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Law and Language: The Italian Analytical
School
INTRODUCTION
by
Anna Pintore
(for footnotes to this Introduction, click
here)
1. This Book
The purpose of this collection is to offer the English-speaking
public a selection of writings by the Italian analytical school of legal
philosophy and general theory of law. I hope that the essays translated
here will help in promoting an interest in Italian analytical legal thinking
among legal scholars in English-speaking countries, an interest that up
to now has not been proportionate to the undoubted good quality of much
of the Italian work in this area.
I suspect that the language barrier has been the main
obstacle to a wider diffusion of Italian analytical-legal writings in English-speaking
philosophical circles, particularly those influenced by philosophical analysis.
Indeed, this introduction proposes to show that there is an extensive common
area of themes and problems discussed by both English-speaking writers and
in Italian analytical legal philosophy and that much the same authors are
commented upon, criticized or taken as the starting point of further research.
Themes and problems will be mentioned further on; as for the common authors,
suffice it to say that Italian analytical-legal philosophy, from its very
origins, has expended much energy in dealing with Wittgenstein, J.L. Austin,
Searle, Hare and the other fundamental authors of philosophical analysis.
With regard to legal philosophy itself, the major point of convergence is
represented by the ideas of Hart, the author most widely discussed and criticized
by second-generation analysts (in this anthology Hart is central to the
essays by Gavazzi, Catania and Jori).
The essays presented herein are all by Italian authors
deeply influenced by the exceptional figure of Norberto Bobbio, spiritual
guide of the school and a philosopher deeply engaged in Italian scientific
and political life. The essays were not chosen for having a similar or connected
subject. On the contrary, I have tried to offer a cross section, as representative
as possible, of this philosophical approach. In this way we can see, through
the writings of its most prominent advocates, just how vast are the interests,
and how varied are the ways of understanding and practising analytical philosophy,
present in Italian legal culture today.
This introduction gives a mere sketch of the history and
salient features of Italian analytical legal philosophy. I hope thereby
to give the reader a better understanding of the contributions in this volume.
[1]
2. Bobbio's School
The birth of the Italian analytical school is usually
said to take place in 1950, the year in which Scienza del diritto e analisi
del linguaggio by Norberto Bobbio, the first of the essays herein, was published.[2]
Enrico Pattaro has called it the "programmatic manifesto" of the
new trend.[3] In this 1950 essay, Bobbio dealt with the venerable problem
of the scientific nature of doctrinal jurisprudence and gave it a positive
answer. In fact, in his opinion, the work performed by the jurist on law
could in many ways be compared to that of the empirical scientist, provided
that a neo-empiricist model of science be adopted. Twenty years later, Bobbio
re-examined the same problem and came up with a different answer which repudiated
many points of his "seminal" thesis of 1950.[4] But by that time
the 1950 essay had already accomplished its role as the manifesto of the
new school; a manifesto not so much in that it was taken as a definitive
solution to the specific problems dealt with, but because Bobbio's essay
had approached the age-old problem of legal science in a new way which set
the agenda for all further discussions on this subject among Italian legal
philosophers of the analytical bent. Bobbio's essay was the first, in Italian
legal culture, to consider law as a language and legal science as a meta-language
having as its object the language of law. For the first time in Italy the
epistemological model formulated by neo-empiricism was used as a parameter
in assessing the scientific nature of jurists' work on law. Bobbio thus
introduced into the climate of Italian legal philosophical studies, which
idealistic fogginess had made rather stale, the disciplines of epistemology
and semiotics.
The novelty of Bobbio's approach was even more profound
and evident if we consider that he applied the new tools of linguistic analysis
and neo-positivist epistemology to a conception of law that was substantially
Kelsenian.[5] Pattaro, in describing this operation, used another felicitous
image, in speaking of the grafting of logical empiricism and analytical
philosophy on to the legal positivism of Kelsenian inspiration.[6] Bobbio's
essay was followed in the next few years by some fundamental works by Scarpelli,
which were devoted to the problem of defining the concept of law and to
the semiotics of normative language.[7] Since then, several generations
of legal philosophers, and also some adventurous jurists, have been influenced
by Bobbio's and Scarpelli's works. The essay by Andrea Belvedere, a professor
of civil law, on the 1942 Italian Civil Code, is an excellent example of
the use of analytical tools by a scholar of positive law and has every right
to be included in this anthology .
These brief observations on the birth of the Italian analytical
school of philosophy and theory of law are, I think, sufficient for the
aims I have set myself. Those who wish to learn more should consult the
essay by Pattaro in this volume, as well as the works cited in the footnotes.
Summing up in a few lines the history of Italian analytical-legal
philosophy from 1950 to the present is a nearly impossible task. In order
to make things as simple as possible, we may use another date, 1965, the
year in which Bobbio's collected essays Giusnaturalismo e positivismo giuridico,
and Scarpelli's volume, Cos'è il positivismo giuridico were published.
[8]
According to many analysts, the year 1965 represents the
watershed between two periods: a first period of the Italian school of analytical
philosophy of law, characterized by its legal-positivism (a legal positivist
phase) and a second period, when many of the basic theses of the first period
came under heavy criticism, but were not forgotten. This has been called
a phase of "post legal-positivism".[9] We know that the Italian
analytical school was born, with Bobbio, as a (legal)positivistic approach.
This must not, however, lead us to believe that different orientations were
not present within it almost from the beginning. A group sympathetic to
the North American and Scandinavian legal realist movements appeared early
and immediately occupied a central position in analytical discussions. This
especially owed to the works of Tarello and Pattaro, but even of scholars,
such as Gavazzi,[10] who cannot be classified as legal realists tout court.
Nonetheless, on the whole the first period of the school can be correctly
labelled as that of legal positivism, since this orientation was preponderant,
and above all since the problem of legal positivism represented the unifying
element of the analytical debates in those years.[11]
The two works published by Bobbio and Scarpelli in 1965
turned analytical discussions in another direction and, in the eyes of some,
went so far as to sign the death warrant of analytical legal positivism.
In any case, Bobbio abandoned his old positions when he concluded that a
scientific and value-free approach to the study of law led inevitably to
emphasising the evaluative and political nature of positivistic legal science:
therefore adhesion to legal positivism in its most acceptable sense of a
value-free position towards each legal system led inevitably, in Bobbio's
opinion, to the discovery that the work of jurists is neither scientific
nor value-free.[12] As for Scarpelli, he declared himself a legal positivist
but, in contrast with Bobbio, he thought that being such meant taking a
political standpoint. Scarpelli's thesis is that legal positivism is not
a purely descriptive and theoretical approach but rather presupposes a prior
political choice in favour of a certain definition of law as the object
of description (in Kelsenian terms, this is the choice of a basic norm).
Far from being a value-free and scientific approach, legal positivism even
as a method of legal description is thus for Scarpelli the rationalisation
of a political involvement in favour of, firstly, a certain notion of positive
law and, secondly, those legal systems which correspond to this notion,
i.e. systems which are, on the whole, effective. In a nutshell, Scarpelli
considers legal positivists as those who choose, whether as judges or as
doctrinal jurists, to bow to the legal powers which are in force in a given
territory at a given time. Scarpelli holds that this position is ethically
acceptable and preferable to other theoretical positions in the field of
law, but only when such obedience is paid to morally acceptable legal systems,
which for him means a constitutional and democratic legal system.
I do not mean to give the impression that after 1965 all
Italian analysts were suddenly converted to legal realism. However, many
are of the opinion that the very founder of the school, Bobbio, came nearer
to the positions of the legal realists because of the interest he has taken
in the problem of the function of law in his more recent works. [13]
In any case, few Italian legal philosophers of the analytical
persuasion would at present call themselves legal positivists;[14] furthermore,
today's analytical positions certainly appear less definite and less easily
circumscribed than they were in the past. Nonetheless, within the Italian
analytical school the age-old legal-philosophical conflict between legal
positivism and legal realism is still in full swing. It is now mostly fought
on the semiotic ground, in terms that differ only partly from those of the
past, and are closely connected with the analysis of law conceived as a
language. We can thus describe it as a conflict between those who think
that norms or rules are central to a semiotic analysis of law and those
who believe that rules or norms, beyond appearances, play no real role in
the workings of legal language (a normativistic semiotics versus an anti-normativistic
semiotics).
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