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 lecture, documents study, and discussion.

Students will be required to apply analytical frameworks they learned during class by conducting a research on an author of their choice that will result in a presentation during the second half of the semester (starting week 12) and a written report to be submitted at the end of the semester.

This will be performed individually.
Feedback by peers and help from the instructor will be given in class along the semester.
Course contents will vary depending on number of students presentations to be performed in class.

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]：1. INTRODUCTION

Definitions, history, biography & bibliography of KELSEN, HART and DWORKIN methodology.

2.[対面/face to face]：2. THE PERSISTANCE OF LAW I

1. Problem : Why do we obey law from the past ?
2. Notion(s) : Hart's theory of social rule based on practice.

3.[対面/face to face]：2. THE PERSISTANCE OF LAW II

3. Reading (excerpts): Hart, “Rex 1 & Rex 2”
4. Debate : Can we judge future problems ? Can we make law to state a historical fact ?

4.[対面/face to face]：3. THE USAGES OF LAW I

1. Problem : How do we use rules ? How do officials use them ?
2. Notion(s) : Hart’s internal and external uses of legal rules.

5.[対面/face to face]：3. THE USAGES OF LAW II

3. Reading (excerpts): Finnis, "Natural Law and Naturals rights".
4. Debate : When shall we subordinate our personal interests to the needs of society ?

6.[対面/face to face]：4. THE VALIDITY OF LAW I

1. Problem : How do we know if a law is valid ? Is nullity a sanction ?
2. Notion(s) : Hart’s rule of habilitation and difference with Kelsen's fundamental norm.

7.[対面/face to face]：4. THE VALIDITY OF LAW II

3. Reading (excerpts): Kelsen, "Pure Theory of Law".
4. Debate : Can we keep unconstitutional norms inside the legal system ?

8.[対面/face to face]：5. THE LANGUAGE OF LAW I

1. Problem : Who "makes" law, the judge or the politician ?
2. Notion(s) : Hart’s Open texture of legal language

9.[対面/face to face]：5. THE LANGUAGE OF LAW II

3. Reading (excerpts): Holmes, “ The Path of Law". Wittgenstein, Philosophical Investigations.
4. Debate : Can we analyse a judge decision from a politically neutral point of view ?

10.[対面/face to face]：6. THE RULES OF LAW I

1. Problem : How to deal with conflicts between national/international, public/private rules ?
2. Notion(s) : Hart’s primary and secondary rules

11.[対面/face to face]：6. THE RULES OF LAW II

3. Reading (excerpts): Hart, "The Concept of Law".
4. Debate : Are Constitutional norms rules of organization or constitutional rights ?

12.[対面/face to face]：7. THE PROBLEMS OF LAW

1. Problem : How to account for injustice toward oppressed people and passive citizen ?
2. Notion(s) : Lon Fuller's eight principles
3. Reading (excerpts): Fuller, The Morality of Law
4. Debate : Is Nazi Law, Law ?

13.[対面/face to face]：8. THE ROLE OF LAW

1. Problem : How can a social fact give rise to a normative judgement and how can this normative judgement form the basis of a claim to the right to be obeyed ?
2. Notion(s) : The rule of recognition
3. Reading (excerpts): Dworkin, Taking Rights Seriously.
4. Debate : Legal positivism or Jusnaturalism ?

14.[対面/face to face]：PRESENTATION OF REPORT

1. Summary of the student's research
2. Questions from others student
3. Professor's input.

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.University guidelines suggest preparation and review are around 4hours a week for a two-credit course and around an hour a week for a one-credit course.

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 homework and discussions): 50%; research project: 50% (presentation in class: 10%; written report: 40%).

Course material has been reviewed, and slides updated.

A pen and some paper are a must.

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.