Small rooms,large contexts(musings on the unified roots of European law)
Abstract
A note of warning: this is a personal essay, calling for a conversational relationship between writer and reader, established here by quotations from the classics and their modern readers, without alluding to mass culture.
Europe is broadening its confines, and jurists are asking themselves questions about the roots of a possible common European law.
Italian academics are tackling the problem by seeking an answer to the issue of whether Roman law might be the basis for such a common law.
On the one hand, there are those who, like Attilio Guarneri, see Roman law as the precursor of a uniform European law, predicated on the predominance of common law.
On the other, there are people, like Pigi Monateri, Tomasz Giaro and Enrico Somma, who observe that Roman law does not correspond to a unified concept of Western law and deconstruct it into a plurality of the laws of which it is made up, not just Latin but Hellenistic, African and Syrian as well.
These scholars maintain that the unitarian idea of a Roman law as a purely Western law is revealed to be a historical falsehood, based on dogma that is open to confutation when one examines the multiplicity of its institutional sources.
It is, then, only by patient reconnaissance and comparativistic reconstruction, taking into account the multiplicity of contaminations, influences and cross-breeding of the different systems, that certain legal principles can be constructed based on a common terrain, despite their unshakable diversity.
In this essay, the aim is to tread a different path, in other words to look at Roman law not as a junction or point of intersection for several systems, but as a single system based not on just one source of production of law but on several formative factors.
Roman law is the first example of law that is the outcome not of a central but of a disseminated power.
The work of deconstructing and reconstructing Roman law, the first example of global law, has been done with the help of an essay by Jacques Derrida entitled Et cetera (and so on, und so weiter, et ainsi de suite, und so überall, etc.). That work has proceeded through a critique of the comparative method, the anti-historicist method, multicultural dogmatics, the literary practice of small cultures, the academic musical practice of repeaters and the infantile practice of neo-devastators, scientific practice as the creator of monsters, muticulturalist sociological practice, and hyper-compositive artistic practice, until it finally comes to a concept of Roman law that is faithful to its historic value.
The reading of Roman law as the fruit of a disseminated power occurs in the seventeenth and eighteenth centuries, in other words during the development of a pre-revolutionary State.
And it is that very reading by modern authors of the experience of the seventeenth century on which a concept of legality is founded, leading either to the belief that Roman law has been the first experience of unitarian law, the outcome of a centralised power, or to the idea of a multi-state law that is the outcome of several experiences of legal systems, as in post-modern critical thought.
In this essay itself, starting with a rereading of the thinking of Schmitt and Benjamin on this subject, the point of arrival, on the contrary, is a unitarian concept of law that departs from the idea of a single centre of production and attribution.
The global law inherent in disseminated power, therefore, does have its roots in Roman law as deconstructed and reconstructed in the essay.