Methods in Comparative Law: An Intellectual Overview (Russian)

The article is intended to be a brief summary of the basic tenets of this kind of approach to Law, in order to introduce the reader to the steps to be followed in using this method. In this sense, the Author will apply the formant approach with the aim both to dismantle the ideological substrate veiled by conventional views and to discover the deeper potentialities of Comparative Law. This kind of «aletheic» operation, meant as the generative source of the interpretative tradition, allows to discuss and to reassess three main issues: 1. the nature of comparative law as academic discipline and its aiming to provide tools for global governance of the legal field in today’s world; 2. the process of definition of Legal Origins and law reforms made by the World Bank; 3. the Jurisprudential implications of this approach.

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Four Lives of Liberal Scholars (Vite di Giuristi Liberali)

In a 4 articles set P.G.Monateri connects the lives and thoughts of four among the major law and liberal Italian thinkers : Pasquale Mancini, Emanuele Gianturco, Guido Astuti and Gino Gorla.

All the articles, to be inserted in the forthcoming Dizionario del liberalismo, are downloadable at academia.edu clicking HERE

Pasquale Mancini is the well-known founder of Italian International Law, a deep thinker of the concept of nation, who became the private educator of King Umberto I, and ended his rich political career within the context of the rising Italian imperialism in Eritrea.

Emanuele Gianturco has been one of the most intriguing and controversial figures of liberalism and legal theory ranging his activities from the clash between classical and modern legal paradigms, from participation to many cabinets, to the nationalization of railroads.

Guido Astuti, a prominent legal historian, became member of the Constitutional Assembly, and led the liberal party during the crucial decisions which framed the Italian political landscape in the second after-war.

Gino Gorla is deemed to be the founding father of modern Italian comparative law as an academic discipline. He based his reflections on a study of Tocqueville which is still of great and innovative impact, especially opposing an "aristocratic" versus "democratic" notion of individual rights and liberalism.

Schmitt as Comparative Lawyer

In questo articolo la teoria di Schmitt viene apprezzata più dal punto di vista del diritto comparato che della filosofia del

diritto, mostrando come tale chiave di lettura offra più possibilità interpretative, specie in relazione a Leo Strauss, da un lato, e al sorgere del realismo politico

americano di Morgenthau, dall'altro.

...Tutto ciò impica, ovviamente, un ritorno, attraverso della comparazione, del pensiero giuridico al pensiero del politico. Nel senso preciso per cui il maschile del termine italiano vuole tradurre il neutro del tedesco Das Politisch, con punto o alcun riferimento alla politica, e meno che mai alla mera questione del governo efficace del mondo, ma alla dimensione stessa dell’esistenza storica in quanto esistenza sospesa tra la possibilità dell’ auto-affermazione e dell’annichilimento.

Una tale ‘teoria del politico’, fondata sullo stato di eccezione, cessa quindi di essere una mera teoria della ‘decisione per la risolutezza’, come disse una volta Loewith,^[1] e diviene invece la concreta rappresentazione di origini genealogiche, mantenute come principi legali di ordinamento....

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^[1] Cfr. K. Loewith, Marx, Weber, Schmitt, Laterza, Roma, 1994, p. 137.

Read More and Download it at Academia.edu

Ginsburg, Monateri and Parisi on the "Classics of Comparative Law"

Classics In Comparative Law Tom Ginsburg , Pier G. Monateri , Francesco Parisi Download the introduction at ssrn.com Edited by Tom Ginsburg, Leo Spitz Professor of International Law, University of Chicago, US, Pier Giuseppe Monateri, Member of the International Academy of Comparative Law of New York, US and Professor of Law, University of Turin, Italy and Francesco Parisi, Oppenheimer Wolff and Donnelly Professor of Law, University of Minnesota, US and Professor of Economics, University of Bologna, Italy 2800 pp  See the Book...click Here Description Comparative law is a field with a rich history, and one to which scholars from many disciplines have contributed. This four-volume set includes an original introduction by the editors, who trace the major developments in the field, covering both private and public law, as well as legal institutions and methodological debates. Encompassing more than a century of scholarship, the collection includes a number of the most enduring articles from several disciplinary perspectives and will be an essential resource for the study of comparative law. Contents 76 articles, dating from 1903 to 2010 Contributors include: P.S. Atiyah, G. Calabresi, M. Damaška, J. Elster, L. Fuller, H. Kelsen, K. Llewellyn, R. Posner, R. Pound, A. Watson Further information Comparative law is a field with a rich history, and one to which scholars from many disciplines have contributed. This four-volume set includes an original introduction by the editors, who trace the major developments in the field, covering both private and public law, as well as legal institutions and methodological debates. Encompassing more than a century of scholarship, the collection includes a number of the most enduring articles from several disciplinary perspectives and will be an essential resource for the study of comparative law. Full table of contents Contents: Volume I Acknowledgements Introduction Tom Ginsburg, Pier Giuseppe Monateri and Francesco Parisi PART I THE METHOD OF COMPARATIVE LAW 1. Sir Frederick Pollock, Bart. (1903), ‘The History of Comparative Jurisprudence’ 2. Roscoe Pound (1955), ‘Comparative Law in Space and Time’ 3. Alan Watson (2000), ‘Law Out of Context’ 4. O. Kahn-Freund (1974), ‘On Uses and Misuses of Comparative Law’ 5. H.C. Gutteridge ([1949] 1971), ‘The Process of Comparison’ PART II LEGAL TRANSPLANTS AND GLOBALIZATION OF LAW 6. Alan Watson (1993), ‘Comparative Law as an Academic Discipline’ 7. Pierre Legrand (1997), ‘The Impossibility of “Legal Transplants”’ 8. Roderick A. Macdonald (1985), ‘Understanding Civil Law Scholarship in Quebec’ 9. A.N. Yiannopoulos (1980), ‘Louisiana Civil Law: A Lost Cause?’ 10. Edward M. Wise (1990), ‘The Transplant of Legal Patterns’ 11. Duncan Kennedy (2006), ‘Three Globalizations of Law and Legal Thought: 1850–2000’ 12. William Twining (2004), ‘Diffusion of Law: A Global Perspective’ 13. Pierre Legrand (1996), ‘European Legal Systems Are Not Converging PART III COMPARATIVE LEGAL HISTORY AND ANTHROPOLOGY 14. E. Adamson Hoebel (1954), ‘The Cultural Background of Law read more.....

Judges as an "Elite": The Case of Italy

Abstract:      

In the last decades, several factors have transformed the morphology of Italian legal system, so to create a perceptible different assess of the equilibrium among powers and formants and to mould, in a renovated way, the overall relationship between Law, Politics and Justice. The Italian judiciary (magistratura) has been re-organized along lines radically dissimilar to those followed in common law systems.
After examining all the data: the number of judges in office, the percentage of represented genders, the amount of cases and the overloading of the legal system, the aim of this paper is to show that a major characteristic of the legal professions in Italy is the almost complete lack of lateral movement among personnel. Career decisions must be made early; for example, applicants for the judiciary must be no more than thirty years of age. Promotion of judges, prosecutors, and state’s attorneys is largely dependent on seniority.
My theory is that the unwanted result of all this has been both a Judicialization of Italian Legal System and a politicization of the judiciary through the CSM as a peculiar Italian institution, re-defining the Italian Legal Style

Presented at the Proceedings of the International Academy of Comparative Law

this paper may be download at SSRN

Monateri on 'The Geopolitcs of Law'

LA GEOPOLITICA DEL DIRITTO. GENESI, GOVERNO E

DISSOLUZIONE DEI CORPI POLITICI

A New Book from Laterza

"Monateri's project in this book is to try a complete new reappraisal of comparative law and legal origins.

He tries to oppose the apparently flat world of political globalization to the world of law, since the styles of the law, as different presentifications or visualizations of the 'invisible' of the law, are still very diverging.

For him 'style' has an 'ontological' value, because it captures a local conception of the law which supersedes words and language, creating different 'spheres' in the globe : an anglo-sphere, a french sphere and so forth, having a geopolitical impact, moulding world spaces in diversified jurisdictions, resisting political globalization.

Specially he maintains that every legal system came out of a 'state of exception' - the 30 years war, the Glorious Revolution, the French Revolution,the American War of Independence, etc. -  and that style represents the ontologicized memory of this peculiar origin of the Legal for each system.

In this way the theory of the 'State of Exception' is both confirmed and localized in its historical concreteness, where archeology of concepts coincide with genealogy of patterns of government.

As someone has said this book open the possibility of an explicit post-Schmittian paradigm, retaining some of the most relevant suggestions of it, through a strong critique of its 'universal' validity. Schmitt's theory of the political is more an actual memory of XVIII century conditions, than a real universal doctrine; its main importance lies in the very fact of the ongoing working of the dispositifs which started to operate on the Western Political Mind at that age."

"The most counterintuitive theory of the Book is that it sees the 'Political' as such much more embodied - notwithstanding any received idea - in the Common Law systems than in the Civil Law as it actually evolved; and in the structure of United States government much more than in the 'the dissolution of the political bodies' now almost realized within the European Union."

"Law is an invisible, bypassing words, and the place of its 'uncanny presence' is that of 'style' as more than an aesthetic concept, but rather as a threshold between aesthetics, politics and the law"

In breve

A dispetto dell’immagine corrente della globalizzazione giuridica, l’uniformità senza confini degli ordinamenti che sembra caratterizzare il mondo contemporaneo non azzera il peso delle diverse tradizioni giuridiche: le diverse immagini della ‘legge’ continuano a segnare differenze, scarti che interrompono lo spazio globale. Persino lo stile, i linguaggi e le modalità di legittimazione della giustizia divengono, seppur in modo più sotterraneo e indiretto, elementi pregnanti di una nuova ‘geopolitica’, gli strumenti culturali di una lotta per l’egemonia dei modelli giuridici. In particolare due forme della legge si stagliano ancora nel mondo e nell’Occidente: quella anglo-americana della ‘legge orale’ e quella continentale della ‘legge scritta’. Si tratta di due forme antitetiche, che marcano una profonda dualità dell’Occidente.

DOWNLOAD THE EPUB VERSION OF THE BOOK

Recensione di Alessandra Quattrini su Nomos

Monateri on Methods

Now Available at Amazon.com

Comprising an array of distinguished contributors, this pioneering volume of original contributions explores theoretical and empirical issues in comparative law. The innovative, interpretive approach found here combines explorative scholarship and research with thoughtful, qualitative critiques of the field. The book promotes a deeper appreciation of classical theories and offers new ways to re-orient the study of legal transplants and transnational codes. Contents Contributors include: M. Andenas, S. Benedettini, L. Chen, C. Costantini, D. Fairgrieve, G. Frankenberg, J. Gaakeer, S. Glanert, P. Goodrich, J. Gordley, B. Luppi, A.L. Marasco, S. McEvoy, P.G. Monateri, H. Muir Watt, A. Nicita, F. Parisi, G. Samuel, G. Watt Further information Comprising an array of distinguished contributors, this pioneering volume of original contributions explores theoretical and empirical issues in comparative law. The innovative, interpretive approach found here combines explorative scholarship and research with thoughtful, qualitative critiques of the field. The book promotes a deeper appreciation of classical theories and offers new ways to re-orient the study of legal transplants and transnational codes. Methods of Comparative Law brings to bear new thinking on topics including: the mutual relationship between space and law; the plot that structures legal narratives, identities and judicial interpretations; a strategic approach to legal decision making; and the inner potentialities of the ‘comparative law and economics’ approach to the field. Together, the contributors reassess the scientific understanding of comparative methodologies in the field of law in order to provide both critical insights into the traditional literature and an original overview of the most recent and purposive trends. A welcome addition to the lively field of comparative law, Methods of Comparative Law will appeal to students and scholars of law, comparative law and economics. Judges and practitioners will also find much of interest here.

Monateri to Inaugurate European Gaius

Rome june 10, 2011 at the Consiglio Superiore della Magistratura 

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