Manifest

by Giuseppe Giliberti

That the law can be compared to a living organism (nómos émpsychos) is a suggestive and ancient metaphor that jurists of various orientations have often invoked [1]. By this, one usually means that the law as observed does not simply coincide with the ‘official’ statements since it must also contend with judicial practice, societal interests, values, and legal culture [2]. This continuous redefinition of the norm is inevitable even in codified legal systems, even those adhering more closely to the hermeneutical criterion of literal interpretation.

For a living society, there cannot be a petrified law. The Tanta constitution of Justinian states that “human law is continually changing, and nothing in it is stable and definitive because nature continually creates new forms”. In reality, the Emperor presumed that from then on, new social relationships could only be regulated through specific normative interventions. Justinian even went so far as to prohibit any commentary on the Digest under penalty of deportatio in insulam to ensure that jurisprudential law did not come back to life. It was a short-lived illusion that not even the jurists tasked with compiling the Corpus Iuris took seriously [3].

All the more reason for us, living in a legal system deeply influenced by the jurisprudence of the Constitutional Court and European courts, to find it difficult to believe that rules, like geometry theorems, can operate on empirical reality without losing their ‘purity’. The ‘vitality’ of the law, and therefore the ‘validity’ of the living law, postulate a legal concept that is somewhat realistic. A consequence often drawn from the metaphor of the ‘life’ of the law is that the legal system, while endowed with a recognizable structure based on a few simple ‘architectural’ principles, is not closed and axiomatic-hierarchical. Instead, it can be conceived as an open network in constant transformation [4]. This view seems almost natural in countries less influenced by the Romanistic legal culture (the common law family or the Scandinavian area). But even in legal systems like ours, some argue, following the reasoning of Eugen Ehrlich, that “living law” (lebendes Recht), primarily produced by social institutions, should prevail over the propositions of “positive law” (geltendes Recht) [5]. Therefore, legislators should not delude themselves into thinking they can shape society at their discretion, and it would be better to let the judge freely create laws. Free law is embraced even in Italy by many followers of contemporary neo-constitutionalism. The normative statement is, therefore, increasingly understood ‘only’ as an indication of how the judiciary should operate [6]. Naturally, this weakens the principle of legal certainty, paradoxically risking putting the magistrate-technocrat under the influence of economic powers, even though today, the opposite is feared [7].

From a pragmatic perspective, different from both free law and institutionalism, the dichotomy nómos émpsychos-nómos ápsychos can be read as a conflict between ‘law in action’ and ‘law in books’. This is a tópos made popular by a famous article by Roscoe Pound in 1910, which is, in truth, less anti-formalist than the title suggests [8]. The formula, also thanks to the typical provocative taste of American and Scandinavian realists, has enjoyed increasing success in all fields, especially in the era of legal globalization and the crisis of the State [9]. However, even more radical than Pound was Oliver Wendell Holmes Jr., who went so far as saying that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” [10]. Nevertheless, even this famous aphorism should not be understood as a simple display of skepticism towards the European-continental myth of legal certainty. As I mentioned, the problem it highlights is even more radical: Judge Holmes points out that a provision alone is insufficient to create a rule [11]. Practice, the judge’s pre-understanding of the positive rule, and even the prejudices prevalent in their professional environment are essential components of the rule itself. The legal culture where the judge lives and operates (Western, European, Roman-Germanic, Italian) [12] significantly determines the provision’s meaning.

In this sense, the concept of the ‘life’ of the law passed into Italian doctrine thanks to Tullio Ascarelli [13]. As in America, it has also influenced the Constitutional Court, especially since the Supreme Court’s jurisprudence began to interpret the law creatively and “by principles” [14].

Another sense of the metaphor, more circumscribed and quite common in Italian doctrine today, identifies ‘living law’ as the prevailing interpretation of the rule by ordinary judges [15]. In this case, the character of ‘vitality’ is attributed not so much to the legal system as a whole but to the prevailing jurisprudential interpretation of specific rules, consolidated by the nomophilactic action of the Cassation and, like laws, subject to constitutional review by the Constitutional Court [16]. However, every magistrate knows that they must bridge the inevitable gap between the statement of the law in books and the demand for “reasonable” justice that does not conflict with the ethical-legal Ordnung [17]. This effort at contextualization is the ‘secret’ of their profession, not only in the Anglo-Saxon judge-made law area but also in legislative-based systems in continental Europe. Their reasoning cannot be reduced to a ‘judicial syllogism’ nor a chain of syllogisms that justify the decision by connecting the rules to the case. The weave of legal principles and ‘standards’ that concretely guide the law in action [18], forms of thought, ethical-political convictions about the purposes of the legal system [19], the material Constitution [20], theoretical models, and historical experiences that characterize the legal culture in which magistrates are trained are all more or less evident. It is primarily through the university that the legal profession and legal operators derive their language and ‘method’ [21].

Legal science cannot be limited to dogmatics if the statement alone cannot establish the rule [22]. Nor could the ‘legal science’ domain – as a ‘science of the spirit’ – be restricted solely to ‘normative jurisprudence’ [23]. This increasingly widespread belief in Italy should have significant implications for university education. However, the education of a jurist is stuck in a formalistic tradition, even though everyone senses that the current disciplinary division between the study of positive law and the “rest” – so-called “formative” subjects (history and philosophy), comparative law, anthropology, sociology, and economics – is no longer sustainable. Or at least, it is not sustainable in the radical forms we are accustomed to. The education of a jurist, in all its forms [24], requires a more interdisciplinary approach and, above all, a greater reliance on case-based study than in the past. In particular, without a critical reference to the society and legal culture in which they live, students of legal subjects could learn no more than law in books. They would never have all the tools necessary to practice law.

It is no coincidence that Cultura giuridica e diritto vivente was preceded by the experimentation in Urbino of a “Laboratory of Living Law”, inspired by the model of ‘law school clinics’, which provides students with tools for diagnosing and solving concrete cases under the supervision of professors and experts [25]. Therefore, we want the teacher-researchers, while maintaining their respective specialties, to collaborate with practitioners in recovering the original holistic dimension of law as “ars boni et aequi” [26]. In brief, this is the scientific program of our journal.

Notes

[1] Cf. E. RESTA, Diritto vivente, Rome-Bari (2008), p. 13 ff. In Perì nómou, the Pythagorean Archytas opposed the “law without a soul” to living nómos, capable of adapting to natural law. In Pythagorean texts, the metaphor often refers to the “king by nature”, the “embodied law”. See also Arist., Eth Nich., 1132, 20 (díkaion émpsychon). Cf. I. RAMELLI, Il Basileus come nomos empsychos tra diritto naturale e diritto divino. Spunti platonici del concetto e sviluppi in età imperiale e tardo-antica, Naples (2006); L. MENGONI, s.v. Diritto vivente, in Dig. Disc. Priv., dir. civ., VI, Turin (1995), p. 445 ff.

[2] Cf. L. FERRAJOLI, La cultura giuridica nell’Italia del Novecento, Rome-Bari (1999), p. 5: “By ‘legal culture’, we can mean the sum of several sets of knowledge and attitudes: first of all, the set of theories, philosophies, and legal doctrines developed in a given historical period by legal scholars and philosophers of law; secondly, the complex of ideologies, models of justice, and ways of thinking about law specific to legal professionals, whether legislators, judges, or administrators; thirdly, the common sense about law and individual legal institutions that is diffused and operative in a given society. There is, moreover, a relationship of mutual interaction between positive law and legal culture. Law can be conceived as a complex language, both the object and product of legal culture: that is, as a set of normative signs and meanings associated with them in legal practice by legal scholars, practitioners, and users, all of whom, to varying degrees and in different forms, contribute to its production as well as its interpretation”.

[3] Cf. A. CENDERELLI, I giuristi di Giustiniano, in http://www.ledonline.it/rivistadirittoromano/allegati/dirittoromano04cenderelli.pdf, 4 (2004), p. 24 ff.

[4] Cf. F. VIOLA, l diritto come pratica sociale, Milan (1990), p. 52 ff.; P. GROSSI, Prima lezione di diritto, Rome-Bari (2007), p. 21 ff.

[5] Cf. E. EHRLICH, Lineamenti della sociologia del diritto (1913), Milan (1975), p. 57 ff.; A. FEBBRAJO, E. Ehrlich: dal diritto libero al diritto vivente, in Sociologia del diritto, 9 (1982), p. 137 ff. Indeed, Eugen Ehrlich's theses are also linked to G. ZAGREBELSKY, La dottrina del diritto vivente, in Constitutional Law (1986); Il diritto mite, Turin (1992).

[6] Cf. G. ZAGREBELSKY, op. cit., p. 167 ff.

[7] Even a realist like R. POUND, Introduzione alla filosofia del diritto (1954²), Florence (1963), p. 97 ff., is led to observe that “Only to a saint like Louis IX under the oak of Vincennes can we entrust the broad powers of a judge limited only by the desire to achieve the right result in every case, keeping the law as a general guide”.

[8] Cf. R. POUND, Law in Books and Law in Action, in Am. L. Rev. 12 (1910), p. 12 ff.

[9] See, for example, the controversy among American proponents of the “Living Constitution” and “judicial cosmopolitanism” against those of the “Dead Constitution” (primarily Justice Antonin Scalia). Cf. A. DERSHOWITZ, Rights from Wrongs. Una teoria laica dell’origine dei diritti (2004), Turin (2005), p. 211 ff.

[10] Cf. O. WENDELL HOLMES, The Path of the Law (1897), in Harv. Law 10 (1897), p. 457.

[11] Cf. V. CRISAFULLI, s.v. Disposizione (e norma), in Enc. Dir., XIII, Milan (1964), 195 ff.

[12] Cf. P. HÄBERLE, La cultura giuridica europea, in P. RIDOLA, La Costituzione europea tra cultura e mercato (1997), p. 26 ff. “European legal culture has been formed over more than two thousand years. The individual phases and their products overlap like different layers and can be found everywhere in Europe, to a greater or lesser extent”.

[13] Cf. T. ASCARELLI, Giurisprudenza costituzionale e teoria dell’interpretazione, in Riv. dir. proc. (1957), p. 351 ff.; U. VINCENTI, Giustizia e metodo. Contro la mitologia giuridica, vol. I, new ed., Turin (2005), p. 19 ff.

[14] Cf. G. ZAGREBELSKY, La Costituzione vivente, in History and Memory, 15 (2006), p. 69 ff.

[15] Cf. C. VISCONTI, I reati associativi tra dottrina e diritto vivente, in L. PICOTTI, G. FORNASARI, A. MELCHIONDA, I reati associativi tra paradigmi probatori e diritto sostanziale, Padua (2005), p. 135 ff.

[16] In recent years, the problem has repeatedly arisen, sometimes in conflictual terms between the two supreme courts, whether the Constitutional Court – in the verifying of the constitutionality of a rule – was bound by the meaning attributed to it by lower court jurisprudence or whether it could declare unconstitutional even this “living law”. It seems that the principle has been consolidated that the interpretation of the meaning of the legal command belongs exclusively to the ordinary judge, while the Constitutional Court’s task is to assess the constitutionality of the rule as it is understood by prevailing lower court jurisprudence. Cf. V. CRISAFULLI, Il «ritorno» dell’art. 2 della legge di pubblica sicurezza dinanzi alla Corte costituzionale in Giur. Cost. (1961), (1961), p. 889 ff.; A. D'ATENA, Interpretazioni adeguatrici, diritto vivente e sentenze interpretative della Corte Costituzionale, in http://www.cortecostituzionale.it/documenti/convegni_seminari/06_11_09_DAtena.pdf (2009), p. 10 ff.

[17] Cf. F.C. von SAVIGNY, Sistema del diritto romano attuale (1840-49), Turin (1886), vol. I, p. 39 ff.; L. SOLIDORO MARUOTTI, La tradizione romanistica nel diritto europeo, Turin (2010), vol. II, p. 161 ff.

[18] Cf. R. POUND, op. cit., p. 85 ff., distinguishes between detailed rules (which we would call ‘rules’), general premises (or ‘legal principles’), and legal standards, which imply a moral judgment on conduct.

[19] Cf. R. DWORKIN, Is Law a System of Rules?, in The Philosophy of Law, Oxford (1977), p. 43. Specifically, Dworkin speaks of standards and especially policies, understanding the latter as “that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”. Also see I. MCLEOD, Legal Method (1993), III rev. ed., Basingstoke 2005, p. 19 ff.

[20] Cf. C. MORTATI, La Costituzione in senso materiale (1940), Milan (reprint 1988).

[21] Cf. A. ROSS, Diritto e giustizia (1958), Turin (1990), p. 93 ff.

[22] Cf. G. TARELLO, Diritto, enunciati, usi. Studi di teoria e metateoria del diritto, Bologna (1974), p. 57: “The interpretive process operates on a statement, proceeds from a statement, and arrives at the norm; the norm does not precede as given but follows as a product of the interpretive process”.

[23] Cf. H. KELSEN, Tra scienza del diritto e sociologia (1911), Naples (1974), p. 39 ff.

[24] W. TWINING, Una disciplina cosmopolita? Alcune conseguenze della “globalizzazione” dell’educazione giuridica, in Sociologia del diritto, 28 (2001), p. 27 ff., referring to the Anglo-American world, attributes seven primary meanings to the expression “legal education”: first-level law degree programs; first and second-level degree programs with predominantly legal content; any courses offered by law faculties, including professional development programs for chartered accountants; formal and certified legal internships; any legal training for legal professionals, even provided within companies; any sort of formal legal teaching, including police training programs and legal education in schools; any type of formal or informal legal education in a given society, considering that life as a whole is a school of law.

[25] Cf. http://www.uniurb.it/it/portale/a-giur/edocs/PREMESSA%20Laboratorio%20di%20dir%20vivente.pdf: “In the context of a pronounced contamination between the public and private spheres, between substantive law and procedure, between internal legal systems and supranational order, between civil law models and those of common law – unions mainly conveyed by the inexhaustible action of actors in the supranational legal space (primarily the European Union) – a space of reflection takes shape that deals with: (i) atypical sources; (ii) creative practices of behavioral rules; (iii) decision-making techniques; (iv) jurisprudential orientations, national and international; (v) pluralistic elaboration patterns of regulatory instruments capable of achieving ambitious purpose programs, defined for the satisfaction of complex social needs; (vi) impact assessments as a source of legal production; (vii) consequences analysis as a criterion for its interpretation; (viii) alternative methods of dispute resolution”.

[26] Cf. in general F. GALLO, Celso e Kelsen. Per la rifondazione della scienza giuridica, Turin 2010.