2021/2 – Diritto privato. Nuove frontiere e nuovi strumenti metodologici

Abstract
The complexity of the current season of private law cannot be reduced to the pattern of
postmodernity to which some legal essays refer. Proof of this is the fact that a great
narrative, such as the doctrine of negozio giuridico, offers the tools to deal with a high-
ly topical issue, such as that of the unfair contract. Two classic subjects of the postmod-
ern view of private law, consumer contracts and jurisdiction by general clauses,
disclose the existence of a point of view that places itself after the same season of post-
modernity and that marks the passage from a merely hermeneutic rationality to a
normative one.

Keywords
Private Law – Postmodernity – Consumer Contracts – General Clauses – Normative
Rationality.

Abstract
The essay analyzes the possible attribution of a general character to the private law
rules, also by identifying the relationship between several sectorial rules that derogate
from the general rule. Casting doubt on the traditional conception of private law, the
author also considers the new model suggested by the phenomenon of market regula-
tion and the consequent functionalization of the private autonomy. The assessment,
which takes into account the perspective of European law, finally reaches some system-
atic assumptions about the role played by the modern private law.

Keywords
Private Law – Decodification – Regulatory Law – Contract – Legal Interpretation.

Abstract
In this essay I will defend that private law is a necessary part of public policies. I will
show that the criticisms that stress the alleged inability of private law to contribute
effectively or efficiently to the achievement of social goals are no more than a prejudice.
Furthermore, I will argue that private law can make a significant contribution to a
wide range of social goals, such as income redistribution or gender equality, to name a
few examples.

Keywords
Private Law – Public Policies – Rational Legislation – Effectiveness – Efficiency.

Abstract
The final decision of cases is often not possible on the basis of existing legal norms. It is not uncommon for questions to be raised for which there is more than one legal answer. Vico and Savigny devote particular attention to this subject. However, their high regard for common law should not be misunderstood as advocating judgement unfettered from legal norms. On the contrary, their great respect for the doctrine of legislation must lead to a decisive rejection of justice dispensed on the basis of equity or Qadi principles. The ultimate solution is the ideal union between adherence to the letter of the law and creative jurisprudence, between respect for general rules and consideration for the special circumstances of each individual case, which Savigny called “tactµ and Vico called “widsom”.

Keywords
Topoi; Hermeneutics; Mos Geometricus; Historical School of German Jurisprudence; Artificial Intelligence

Abstract
The principles of reasonableness and proportionality are not per se suitable for estab-
lishing a “what ought to be”. However, they can provide lawyers with a tool for the
consistency check over the outcome of the hermeneutic activity. On the contrary, the
principle of effectiveness has a preceptive content that identifies a new kind of legality,
as envisaged by all the Constitutions of the twentieth century, as well as the European
Treaties. The process of building the foundations of a sustainable society requires
lawyer to combine legality and effectiveness, to recover his role as a source of law and
contribute to overcome the old-fashion dialectic on the priority of the Law, on the one
side, against the priority of the Judges, on the other side.

Keywords
Effectiveness – Reasonableness – Sustainability – Proportionality – Legal Dogmatics.

Abstract
The essay deals with the evolving relationship between new necessities emerging in
private law domain and the consequences for legal reasoning, with an emphasis on the
contribution from legal hermeneutics. More generally, the argument develops from
the necessity of an integration between the interpretative and the argumentative
elements, grounding on the growing convergence between analytical and hermeneuti-
cal approaches in contemporary legal theory. This is needed at a methodological as
well as at a cultural level in order to face the new challenges that private law must
confront in a legal world presenting different features from the past.

Keywords
Private Law – Argumentation – Interpretation – Legal Method −Legal Reasoning.

Abstract
The essay deals with the judicial uses of the brocardo in claris non fit interpretatio in
the interpretation of contracts. More specifically, the study is aimed at highlighting
three points: a) the notion of – clarity of the contractual text – is ambiguous, in the
sense that the in claris shows itself in many guises in judicial discourses; b) ambiguity
does not benefit the alleged clarity of the contractual text, both because the conditions
of clarity vary and because many of the conditions are undefined; c) for the reasons
mentioned in the previous point and the consequences that they produce, it would be
appropriate to discard the in claris with regard to the interpretation of contracts.

Keywords
Interpretation of Contract – Common Intention of Contractors – Literal Meaning – In
claris non fit interpretatio – Ambiguity.

Abstract
The paper aims to bring out the problems inherent in the formula (“danno ingiusto”,
“unjust damage”) contained in art. 2043 of the Italian Civil Code, showing some
hermeneutical developments of this formula, as well as the reasons that lead to believe
that the progressive expansion of the remedies brings physiologically with it the need
for a progressive and rational expansion of the area of compensable damage.
Especially delicate is the theme of “unjust damage” in the perspective of non-pecuni-
ary loss, which, connected to the protection of fundamental rights of the individual,
represents today, for the Italian civil law doctrine, a particularly fertile ground also in
terms of general theory of tort law.

Keywords
Tort Law – Damage – Legal Doctrine – Case Law – Interpretation of Law – General
Clauses.

Abstract
The essay highlights that the notary public practice could be included in the sources of
law, because the daily work of the Notary public develops new specific rules through
the interpretation/application of legal materials; in this activity are followed guide-
lines, protocols and principles addressed by the professional category.

Keywords
Sources of Law – Notary Public – Notarial Practice – Interpretation – Soft Law.

Gustav Radbruch è stato senza dubbio una stella del firmamento giusteorico
tedesco del XX secolo che purtroppo in Italia ha conosciuto, con alterne fortu-
ne, una ricezione solo parziale, sicuramente lontana dall’esaurire l’intero spet-
tro teorico indagato dallo studioso di Lubecca. Col fine di ‘colmare’ questo
vuoto giunge, dunque, meritoria, per i tipi della Giuffrè, nella collana ‘fioren-
tina’ dedicata alla storia del pensiero giuridico moderno, l’opera di traduzione
della Rechtsphilosophie radbruchiana, frutto del lavoro di curatela di Vincenzo
Omaggio e Gaetano Carlizzi, il quale, giovane studioso, si è distinto in passato
proprio nel solco tracciato da Radbruch e cioè nella capacità di coniugare,
nella ricerca, la speculazione filosofica con l’analisi minuziosa degli istituti di
diritto penale. Così il testo italiano della Filosofia del diritto del ’32 – parto
della traduzione dei due autori appena citati – appare come una pregevole (ri)
scoperta per la comunità di studiosi poiché offre spunti per chi voglia percor-
rere ‘vie alternative’ nell’arcipelago di percorsi che la teoria del diritto contem-
poranea riserva ai suoi cultori: ad esempio, d’ora in poi, sarà possibile cogliere
ancor di più, ove presenti, tutti i nessi e le implicazioni tra il miglior ‘giusnatu-
ralismo’ laico – di cui Radbruch è un campione – della prima metà del Nove-
cento e quello che, nella seconda metà dello stesso secolo, sarà in qualche
modo il suo diretto erede: il neocostituzionalismo italiano e tedesco di autori
come Ferrajoli o Alexy.