The Italian Law Journal ItaLJ
The aim of The Italian Law Journal is to spread the study and to promote the criticism of Italian legal culture, fostering international academic debate among scholars of different traditions, particularly with regard to private law. The journal focuses on themes of legal theory, European law, comparative and international law, in order to reconsider the constitutional identity of Italian law and its institutions. It aims to disseminate knowledge and enhance awareness of the Italian legal heritage throughout the international community.
Address: ItaLJ Editors, Dipartimento di Scienze Politiche Jean Monnet
Seconda Università degli Studi di Napoli
Viale Ellittico 31, 81100 Caserta, Italia
Address: ItaLJ Editors, Dipartimento di Scienze Politiche Jean Monnet
Seconda Università degli Studi di Napoli
Viale Ellittico 31, 81100 Caserta, Italia
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ItaLJ Vol. 03 No.01(2017) by The Italian Law Journal ItaLJ
Thanks to Keith Baverstock and to an anonimous referee for their precious advice in some translating choices. This translation refers to the text of the essay ‘Antigone and Portia’ republished in T. Ascarelli, Problemi giuridici, I (Milano: Giuffrè, 1959), 3-15 (henceforward DOC B) for it is the most quoted. Significant discrepancies with the first version (published in Rivista Internazionale di Filosofia del Diritto, 1955, 756-766: henceforward DOC A), as well as with the latest version of the same essay included in Studi giuridici in memoria di Filippo Vassalli (Torino: Utet, 1960), 107-117 (henceforward DOC C) are documented in the
translator’s footnotes.
and of comparative law on the international scene, has left a lasting mark on
Italian legal culture insofar as they are one of the most elegant and complex
expressions of the ‘revolt against formalism’ and the need to go beyond the
folklore of the ‘old Italian style’. The centrality of the theory of legal
interpretation, in constructing and developing the complexity of the legal
experience, is filtered and strengthened herein by referring to literary works. In
particular, ‘Antigone and Portia’ is a means for communicating, at a
transnational level, the eternal dialectic existing between the certainty of positive
law and the need to develop it through the interpretation and application of all
legal texts, between the declarative nature of the interpretation and its creativity.
Jurists and judges, the good ones, are supposed to mediate between these two
antipodes, in the always perfectible – because always historicised – quest for a
reasonable, equal and, as far as possible, just interpretation of concrete cases.
Far beyond Law and Literature movements, beyond Feminist legal theories,
beyond the natural law tradition, the apparent contrast is re-proposed and
recomposed within the harmony of history, by immersing law, as an ongoing
action, in society and in the flow of human activity.
faculty, an internationally renowned figure in comparative law, a
path-breaking scholar in that he was, inter alia, the first common law
trained lawyer to explore our legal system, passed away at the age of
95, on 3 August 2015.
Merryman died after a long life, during which he also built and
kept a network of friends and academic colleagues. In Italy his death
will be felt keenly, particularly by all those who had the chance to
experience his old-world charm as well as his dedication to the
diffusion of our legal scholarship in the English-speaking world.
world ‘economic constitution’, globalization has not produced a unitary
economic constitution, but a fragmented constitution of collisions: ie a
metaconstitution of constitutional conflicts, whose conflicting units are no
longer the national States, but the regimes of transnational production. The
alternative (developed for national States by Franz Böhm and Hugo
Sinzheimer) between an ordoliberal economic constitution and a social
democratic economic democracy has resulted – as regards the current
transnational economic constitution – in the opposition between continental
Europe’s production regimes organized in a neo-corporative way on one
hand, and Anglo-American inspired production regimes characterized by
financial capitalism on the other. Contrary to all expectations, continental
Europe’s neo-corporative economic constitutions have revealed a surprising
resilience, notwithstanding globalization and the economic crisis. New
opportunities for an economic-democratic constitutionalization are emerging
in as much as social forces outside the corporation (and so, in addition to
state intervention, legal regulations and the counterpowers of ‘civil society’
coming from other contexts: media, public discussion, spontaneous protest,
intellectuals, opposing social movements, non-governmental organizations
(NGOs), trade unions, professions) are putting such intense pressure on
corporations so as to force them to self-limitations driven by the public
wealth, as demonstrated by the ‘Corporate Codes’ case.
as a paradigm, this case study outlines the method of a ‘discursive comparative
law’. Following a critical view on the prevailing methods of comparative law (I),
the essay explores the idea of ‘deliberative comparisons’ between legal cultures
(II). A ‘discourse logic’ compares structures of legal argumentation in different
jurisdictions and reveals its competing ethical and political reasons. From that
perspective, contract law turns into a political battlefield of normative legal
principles (III). A comparative discursive analysis of the ‘law of errors’ in
Germany, France, Italy and England, however, shows amazingly similar
argumentative structures (IV). A second stunning result is the discursive
picture of European private law. The unifying European Common Frame of
Reference pluralizes the field of normative reasons (V). Here, to structurally
demonize legal harmonization per se would be in itself a ‘structured error’.
constitutional reform; assuming a successful outcome of the long and complex
amendment iter, this reform will have the effect to radically alter (among other
things) the role, nature and composition of the Senate and of the perfect
bicameral system currently in place. Interestingly enough, Italy is not the only
country currently engaged in a political and institutional debate on a cardinal
reform of the Senate: also in Canada, the role and composition of the Upper
Chamber has often been contested, as this institution, in its existing
arrangement, does not seem to fulfill the tasks intended for it by the framers
of the Canadian federation. While over the years a number of unsuccessful
attempts to reform have followed one another, the debate on the very nature
of the Canadian Senate has culminated, for the time being, with the opinion
rendered in 2014 by the Supreme Court of Canada which helps delineating
some essential traits of the Upper Chamber. After a brief overview of the
constitutional reform of the Senate under discussion in Italy, this paper will
illustrate the main points raised in the opinion rendered by the Canadian
Supreme Court, with the ultimate objective to show potential points of
convergence and divergence between the Italian and Canadian experiences.
While the nature of the Canadian federal arrangement is profoundly different
from Italian regionalism, this contribution suggests the idea that surprising
analogies can be found between these two countries.
neoliberalism are usually studied at a state dimension, while the urban one is
quite ignored. Nevertheless, the government of the city has been influenced
by global and national recent changes and all the municipal sectors have been
touched by the austerity’s recipe. The decrease of urban public spaces, their
privatizations as well as gentrification transform city planning that is often
unable to elaborate alternative solutions against the overexploitation of the
urban territory and the increase of inequalities caused by economic crisis. In
a city, after all, it is impossible to hide inequalities and injustices.
In the last years, cities have often been the theater of political struggles
against the privatization of public spaces, evictions and the dissolution of the
urban welfare. In many cases, the demonstrators have occupied parks or
abandoned buildings (theatre, condominiums…), and used them to find a
temporary solution to their different needs (housing, social space, new forms
of work, urban gardens…).
They denounce the great number of public or private empty spaces (for
instance, the abandoned infrastructures left by the process of deindustrialization) and their neglect. According to the right to the city they
claim, the inhabitants have to produce urban spaces starting from their own
needs: empty spaces become an opportunity, the urban care is a collective
task. This approach shares the logic of the commons, which reclaims a new
paradigm based on inclusion, participation and social and ecological use of
resources: according to many scholars, also urban spaces are commons.
After a description of this wide context, the article explores the
connection between commons and the right to the city.
(hereinafter: the Judgement) focused on the activity of the Google platform
as a provider of indexed content, including personal data; this activity
consists of locating information published on the web by third parties,
indexing it automatically, storing it temporarily, and finally, making it
available to internet users according to a particular order of preference. The
Court has stated that these operations must be classified as ‘processing’
(within the meaning of Directive 95/46), and are activities that can be
distinguished from and are additional to the activities carried out by
publishers of websites, and have additional effects on the data subject’s
fundamental rights. This means that, especially in an online environment, the
types of data processing, as well as the rules to be applied are becoming more
diversified, even when considering the rights that can be exercised by data
subjects. The key question to be answered is therefore not whether, but how
data protection principles and rules have to be applied in each specific case.
This can be illustrated by the measures set forth by the Italian Garante
per la protezione dei dati personali (hereinafter: the Garante) in order to
bring the processing of personal data carried out under Google’s new privacy
policy into line with the Italian Data Protection Code. These measures tackle
the problem of applying ‘criteria for making data processing legitimate’ and
‘principles relating to data quality’ on the internet, and focus on the legal
requirements for the data subject’s prior consent with respect to a wide array
of features offered to its users. It is exactly on this ground that one point of
connection between the Data Protection Directive and the e-Privacy Directive
will be analysed. The measures seem to emphasise the role of data subjects’
consent in the area of marketing and behavioural advertising, where there is no room for contractual agreements. Nonetheless freedom of contract within
the scope of personal data protection does not seem to be ruled out. In this
context, personal data are not negotiable goods and cannot be treated in the
same way as any other kind of tradable commodity.
Law in General, foreigners are entitled to the same civil rights as citizens, as
long as such rights are afforded to citizens in the foreigners’ countries of
origin. Still, Art 16 must be constitutionally interpreted so as to accomplish
the full protection of human rights. Therefore, reciprocity does not apply to
the fundamental rights the Constitution affords to each and every individual
as a human being, rather than as the citizen of a State.
Ownership per se is not a fundamental right. However, different aims of
ownership may characterize the right to ownership as a fundamental right such
that the purchase of property may not be restricted by reciprocity. When
property is hence purchased for business purposes, reciprocity may still be
preserved as a means of political pressure and national promotion. Conversely,
when property is purchased to be a home, property becomes ‘personal’, and
ownership is considered to be an inviolable right protected as a right to housing.
In the transnational context, the Italian difference is the political primacy of conflict: without a centre, the world still maintains many outskirts. Refreshing its reflection in the corners of the world, legal science frees itself from the mortal danger of paranoid relationships with reality. Criticism is the method to build transnational legal scholar networks: only the weapons of criticism can release self-subversive energy in law.
More recently, the problem of deleting data in the internet and the ‘right to be forgotten’ has been discussed in connection with search engines and social networks, such as Facebook, Instagram or – most recently – Google. Such discussion now informs the background of impending EU regulations for the general protection of data.
suffered by Cir is to be considered as damage arising from a criminal offence. However, different reasoning could have been employed focusing on the remedies which are related to the stipulation. Where a contract has been entered into as a result of fraud by one party to the detriment of another, the rule that the remedy of avoidance is infungible must be departed from if annulment is futile or impossible. The unpalatable alternative is that of leaving the deceived party without any protection at all.
Alternatively, we also accept submissions at the following address: ItaLJ Editors, Dipartimento di Scienze Politiche Jean Monnet, Seconda Università degli Studi di Napoli, Viale Ellittico 31, 81100 Caserta, Italia.
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