RISULTATI RICERCA

Koinoniología tou Dikaíou (Sociology of Law) by Thanassis Papachrístos is a handbook with an agile, unconventional structure: ideas and critical propositions follow a particularly free logical concatenation. Sociology of law is not only a sci-ence, but also a dynamic, reactive mental attitude: it creates more aware legal op-eratives who are better prepared to interpret complexity. One theme central to the author’s thinking is that of the legal neo-pluralism of the current day. Globalisa-tion does not always mean uniformity; on the contrary, it sometimes conceals an even more complex legal stratification. Even within individual countries, a new form of pluralism is emerging. The law of the state fulfils the function of conduc-tor of the orchestra of legal orders of various different kinds. The need to restrict state law in favour of other normative systems is expressed in the name of deregu-lation (cf. the theorists of neo-Liberalism). All this takes place without ceasing to use the tool of codification.

The interactions between the normative discourse of the judiciary and that of scientists have always constituted a thorny problem in the establishment of proof in front of courts. Another problem area has now risen to increasingly significant di-mensions: how the machinery of the judiciary disciplines social scientific phenom-ena. Although there is nothing new about this problem, Sheila Jasanoff’s book about science at the bar demonstrates its richness and inevitable tensions, which are often more sinister than the author’s calm approach would appear to indicate. In particular, positivistic hallucinations à la Comte appear to be raising their heads again in the conviction that everything is transparent for scientific knowledge and that, as a consequence, jurisprudence has no choice but to act for the best, putting complete and untroubled trust in the progress of scientific knowledge.

This article considers the linguistic and communicative structure of injustice. According to the author, the cultural and social conditions characteristic of ad-vanced modernity have put claims for justice beyond appeal. One of the main causes for this situation is the formalism of modern jurisprudence, which has been restricted to specialists. The power of this specialist culture reduces language to a functional level, preventing any form of communicative interaction. Injustice therefore can only be disclosed by the invisible humiliation and the silence of those who have been excluded from the community of speech.

Truth is claimed to be relevant to action and vice-versa. The question is whether this relation between truth and action also applies to legal action. The argument is developed from a pragmatist approach, the central thesis being that beliefs have truth conditions which are identical to the success conditions of those actions per-formed on the basis of those same beliefs. The final claim is that truth is not a suf-ficient condition for a legal action being successful. Instead, legal action has more complex success conditions.

Hans Albert has used German expressions such as Verhaltenswirksamkeit einer Norm and verhaltenswirksame Norm to refer to norms which somehow affect actions. A norm can therefore be called verhaltenswirksam not only in some cases of compliance, but also in some cases of behaviour that is non-compliant or insignificant (from the point of view of some author of the norm), such as in the famous instance of Max Weber’s thief. Amedeo G. Conte has proposed translating verhaltenswirksam and Verhaltenswirksamkeit into Italian as praxeotropico and praxeotropismo respectively. In this article, Fittipaldi tries to analyse the re-lations among the usage of these words and the usage of other technical expres-sions of the sociology of law such as norma (norm), enunciato normativo (normative proposition), efficacia (efficacy), (nomotropismo ) etc.

ons and Meanings (di Claudio Luzzati) - ABSTRACT: In this paper, the author tries to draw a crucial and frequently ignored distinc-tion between meaning as a rule of use and meaning as an instance of use. As a con-sequence, a rule, to which no truth value can be attached, can be distinguished from a proposition, which of course can be qualified as true or false. The situation, indeed, becomes much more puzzling if we consider the fact that statutes, too, are rules: legal rules, but not linguistic rules. Furthermore, to grasp the root of the problem, we have to focus on the distinction between type and token and on the distinction between language and word.

This paper emphasises the importance of abduction in many enquiries in which the validity of norms or general principles are gathered from facts. First, it is shown how the kernel of abduction is an argument of the form: if a given hy-pothesis is true, then some consequences take place; in fact the consequences take place; therefore, probably, the hypothesis is true. Here the consequences play the role of hints or signs of the hypothesis. Moreover, abduction strength is analysed in the light of Bayes’ famous theorem. Next, the author shows how abduction may be employed in enquiries both of sociology of law and of legal science: in the first case in the form if a norm is valid, then some behaviours hold; in fact they hold; thus, probably, the norm is valid; in the second case in the form if a legal system is inspired by a given principle, then some statutory laws must hold; actually they hold; thus, probably, the legal system is inspired by the principle. Some remarks about further uses of abduction within the frame of law as well as in other fields of investigation conclude the paper.

The author aims at drawing up a taxonomy of meanings of the general concept of action and using it as a basis for identifying characteristic semantic oppositions. He therefore proposes to channel the taxonomy towards three fundamental notions: behaviour, action (in the strict sense) and practice (in the praxeological version). A verification of potential connections between the contributions present in this syl-loge, but also more generally between the approaches traditionally adopted to the theme of action, enable the permanence of methodological demarcation lines to be determined.

According to Hans Kelsen, validity is a quality of law, the so-called efficacy is a quality of the actual behaviour of men and not, as linguistic usage seems to sug-gest, of law itself. The statement that law is effective means only that the actual behaviour of men conforms with the legal norms.The starting point of this essay is Kelsen’s paradoxical thesis, according to which efficacy is not a property of norms, but a property of behaviour. But what exactly is meant by the statement that behaviour conforms with norms? Is there such a thing as efficacy without conformity? How, then, do norms affect behav-iour? The author investigates the many relationships between norm and action and, using Max Weber’s criteria of the rationality (Rationalität) of social action, distin-guishes four types of rule-responsive behaviour .

Sociological tradition has explained factuality by using normative suppositions. In so doing, since it lacked a theory of society, it has denied itself the possibility of explaining the normative nature of norms. This it has sought in the realm of Ought, which it has adopted as an a priori condition, while it was actually another de-nomination for the same problem. Sociology of law, too, has adopted this norma-tive point of view of normative nature and it, too, has claimed to describe the cur-rent world from that point of view.The author adopts an historical-evolutionary stance, the stance of a theory of evolution that enables modern society to be described as the result of the evolution of structures and of semantics that describe those structures. Action is one of those semantics. The historical-evolutionary observation of this semantic opens the way to the sociology of law. It may consider norms to be facts and elaborate a concep-tual approach that enables the fact that is the norm to be described from the point of view of the generalisations immanent to the factual production of meaning. This conceptual approach would in turn enable the sociology of law to observe and ex-plain those processes that typify world society today and show themselves in the tendency to expand and stabilise a cognitive style in the structures of social sys-tems and to restrict the normative style accordingly. A sociology of law of this kind may be able to describe the so-called reality of law using more refined tools of observation than the old distinction between law and society.

The paper analyses the significance of the most recent works by Amedeo G. Conte for a theoretical approach to social action that escapes the risks of misplaced abstractness, to which the sociology of law is always exposed. The stress on the linguistic nature of the law, as an historical and cultural consequence of its proc-esses of institutionalisation, compels the sociologist to focus on the role of media-tor played by legal culture in determining what counts as a legal norm for social action. By thus avoiding both the reification of the content of these norms and the trivialisation of the description of the action, it is possible to revive the procedural, reciprocal and reiterative relevance of action to legal norms as specific institution-alised and procedural phenomena.

The word ‘unomia’ is a neologism coined by the author, as the combination of two well-known words: Utopia (Thomas More) and Anomie (Emile Durkheim). Unomia is an epistemic predicate; it is a predicate of knowledge of facts: the uno-mic knowledge of facts is knowledge which does not make reference to rules (to nómoi). Is the unomic knowledge of facts possible? In order to answer this ques-tion, the author uses two new concepts: nomotropism and eidotropism. The third part of the paper deals with the paradoxes of nomotropism and the paradoxes of eidotropism.