RISULTATI RICERCA

In this article, the author looks at the most recent Italian edition of Weber’s methodological essays, edited by Pietro Rossi. After presenting the principal new features in this edition, Marra analyses Weber’s essays on law, focusing in particular on Weber’s critique of a book written by Rudolf Stammler in 1906 about overcoming the materialist conception of history. In his essay, Weber postulates a dual existence for legal norms: on the one hand, they can be conceived as ideal norms (from the point of view of the logically correct meaning they express), while on the other they constitute empirical maxims that can be observed in the behaviour of real people. Marra criticises Weber’s premise and the consequences it implies (especially the dual nature of legal science, in dogma and in sociology).

On the basis of a recent book dealing with this issue, this article illustrates the concept of coping, which defines the discursive and action strategies adopted by actors with the purpose of dealing with, dominating and responding to a stressful life event, represented by a stigma. In particular, it is argued that the concept of coping allows space for questioning a deterministic and reductive concept of social control which only recognises the relevance of the processes and mechanisms of social definition and categorisation realised by the actors of control, and their effects on the moral and relational career of the stigmatised subjects. On the basis of this perspective, the deviant or marginalised person become a mere epiphenomenon of social construction processes. Referring to the concept of coping, on the other hand, means underlining the interactive dimension of processes of stigmatisation, which never move in only one direction, and emphasising the reaction and adaptation strategies used by an actor, who is the victim of a labelling process, in order to counteract it.

The topic tackled by this article is the excessive duration of court cases in Italy. The investigation opens with a brief description of the methods used to protect the individual’s rights in the system of jurisdiction established by the European Convention on Human Rights (ECHR) and by European Community Law. The authors then analyse the right to a fair trial, as enshrined in Article 6 of the Convention, dwelling in particular on the right to a trial within a reasonable time and on Italy’s serious, persistent violation of this right, which is so extensive as to have developed into the Italian case, because of the number of sentences that have gone against Italy and the monitoring to which it has been subjected. In addition to listing the various steps taken by the Italian authorities to mitigate the problem of the excessive duration of court cases, the authors focus special attention on Italian Law N° 89/2001 (so-called Pinto Law), which introduced a mechanism for fair internal damages, adapting it from the conventional model in favour of people who suffer a violation of their right to a trial within a reasonable time. Although this law has enabled the dispute pending before the Court of Strasbourg to be scaled down, the authors point out that it has not introduced any substantial reforms aimed at accelerating the trial process itself. The complaints that contest the validity of this measure in the light of Article 13 of the Convention the right to an effective appeal are now before the European Court and are introducing new prospects of conflict and of reappraisal of the Pinto Law, not only by the legislator, but also by judges, who are often at variance with the opinions expressed by the European Court, as is demonstrated in practice.

This article discusses Indian contract law, focusing particularly on the evolution from status to contract, i.e. a process whereby a complex set of duties arising from membership of a community was gradually replaced by a system in which obligations between individuals are made freely. This is known as Maine’s law, a universal law that applies to all societies, but which is particularly relevant to Hindu society, as it was first formulated with reference to this society. At the turn of the new millennium, contract still remains a cornerstone of industrialised nations such as India. However, the demise of the classical concept of contract as theorised in the nineteenth century, and the growing need to defend groups whose contractual power is weak, such as employees and consumers, has reversed this trend. The decline of the doctrine of contractual freedom appears to have caused a return from contract to status.

With the Second Gulf War, the use of arms acquired a constituent ambition: to build a different world order on the basis of the criterion of effectiveness. According to some realist approaches, there is no point in making nostalgic calls for international legality when faced with the effectiveness of preventive war. Law reveals its weakness vis-à-vis the will of states to exercise their power. Yet the disenchantment of the realist who is seduced by the principle of effectiveness neglects the fact that, in an increasingly interdependent world space, it is advisable to have an agreed legal framework. A less legal world does not become safer by any means. The logic of law and of the international institutions therefore comes back into play after the crude grammar of naked force as the most realistic solution.

The concept of war is approached in the framework of the sociological theories of conflict, as the author believes war to be a particular and extreme form of conflict. The relationship between war and conflict is the same as that between genre and species in the classifications. In phenomenology, moreover, conflict is highlighted as a veritable structure of reality in general, and of living beings in particular. Living beings are transformed by natural selection, the food chain decrees the death of the weakest link, the struggle for survival informs every existential relationship and life thrives amid the death of other living beings.The author uses the recent conflict in the Middle East to illustrate Max Weber’s thought by drawing the cultural and religious analogies that exist between Islamic thought and Calvinist thought, reaching the conclusion that the legitimisation of human actions derives from material success. It follows that a war that is won becomes a legitimate, right war. If the structure of life is struggle and war, then death, as the immediate fate of at least part of the adversaries, ineluctably and inevitably awaits all living beings, be they vegetable, animal or human, and the positive aspects of this structure seem to need to be noted, in the interests of avoiding a lapse into Gnostic pessimism. Conflict is also the quest for freedom; war, as the functional equivalent of death, frees the field of the conservative political and institutional fossilisations of the past and opens the way towards the future and social transformations; death then takes the form both of the end of old life stories and of the beginning of new ones.

Processes of globalisation should not only be interpreted as the demise of the borders of nation states, but also as the erosion of the distinctions between public and private, external and internal, that used to be the typical trait of modern political thought and action. In such a condition, a cosmopolitical stance that aims at the creation of a supranational public arena sounds Utopian. Even calls for human rights, understood as moral rights, risk pouring oil on the fires of conflict, rather than containing them. And yet the realistic position is equally unsatisfactory, because it is ultimately bound to categories whose underlying thinking is still based on the state. Social theory must therefore proceed to an overall revision of the traditional opposition between cosmopolitism and realism.

The author describes the present state of war as one of permanent civil war, in that both politically and symbolically the separation between insiders and outsiders tends to disappear. New wars employ a language which criminalizes the enemy at the same time as it calls enemies ordinary criminals. Other features of wars today are described and related to processes of globalisation ungoverned by international political institutions. The crisis of international law and different solutions to overcome it are also pointed out. The role of NGOs and other agencies operating in the field of humanitarian intervention is critically assessed. Finally, what sociology of law might contribute to a better understanding of this complex situation is briefly summarised.

The essay examines the new characteristics of civil law in the age of globalisation, in particular three aspects. The first of these is the crisis in the principle of state-centred law as opposed to the growing rise of the new lex mercatoria as the transnational law of the business community, based on convention and destined to provide uniform regulation of international trading relations, oblivious of national boundaries, and to settle resulting conflicts in front of international courts of arbitration. The second is the crisis of the principle of the nationality of law: the Rome Convention of 1980 makes allowance for law shopping and the citizens of a state may adopt the law of a third state under the terms of a contract, the only exceptions being those imposed by imperative domestic norms. But this limit can also be overcome in cases permitted by special international conventions, as in the case of the Hague Convention of 1985, which enables citizens of Civil Law countries to benefit from Anglo-American trusts. The third is the crisis of the law itself as a source of legality, as contracts between private individuals tend to take their place in many fields of social life, going as far as protecting the general interests shared by the community as a whole; recently, contracts between private individuals have also taken the place of the state as the source of discipline in the stock exchange, which is now governed by a membership contract drawn up by the private stock exchange management companies and accepted by operators when they join for the purpose of entering negotiations.