Pier Giuseppe Monateri

The Books and the Gavel: Law's Image and the Theory of American Sublime

Pier Giuseppe Monateri — Wed, 13 Jul 2011 00:18:39 PDT

Rational Angels. Understanding the Theological Background of Economic Rationality

Pier Giuseppe Monateri — Tue, 12 Jul 2011 01:08:02 PDT

In this essay the Author traces back the modern standard theory of economic rationality to the theological backgrond of the theory of Angels as rational decision makers developed by Christian Scholastics. His main conclusion is that there is an identifiable theological background of modern economic theory of rationality, and that it is this theological dimension that can explain why this theory, so useful as it has been, is anyway based on ‘ontological’ but counterfactual assumptions. The consciousness of this fact would imply the need for a revised and more complex 'economic ontology’: if rational decision theory is rooted in the ontology of angels, as it was developed by the western scholastics, it becomes obvious that the real problem is not, first of all, to contrast the theory with more empirical observations, derived from the actual behavior of economic agents, but to develop a different ontology, and to reframe, within it, a newer theory of rationality.

Italian National Reports to 18th World Congress on Comparative Law

Pier Giuseppe Monateri (ed.) — Mon, 27 Sep 2010 01:54:08 PDT

Edition of the Set of Italian National Reports on Behalf of the Italian Association of Comparative Law

Colpa e legge fra Oriente e Occidente

Pier Giuseppe Monateri — Sat, 21 Nov 2009 06:29:48 PST

The Fault and the Law between East and West. In this article Monateri traces an unpreviewed parallel between two absolutely western paradigms and two remarkably chinese thoughts. First a parallel between Carl Schmitt and Xun Zi when the latter writes that “The superior man is the source of the Law” Secondo economic analysis and Lao Zi theory of law a san emerging order not a predetermined one.

La Prescrizione

Pier Giuseppe Monateri et al. — Sat, 21 Nov 2009 06:21:30 PST

L’opera analizza in modo estremamente approfondito e completo uno degli istituti classici del diritto privato, la prescrizione, al fine di offrire un quadro aggiornato e completo della materia. Il volume, frutto dell’esperienza professionale e didattica dell’Autore, fornisce una lettura teorico-pratica della normativa contenuta nel codice, senza trascurare l’analisi della casistica più significativa.

PIANO DELL’OPERA

Oggetto e d’ambito della prescrizione - il regime giuridica della durata della prescrizione - la sospensione della prescrizione - l’interruzione della prescrizione - la messa in atto della prescrizione - la rinuncia alla prescrizione - la prescrizione ordinaria - le prescrizioni ultradecennali ed infradecennali - le prescrizioni brevi - le prescrizioni presuntive - le vicende della pretesa prescritt

Cittadinanza e laicità fra emancipazione e messianesimo politico

pier Giuseppe Monateri — Sat, 21 Nov 2009 06:13:59 PST

This paper is devoted to examine the concrete historical situation of conflict out of which the modern citizenship arose. In this way we can trace how different are German, French and American conceptions. In Germany citizenship born as linked with being part of a tradition and a nation from a cultural standpoint, implying a cult of History and belonging. A backward looking conception where the "essence" of things lies always in the origins, and where the "secular" element is given more by this "cult" than by an actual opposition to religion.

On a another side France and the USA moulded citizenship on a political forward looking creed. In the case of France this creed has been deeply rooted in secularization and in the actual fight of the State against the Church. The American conception, as secular as it may be, is anyway inextricably nested in a deep, even if many times unconscious, political messianism, implying a constant effort to redeem the world. So that from this vewpoint "secularization" as such seems a category peculiarly linked with European History, and of doubtful use in comparative studies.

The Conclusion is the utopic character of general theories on secularization and the possible rise of a global citizenship. Both concepts are rather nomic, in the sense of being context specific and linked with European political forms, so that they loose any precise meaning when used outside of these forms.

Messianism as State of Exception

Pier Giuseppe Monateri — Sat, 21 Nov 2009 06:10:06 PST

In this paper, written in italian, Monateri tries to interpret Jesus teachings in the context of the beginning of a cosmic state of exception when, in accordance with traits of the Second Temple ideology, the final battle between God and his enemy is going to start. In such a context the Law reincarnate itself into the figure/body of the Sovereign, the Lord, instead of being excarnated as it has been in the Book. Thus the Lord as a nomos empsuchos (a living law) can suspend and renew the law. Even the dramatic event of the Cross can be seen as the entrance by suffering of the Lord into the Enemy's realm and his coming back as a winner. Author suggests that the models behind such packaging of ideas are Egyptian, and strongly connected with the royal political theology of Alexander the Great as a King and a Savior. From this standpoint it was certainly Paul (and so the Church) and not James to be on the right side in interpreting Jesus teachings. With the Event of the Cross the world entered into a permanent state of exception, but the outcome of the final battle has already been determined by that event. As Ted Sorensen said once: war is something you win or loose in the Temple long before it is actually fought.

'Cunning Passages': Traductology, Comparison and Ideology in the Law and Language Story

Pier Giuseppe Monateri — Sat, 21 Nov 2009 05:50:36 PST

My standpoint in this paper is that in affording the subject of Law and Language we face a mass of “local issues”, and “local puzzles”, but that we still lack a theory to grasp with the bulk of the matter. Al this becomes peculiarly embarrassing in the age of development of “English-only” movements, and facing the rise of a rather new and framed field of studies like “traductology” that would of course, but do not actually, interplay with comparaison especially in the field of Law. In my paper I just try to look around the package of some received ideas, in order to clean the blackboard before trying to build up something newer. Thus in the first section I cope with two prevailing theories: 1.) the theory of the language as a “social glue”, which is dominant and emerging from the present American political debate; 2.) the theory of the “analogy” between Law and Language as spontaneously ordered complex phenomena; then in a second section I try to trace back these ideas in the time of the “Birth of Comparativism” in the early 19th century. In so doing i deal with: 1.) the birth of Indo-European Family in Comparative Linguistics, and, 2.) the birth of Legal Comparativism within the context of the German Legal Historicism, in the same span of time. Finally I try to show how all these conceptions are nested details of a more general consciousness with broad political implications in terms of projects of governance. Then according to my views neither language studies nor traductology can be treated as pure subject deprived of a strong political commitment. Both are field where “choices for candor” are not at hand.

Comparing Comparativisms: Nomos and Narrative as Cultural Legitimation (Comparer les comparaisons, Le problème de la légitimité culturelle et le nomos du droit

pier Giuseppe Monateri — Sat, 21 Nov 2009 05:45:46 PST

This paper is an inquiry into the scientific roots and the 'normative' justification of comparative law, moving from the historical consciousness of the inextricable bond that grasps human behaviours and human sciences. The research path - chosen at this aim - leads through the complex and not univocal paradigms of philology, emphasizing their proper structure open to multiple uses and different declensions. The Author studies the inherent essence of philology, that reflects the range of meanings and interpretative activities included under the notion of [need translation here], so to offer a more deep explanation both of its various branches and of its structural relation to theology. A parallel analysis discovers the reasons behind the success of comparative literature as a critical scholarship and as an intellectual tool fitted to the persuasive construction of cultural icons and identity narratives. As a consequence - and in conclusion of the investigation carried out - the innermost coherence of humanities testifies what is at the stake: the cultural legitimation of the 'normative' function of comparative law, insofar as it turns into a geopolitical project mapping the historical sense of 'belonging' and 'otherness'.

Si le champ des études comparatives échappe aujourd'hui à la maîtrise, il doit pourtant être possible d'en reconstruire certains fondements. A partir de ce postulat, nous analyserons ici comment la philologie, considérée comme science humaine par excellence, est devenue philologie comparée donnant ainsi naissance à la linguistique indo-européenne. Nous étudierons en outre comment celle-ci a exercé une forte influence sur la conception du «folklore», donc sur l'étude des religions comparées, tant du point de vue de la théologie chrétienne qu'autrement. En parallèle, en nous appuyant sur le positivisme historique, nous verrons comment s'est façonnée en France une école de littérature comparée qui, grâce à la notion de «circulation des modèles littéraires», est parvenue à formuler une théorie de la nature narrative de l'identité. L'intérêt de ces réflexions pour les études juridiques comparatives ne fait pas de doute. Au fur et à mesure de leur développement, les sciences humaines comparées telles que la linguistique, la religion et la littérature ont permis la création d'instruments et l'analyse de problèmes que nous retrouvons dans l'étude comparative du droit compris comme science humaine, qu'il s'agisse de la classification, de la circulation des modèles, de l'analyse critique de l'interprétation ou de la construction de l'identité et de l'altérité.

The Fascist Theory of Contract: A Comparative and Historical Inquiry into the Darker Side of Contract Law

Pier Giuseppe Monateri et al. — Sat, 21 Nov 2009 05:40:16 PST

This paper represents an attempt to discuss and re-assess the scholarly debate on Private Law in Fascist time. Moving from a newer comparison with National Socialism, the Authors look at the strategic devices used to justify a precise concept of law and a selected body of rules. In this perspective Roman Law could be view as a powerful means of legitimation, an historical tool apt to grant a specific lecture of contemporary times. What is under judgment is the construction of different traditions rooted in a contradictory recall to the past. With regard to contract law, this paper casts light on the rhetorical exercises framed by scholars under the fascist regime with the aim to contradict the language of the Liberal period and at the same time it discovers the absence of these techniques of legal discourse in the decisions of Fascist Courts. The analysis emphasizes an inner, structural dissonance that is responsible for the conscious choices of economic policy, discovering also an unexpected contiguity between classic liberal thought and the fascist appraisal of contract law as a cornerstone of the economic process.

The Prophetic Nature of Equity

Pier Giuseppe Monateri — Sat, 21 Nov 2009 05:37:55 PST

This paper parallels the role played by Equity in English legal history with the role displayed by Prophets in relation to the Law and the Kingship in the Jewish tradition exemplified by biblical writings. From this perspective Equity performs the function of bringing to surface hidden meanings by means different from standard interpretation.

Black Gaius: A Quest for the Multicultural Origins of the 'Western Legal Tradition'

Pier Giuseppe Monateri — Sat, 21 Nov 2009 04:45:18 PST

In this paper I intend to signal an independent appraisal of the roots of the Western Legal Tradition as both a critique of this tradition's originalism, and of its being a tradition at all, thereby challenging the premises behind new projects of international cultural governance in the context of globalisation. From the standpoint of legal history and comparative law this paper shows that Roman Law has no claim to supremacy in the ancient world. The myth of this supremacy was manufactured by the biases of xix century European historicism so that the Western indebtedness toward non-Western civilizations was denied. The rejection of conventional unsound picture has important consequences for the consciousness of the Western legal tradition as such, which is to be seen more as a multicultural enterprise than as the peculiar evolution of one culture. This implies that the projects of governance based on the conventional picture are untenable, and must be abandoned.

Legal Formants and Competitive Models: Understanding Comparative Law from Legal Process to Critique in Cross-System Legal Analysis

pier Giuseppe Monateri — Sat, 21 Nov 2009 04:39:20 PST

This paper is a brief summary of the Formants approach in Comparative Law. The method is defined in its basic tenets and it is analyzed in relation with the Critical Studies as a first attempt to derive newer tools to manage cross-system analysis in legal matters. In an Appendix something is suggestd about how to afford Comparative Law in the field of Cultural Studies using the theory of Complex Orders and the notion of Eliot effect.

Sovereign Ambiguity - From Hamlet to Benjamin via Eliot and Schmitt

Pier Giuseppe Monateri — Sat, 21 Nov 2009 04:36:22 PST

The Author examines how Romantic Ambiguity lies at the heart of the legal notion of Sovereignty, applying a law and literature approach to notions developed by Benjamin and Carl Schmitt. Moving from a sophisticated analysis of literary texts, the inquiry intends to unveil the subtle strategies that lay behind the construction of Modernity and of its representational canon. The research perspective intentionally discloses the inherent dialectic between aesthetics and law. On this ground this paper rethinks the theory of the 'state of exception' as a pivotal concept for a deep understanding of Law and Politics (and their proper untraced boundaries), offering an alternative interpretation with respect to Giorgio Agamben's thought. The Author's lecture comes to rewrite even the centrality of representation as a fundamental notion both in literary and in political terms.

Deep Inside the Bramble Bush - Complex Orders and Humanities

Pier Giuseppe Monateri — Thu, 19 Nov 2009 22:52:10 PST

This article is an investigation on Humanities, an attempt to justify their privileged role in understanding cultural orders, including Law. The underlying purpose is to cast a new light on the specific issue of interdisciplinary approach and especially on its proper expressions of Law and Humanities, Law and Politics, Law and Literature, Law and Philosophy.

At this aim Hayek's theory of Spontaneous Complex Orders - born to challenge State intervention in the market domain - is used to purport the independence of Humanities against actual Scientism, insofar as it could replace Human Studies standards with standards derived from the so called 'Hard Sciences'. Moving from Hayek's thought on the ideological value of scientistic methods and assumptions, this paper defines the structural complexity of Human science as the better paradigm fitted to the radical comprehension of Law, as the emerging shape of the darker side of social reality, and of Politics, as the inner framework that legitimates a specific 'historical existence'.

"All of this and so much more": Original Intent, Antagonism and Non-Interpretivism

Pier Giuseppe Monateri — Thu, 19 Nov 2009 14:32:56 PST

In this paper I start from a discussion of ``originalism" as a practice of interpretation pointing at the intent of the framers as ``the" governing factor in interpretation. My first step is to contrast it with the approach of non-interpretivism. Then I discuss ``interpretation" itself as a package to depict social practices of meaning production, focusing on three peculiar historical settings : Alexandria, Scholasticism, and the ``birth" of Hermeneutics. My aim is to show the ``essentialist" move of posing the concept of ``meaning" as a key factor in the ``ideology" of interpretation. Such a discussion is introductory to a reappraisal of the current debate about criticism, and the distinction between interpretation and use-of-the-texts. I then examine archeology as a radical alternative to interpretive practices. But my final step will be to shift away from the blunt opposition between interpretivism and non-interpretivism, to suggest a more complex arrangement based on an ironic misuse of interpretivism, and a framing of interpretation as an antagonistic process.

The 'Weak Law': Contaminations and Legal Cultures

Pier Giuseppe Monateri — Thu, 19 Nov 2009 14:32:56 PST

This paper examines two main aspect of import/export of rules and legal categories as a crucial point in comparative law and politics: 1) that normally the process is not governed by the exporting party but rather by the importing actors, according to local strategies; 2) that the most of legal systems in the world are "hybrids", so that "pure" models (basically English, French and German) are isolated historical cases and as such are substantially unimportant in depicting how law really works in the world legal landscape. available at SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300298