Diritto Pubblico Comparato ed Europeo

Sommario

1. Premessa. – 2. Il diritto e la scienza del diritto nella visione radicalmente negativa del nichilismo giuridico e gli opposti dati emergenti dalla comparazione giuridica. – 3. Le prevalenti tendenze filosofiche del nostro tempo sfocianti nel relativismo assoluto dei valori e la minaccia che ne deriva per il modello della democrazia contemporanea. – 4. Il riscatto offerto dal ritorno a una filosofia del razionalismo storicista e il supporto che ne può venire al presente modello democratico. – 5. Gli attuali compiti del giurista.

Abstract

In a recent book by Professor Irti, a theory has been advanced that, following the discovery of all conceptions of justice as arbitrary intellectual constructs, today the law is reduced to a sheer imposition on the people of the rules that please the powers possessing superior force. The rules are inspired by no unifying ideal, and legal science cannot discover in them but the brutal expression of a will based on no reasonable system. The essay takes issue with the theory and maintains, in accordance with the data offered by the comparative study of legal systems, that the law of contemporary western states is on the contrary shaped according to the principles of a precise, organic constitutional model: the model of modern democracy, both liberal and social. Legal science can, on one hand, narrate the history of the various, different implementations of that model, and, on the other hand, as practical doctrine, contribute, with new reasonable suggestions, to the further development and betterment of the principles of the model. The essay recognizes, however, that the main trends of contemporary philosophy favor the expansion of a cultural absolute value-relativism. Though on the basis of often opposite assumptions, different important philosophic schools – from positivism to existentialism, from pragmatism to late-day idealism – agree on the point that there exists in man no practical reason capable of formulating an ethical ideal of universal validity. Absolute cultural relativism cannot provide a stable basis to any political system and today, in particular, indirectly undermines the value-premises of the model prevailing in western legal systems. From that point of view, nihilism, though not yet victorious in the operations of the law, may in the future damage seriously the structures of the law that presently governs our countries. The essay concludes, however, that the victory of nihilism is not unavoidable and that absolute relativism can be successfully rebutted, and the value of the democratic model vindicated, if we embrace a theory of practical reason holding firmly to first, unchanging principles, but also to allowing for the vast natural evolution in history, past and future, of moral and political codes.