RISULTATI RICERCA

A comment is made in this article on a recent book by B. Montanari on catgorical imperative (Potevo far meglio? Saggio sull’imperativo categorico, 2002). We must keep away from the two equally harmful extremes of taking thoughtless action and taking refuge in that hesitant, uncertain reflection that condemns us to take no action whatsoever, or to take no action in good time. That is why it is not enough for us to ask ourselves Can I do better? : we must also ask ourselves Could I have done better?. Once an action has been taken, criticism can be exercised to the full without running the risk of paralysing the action. We must not shut ourselves away from the question, remaining prisoners of the idea that what is done is done. On the contrary, for the very reason that it is done, we have an opportunity to think it right through again from the beginning with a critical spirit, not the spirit of destructive criticism, but that of constructive criticism, of the kind that does not set hurdles in the way of the smooth flow of life, but improves life.

François Ost’s recent Raconter la loi (Odile Jacob, Paris 2004) is a fascinating venture that has the great merit, among many others, of thinking about the conceptual nuclei of Law & Literature especially in the direction he adopts of law in literature from a typically European perspective. The author’s central theme is that every policy and every law always springs from a foundation of a tale, which actually acts as a literary matrix for every symbolic struc-ture of human cohabitation. He argues that it is from the imaginative artistic dimen-sion underlying the tale, comprising the imaginative component and the structural component given by language and by the rules that govern narrative, that all the cul-tural products of a given human society derive, with the consequence that law (like any other semantic) should be understood more properly as literature, at least as far as its origins are concerned. Ost then moves from this basic premise to analyse some of the most intense works of literature in the history of Western culture, such as Genesis, The Oresteia, Anti-gone, Robinson Crusoe and Faust, concluding with Kafka’s The Trial, always focus-ing on how literature not only underlies law and with it human cohabitation, but also gives a critical vision of law, while continuing to design and propose possible new rules.

The study of law in Colombia undertaken by Germán Silva García fills four vol-umes. The first of these deals with the legal profession, the second with the judiciary, the third with the administration of justice and the fourth with the professional ideol-ogy espoused by the country’s legal practitioners. The research is the result of 210 interviews conducted with legal practitioners in Bogotá and its province, of 57 in-depth interviews aimed at acquiring qualitative as well as quantitative data, of the results compiled in a series of focus groups and of the author’s own professional experience as an attorney. The unequivocally clear result is therefore a study that is empirical in nature, although it is also one that goes further than merely describing the data collected, organising and interpreting them in the light of a prevalently conflictual sociological theory, much of which can be traced back to the approach adopted by the theories of labelling. The survey deals with criminal law in particular, highlighting its eminently politi-cal nature and tackling the study of crime in its stigmatising dimension of social con-struction. In addition, while redefining the concept of deviance, the author proposes the new term of divergence, which has less of an evaluative connotation and is more explicit in its intention to identify a potentially criminogenous and criminal social area of conflict. Silva García clearly highlights the ideological and artificial content of law, but at the same time underlines its reality and social importance. Although the law con-structs a thoroughly artificial social reality, that reality does not always contribute to the development of democracy. Nevertheless, the law remains the most effective tool that human organisations have found to date for guaranteeing acceptable levels of freedom and equality between individuals.

This essay analyses some of the solutions adopted in the United States to improve the functioning of the administration of justice. The first part is devoted to a descrip-tion of the fundamental steps that have led to the consolidation of the discipline of ju-dicial administration and to the creation of specific competences and professional skills for running judicial offices. A second part deals with certain techniques used to make the justice service more effective and efficient, also identifying a potential vir-tuous circle of innovation. If suitably amended, some of these innovations could also be very useful in Italy, where the debate is currently caught in the rut of reforms that appear to make no significant impact on the urgent need to shorten the time taken by judicial proceedings and, more in general, to achieve significant improvements in the poor quality of the justice service.

Four legal usages of abduction can be distinguished: the inference from facts to norms, the inference from norms to principles, the inference from facts to facts and the inference from characters to concepts. A description of what C.S. Peirce in-tended by abduction and a brief account of the philosophical debate about it pre-cede the analysis of these usages. This analysis is followed by the suggestion of three models of legal reasoning issuing from the legal role of abduction and from Peirce’s conception of scientific methodology.

The phenomena of the uprooting of identities that have been induced by processes of globalisation make it urgent to reappraise what is actually meant by the notions of identity and difference, of both individuals and groups. The traditional approach to the topic has typically been excessively schematic and simplistic in its attitude to these categories: the very theories of multi-culturalism that are so much in vogue these days seem to reveal a decidedly static, durable conception of identity and otherness. The aim of this essay is to analyse the contribution made by recent anthropological and sociological studies (Amselle, Wieviorka, Hannerz, Clifford) to today’s philoso-phical, political and legal debate. These studies highlight how the affirmation of com-plete identities does not stand up to the ceaseless nature of global links, where there is a tendency to produce differences continuously rather than reproduce them. The metaphor of interbreeding, of the cultural hybrid of these links, thus appears to consti-tute an obligatory milestone towards any understanding of complex, ambivalent phe-nomena that defy all attempts at formal classification and definition.

The article deals with the theme of the identity of the children who are born as a result of the techniques of artificial insemination. The fundamental rule of anonym-ity applies in this case, for the purpose of protecting in the first instance the donor against the risk that, once the identity of the natural father or mother becomes known, the child will take action against him/her for a declaration of natural pater-nity/maternity. Although a man who donates his sperm wants to be completely free and have no responsibility, for the child who is born as a result of these techniques it may be fundamental to know the donor’s identity in order to build his own. After examin-ing the laws in force in the United States and the various European countries that have already adopted regulations about this matter, the author argues in favour of the introduction of comparable rules in Italy as soon as possible and proposes that the sperm donor be obliged to provide data for storage, so that it will later be avail-able to the child, at the child’s own request. The legislator may in fact give no more than indications: he cannot establish whether and when it is opportune to allow a search for the child’s origins. This choice must be made by the person who was born as a result of the techniques of artificial insemination.

The recent developments in genetics have made new methods of modification available that enable a hitherto inconceivable degree of control over man’s inner na-ture to be exercised. The suitability of the use of these methods and the manners in which they are used, especially in the framework of human reproduction, raise an ethical and moral question. This article starts from the liberal assumption that the only reason for restricting personal freedom, and thus the freedom to access these new methods, by imposing prohibitions and limitations is to prevent unacceptable harm. It then considers the pros and cons, both direct and indirect, that may derive from the use of these new methods, which could rely on the arguments that lead to the legislative regulation of the field. Lastly, it offers some opinions, based on a liberal-social democratic conception of jus-tice, about the directives that are intended to act as guidelines for the legislative regu-lation of access to new methods of genetic engineering.

The author recalls the chronicle of the debate about artificial insemination that has taken place in Italy in the last twenty years, dwelling in particular on the rules concerning embryos. After reconstructing the cultural and political climate in which the various projects for legislative action have been discussed, the author compares the documents and manifestoes promoted by various social partners, along with the text of Law N° 40 of 2004, which was recently passed by the Italian Parliament. He then goes on to underline that, although it draws on the various solutions pro-posed by scholars of a Catholic inspiration, the text is even more restrictive than they are with regard to the freedom to use embryos if that is at all conceivable and that, albeit surreptitiously, given the various prohibitions introduced, it is in practice tantamount to a legal charter of the embryo, which is put on a par with a living human being. Of all the laws currently in force in this field in the various ju-risdictions in the European Union, this text makes the Italian model the most re-strictive with regard to scientific research, experimentation and therapy, as well as the protection of the woman’s right to procreate.

The author lists the most important violations of the rights of both women and men perpetrated by the Italian law governing artificial insemination, from the right to health and the right to privacy to the right to freedom of research, doctors’ right to independence of action vis-à-vis medical malpractice and, last but not least, the individual’s right to procreate, before concluding by remarking that the law consti-tutes an assault on the principle of the secular state and takes the form of a political act whose significance is symbolic, as in effect its function is to stop people having recourse to the techniques of assisted insemination while on the surface purporting to regulate its practice.