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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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