JUS - 2020 - 2-3

The essay examines (and relativizes), from the perspective of comparative law, the traditional distinction between binding precedentes – typical of the common law legal systems – and persuasive precedents, which characterize on the contrary the civil law legal systems, with specific attention to the interesting institution of “sùmula vinculante” as provided for and regulated by the new Brazilian C.P.C. of 2015.

The paper addresses the conceptual circle among the legal notions of “type”, “typicality” and “atypicality” (or “non-tipicality”). Starting from the methodological hypothesis about the close relation between the theoretical-legal approach and the philosophical-legal perspective, in the first part the contribution focuses on any profiles of the legal type in order to highlight its complexity: the comparison (i.e. through Weber and Kelsen) between the “sociological type” and the “legal type”; the ambivalence and the pragmatic-performative function of the type; the normative dimension and, finally, the problematic nexus between the type (understood as a theoretical-legal category) and the crisis of the concept of “legal order/system”. The second part deepens any philosophical horizons underlying the current theoretical difficulty to draw the relation “type-legal order”: in particular, the point involves the increasing conceptual “irrelevance” of the notion of “legal type” as well as the philosophical “roots” of this scenario, which are paradigmatically represented by the 
progressive implementation of reticular models of law (also due to the dissemination of the notion of “governance”). On closer inspection, this contradictory framework entails relevant reflexes not only within the politics of law, but also as regards the “idea” of legal category: in the last analysis, it threatens the possibility to build up a “theory of law”.

The Author depicts the matter of civil procedure “tipicità”, particularly focusing on the issue of legal remedies that are recognised by the State’s legislation in favour of an individual’s defence of their own rights. Different remedies must be considered typical, hence defined by the legislator in advance, as stated by the art. 111 of the Italian Constitution, where a due process of law is established.

The paper focuses on the principle of legality, exploring the correlation between the state power and the law as well as the real function of the penal law, not merely oriented to convicting. This framework shows the reasons why the Parliament is the place where well-balanced choices in criminal matters can be made, so that penalty is aimed not to blame, but to motivate. Despite this, Parliament has often been the ‘site’ of penal populism. It involves the need to reform the operating methods of parliament, so that the political debate, as the relation between states, ceases to be understood according to the logic of conflict.

The paper is about categorisation in private international law (PIL). Part one explains the specificity of categorisation in this area of law. The task of PIL rules is, basically, to determine whether the legal order of the forum should open itself to foreign legal values (abstract rules of substantive private law, court decisions, etc.). The categories used for this purpose must accordingly be shaped in such a way as to enable the forum to capture a range of diverse legal expressions. Part two focuses on the approaches to categorisation followed by PIL scholars since the mid 19th century. Reference is made, in particular, to the teachings of Savigny and their rejection, or reconsideration, by legal positivists towards the end of the 19th century. In this context, the article analyses the prevailing view according to which characterisation – the process whereby a legal issue is ascribed to a particular PIL rule – ought to be performed in accordance with the categories, i.e. the types, of the lex fori. Part three examines some relatively recent trends in categorisation in PIL. One such trend stems from the efforts aimed at the international unification of PIL rules and may be described as involving a “dilution” of legal categories: absent a body of uniform rules of private law serving as a reference, harmonised rules tend to make use of types that often lack the precision of those based on domestic law, and rely, instead, on examples. Another trend is the multiplication of types, as a result of the growing specialisation of PIL rules. A third trend consists of the “erosion” of types. This is prompted by techniques, namely safeguard clauses, whereby the seised court may escape, in particular circumstances, from ordinary rules (and their categorisation) and submit the case to the law of the country with which the case itself is most closely connected. As abstract rules leave room to a flexible assessment of the circumstances of the case, prior categorisation tend to become less important. The author argues that the evolving approach to categorisation reflects the way in which the nature and function of PIL have been conceived of over time, i.e. whether PIL is seen as belonging, in essence, to the domestic legal order of the forum, and is entrusted as such with the task of managing the external projection of that order, or is rather considered to perform a substantially international function, aimed at the governance of regional or global concerns.

This paper deals with the history of the types of contracts starting from Roman Law to the nowadays legal systems of the European continent throughout the medieval and early modern tradition. It also examines the evolution of the principle of contractual freedom after the enactment of the great European civil codes by national states and their changes starting from the two thousand years onwards.

‘Typicality’ recalls a technique of position of the case (fattispecie). The techniques of position consist in patterns of signification, by which men generate concepts. Position is  always the origin of a concept. The Author explores this issue through two elective laboratories in the system of the Civil Code: the problem of the typicality of the sources of obligation; the problem of the typicality of tort. The Author tackles the matter from the perspective of language. In this way, he defines as “tort” (or – if one wishes – breach of a duty to protect) any type of conduct capable of harming an interest which is external from the relationship and therefore of causing negative damage; “default”, any type of conduct capable of harming an interest internal to the relationship (strong ‘utilitas’, guaranteed to the creditor) and of causing positive damage.

The paper aims to examine the mandatory content of the principle of typicality of public powers in the matter of administrative protection of public goods. In particular, the attitude of art. 823 of the Italian Civil Code to represent a legal basis for the exercise of enforcement powers, consistent with the principle of legality and typicality of public authorities. The paper gives a positive answer to this question, as a result of a reasoning based above on systematic arguments, as well as on an evolutionary and non-ideological interpretation of the principle of legality.

Starting from the three important writings of the seventies of the Twentieth century, which had an enormous influence on the subsequent doctrine of commercial law and which introduced the typological method in Italy as a reaction to the dogmatism of the jurisprudence, we propose to establish whether and what is their legacy nowadays. Little, except for some respectful but insincere quotes in the footnotes in many later essays. The typological method arose a reaction against the late Nineteenth Century’s dogmatism, but it did not replace it. Rather, lawmakers, courts and writers of commercial law tend to use this method arbitrarily, that is, outside of its real context: discussion, for the typological method, and decision, for the dogmatic reasoning. The unresolved conflict between the two methods and the inability to use them in their respective contexts explain many of the distortions and abuses of today’s legislation and court practices.

The mandatory reference to ‘type’ for administrative measures is a basic element in italian administrative law: its application, however, is peaceful only with respect to administrative measures. The general relationship between ‘power’ and ‘type’ is complex and involves controversial profiles: the author argues the need to always carefully consider the underlying reasons.

The essay proposes a critical analysis of the concept of typicality in the field of the constitutional studies about legal sources in Italy. The main thesis, supported by the Author through different exemplar cases, is that, at present, the conceptual couple “typicality/atypicality” has lost its theorical force in reconstructing legal sources’ system and it keeps a utility above all on a rhetorical plan. It does not exclude, maybe, a residual space on a methodological plan.