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

The Language of Law

La lingua della Legge: Traduzione, Ontologia e Governo. [Formato Kindle]

P. G. Monateri (Autore)

Sinossi

Sinossi. Un coroner non è un medico legale, uno Czar non è un Kaiser, e un contract non è un contratto. Se la legge è performativa, e crea i suoi oggetti, allora da un punto di vista ‘scientifico’ la legge non può essere tradotta. Tuttavia è ormai tempo di abbandonare questi stilemi dello scientismo linguistico, e tornare verso una considerazione ‘iconica’ della lingua. Si tratta quindi, forse, di reimpostare la ‘traduttologia’ ripartendo esplicitamente dall’ ontologia linguistica di Benjamin, verso la considerazione della intralingua come soglia fra le lingue, per giungere alla fine, proprio in relazione con lo ‘stato di eccezione’, a considerare quella che l’A. Individua come la natura ‘letteraria’ del politico. 

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Understanding the Civil Law

Abstract:      

This a brief sketch of the Civil Law Tradition. Conceived mainly for teaching purposes, it lays out the historical background of Civil Law and its two main versions: the French and the German. Finally it outlines few notes on the difficulties to compare Civil and Common Law, and it includes major standard references on the topic.

Anyway the main purpose of this writing is to question the relevance of legal origins as stated by the World Bank and the movement of Law and Finance.

My theory is that the major differences between common law and civil law are due to political modernity and not to romantic distant origins.

Number of Pages in PDF File: 14

Keywords: Civil law, common law, english law, french law, german law, legal history, comparative law, roman law, sources of law, legal theory, legal origins, world bank

working papers series 

Download at ssrn.com, click HERE

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.

Rational Angels. Understanding the Theological Background of Economic Rationality

In this paper the Author traces back the modern standard theory of economic rationality to the theological backgrond of the theory of Angels as rational decision makers developed by Christian Scholastics.

His main conclusion is that there is an identifiable theological background of modern economic theory of rationality, and that it is this theological dimension that can explain why this theory, so useful as it has been, is anyway based on ‘ontological’ but counterfactual assumptions.

The consciousness of this fact would imply the need for a revised and more complex 'economic ontology’: if rational decision theory is rooted in the ontology of angels, as it was developed by the western scholastics, it becomes obvious that the real problem is not, first of all, to contrast the theory with more empirical observations, derived from the actual behavior of economic agents, but to develop a different ontology, and to reframe, within it, a newer theory of rationality.

Monateri on Ipad's Ontology

L'indice dei Libri, Dicembre 2010

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PG Monateri on Ipad's Ontolgy

The Ipad's Ontology between Ferraris, Benjamin and TS Eliot on
Indice del libri last issue

The Cardozo Electronic Law Bulletin vol. 16(1)

All the Italian National Reports to the World Conference of Comparative Law held in Washington 2010 have been collected and edited by PG Monateri as President of the Italian Association of Comparative Law for the Fall Issue of the Cardozo Law Bulletin

The 538 pages volume stacks together the reports held at the world conference by the most prominent italian scholars in comparative law on behalf of the AIDC as contributions to the Conference organized by the International Academy of Comparative Law.

Citizenship between Law and Political Messianism

A cura di Angelo Barba con prefazione di Pietro Rescigno,

contibuti di Monateri, Caggia, Cordero, Heritier e molti altri

In his contribution Monateri traces back che modern notion of Citizenship to its theological-political background ginving rise to very different cultural constructs in France, Germany, Italy and the United States. 

We do not face a single model of citizenship in the West, but many, and sometimes opposite patterns.

And all these patterns derive from a peculiar historical arrangement of political theology made law.

You may download this paper from here

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 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.

Legge e incarnazione

Riflessioni sul Messianesimo come Stato di Eccezione

Pubblicato sul Cardozo Electronic Law Bulletin