2) What implications for the future of Law and Humanities?
Since the common law and the italian law systems originated from (and are based on) completely different backgrounds, societies, histories (and so on...), the differences between the two of them are obviously many and profound.
In my opinion, the biggest difference is the role of the judges in the society. The value that earlier judicial decisions have in the case law gives to them a great responsability. A decision that differs from earlier ones could be difficult to take, but it often can be taken, particularly in the cases that involve the most controversial matters (that most of the times present less law boundaries).
This is the great responsability: the judge has enough manoeuvring room to take one particular decision, or the opposite one. He can choose between two opposites, or anyway among a very wide range of potential judicial outputs. Doing so, if his decision differs from earlier ones, he creates a precedent upon which other judges could base their decisions, thus creating a judicial trend that could lead to a principle, that could lead to a law.
In Italy this mechanism can’t be reproduced, or if it can (i’m thinking about the “nomofilachia” of the Cassazione, and about the weight that some Costitutional Court’s decisions have had on the legislation) it has different and smaller implications. What’s certain is that the ordinary judges have no room to choose between two completely different outputs. Their choise could only be between two slightly different interpretation of some rule, or something like that.
The real decisions about every legal aspect of our lives are taken by the political engine: the Parliament and the Government. There’s only one way to create rules that could be applied to everyone, no matter what’s the particular case: creating general and abstract disciplines, complete and logic law systems, thousands of articles collected in codes. The judge will have to look for the rule to apply to his case, and when he finds it there is not much to interpret, not many possibilities to choose between.
That big responsability, that italian judges don’t have (or have in a different, smaller way), make the american judges the engine of the legal evolution of the country (it’s called case law). And when a country evolves legally, it evolves also from a human point of view. “Legal” means people’s rights, justice, fairness, equality. If a society evolves nowadays, it evolves by legal means. That’s why it could even be said that the judges are the moral and ethic “guides” of the american society. They scout the new frontiers of legal, therefore human, evolution in America, and then often lead the rest of the people to those new “places”. In the civil law countries the judges are bound by the strict limits of the law and that fundamental role is appointed (or it should be) to the Parliament.
I think this is why the Law And Humanity movement was born in the States. The role, the effects and the everyday work of the judges go so beyond the simple application of some particular rule that I think it was almost natural, if not compulsory, adding those “ands” to the law. And obviously this is why that movement hasn’t yet spread through Europe with all his meaning and power.
The differences about the legal education, the way the law is teached in the universities, are simply consequential. In the States future attorneys and judges are trained by analysing and discussing and reasoning about practical cases, because that is what they’ll have to do next. In Europe, and particularly in Italy, what law students have to do is studying and memorizing the law systems and the code disciplines that the Parliament and the Government have produced, because they will have to know and immediately recognise the particular rules to apply to the cases they’ll be working on.
It has to be said that the differences i’ve been talking about are not so black and white. For instance, the percentage of codified law in the States has been growing, and so are consequently the rules that law students has to simply memorize. On the other hand, there are examples in Europe of “mixed” law teaching, as it happens in France, where law students take classes of both types (“discussing cases” and “memorizing laws”). This could be a good example to follow also here in Italy.
About the Law And Humanities movement: I’ve already spoken about the reason why it hasn’t yet completely spread in Europe and Italy, but i think there could be room in the future for it to grow here as well, maybe with different features. I don’t think italian judges will ever produce judicial decisions full of literary quotes or worthy of the attention of narrative writers. Our decisions are very “technical” and there’s rarely room for moral, ethic or philosophical reasoning. For example the Cassazione can only analyse the cases from a legal point of view, and can never go into the matter. Maybe the more “literary” decisions are those of the Constitutional Court. Nontheless, some aspects of the strands of the Law Ands movement could be applied to our decisions too.
As for the “Law as Language” strand, there’s no reason why we couldn’t use the engaging contraries and paradox logics to analyse italian judicial decisions, even if italian judges have a smaller range of potential outputs to choose among (so that it should become “engaging different interpretation of the same rule”). On the other hand it is hard to imagine a judge being aware of subjectivity, because simply there should be no subjectivity in his decision no matter what (in the tradition of the french enlightment principle that saw the judge as a pure “bouche de la loi”). An italian judge will more likely be aware of the objectivity of his decisions.
The second strand (“Law as Empathy”) present the greater difficulties to be applied here. I just don’t see the usage of moral point extracted by novels to produce judicial decisions coming here in Europe soon.
The “Law and Narrative” strand is maybe the best way to approach the Law and Humanities movement in Italy and Europe. I don’t see any obstacles for it to be applied and used here. I even think it could be a fundamental tool to add to our legal environment. Legal narrative and, more importantly, legal storytelling would increase the awareness about inequities and gaps of our codified system, stimulating the parliament to do something about them, as much as petitions do. Sometimes the indignation of public opinion can be more effective than any project of law presented by the members of the Parliament. They couldn’t be assessed as scholarship, but i think the most interesting and accurate stories could be picked and published in the major legal magazines. If the future holds in store for our country some development of the Law Ands movement, i think this third strand could be the best start point.
Lorenzo Marziali
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