How can the idea that inspired the very meaning of the law, its raison d'être, namely the stability and certainty of rules, be reconciled with the opposite idea of continuous change inherent in the ‘maintenance’ of the legal system? To address this question is to enter in the right perspective to understand how the leaders of the legal, political and institutional life of the Ancien Regime faced the crucial issue of the maintenance of laws. In that world, which seems so far away from the mindset of our contemporary legal positivists and our own, and of which nevertheless we are direct heirs, the fundamental value consisted in the immutability of the ordo juris because it was considered an expression of the Veritas and the Divina voluntas, which, of course, could not change. The evolution of the legal system could not be achieved through the practice of reform, so it must have gone through other channels. Which ones? The present essay identifies and discusses some of the major, focusing in particular on the interpretation made by the judiciary. The conclusion is that in the Ancien Regime there was an “occult maintenance” used by the judicial institutions as an arcane instrument of the political government of the lawyers, through which the jurisdictio was converted into political sovereignty. The proof is, on one hand, the frequent appeal to the reiteration (seemingly meaningless) of laws, on the other hand the fact that to the instrument of the repeal of obsolete rules the legal establishment much preferred that of disuse, which offered to the interprets margins of manoeuver incomparably larger. The revolutionary breakthrough intervened precisely to allow the transition from the judicial maintenance to the legislative maintenance, believing that it would serve to eliminate the patriarchal mediation of the judiciary and assert the primacy of political accountability in the rational, ordered, and controlled management of the legal system.

La manutenzione delle norme nell'Antico Regime. Ragioni pratiche e teorie giuspolitiche nelle società pre-rivoluzionarie

DI DONATO, Francesco
2010

Abstract

How can the idea that inspired the very meaning of the law, its raison d'être, namely the stability and certainty of rules, be reconciled with the opposite idea of continuous change inherent in the ‘maintenance’ of the legal system? To address this question is to enter in the right perspective to understand how the leaders of the legal, political and institutional life of the Ancien Regime faced the crucial issue of the maintenance of laws. In that world, which seems so far away from the mindset of our contemporary legal positivists and our own, and of which nevertheless we are direct heirs, the fundamental value consisted in the immutability of the ordo juris because it was considered an expression of the Veritas and the Divina voluntas, which, of course, could not change. The evolution of the legal system could not be achieved through the practice of reform, so it must have gone through other channels. Which ones? The present essay identifies and discusses some of the major, focusing in particular on the interpretation made by the judiciary. The conclusion is that in the Ancien Regime there was an “occult maintenance” used by the judicial institutions as an arcane instrument of the political government of the lawyers, through which the jurisdictio was converted into political sovereignty. The proof is, on one hand, the frequent appeal to the reiteration (seemingly meaningless) of laws, on the other hand the fact that to the instrument of the repeal of obsolete rules the legal establishment much preferred that of disuse, which offered to the interprets margins of manoeuver incomparably larger. The revolutionary breakthrough intervened precisely to allow the transition from the judicial maintenance to the legislative maintenance, believing that it would serve to eliminate the patriarchal mediation of the judiciary and assert the primacy of political accountability in the rational, ordered, and controlled management of the legal system.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11367/28391
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