1,721,191 research outputs found
The communication theory as a phantom
No full textThe essay criticizes Mark Greenberg's standard picture of law by stating that no one really defends this picture in legal theory. The Authors argue that the legal positivistic perspective is completely different from Greenberg’s perspective. According to Greenberg, we should start from what law really is and then say how legal actors (and especially legal interpreters) should act. By contrast, legal positivism starts with how legal actors (including legal interpreters) act and then says how the law is. Poggi and Gizbert-Studnicki argue that Greenberg has the burden to prove that what law is could be grasped regardless of what the legal actors actually do, yet his theory fails to do it. Consequently, what method of interpretation is correct does not depend on the answer to the question of which more basic facts metaphysically determine legal facts. This question is answered by a theory of validity, which is independent from any normative theory of interpretation
Violenza di genere e Convenzione di Istanbul : un'analisi concettuale
No full textThis essay aims to analyses the concept of ‘gender violence’: starting from a brief reconstruction of the problems related to the concepts of ‘gender’ and ‘violence’, the author distinguishes several possible meanings of the expression ‘gender violence’ and, then, she raises some critical remarks to the definitions adopted by the Istanbul Convention on preventing and combating violence against women and domestic violence
Contextualism, but not enought : a brief note on Villa’s Theory of Legal Interpretation
No full textThis essay examines the pragmatically oriented theory of legal interpretation proposed by Vittorio Villa, arguing that, despite its originality and merits, this theory does not yet recognize its proper place for the context. In particular, the author criticizes the thesis according to which meaning is a stratified concept arguing that this thesis does not describe the actual practices nor it fits to some others Villa’s thesis. Moreover, the author claims that Villa’s brilliant intuitions about (legal) interpretation would be better developed if he adhered to a more radical form of contextualism (i.e. a form of contextualism which admits, and which is able to account for the fact, that semantic and pragmatic factors influence each other so much that it is difficult to distinguish them and, in any way, pragmatic factors can overwhelm the semantic ones). According to the author, this would also allow Villa to account for some peculiarities of the legal practice that do not seem to find a suitable placement within his theory (at least at this stage of its development)
Conflitti pratici : quando il diritto si presta a differenti interpretazioni moralmente orientate
No full textThis essay deals with some issues that Damiano Canale has examined in his recent book "Conflitti pratici. Quando il diritto diventa immorale". In particular the author focuses on the role of practical reasoning and on the function of the theories of law respect to legal adjudication
Tra il certo e l’impossibile : la probabilità nel processo
No full textThis essay aims to examine some of the most common mistakes related to the comprehension of probabilistic data and to move some criticisms against recent case law which seems based on similar misunderstanding. In particular, the author analyses the relevance of probabilistic data with regard to the Dna Fingerprinting results and proof of causation in nonfeasance cases
Diritto, retorica e realtà
No full textThis essay examines some of the theses put forward by Federico Puppo in
his recent book Diritto e retorica. First, I will briefly summarise the structure of the
volume and some of the most innovative ideas advocated by the author. Subsequently, I will make some critical remarks on two central points of Puppo’s theory: the defence of innatist theses (§2) and the idea that value judgements bear truth values (§3), attempting to show how these points are connected
L’autonomia in bioetica : a proposito di un libro di Marina Lalatta Costerbosa
No full textUna bioetica degli argomenti by Marina Lalatta Costerbosa (2012) addresses some complex issues about the concept of autonomy and its role within some bioethical dilemmas: in particular, it engages with two questions connected, respectively, with prenatal testing and cloning. In this review the author, after having recognized the undoubted merits of the book in question, moves some criticisms to the concept of autonomy employed and to the solutions proposed
La Teoría General del Derecho como análisis de los conceptos teóricos fundamentales del ordenamiento jurídico
No full textThis essay proposes a conception of the general jurisprudence as a conceptual analysis
aiming at inquiring the fundamental theoretical concepts of a given legal system. The
author clarifies her proposal by analysing its key-terms, and, in particular, by explaining
what should be the object of the general jurisprudence, in which sense it should be
said “general”, what should be its methods, its epistemic status and its relations with
related disciplines
Sull'insanabile conflitto tra autonomia individuale e indisponibilità del bene salute : il caso del TSO per malattia mentale
No full textThis essay examines the current Italian law about obligatory health treatments for
mental illness in the light of the relevant constitutional provisions. In particular, it
argues that, according to an originalist interpretation, section 32, paragraph 2, of
the Italian Constitution incorporates a paternalistic approach. However, such an approach
has been partially overcome by Italian jurisprudence and case law through
the enhancement of two elements, implicit in the constitutional norm: the collective
dimension of the right to health and the value of personal dignity. Nevertheless, the
author claims that these new interpretations are not suitable to carry out a less illiberal
reading of the law about obligatory health treatments for mental illness, but,
if anything, they stress its internal tensions, which can be traced back, ultimately, to
the conflict between the value of self-determination and that of health. In the last
paragraph, the author advances a proposal, de jure condendo, in favour of a more
liberal legislation that would protect individual freedom without compromising the
therapeutic needs of people suffering from mental illness
Grice, the law and the linguistic special case thesis
No full textThis paper aims to investigate the applicability of Grice’s theory of conversational implicatures to legal statutes and other general heteronomous legal acts (while acts of private autonomy are excluded from the scope of the present investigation). After a brief presentation of Grice’s theory Sect. 1 and an attempt to adapt conversational maxims to normative discourse – which is assumed to be neither true nor false Sect. 2 – I will survey one of the most convincing arguments against the applicability of conversational maxims to the legal domain, the one based on the (absence of a precise, real) legislative intention Sect. 3 . I will argue that this argument is not decisive, but that, however, conversational maxims do not apply to legislation: as a matter of fact, legal practice does not include Grice’s conversational maxims among its conventions Sect. 4 . This inapplicability, which derives from the very nature of the cooperative principles and the maxims, fits other peculiarities of legal practice: perhaps the most relevant is what we may call the contextual indeterminacy of legal discourse, a characteristic that is rigidly coupled to its conflicting nature. I will claim that all these features explain why legislation and other general heteronomous legal acts are not special cases of ordinary conversations Sect. 5
- …
