The Fault and the Law between East and West

 In this article, written for a special issue of Paradoxa, the Vittorio Mathieu's philosophy journal, Monateri traces an unpreviewed parallel between two absolutely western paradigms and two remarkably chinese thoughts. 
First a parallel between Carl Schmitt and Xun Zi when the latter writes that “The superior man is the source of the Law” Second economic analysis and Lao Zi theory of law a san emerging order not a predetermined one.
Paper is available from here

Comparative Law and the Limits of Legal Interpretation

Ara Editores, Lima Peru, are going to publish PG Monateri, Los Limites de la Interpretacion Juridica y el Derecho Comparado (2009).

The book is a collection of Monateri's writings translated into spanish and covering different topics:

The Political Ontology of Legal Interpretation

Comparative Law and Traductology

Law and Humanities

Comparing Comparativisms: an analysis on the use of comparison in various disciplines from law to religion, to linguistics and cultural anthropology 

European Law and Legal Globalization

with an appendix discussing the so called "Trento Theses" purporting the methods of a critical comparison of law

which were discussed in the late 80s at the Trento Law School when Monateri was the Vice-President of that University.

With a pròlogo de Carlos Fernandez Sessarego, Professor Emerito de la Universidad Nacional Mayor de San Marcos

'Cunning Passages': Traductology, Comparison and Ideology in the Law and Language Story

My standpoint in this paper is that in affording the subject of Law and Language we face a mass of “local issues”, and “local puzzles”, but that we still lack a theory to grasp with the bulk of the matter. Al this becomes peculiarly embarrassing in the age of development of “English-only” movements, and facing the rise of a rather new and framed field of studies like “traductology” that would of course, but do not actually, interplay with comparaison especially in the field of Law. In my paper I just try to look around the package of some received ideas, in order to clean the blackboard before trying to build up something newer. Thus in the first section I cope with two prevailing theories: 1.) the theory of the language as a “social glue”, which is dominant and emerging from the present American political debate; 2.) the theory of the “analogy” between Law and Language as spontaneously ordered complex phenomena; then in a second section I try to trace back these ideas in the time of the “Birth of Comparativism” in the early 19th century. In so doing i deal with: 1.) the birth of Indo-European Family in Comparative Linguistics, and, 2.) the birth of Legal Comparativism within the context of the German Legal Historicism, in the same span of time. Finally I try to show how all these conceptions are nested details of a more general consciousness with broad political implications in terms of projects of governance. Then according to my views neither language studies nor traductology can be treated as pure subject deprived of a strong political commitment. Both are field where “choices for candor” are not at hand.


Dowload at SSRN
Keywords: Law and Language, Cultural Studies, Traductology, Legal Tradiitons, Linguistics, Comparative Law, Uniform Law, English Language, Legal History, Germany
JEL Classifications: K1, K3, K4
Working Paper Series

Law and Incarnation: Messianism as State of Exception

Riflessioni sul Messianesimo come Stato di Eccezione

In this paper, written in italian, Monateri tries to interpret Jesus teachings in the context of the beginning of a cosmic state of exception when, in accordance with traits of the Second Temple ideology, the final battle between God and his enemy is going to start.

In such a context the Law reincarnate itself into the figure/body of the Sovereign, the Lord, instead of being excarnated as it has been in the Book.

Thus the Lord as a nomos empsuchos (a living law) can suspend and renew the law.

Even the dramatic event of the Cross can be seen as the entrance by suffering of the Lord into the Enemy's realm and his coming back as a winner.

Author suggests that the models behind such packaging of ideas are Egyptian, and strongly connected with the royal political theology of Alexander the Great as a King and a Savior.

From this standpoint it was certainly Paul (and so the Church) and not James to be on the right side in interpreting Jesus teachings.

With the Event of the Cross the world entered into a permanent state of exception, but the outcome of the final battle has already been determined by that event.

As Ted Sorensen said once: war is something you win or loose in the Temple long before it is actually fought.

Published in the Cardozo Electronic Law Bulletin

The New Site of Polemos

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Monateri's Latest Book on Italian Law

Just published by Utet "La Prescrizione"

The Fascist Theory of Contract: A Comparative and Historical Inquiry into the Darker Side of Contract Law

This paper, written with Alessandro Somma, and available at SSRN,  represents an attempt to discuss and re-assess the scholarly debate on Private Law in Fascist time. Moving from a newer comparison with National Socialism, the Authors look at the strategic devices used to justify a precise concept of law and a selected body of rules. In this perspective Roman Law could be view as a powerful means of legitimation, an historical tool apt to grant a specific lecture of contemporary times. What is under judgment is the construction of different traditions rooted in a contradictory recall to the past. With regard to contract law, this paper casts light on the rhetorical exercises framed by scholars under the fascist regime with the aim to contradict the language of the Liberal period and at the same time it discovers the absence of these techniques of legal discourse in the decisions of Fascist Courts. The analysis emphasizes an inner, structural dissonance that is responsible for the conscious choices of economic policy, discovering also an unexpected contiguity between classic liberal thought and the fascist appraisal of contract law as a cornerstone of the economic process.



Keywords: Fascism, National Socialism, private law, contract law, theory of law, Roman Law, Liberal policy, economic policy, legal traditions, legal discourse
JEL Classifications: K10, K30, K40, K49

The Prophetic Nature of Equity

SSRN

Abstract:  
This paper parallels the role played by Equity in English legal history with the role displayed by Prophets in relation to the Law and the Kingship in the Jewish tradition exemplified by biblical writings. From this perspective Equity performs the function of bringing to surface hidden meanings by means different from standard interpretation.

Keywords: law and literature, judaism, interpretation, King David, Bible, Equity, Justice, Meaning, Legal History
JEL Classifications: K10, K30, K40
The paper has been published as a chapter in Daniela Carpi, ed., Practising Equity, Addressing Law, Winter, Heidelberg.

Comparative Law Methods

Monateri on Legal Formants
a brief summary of the Formants approach in Comparative Law. The method is defined in its basic tenets and it is analyzed in relation with the Critical Studies as a first attempt to derive newer tools to manage cross-system analysis in legal matters. In an Appendix something is suggestd about how to afford Comparative Law in the field of Cultural Studies using the theory of Complex Orders and the notion of Eliot effect.

On the Ambiguities of Being Sovereign: from Hamlet to Benjamin & Schmitt

The Author examines how Romantic Ambiguity lies at the heart of the legal notion of Sovereignty, applying a law and literature approach to notions developed by Benjamin and Carl Schmitt. Moving from a sophisticated analysis of literary texts, the inquiry intends to unveil the subtle strategies that lay behind the construction of Modernity and of its representational canon. The research perspective intentionally discloses the inherent dialectic between aesthetics and law. On this ground this paper rethinks the theory of the 'state of exception' as a pivotal concept for a deep understanding of Law and Politics (and their proper untraced boundaries), offering an alternative interpretation with respect to Giorgio Agamben's thought. The Author's lecture comes to rewrite even the centrality of representation as a fundamental notion both in literary and in political terms.

Keywords: Law, Literature, Shakespeare, Hamlet, Romanticism, Sovereignity, Politics, State, State of exception, representation, Schmitt, Benjamin, Eliot, Agamben
JEL Classifications: K10, K30, K40, K49
Published in Anglistik, International Journal of English Studies, vol. 20, Issue 2, September 2009, pp. 121-130 (Universitaetsverlag Winter Heidelberg)
available at SSRN

PG Monateri on Citizenship and Secularism

Un nuovo articolo destinato al volume di Angelo Barba, pubblicato su Stato Chiese e pluralismo confessionale

This paper is devoted to examine the concrete historical situation of conflict out of which the modern citizenship arose. In this way we can trace how different are German, French and American conceptions.
In Germany citizenship born as linked with being part of a tradition and a nation from a cultural standpoint, implying a cult of History and belonging. A backward looking conception where the "essence" of things lies always in the origins, and where the "secular" element is given more by this "cult" than by an actual opposition to religion.

On a another side France and the USA moulded citizenship on a political forward looking creed.
In the case of France this creed has been deeply rooted in secularization and in the actual fight of the State against the Church.
The American conception, as secular as it may be, is anyway inextricably nested in a deep, even if many times unconscious, political messianism, implying a constant effort to redeem the world. So that from this vewpoint "secularization" as such seems a category peculiarly linked with European History, and of doubtful use in comparative studies.

The Conclusion is the utopic character of general theories on secularization and the possible rise of a  global citizenship.
Both concepts are rather nomic, in the sense of being context specific and linked with European political forms, so that they loose any precise meaning when used outside of these forms.

Wikipedia Entry on PG M

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Contents

• 1 Works
  
  
  • 1.1 The Synecdoche
  • 1.2 Black Gaius
  • 1.3 Tort Law
  • 1.4 Non-interpretivism
  • 1.5 Present researches
  
  
  
• 2 Selected works
• 3 External links

Legge e incarnazione

Riflessioni sul Messianesimo come Stato di Eccezione

Pubblicato sul Cardozo Electronic Law Bulletin