Rivista Internazionale di Filosofia del Diritto


2-2014



Indice


studi

Paolo Grossi, Il diritto mite di Gustavo Zagrebelsky. Una rilettura ventidue anni dopo

Robert Alexy, Certezza del diritto e correttezza

Guido Alpa, Il controllo giudiziale del contratto e l’interpretazione

Francesco Paolo Casavola, La Chiesa e la comunità politica nella Gaudium et Spes 76 e a cinquant’anni dal Concilio

Amedeo Giovanni Conte, Paolo Di Lucia, Protónimi. I tre primi nomi della deontica

Raffaele Bifulco, La c.d. costituzionalizzazione del diritto internazionale: un esame del dibattito

Filippo Cancelli, Res publica e princeps di Cicerone. (II)



SPORE

Emil Mazzoleni, La Bella addormentata nel bosco: analisi storica e giuridica



NOTE E DISCUSSIONI

Murray N. Rothbard, Libertà e Proprietà: Locke e i Livellatori

Lorenzo Castellani, I contributi del pensiero libertario contemporaneo all’attuale dibattito giusfilosofico. Su Liberty and Property di M. N. Rothbard



SCHEDARIO

Juan López De Palacios Rubios, De las islas del mar océano (libellus de insulis oceanis) (F. Todescan) – Irti Natalino, L’uso giuridico della natura (L. Ercole)






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Il diritto mite di Gustavo Zagrebelsky.

Una rilettura ventidue anni dopo

Paolo Grossi


Abstract

In this essay the Author credits Gustavo Zagrebelsky, former President of Italian Constitutional Court, for leading the public law debate into a new turn.

By introducing the notion of ‘mild law’ in 1992, Zagrebelsky meant to underline the transition from Rechtsstaat – expression of a unique social class (bourgeoisie) – to Constitutional State, realm of plurality and complexity of law.

While Modern State intended to reduce the diversity of society providing a unique legal source, Postmodern law make us aware that rules made by legislator are just one of several facets of law. Thus, culture of rights, expression of ‘hard law’ and feature of individualist societies, needs to be complemented by a new culture of duties – rehabilitated from pre-modern time – in order to contrast the effects of radical subjectivism.




Certezza del diritto e correttezza

Robert Alexy


Abstract

In his paper Alexy opposes his model of legal reasoning, founded in Discourse Theory, to both Dworkin’s cognitivistic and Kelsen’s decisionistic models. To this purpose, he shows that his Balancing Theory is able to reconstruct the Radbruch Formula. In this respect, Alexy firstly establishes the two principles of Radbruch Formula, that is legal certitude and correctness, in his thesis of “the double nature of law”, according to which the law should have both an ideal dimension, bounded to correctness, and a factual dimension, bounded to legal certitude. Successively, Alexy applies the Law of Balancing to both competing principles.




Il controllo giudiziale del contratto e l’interpretazione

Guido Alpa


Abstract

In the Italian legal system the provisions concerning the interpretation of contracts are drafted in the Civil Code, arts. 1362-1371. Their application is directed to understand the parties’ common intent and the meaning of the agreement they have made, according to subjective and objective criteria. These provisions are considered “legal rules”, not mere suggestions which could be derogated by the judge. However, this verification is connected to the merit, so that the Court of Cassation can control the legitimacy of the hermeneutic proceedings applied by the judge with reference to the list and precedence of the provisions, to their proper application, to their meaning correctly understood. From a recognition of the case law two different kinds of rules emerge: those created by judges assigning a meaning to the written provisions and those created by them using their discretionary power. As those rules are not always applied in the same way, it is necessary to point out the acquaintances of judicial interpretation from time to time in order to assure the uniform application of the law. It is a difficult task, not always fruitful.




La Chiesa e la comunità politica

nella Gaudium et Spes 76 e a cinquant’anni dal Concilio

Francesco Paolo Casavola


Abstract

The issue of the connection between the State and the Church can not be limited to the analysis of two mere political institutions. Otherwise, we would lose sight of the deeper dimension of a reconciling setting that, however, assumes as a priority the recognition of the spiritual as the temporal level.

This is discussed in chapter 76 of Gaudium et Spes throughout reflections that do not call into question the principle of secularism in the politics nor the diversity of each other’s competences, but the duty of both to be at service of the mankind and the social community, with renewed values and religious principles. The Agreements  had implemented the changes taking place and, because of the spreading of Catholicism and the consequent renewal of the institutional life, they had removed any reason of dissent in respect of each other’s autonomy and independence. The intertwining of religious and civic values is a reality that demands the recognition of the man as a citizen, just as his spiritual essence that names «the transcendent feature of the human person» (GS 76.1580), in a constant cross-reference to one another: only a community that is also ‘political’ is able to safeguard and guarantee through the establishment of the law, the free practice of his own beliefs, becoming in this way the endoskeleton of the equality principle among the many professions of faith.




Protónimi. I tre primi nomi della deontica

Amedeo Giovanni Conte, Paolo Di Lucia


Abstract

“Deontics” (19th century) was born before “deontic logic” (20th century). Especially, the idea of a science called “deontics” appears to have arisen in 1876, in a posthumous work by the British philosopher John Grote [1813-1866], seventy-five years before the birth of the term “deontic logic” by the Finnish philosopher and logician Georg Henrik von Wright [1916-2003], in 1951.

As Amedeo Giovanni Conte and Paolo Di Lucia have discovered, Grote’s “deontics” (1876) is the earliest of the first three names of deontics. The other two first names are the German term “Deontik” (1926) and the Polish term “deontyka” (1936).

The present essay Protónimi. I tre primi nomi della deontica. Protonyms. The first three names of deontics reconstructs the history of the neologisms “deontics” (Grote 1876), “Deontik” (Mally 1926), “deontyka” (Auerbach 1936).




La c.d. costituzionalizzazione del diritto internazionale:

un esame del dibattito

Raffaele Bifulco


Abstract

The paper focuses on the intense debate concerning the constitutionalization of international law. The author tries to identify the key points of the discussion, gathering the different theoretical proposals together. The complexity of the questions relating to international constitutional law highlights the need for new methodological approaches that take into consideration the increasingly narrow relationships between international and constitutional law.




Res publica e princeps di Cicerone. (II)

Filippo Cancelli


Abstract

The translation of iuris consensus is shown to be erroneous, a concept on which the definition of res publica laid down by Cicero in De re publica depends, because iuris consensus is not the consent of the population to law but the attribution of civil and political rights to the population in accordance with the degree of dignity of each citizen. It is also shown that contrary to popular belief the princeps designated by Cicero is neither the sovereign or monarch of the res publica nor the model of senators but rather the ideal politician, one or more but always with others, more capable and prepared to lead the civitas and to govern the res publica.




Libertà e Proprietà: Locke e i Livellatori

Murray N. Rothbard


Abstract

The article Liberty and Property: the Levellers and Locke by Murray Newton Rothbard discusses the role played by the group of Levellers during the English Civil War and the intellectual and political vision of this. The author points out that the Levellers were the first Anglo-Saxon political group that became the bearer of principles that can be considered the basis for the development of libertarian thought. Finally, Rothbard points out the relationship between the doctrine of the Levellers and John Locke, the most important thinker of classical liberalism of the seventeenth century, indicating the mutual influences in the development of modern liberal thought.




I contributi del pensiero libertario contemporaneo all’attuale dibattito giusfilosofico.

Su Liberty and Property di M. N. Rothbard

Lorenzo Castellani


Abstract

The comment to the translation of Murray Newton Rothbard’s article explores the relations between libertarianism and classical liberalism. It presents the basic principles and philosophical argumentations presented by libertarians. It underlines how the libertarian theorization tends to overcome the framework of the liberal constitutionalism.