Il Riccardo di III di Ian McKellen e l'Angelo dell'Anomia

The aim of this paper, written in Italian, is to uncover the subtle links created by McKellen's relocation of Shakespeare's drama in the context of Nazism, passing through the varying political theories on Tyranny, Dictatorship and Despotism, to show how much this work of art anticipated the oncoming debate on the state of exception as the black hole around which the whole of the western legal tradition has been built and crafted.

Download : Academia.edu

RULES V. OUTCOMES: NEW RADICAL APPROACHES TO THE INCOSISTENCIES OF PROPERTY RIGHTS ANALYSIS

Abstract:  the aim of my paper is to show that a consistent economic analysis brought to its logical conclusions should destroy any theory of property rights, and as such it is inconsistent with its own premises, and especially with the ideological presuppositions of quite all of its folloers. The suggested alternative here is a kind of “reversed” Hayek: I mean an active use of historicism and institutional analysis from a political stendpoint that is preciseply contrary to the right wing approach that has been sponsorized by Hayek.

My conclusion is then that maybe we must start afresh from the Scottish Enlightment, which founded the basis of the present analysis of ownership and ownerhip economies, following the Austrian School of Economics toward  radically very different political positions.

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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

The Ontology of Non Peculiary Losses

Author follows the Supreme Court evolving cases in delineating a real 'ontology' of non pecuniary losses and damages, distinguishing pure moral and physical injuries from 'existential' suffering, as a damage to the Person, and not to her Body, recoverable per se, when her fundamental rights are infringed.


L'autore condivide e apprezza l'opera di chiarificazione effettuata dalla Corte di Cassazione nel delineare le differenze ontologiche tra danno morale, biologico ed esistenziale, consentendo la risarcibilità di quest'ultimo in modo del tutto autonomo e scganciato da ogni riferimento al biologico. Si tratta non solo di un'operazione giuridicamente corretta, ma di civiltà : impedire la riduzione della Persona al suo corpo.

Download the Paper at Academia.edu

Monateri on Tobacco Litigation in Italy

P.G.Monateri commenting the Italian Supreme Court decision 

Author tries to show that the case in favor of tobacco producers strict liability is very feeble,and its adoption would insulate Italian Law from world developing theories on tort law and its functions.


"L' autore non condivide il precedente di Cassazione che applica l'art. 2050 alla produzione e smercio di sigarette. Si tratta di una decisione unica nel mondo nel senso di rivolgersi alla 'strict liability' in casi regolati dalla colpa o da dolo (i punitive damages cases negli USA). 
Non vi sono ragioni per ricorrere alla responsabilità oggettiva, questa è costraria al diritto europeo, e isola l'Italia dal resto del mondo."

Download the paper from Academia.edu

Monateri on Cir vs Fininvest

Commento a CIR vs FININVEST. Cass. 21255-2013. A Government from the Judges, by the Judges and for the Judges.

L'autore contrasta la decisione della Cassazione sulla base di considerazioni generali. La principale della quali è il ritorno attuale alla pratica dello Judicare tamquan Deus dei Grandi Tribunali prima dell'avvento della modernità... more

Research Interests: 

Risarcimento Del Danno, Responsabilità Civile, and Torts

Monateri and Chiaves on Italian Tort Law

A newer Book from Kluwer international

A new International book is forthcoming,

affording the whole area of Italian Tort Law in English.

Monateri and Chiaves, International Encyclopaedia for Tort Law - National Monographs   - Italy

The book reached its 3d edition, as a classic in transitional fields;  a complete textbook in comparative law courses for Erasmus and foreign students; a useful guide for worldwide lawyering ….

http://www.kluwerlawonline.com/toc.php?area=Looseleafs&mode=bypub&level=6&values=Looseleafs~~IEL+Tort+Law~National+Monographs~Italy

In the Shadow of an Absent Law. Human Rights and Terror from Eliot to Coppola via Conrad and Brooks

"A Presentation Held at the Annual Meeting of Italian Association of Law and Literature (AIDEL) analyzing the way Coppola produces meaning through deferral giving the Human Rights content to the faceless horrors of Conrad's Kurtz, via... more

Publication Date: 2013

Publication Name: Cardozo Electronic Law Bulletin

Research Interests: 

Law and Literature, Literary Theory, Joseph Conrad, Francis Ford Coppola, T.S. Eliot,and 3 more

Download at Acacemia.edu

Legge, Linguaggio e Costume. Lezioni Magistrali a Suor Orsola Benincasa

L'autore cerca di analizzare l'ambiguo senso dei termini legge e costume con riferimento al problema della articolazione linguistica della legge, per giungere alla considerazione controintuitiva di rivalutare i valori della 'modernità'... more...

More Info: http://www.ibs.it/code/9788863425529/monateri-p--giuseppe/legge-linguaggio-costume.html
Publisher: ESI
Publication Date: 2013

Download Table of Contents at Academia.edu

Research Interests: 

Soft Law, Globalizzazione, Globalization, Hayek, Savigny's Volkgeist Theory, and 6 more

Stasis in Moltmann e Schmitt

Stasis in Moltmann e Schmitt
Pier Giuseppe Monateri

NOW entered in top ten list ever for articles on Theology at ssrn.com


Abstract

The essay introduces an original interpretation of Moltmann’s thought on Christian kenosis, according to the fundamental critical method known as ‘close reading’. On this ground, the Author brings to the surface the complex bulk of literary quotations which give substance to a specific passage in Moltmann’s work “The Crucified God”. Quotations become an intellectual device apt to produce meaning through its proper deferral and suspension. Within this framework, the Author’s main purpose is to put at the centre of the scene the explicit reference made by Moltmann to C. Schmitt’s concept of stasis, in order to explain the self-emptying of God even in a political perspective, as a kind of internal battle within divinity. The theological canon (Christian kenosis as moulded by Moltmann) is conceptually linked to the political anti-canon (stasis and exception as defined by C. Schmitt). In this perspective the structural relationship between Theology and Politics, usually epitomized by the synthetic expression of ‘political theology’, comes to be re-substantiated.

Download: COSMO, 2013, at
http://www.ojs.unito.it/index.php/COSMO/article/view/443

Keyword

kenosis; stasis; Moltmann; Schmitt; political theology; close reading; interpretation; canon; anti-canon; quotation

Full Text


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Location:http://www.ojs.unito.it/index.php/COSMO/article/view/443

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

Eliot on Swinburne : Monateri and a Newer Approach to Language and Reference

The ‘Ontology of Reading’ .Beyond ‘Realism’ and the Problem of Reference Via Eliot and Swinburne.

P. G. Monateri 

University of Turin, Faculty of Law ; Law School, University of Torino (Italy) 
October 28, 2013

Abstract:      
In this paper P.G. Monaterianalyses the way in which T.S.Eliot criticized Swinburn's theory to propose a newer theory of language and reading. First of all we can appraise words more as 'views' than as 'sounds', superseding the structuralist approach of De Saussure, and its philosophical applications, to introduce an 'Iconic Turn' into the proper heart of linguistic theory itself. Secondly we may try to introduce a newer concept of 'reading' as 'ontological reading', to bypass the divide between traditional American Close reading and the 'Theory' as it has been introduced by Paul de Man.
Moreover the paper is a first attempt to redefine the problem of reference reframing the same matter of reference.
In this way a direct plunge into literary theory and literariness can bring a new light to the appreciation of their social and political impacts.

Number of Pages in PDF File: 15

Keywords: Literary Theory, Eliot, Swinburn, Poetry, Close Reading, Reference, Language, Linguistics, Human Studies, Interpretation, Poetry, Law and LIterature

JEL Classification: Z00, K40

working papers series The 'Ontology of Reading'

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 to Inaugurate European Gaius

Rome june 10, 2011 at the Consiglio Superiore della Magistratura 

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 Images of Law and the American Sublime

Monateri is going to held a conference in Verona, at the Law and Literature Italian Society Annual Meeting, on the Images of Law and The American Sublime
The coference is centered around Harold Bloom's interpretation of Emerson and the birth of the American Sublime, with particular reference to the Hudson River Paintng School, to investigate how these ideas may be traced behin the actual representations of Law within the rethorical package of the Rule of Law as disappearance of decision in favor of a depicting of Law as an impersonal tool of government

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