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Edoardo Fittipaldi

EVERYDAY LEGAL ONTOLOGY

A Psychological and Linguistic Investigation
within the Framework of Leon Patrażycki’s Theory of Law

ISBN 978-88-7916-600-3 - 15,5 x 22 cm - 2012



pp. 302 – € 36,00
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Everyday or naïve legal ontology is a branch of (general) naïve ontology. Naïve ontology is understood by the author as an empirical science dealing with the way naïve people conceive external reality – or, in the plural, realities. In this sense ontology can be viewed as a branch of psychology. In order to investigate how people conceive realities naïve ontology draws mainly on naïve language. The way we talk of realities is assumed to be indexical of the way we conceive them. Therefore naïve ontology, as a branch of psychology, is also closely related to cognitive linguistics. Addressing that special ontology that is naïve legal ontology – namely the way non-jurists conceive legal realities – presupposes a scientific (or, depending on the point of view, legal-metaphysical) theory as regards what legal phenomena really are. Only such a theory does make it possible to investigate the mismatches between the naïve legal conceptions and the scientific ones. As his theoretical frame Fittipaldi adopts Leon Petrażycki’s theory of law. Although Fittipaldi provides the reader with information about Petrażycki’s theory, the goal of this book is not to assess it, but rather to directly deal with the special challenges raised to it by naïve legal ontology. According to Petrażycki’s theory of law, legal phenomena are purely individual psychological experiences. External legal realities are therefore but illusions. Thus, naïve legal ontology is a challenge to legal solipsism as it raises the following question: if what we call ‘law’ is nothing else but the individuals’ legal- psychological experiences, why do individuals believe that there objectively exist legal realities, such as legal qualities and entities, independent of the subjects experiencing them? To answer this question Fittipaldi draws on general näive ontology as well as on the modern psychological theories concerning the development of the reality hypothesis and of such ethical emotions as shame, guilt, pride, anger and indignation. Among others the book contains a detailed discussion of modal verbs (considered by Fittipaldi as indexical of moral or legal qualities) and of the illusion of debts. Debts are viewed by Fittipaldi as the thickest näive legal illusion and a detailed analysis of the terms for this illusion in several languages is also provided.

Edoardo Fittipaldi (Milano, 1973) teaches (with Paolo di Lucia) Law and Ontology at the State University of Milan as well as Sociology of Cultural Consumption at the University of Pavia. He has also been teaching General Jurisprudence at the University of Camerino. He is author of Scienza del diritto e razionalismo critico. Il programma epistemologico di Hans Albert per la scienza e la sociologia del diritto (Giuffrè, 2003) and of Psicologia giuridica e realismo. Leon Petrażycki (Led, 2012).


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1.
Everyday legal ontology as a challenge to normative solipsism

1.1. Normative solipsism 1.2. Three open questions of Petrażycki’s legal theory 1.3. The subject-matter of this book 1.4. The major ontological kinds and the way they are mirrored in naïve language

2.
Ethical illusions produced by projective processes

2.1. Introduction – 2.2. What can projections explain? – 2.3. Petrażycki’s projective process – 2.4. The degree of stability of projective qualities and its linguistic consequences – 2.5. Two constituents of the stability of projective qualities – 2.6. The connection of subjective stability and intersubjective diffusion with the psychological development of realism

3.
Illusions produced by the features of the super-ego

3.1. The limits of Petrażycki’s projective hypothesis – 3.2. The differentiae specificae of ethical emotions – 3.3. Why the explanation here proposed to the illusions of imperatives and prohibitions is different from Petrażycki’s – 3.4. The illusions of norms and the role of the concept of norm as a basic theoretical concept – 3.5. Ethical emotions, aggressiveness and ethical sadism – 3.6. Shame, guilt, pride, anger and indignation – 3.7. Is the hypothesis of a super-ego falsifiable in Popper’s sense?

4.
Illusions produced by the features of legal emotions

4.1. Naïve legal entities – 4.2. Moral vs. legal experience – 4.3. Features associated to moral vs. legal experiences, respectively – 4.4. Kinds of legal relationships – 4.4.1. facere-accipere (obligatedness/obligatoriness) – 4.4.2. nonfacere-nonpati (prohibitedness) – 4.4.3. pati-facere (permittedness) – 4.4.4. pati-nonfacere (omissibility) – 4.4.5. Absence-of-ethical-phenomena and ethical indifference – 4.5. Pure attributive phenomena – 4.6. The degree of cognitive salience of the different kinds of legal relationship and the factors conducive to the detachment of debts – 4.6.1. Bilaterality – 4.6.2. Transferability – 4.6.3. Transitoriness – 4.6.4. Fungibility – 4.6.5. Transformability – 4.7. Duties – 4.8. Rights vs. powers? – 4.9. The factors conducive to the detachment of permittednesses/authoritativenesses into illusions of free-standing entities – 4.9.1. Bilaterality – 4.9.2. Transferability – 4.9.3. Transitoriness – 4.9.4-5. Fungibility and transformability – 4.10. Statutes, commands and the wishes of an autocrat – 4.11. The illusions of the amendment of a command/statute – 4.12. A case of undetachment: ownership

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Appendix: Moneyness as a naïve non-legal phenomenon

References

Index of names

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