180224 SE Philosophy of Law and Law Ethics (2025W)

Objectives:
Development of a differentiated and critically reflective approach to the topics of politics, political concepts, the relationship between politics, law and morality/ethics, the topics of state and rule, and ideology from a political and legal theory perspective as well as in terms of the history of ideas; Introduction to a range of central topics in political philosophy, legal philosophy and ideology critique; methodical and systematic exploration of relevant issues on the basis of specific texts, in particular using conceptual critique and conceptual history methods.

Content:
From the perspective of pure legal theory (but also some other legal positivist positions such as that of H. L. A. Hart), law on the one hand and everything related to politics, society, morality and/or ethics on the other must be strictly separated. A pronounced counterposition was taken by Carl Schmitt, who argued that anyone who thinks about law must always take into account the reasons for its creation in the context of the exercise of political power. The fact that natural law theories (in the broadest sense) do not have to be homogeneous in terms of their ethical and moral postulates and the demands derived from them can be illustrated very clearly by Sophocles' ‘Antigone’. However, there are other (partly older) legal positivist positions, such as that of Georg Jellinek, which consider the separation of law and ethics/morals to be impossible, without, however, postulating ethical and moral content themselves. Jellinek attempted not to exclude the social world from that of law and defined ‘law’ very pragmatically as the ‘ethical minimum’ that could be agreed upon within a society. (See Jellinek 1908, 45.) With regard to Nazi law, this may still seem somewhat exaggerated, unless it reveals the catastrophic ethical status in Germany and Austria during the 1930s and 1940s.
But apart from that, it certainly seems to be the case that laws which are perceived by a significant number of members of a society as unjust or even unfair will sooner or later encounter problems of acceptance. This can even lead to violent conflicts.
The discourse on justice also raises a central question of an ethical and moral nature. The fact that justice, like ethics and morality, is not a universal concept does not make the correlation between the associated (and in detail quite heterogeneous and sometimes even contradictory) claims irrelevant – on the contrary. The central focus of the course will be to explore and discuss the complex, difficult and sometimes precarious relationships and modes of interaction between the spheres of law and those of ethical and moral demands.

Methods:
Introductory lecture, presentations, joint readings, discussion.