Giorgio Bongiovanni

Reasons (and Reasons in Philosophy of Law)

This chapter provides a picture, in relation to the debate on normativity, of the different analyses of reasons and the different ways in which reasons can be evaluated and classified. The discussion starts out by distinguishing three different classes of reasons on the basis of their role: normative, motivating, and explanatory. And then the focus shifts to normative reasons, discussing the basis of their capacity to favour actions or beliefs in the light of the different understandings of their ontological status as either facts or mental states. We will see, on these premises, that reasons can be distinguished into two different kinds: reasons for belief (epistemic) and reasons for action (practical). Particular attention is devoted to the “weighing conception” of normative reasons (and the understanding of them as pro tanto reasons), as this approach seems best suited to practical (as well as legal) reasoning. This will provide a vantage point from which to analyse the strength of reasons and their modality, most notably their modality as first- and second-order reasons. Finally, it will be considered how the weighing conception fits into the philosophy of law, in view of the fundamental role this discipline assigns to second-order reasons in the attempt to explain the normative nature of law and its authority.

Balancing, Proportionality and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights adjudication, and of review, as a way of defining the scope and limits of adjudication.

Global Constitutionalism and Legal Theory: A Preliminary Analysis

Supranational law shows phenomena of fragmentation, as well as aspects of constitutionalization. Theories that deal with global constitutionalism analyze phenomena of constitutionalization of supranational law, as well as the prescriptive requirements of this process. This paper analyzes the different ways in which it is possible to understand global constitutionalism, and in a preliminary way addresses its relevance to the theory and the concept of law.

Philosophy of law and international criminal law : between peace and morality

The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.