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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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.

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Recensione di Alessandra Quattrini su Nomos