to prepare the class by familiarizing themselves with the documents handed out for this purpose. Around 2-3 hours a week.
Except in exceptional circumstances and notification to the Professor, attendance to each lesson is mandatory.

None.

- Nicola Lacey, A Life of H. L. A. Hart, The Nigtmare and the noble dream, Oxford UP, 2004
- Neil Maccormick, H.L.A. Hart, Stanford University Press, 2nd ed., 2008
- Frederick Schauer, "(Re)Taking Hart," 119 Harv. L. Rev. 852 (2006) (reviewing Lacey, "A Life of H. L. A. Hart")
- P.M.S. Hacker, « Hart’s Philosophy of Law », in P.M.S. Hacker and J. Raz, Law, Morality and Society. Essays in Honor of H.L.A. Hart, Clarendon Press, Oxford, 1977, p. 1 s.
Joseph Raz, « H.L.A. Hart (1907-1992) », Utilitas, vol. 5, 1993, p. 145-156
- Herbert L.A. Hart, Leslie Green, The Concept of Law 3rd ed, 2012, Oxford University Press.
- Hans Kelsen, Pure Theory of Law. Translation from the Second German Edition by Max Knight, reprint by The Lawbook Exchange, 2009.
- Martti Koskennniemi, From Apology to Utopia: The Structure of International Legal Argument. 2nd ed, 2006, Cambridge: Cambridge University Press.
- Jean-Yves Chérot, "Hart et le concept de droit", manuscript, 2019.

Participation in class (including attendance, homework and discussion): 50%

Final test and essay: 50%

Course content has been reviewed and updated.

Pen, notebook, color pencils, eraser.

Students can contact the instructor at: gael.besson.77@hosei.ac.jp
In accordance with Hosei University policies, this course will be held face-to-face.