Manifest

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by Lanfranco Ferroni
Cultura giuridica e diritto vivente is an online journal published by the Law Department of the University of Urbino. It aims to provide knowledge of the law in its amplitude and complexity, with particular attention to the various components that law assumes from life, culture, and society.
Today, more than ever, people studying juridical phenomena need to undertake complex research methods that are characterized by interdisciplinarity. The core of this approach consists of dialogue among scholars of positive law and historians, philosophers, sociologists, and anthropologists. Interdisciplinarity is the key to investigating every legal topic deeply. The link between culture and living law – as it is expressed in the title of journal – also uncovers our starting point: legal knowledge can be articulated, developed and increased only through its interpreters, wherever they operate: at Universities as teachers or scholars, in Tribunals as lawyers or judges, where they are called to research, teach, dialogue.
As Giuseppe Giliberti pointed out (see below), law is a "living" subject, not only because of its feature of being a subject of interpretation on the basis of case law. Law is a "living law" in an authentically evolutionary and purposeful perspective, as a result of a hermeneutical process during which the interests and the values expressing the juridical culture of a given time prevail.
Urbino is not only the background of this project. Urbino, the town of the first Renaissance and extraordinary emotions, recalls us to a method of enquiry that, on one side, suggests trespassing narrow disciplinary boundaries, and, on the other side, it urges respect for the strictness which is inherent in scientific search. The intimate meaning of the law, as well as of legal science and culture, is based on the need for measuring and the search for "orders" for the measure. This idea is perfectly evoked in the painting of Mario Logli, which, through its regoli and its vision of the Renaissance in Urbino, provides us with new and further means to approach the challenges of the modern world.
In this difficult but fascinating way, Cultura giuridica e diritto vivente aims to welcome scholars interested in Law and Culture to Urbino, as well as their old and new questions, doubts, and possible answers. Its ambition is to constitute a sort of modern and open, where reason and measure do not disdain creative and innovative intuitions, and culture does not represent just a segment but the pursuance of the extraordinary journey of Sciences and Arts as well as of the unrestrainable human growing.

by Giuseppe Giliberti
That law may be likened to a living organism (nómos émpsychos) is an evocative and ancient metaphor, one to which jurists of vastly differing orientations have often resorted [1]. This metaphor typically implies that the law as it is actually observed does not coincide simply with its "official" formulations, as it must also reckon with judicial practice, social interests, values, and legal culture [2]. This ongoing process of redefining the norm is inevitable even in codified legal systems, including those that adhere most strictly to the hermeneutic criterion of literal interpretation.
A living society cannot be matched by petrified law. In the Constitutio Tanta of Justinian, one reads that "human law constantly changes and contains nothing stable and definitive because nature is always striving to generate new forms." In reality, the Emperor presumed that, from then on, new social relationships could only be regulated through specific normative interventions. To ensure that jurist-made law would not be revived, Justinian even went so far as to prohibit any commentary on the Digest under penalty of deportation to an island. It was a short-lived illusion, one not taken seriously even by the very jurists entrusted with compiling the Corpus Iuris [3].
All the more so for us, living in a legal system profoundly shaped by the jurisprudence of the Constitutional Court and European Courts, it is hard to believe that norms, like theorems in geometry, can operate upon empirical reality without losing their "purity." The "vitality" of law—and therefore the "validity" of living law—presupposes a legal conception that is, to some degree, realist. A frequent consequence drawn from the metaphor of law's "life" is that the legal order, while possessing a recognizable structure based on a few simple architectural principles, is not a closed, axiomatically hierarchical system. Rather, it can be envisioned as an open network in constant transformation [4].
In countries less influenced by Romanist legal culture (such as the common law family or the Scandinavian area), this vision arises almost spontaneously. But even in systems like our own, some continue to argue—following Eugen Ehrlich's reasoning—that "living law" (lebendes Recht), which arises primarily from social institutions, should take precedence over the propositions of "positive law" (geltendes Recht) [5]. Therefore, legislators should not delude themselves into thinking they can shape society at will and should do better to allow judges to create law freely. The idea of "free law" is embraced, even in Italy, by many adherents of modern neo-constitutionalism [6]. The normative statement is thus increasingly seen "merely" as an indication of how the judiciary should operate. Naturally, this weakens the principle of legal certainty, paradoxically risking subjugating the technocratic judge to economic powers—even though today, the opposite concern is usually raised [7].
From a pragmatic perspective, distinct from both free law and institutionalism, the binomial nómos émpsychosnómos ápsychos can be interpreted instead as the conflict between "law in action" and "law in books" [8]. This topos was popularized by a famous 1910 article by Roscoe Pound. The formula—also owing to the provocative style typical of American and Scandinavian realists—has seen growing success across all fields, all the more so in the age of globalization and state crisis [9].
Yet even more radical than Pound was Oliver Wendell Holmes Jr., who had proclaimed: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law" [10]. This famous aphorism should not be read as a mere exhibition of skepticism toward the continental European myth of legal certainty. The problem it highlights is even more radical: Judge Holmes underscores that a legal provision alone is insufficient to constitute a norm [11]. Practice, the judge's pre-understanding of the positive norm, and even the professional milieu's prevailing prejudices are all essential components of the norm itself. The legal culture in which the judge lives and operates (Western, European, Romano-Germanic, Italian) significantly determines the meaning to be assigned to a legal provision [12].
Understood in this sense, the concept of law's "life" entered Italian legal theory thanks to Tullio Ascarelli [13]. As in the U.S., it has also influenced the Constitutional Court, especially since that Court began interpreting the law creatively and "by principles" [14].
Another, more specific and now widespread interpretation of Italian doctrine identifies "living law" as the prevailing interpretation of a norm by ordinary courts [15]. Here, the attribute of "vitality" pertains not so much to the legal system as a whole but to the prevailing jurisprudential interpretation of specific norms, consolidated through the Supreme Court's function of ensuring uniformity and, like statutory law, subject to constitutional review by the Constitutional Court [16].
In any case, every judge knows they have the duty to bridge the inevitable gap between the norm as stated in the books and the demand for a justice that is "reasonable" and not in conflict with the ethical-legal Ordnung [17]. This effort at contextualization is the "secret" of their craft—not only in the sphere of Anglo-American judge-made law but also within the statute-based systems of continental Europe. Judicial reasoning cannot be reduced to a simple "judicial syllogism," nor even to a chain of syllogisms linking rules to facts to justify decisions. What emerges is a web of legal principles and "standards" [18], forms of reasoning, ethical-political beliefs about the purposes of the legal order [19], the material Constitution [20], theoretical models, and historical experiences shaping the legal culture in which judges were trained [21].
If mere statements are not enough to create the norm [22], then legal science cannot be exhausted by dogmatics. Nor can the domain of "legal science"—as a "spiritual science"—be restricted to normative jurisprudence alone [23]. This view, increasingly widespread in Italy, ought to have significant consequences for university education. Yet legal education remains stuck in the formalist tradition, even though everyone senses that the current disciplinary divide between the study of positive law and everything else—so-called "formative" subjects (history and philosophy), comparative law, anthropology, sociology, and economics—is no longer tenable [24].
Not by chance, Cultura giuridica e diritto vivente was preceded by the creation in Urbino of a "Living Law Laboratory," inspired by the model of law school clinics. It provides students with tools for diagnosing and solving real cases under the supervision of faculty and professionals [25]. We hope, then, that academic researchers, while maintaining their own specializations, will collaborate with legal practitioners to recover the original holistic dimension of law as an ars boni et aequi [26]. In brief, this is the scientific mission of our journal.

[1] Cf. E. Resta, Diritto vivente, Rome-Bari (2008), p. 13 ff. In Perì nómou, the Pythagorean Archytas contrasted the "soulless law" with the living nómos, capable of adapting to natural law. In Pythagorean texts, the metaphor often refers to the "king by nature," who is the "embodied law." See also Arist., Eth. Nic., 1132, 20 (díkaion émpsychon). Cf. I. Ramelli, Il Basileus come nomos empsychos tra diritto naturale e diritto divino, 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.
[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, Il 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.; G. Zagrebelsky, La dottrina del diritto vivente, in Giur. Cost. (1986); Il diritto mite, Turin (1992).
[6] Cf. G. Zagrebelsky, op. ult. cit., p. 167 ff.
[7] Even a realist like R. Pound, Introduzione alla filosofia del diritto (1954²), Florence (1963), p. 97 ff., observed: "Only a saint like Louis IX under the oak of Vincennes can be entrusted with the broad powers of a judge limited only by the desire to reach a just result in every case, using 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 polemic between American supporters of the "Living Constitution" and "judicial cosmopolitanism" versus those of the "Dead Constitution" (first and foremost, 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.
[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 Storia e memoria, 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] Cf. V. Crisafulli, Il “ritorno” dell’art. 2 della legge di pubblica sicurezza dinanzi alla Corte costituzionale, in Giur. Cost. (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, general premises (i.e., legal principles), and legal standards, i.e., behavioural models that imply a moral judgment.
[19] Cf. R. Dworkin, Is Law a System of Rules?, in The Philosophy of Law, Oxford (1977), p. 43; see also I. McLeod, Legal Method (1993), 3rd ed., Basingstoke (2005), p. 19 ff.
[20] Cf. C. Mortati, La Costituzione in senso materiale (1940), Milan (repr. 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.
[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.
[25] Cf. http://www.uniurb.it/it/portale/a-giur/edocs/PREMESSA%20Laboratorio%20di%20dir%20vivente.pdf
[26] Cf. F. Gallo, Celso e Kelsen. Per la rifondazione della scienza giuridica, Turin (2010).