ADVANCED LEGAL THEORY

Objectives
This course will explore the central philosophical 1 issues involved in the study of law. It will provide an analysis of
fundamental ideas and basic structures of a variety of legal theories including contemporary positivism 2, natural law3
and legal realism, as well as focus on legal problems of special relevance to civil and criminal law.
We will deal with some topics in the moral foundations of liberal 4 order such as freedom of speech and the
security of the state, as well as some legal foundations of capitalism 5 such as the no-fault liability6 in the tort7 and the
structures of contractual obligation. The problematic of hegemony and dominance in modern civil societies will
stand at the center of our attention.
The examination of the relation between law and ethics 8 will be our starting point. We will include two
special approaches to the study of law, namely that of the relation between law and ideology 9 on the one hand and of
law and economics, on the other. We will include with a consideration of the historical and anthropological 10
foundations of the dominant legal cultures.

1
Philosophy is the study of general and fundamental problems, such as those connected with reality, existence,
knowledge, values, reason, mind and language.
2
Positivism is the philosophy of science that information derived from logical and mathematical treatments and reports
of sensory experience is the exclusive source of all authoritative knowledge, and that there is valid knowledge (truth) only in
this derived knowledge. Verified data received from the senses are known as empirical evidence. Positivism holds that
society, like the physical world, operates according to general laws. Introspective and intuitive knowledge is rejected, as is
metaphysics and theology.
3
Natural law, or the law of nature (Latin: lex naturalis; ius naturale), is a philosophy of law that is supposedly
determined by nature, and so is universal. Classically, natural law refers to the use of reason to analyze  human nature —
both social and personal — and deduce binding rules of moral behavior from it. Natural law is often contrasted with
the positive law of a given political community, society, or state. In legal theory, on the other hand, the interpretation of
positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to
criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Some scholars
use natural law synonymously with natural justice or natural right (Latin ius naturale), while others distinguish between
natural law and natural right.
4
Liberalism is a political philosophy or worldview founded on ideas of liberty and equality. The former principle is
stressed in classical liberalism while the latter is more evident in social liberalism. Liberals espouse a wide array of views
depending on their understanding of these principles, but generally they support ideas and programs such as  freedom of
speech, freedom of the press,freedom of religion, free markets, civil rights, democratic societies, secular governments,
and international cooperation.
5
Capitalism is an economic system and a mode of production in which trade, industries, and the means of
production are largely or entirely privately owned. Such private firms and proprietorships are usually operated for  profit, but
may be operated as private nonprofit organizations. Central characteristics of capitalism include private property, capital
accumulation, wage labour and, in some situations, fully competitive markets. In a capitalist economy, the parties to a
transaction typically determine the prices at which assets, goods, and services are exchanged
6
Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.
7
A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting
in legal liability for the person who commits the tortious act, called a tortfeasor.
8
As a branch of philosophy, ethics investigates the questions “What is the best way for people to live?” and
“What actions are right or wrong in particular circumstances?” In practice, ethics seeks to resolve questions of human
morality, by defining concepts such as good and evil, right and wrong, virtue and vice, justice and crime. As a field of
intellectual enquiry, moral philosophy also is related to the fields of moral psychology, descriptive ethics, and value theory.
9
Ideology, in the Althusserian sense, is "the imaginary relation to the real conditions of existence." It can be described
as a set of conscious and unconscious ideas which make up one's goals,expectations, and motivations.
10
The Oxford Dictionaries define it as "The study of humankind", to include "cultural or social anthropology" and
"physical anthropology.