Numero 4/2021

Editoriale

di Bruno Maria Bilotta


Hermenéutica constitucional

di Antonio Bello Lozano Marquez

Abstract: The problem is not to develop a finite system of hermeneutics, but to offer as coherent a series of discussions as possible on the problems of interpretation. According to the doctrine of the Spanish Constitutional Court (sentence no. 25/81 of 14 July), fundamental rights and public freedoms constitute the very foundation of the political-juridical order of the State; This logically follows from the dual nature of fundamental rights. At the conclusion of what is stated in this essay, we believe that the interpretation of the law must be carried out on the basis of constitutional postulates and with particular consideration of the values and principles that the Fundamental Charter establishes. Following Noblecilla, within the framework of the Constitutional State, every motivation for a judicial resolution must be immersed in the weight of principles and rules, in solid manifestations that have the Constitution as a pillar more than other norms, this is because we live in our days, respect for rights fundamental, of human dignity, of the separation of powers and freedoms, which are submerged in an area that must emerge to support and defend the Fundamental Charter, or so we add, is what I consider the Constituent Assembly.

Keywords: interpretation, constitution, law.


Le Cambodge face à son passé
Le régime Khmer Rouge sur le banc des accusés

di Nadia Beddiar, Maria Stefania Cataleta

Abstract: The bureaucratization of the Khmer Rouge revolution expresses itself mainly through the role of the center S-21 guided by director Kaing Guek Eav, alias “Duch”, convicted for his crimes after 30 years. Historian David Chandler gives us the most comprehensive testimony of the Kampuchea Democratic regime, through 4 000 written evidence found in the Tuol Sleng detention center in Phnom Penh. Better known as S-21, the site was a school transformed in a center of detention and torture. The trial gainst Kaing Guek Eav has been the first before the Estraordinary Chambers in the Courts of Cambodia (ECCC). It started on 17 th February 2009 and the judgement was given on 26th July 2010. It was followed by 35 000 people. The conviction and after the Duch’s death, has not ended the ECCC activity. This Court, with some difficulties and limits, continues to pursue the other leaders of the Pol Pot totalitarian regime.

Keywords: Cambodia, Khmer rouge, Pol Pot, crimes against humanity, genocide, Extraordinary Chambers in the Court of Cambodia, conflict of jurisdiction, criminal responsibility.


Disastri ambientali, emergenze
e criticità sociali dell’Unione europea

di Antonio Dimartino

Abstract: The author draws attention to the environmental aspects of European law as well as the importance of the Sociology of law. Environmental policy of the European Community is implemented in the member states, but the implementation of environmental objectives and the corresponding administrative measures imply difficult social issues.

Keywords: European Union, sociology of law, environmental law and policy.


Weber oltre il postmoderno
La gabbia e il guscio a forma di rete

di Emilia Ferone, Andrea Pitasi

Abstract: Weber’s reception worldwide largerly depended on its translation into English by Talcott Parsons. Nevertheless, the translation was a rather massive reinterpretation. As a matter of fact, Parsons’ Weber was much more value-free, impersonal and technically centered than the original Weber much more value-oriented, pesonal, politically passionate and engaged. The concept of “iron cage” which appears in the translations of Weber into English seems to be a much more rigid concept than the original German one. This paper investigates some key aspects: 1. The matter of bureaucracy studies in Weber in the original German version. 2. The problem of further studies on Weber and/or bureacracy by scholars who did not know German and adopted the misleading Weberian works in English. 3.The working out of Weber’s original concept of iron cage in German which is much more compex, multidimsional and flexible one which would allow to link Weber’ theories with more recent ones like the complex system one in a way the rigid “English Weber” were not able to. It is an essay on the contemporary world read through some Weberian concepts interconnected with other concepts that Weber ignored, such as constructivism or globalization that is nothing more than a constructivist model of Weberian rationalization, in which the many small steel cages implode in scenarios increasingly wrapped in a single, global steel network, whose meshes, almost indestructible and flexible, are processes of planetary scope. To update Weber, we decided to confront Parsons and Ardigò because among the few to have made a reading of Weberian thought as a piece within general theories. The (neo)Weberian lesson becomes precious the more from a contingent symbol it can constitute foundations endowed with meaning becoming a phenomenological bridge over the postmodern quicksand.

Keywords: Ardigò, Parsons, Weber, methodological individualism, system theory.


Il Dio personale e la pestilenza
Religione vs scienza per il governo sul diritto e sulla politica

di Vera Kopsaj

Abstract: This work involves four apparently autonomous and “adverse” systems – Religion, Science, Law and Politics – which will be analyzed in the light of second-order cybernetics as: systems that observe and are observed in the meantime, systems capable of self-organization, systems capable of constantly considering new forms within its own complexity. Such a self-organizing capacity occurs in different ways and at different times for each system. We will therefore reason on the sense of closure and openness, on their transformation and change and finally on the dialogue, exchange and structural interchange between these four systems, especially during the Covid-19 pandemic crisis.

Keywords: the personal God, science, law, politics, pestilence, complex systems, structural interchange.


Verdad y validez entre la interpretación juridica y literaria
El tema del Titulus Crucis como justo proceso

di Francesco Petrillo

Abstract: The relationship between due process and process due is studied starting from the more palingenetic process. Applying the juridical-hermeneutic method, the trial of Jesus is shown as completely erroneous from a juridical-hermeneutic point of view,not only, as Renan does, for the Jewish procedure, but also for the roman Law procedure. Many phases of the process stand out because they are now useless and due to the functional incompetence, which follows, among the judges. By applying the hermeneutical canons, Pilate should have canceled the phases of the Jewish process already carried out and initiate, from scratch, the procedural phases of the procedure established in the Edictumpraetoris. From the juridical-hermeneutic point of view, the method cannot be considered a means in law but an end. The justice that should be guaranteed by a trial is an ideal, but the justice of the way the process proceeds, that is the guarantee of the procedural methodologies, is a very concrete possibility; the highest aspiration for a legal system. The narration of the trial of Jesus, regardless of universal and religious justice and political justice, is the narration of an illegitimate process, because it has not provided any legal guarantee proper to the scanning of the procedural phases. A legal decision is distinguished from a political one only if it is imbued with a methodological knowledge and awareness based on canons that can be precisely traced back to universally recognized principles of law, even capable of disapplying insufficient rules. Authority is enough for political decision, that is, the power recognized by the community. The cognitive side of the coin is irrelevant compared to the strong-willed one. And the decision can be ironic, like the sentence written by Pilate on the cross. It notes the direction of meaning of legal hermeneutics, capable of leading the interpreting subject into the object. Subject and object recognize each other. There is much more to this recognition than understanding something external to us. There is an understanding of the spirit with matter. I don’t just make the thing I wanted to interpret mine, I feel what the thing expresses from within. I’m no longer a stranger to the thing. Truth is, therefore, synonymous with actual value. A beautiful portrait can be valuable for the sensations it conveys. It can have a value for the sublime technique with which it was made. It can have a value because it participates in the historical narration of the person who is represented in it. These three forms of example values have nothing to do with the price of the painting, often determined by art criticism or market events. The truth cannot be the price you pay for it, because, conditioned by those who buy it, it changes. The value of the painting, on the other hand, remains the same, beyond its price, as well as the truth. Anyone who wants to buy a painting for the pleasure of owning it must focus on its value, not on its price. Those who seek the truth should also focus on it regardless of its dissemination and commercialization, its acceptance and reception.

Keywords: juridical-hermeutic methodology, truth, validity, due process, juridical decision.