This article explores judicial autonomy as the normative principle of adjudication, moving beyond the institutional perspective of judicial independence. Drawing on Kant's conception of autonomy as a relational practice of practical reason, it argues that the judge's decision cannot be reduced to mere logical deduction or arbitrary creation, but emerges within the tension between cognition and volition, under the constraints of law and the demand for justice. Judicial autonomy is thus presented as a rational and moral self-imposition of duties, ensuring impartiality and humanity in the experience of judgement.
In contemporary bioethical debate, the different moral judgements on active and passive euthanasia are often justified on the basis of the distinction between killing and letting die, which is a special case of the more general distinction between doing harm and allowing harm. The aim of this essay is to criticise this argument. Firstly, I will examine the main ways in which the distinction between doing harm and allowing harm has been drawn and argue that it is not clear what this distinction consists of or what its moral relevance is. Subsequently, I will argue that even if one does not accept the previous conclusions, the distinction between doing harm and allowing harm cannot ground the different value judgement on active and passive euthanasia, since the latter also includes cases of doing harm. Finally, I shall show how the doctrine of double effect is not applicable to passive euthanasia.
This paper aims to analyze some aspects of the connection between city, space and law. Using the concept of "urban fact", that is more specific than "city", the autonomy of urban spaces is examined as emancipation (from the State, from the territory as a hierarchical criterion, from the sources of law) and as construction (of a new balance between public and private spaces; of a different balance between city and nature; of a new model of citizenship), highlighting how urban commons clearly show some aspects of the great dichotomies of contemporary law: public-private, law-economy, State-market.
In this essay we will examine the relationship between law-understood as a discipline and as social reality-and geopolitics. This path will cross the grounds of "critical realism", considered as a common ground between the point of view of geopolitics and that of law, in its specific expression as international law, inherently suspended between factuality and normativity. Through this key, we will question the possibility of recognizing international law as having a properly legal status and the role it can play with respect to the problem of order in relations between states.
In The Force of Law, Fred Schauer challenges the view that sanctions are philosophically marginal to law, and proposes to replace conceptual analysis with empirical research in jurisprudence. This article defends a complementary role for conceptual analysis in legal theory. By comparing the threat of punishment and the promise of reward, it shows how conceptual inquiry can generate explanatory hypotheses about the features of legal phenomena, and clarify the normative structure of legal regulation.
Judicial Models and Order Models. Uberto Scarpelli on Judiciary, Institutionalism, and Marxism. This article delves into Uberto Scarpelli's analysis of different conceptions, or models, of the role of judicial institutions within modern legal systems. By analysing a recently published writing of his, I will pinpoint his peculiar representation of conflictual legal theories, such as Marxism and Institutionalism, in order to show his inclination to view the judiciary as a form of power that moves outside the scope of the political. To conclude, I will show how Scarpelli's observations, however helpful in stressing the political implication of designing the position of the judge in a specific way, tends to neglect the problematic influence of social conflict in the exertion of jurisdiction.
This introduction to the following focus deals with the central legal-theoretical theme of Frederick Schauer's work: the inherent suboptimality of legal reasoning due to its dependence on general rules and its relationship to the pursuit of justice in specific cases. Schauer emphasizes that rules must exhibit peremptoriness to avoid constant re-evaluation of their justifications and thus ensure efficiency, consistency, and impartiality. He examines this in various areas-legislation, precedent, and evidence-and shows how rules inevitably overreach or underreach. In all areas, the law swings between rule-bound stability and reason-based flexibility. Schauer's analysis reveals the persistent tension between consistency and justice in legal decision-making. His scholarship, characterized by conceptual depth and empirical awareness, will continue to shape contemporary legal theory, and inspires this focus devoted to analyzing his legacy on the most important issues he dealt with in his career.
The author reproposes here the criticisms about the Constitution of the Earth already pointed out in the second issue 2024 of this Journal. Trying to be even clearer in his counter-reply, he highlights once again the conceptual tensions and contradictions that unfortunately this draft of Constitution, although animated by the best intentions, has inside. In particular, the overall weakness of Ferrajoli's proposal is highlighted by the lack of a deep analysis of the evils of the world, which would simply depend on a generic "dominant blindness".
In this essay, I address the notions of generalization used in Fred Schauer's works on this topic, and I also address the layers of generalizations that exist in the legal field. In the last part of the essay, I briefly discuss, mainly with examples, some criteria by which we can determine whether we are dealing with reliable or unreliable generalizations.
Over a career that spanned for decades, from his influential book Free Speech: A Philosophical Enquiry (1982) to very recent articles, Frederick Schauer developed a nuanced conception of free speech and its limits. This essay offers an overview of Schauer's approach, by providing a first approximation to the Free Speech Principle (FSP) (g 2) and then focusing on his answers to three fundamental questions: what is "speech" (g 3), why speech is or must be special (g 4), and what type of principle is the FSP (g 5). Furthermore, it offers an overview of Schauer's answer to the possibility of a FSP between free speech absolutism and the denial of a FSP (g 6), his analysis of the justification of the FSP (focusing on his criticisms and the arguments he considers most convincing) (g 7), and his position on the limits of free speech (g 8).
The work discusses some major themes of the 2022 book that Schauer devoted to evidence and proof. After presenting a general account of evidence, in law and beyond, I deal with the absence of evidence, the role of testimony, and the significance of past acts for present purposes. Next I focus on the use of statistics and its tension with the need for individualized evidence, and I conclude by observing that more research is needed on the challenges of evidence provided by contemporary technology.
Fred Schauer approached interpretation from three different intertwined perspectives: as a constitutional theorist, as a theorist of rules, as a theorist of legal reasoning. The paper targets Fred's theory of interpretation as a theorist of legal reasoning. After surveying Fred's own exposition, it reconstructs the structure of the interpretive code Fred apparently endorsed, suggesting he considered it as the output of a fair description of the interpretive practice in the U.S. (and other Western legal systems), and also as a normative model setting the standard of legally correct statutory, constitutional, and other law-texts interpretations. The code mirrors in fact the two dimensions Fred considered as paramount features of any sound account of the nature of law: the dimension of ruleness (law as an enterprise committed to the rule of rules) and the dimension of rationality (law as an enterprise committed to the rule of reason).
This paper explores the contrasting approaches of Analytical Jurisprudence and the New Natural Law Theory regarding the naturalistic fallacy. While Analytical Jurisprudence emphasizes a strict separation between facts and moral norms, the New Natural Law theorists argue that moral principles are self-evident and rooted in practical reason, not empirical observation. The study assesses whether either framework avoids the is-ougfallacy and concludes that the New Natural Law Theory provides a more coherent foundation for legal norms by grounding them in universal values discernible through reason.
The aim of this work is to analyze the transition process that starts from the duty to live and is destined to culminate in the right to life. After the reconstruction of the general duty to live pertaining to the generality of human beings, its frictions will be shown with the axiological personalistic system of all modern constitutions. Secondly, the peculiar case of people suffering unbearable illnesses will be taken into consideration. Finally, a legislative (de jure condendo) proposal will be developed in order to make sure that the right to life - and therefore, as will be explained, inevitably also the right to die - can be guaranteed.
Frederick Schauer's Playing by the Rules stands as a seminal work in legal philosophy, offering a nuanced account of rule-based decision-making. This paper examines key aspects of Schauer's theory, with a particular focus on constitutive rules. First, we explore his conception of what he terms jurisdictional rules, highlighting their role in the legal domain as mechanisms of power allocation. In connection with this, we reassess Schauer's engagement with Searle's classical distinction between regulative and constitutive rules, more specifically with the alleged regulative aspect of constitutive rules. We argue that Schauer's reconstruction, along with certain underlying assumptions, presents challenges to a clear understanding of the function of power-conferring rules in institutional designs.
The article offers some reflections following the publication of the interview-book in which Francesco Viola, for the first time, retraces the entire journey of his life as a scholar, spanning its various historical phases and cultural seasons over a period of almost sixty years. Several themes emerge that have been constantly at the centre of discussion since the renewed interest in practical philosophy, of which Viola is a significant representative. His main thesis, which defines law as a social practice and not coincidentally also gives the title to the book "Law and Practical Reason," represents the sure guide for reading all the other chapters of the interview: human rights, law and politics, and constitutionalism.
The essay analyses the black box effect, which refers to AI systems, devices, or programs that provide useful information without revealing their internal workings. The greatest risk is that it is unrealistic to expect that machine-learning decision support systems will be able to generate, under all circumstances, complete explanations for the predictions they make (immanent opacity). The incommensurability of algorithmic systems derives from their mathematical structure, because there is no algorithm to decide whether and when a program will stop (mathematical opacity). Many areas of our society are opaque. The opacity of algorithms increases as the opacity of society.
An Analogical Science. Law and Theory of Legal Norm. This paper critiques the traditional use of analogical reasoning in legal interpretation, proposing a framework that views legal norms as dynamic relations between antecedents (F) and consequences (C). Unlike the static qualification of "facts" in analogical reasoning, this relational approach interprets antecedents as variables defined progressively through their connection to legal effects. By rethinking norms as relational constructs, the author addresses the limitations of analogy, including its reliance on pre-determined similarities and its failure to account for the creative role of legal science. Finally, the paper explores the implications for legal methodology in the age of artificial intelligence.
The foundation of human rights has been a key issue in philosophical and legal debates since World War II, especially with some rights charters presented as universal. This claim has been increasingly questioned by relativist critiques. However, some authors, from existentialist positions, have sought a philosophical and anthropological foundation to justify human rights beyond historical contingencies. Jeanne Hersch is a prominent voice in this legal humanism: for her, the defining trait of humanity, requiring ethical-legal recognition, is the innate potential for freedom. This research aims to explore key themes in Hersch's thought: freedom as "capability", the recognition of the other-than-self as an empathic act necessary to "become a person", and universal tolerance grounded in the "vacuum that orients". These themes invite a deeper exploration of Hersch's affinities with related philosophical currents: Kantian transcendentalism, the humanism of Jaspers and Weil, and L & eacute;vinas's ethics of responsibility.
