Un diritto «allo stato fluido». Note storico-giuridiche su aequitas e ragionevolezza.

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Abstract

[automatically translated] The "reasonableness", by which the Constitutional Court, other courts and any other interpreter introduce law of the factors that comes from experience, from common sense, from combinations of principles and constitutional values that may change over time, it figures typically contemporary, but it is primarily the instrument through which, as in the past, mediating between lex and factum, between text and context, between the law on the one hand, by its abstract nature, immobile and inelastic, by definition insensitive to of everyday life changes, and the reality of life on the other side, button, land, multi-faceted. Reasonableness was presented as the means by which the contemporary jurist has sought to restore dignity, lymph and breath to interpretation, doctrinal and jurisprudential, that '' legal absolutism "of the 800 codifications had tried to suffocate, the channel through which to make and maintain the right to a" fluid state "that is attached to things, to life, to the common sense, the economic facts and social. As in the medieval past and modern, when dell'aequitas categories, the ratio and the interpretatio made the jurist close to the historical reality and to changing economic and social needs, even in the contemporary legal civilization has warned, even in the face of a path of progressive statualizzazione, the need to maintain the right to a "fluid state", according to the use made by Santi Romano in 1906 and Cesarini Sforza in 1929. Nell'aequitas of medieval legal doctrine, the naturalis ratio of modern natural law , artificial reason for Coke, in the popular spirit of Savigny, in solidarity Cimbali, Gianturco and Simoncelli, in concretism of Saleilles, Gény and Planiol, hides the need for a reasonable law, that it complies with the customs, feelings and demands of a society in flux : a right "fluid state", which plastically absorb the many rights of a complex society, and the instincts of a rapid and vital world. The reasonableness of the law, in this sense, is nothing but the outcome of a process of interpretation that in a historical reality can be enhanced or crestfallen but is still present as ontologically inherent to the very idea of law: interpretation as reasonable reading of a text, ie as a mediation between the text and a reality that is constantly changing, full of historical, of economic and social facts, values (to be weighted), and sense of justice (principles to balance). Between the nineteenth and twentieth century, long before then, the "crisis of law" resulting in the tragedies of World War II, this interpretative dimension emerges from oblivion which had forced legalism statualistico, up to regain citizenship in numerous ways and interwoven with different ideologies, between the constitutionalists items such as Roman and Mortati, philosophers like Capograssi, the criminal as Maggiore, the civil lawyers as Cesarini Sforza and Vassalli, accountants as Mossa and Ascarelli.
Original languageItalian
Pages (from-to)121-144
JournalGiornale di Storia Costituzionale
Volume11
Publication statusPublished - 2006

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