Justice, Law, Technique (Enrico del Prato, журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017)

Justice, Law, Technique*(1)

Enrico del Prato,

Full Professor of Civil Law in Sapienza University of Rome,

Director of the Law Department,

University of Rome, Rome, Italy

Журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017, р. 71-75.

This article is devoted to the analysis of concepts of justice, law and technique from different points of view. The first one brings transcendent justice into the legal dimension. The second one separates the law, which is entirely human, from justice, which is divine. Are these two approaches necessarily separated and incompatible? It would be wrong to put them in contrast, relegating the first one to the mysteries or reducing the other one to the technique due to a practical definition of relationships, law is for the man.

The axiological approach is the feature of law. Whichever way you put it, the essence of law is to express values and valuable decisions. This aspect is not secondary, and it, does not represent a limit. It is at the bottom of a relationship between justice, law, and technique, because it means that each judge, despite the specificity

of the subjects, the incidence of technique, the apparent barrenness of the approach, is the guardian of justice. So, the relationship of analyzed concepts indicates that law, as a way of human knowledge, is a humble expression of justice.

Table of contents

I. Introduction

II. The axiological law approach

III. The nature of law branches.

IV. Conclusion

I. Introduction

"Auctor juris homo, justitiae Deus." Much thought has been given on these words ascribed to the jurist Piacentino. These words in a radical schematization and in a contemporary perspective may have, essentially, two meanings. The first one brings transcendent justice into the legal dimension. The second one separates the law, which is entirely human, from justice, which is divine.

Probably, a medieval jurist applied the first meaning: the dignity of law comes from its coincidence with justice; natural law is based on anthropological values and expresses justice. Law claimed its inherent tendency towards supernatural justice. But both meanings were possible, and still are today. The second meaning, as I said, separates law from justice. However, it separates them from the perspective of faith.

If we put aside this point of view, which is necessary in the perspective of contemporary legal systems, law becomes an expression of justice: for contemporary and positive legal systems justice is human, and cannot be otherwise. Justice, in this sense, is, first of all, enforcement of the law.

Are these two approaches necessarily separated and incompatible? It would be wrong to put them in contrast, relegating the first one to the mysteries or reducing the other one to the technique due to a practical definition of relationships, but we agree on one point, of which, presumably, no one doubts: law is for the man. The law must serve the man, not subdue him. To do so, it is necessary to release the legality from useless frills to cut to the core of the legal data.

The law, therefore, is designed for the man, from intimately existential reality to the multiple social dimensions at the global level. And anthropology is the ground from which to draw elements to build legality.

II. The axiological law approach

The axiological approach is the feature of law. Whichever way you put it, the essence of law is to express values and valuable decisions.

It is superfluous to enumerate a lot of social innovations of the contemporary era. A short summary leads to identifying a consequence of the speed in the "liquidity" of a society, which reduces spaces and facilitates "movements". Soft power is a subtle pattern of persuasion and pervasiveness of a cultural model that is able to establish itself for a supposed fascination. The so-called theories of gender replace sexual diversity in the anthropological and social relations plan, where male and female genders overlook sexual identity.

Scientific knowledge makes the man the lord of the procreative reality, and actually provides tools for life to win the disease and to survive even in a vegetative state. But, at the same time, it emphasizes the need to set a minimum criterion of human dignity and reveals the deep difficulty of understanding and explaining in a single meaning what life represents.

The response of law to this situation is mostly recognitive, sometimes of gleeful satisfaction in front of the new without asking questions, sometimes dealing with deeper understanding of main experiences in a human life.

Awareness of the relativity of knowledge is the way that leads to "postmodernity" and to the questions that arise about the value of the ideals of rationality and progress of the modern era. An important role of the media provides further basis for reflection about relations between reality and appearance and about the function for which these media should strive.

Fragmentation of knowledge and sectoral technicalities have represented the latest scientific approach model, but its perception of reality does not break the primacy of epistemology as a search for the basis of scientific knowledge, at least in its essential value in putting the man as a scope.

III. The nature of law branches

Training is the prerequisite of work effectiveness. The fragmentation of knowledge, its specialization put the question about the way to teach, which amounts not only to a technical data, but to a model that copes with the persuasive force of the didactic work.

A fundamental feature of recent experience is the spread of fragmentation. But the nature of the branches of law does not substantially affect the methods, because the processing of legal knowledge into categories, even interfering with other sciences, anthropology, ethnology, economy revolves around the same reality.

The division of legal knowledge is only an organizational need, which affects neither the unity of the system nor the substantial uniformity of criteria and principles, which also works for the historical subjects, as attested by the attention paid to the study of Roman law by legal systems that only recently have come to a systematic legislation.

Therefore, specialization can, at most, be a point of arrival, not a point of departure.

The same considerations apply in the administration of justice.

For the jurisdiction the function of the court is global and it denies, at least generally, the tendency to fragmentation. Nevertheless, the specialty of some subjects is reflected in the expertise of specialized courts: but the judge specialization must not affect the general competence. In other words, the judge specialization is a fact, not a feature.

This aspect is not secondary, and it does not represent a limit. It is at the bottom of a relationship between justice, law, and technique, because it means that each judge, despite the specificity of the subjects, the incidence of technique, the apparent barrenness of the approach, is the guardian of justice.

IV. Conclusion

To this end, let's go back where we started. The centrality of man is - regardless of any ideology - the value of law. The man - in all his dimensions - remains a basic building block of the law.

An effective law is not like a war machine; on the contrary, it creates new opportunities. Global wellness is implemented not only with economic relations, but with respect for the diversity of culture and human dignity.

The law, as a way for man's knowledge, is the humble expression of justice.

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*(1) The text of the speech at the plenary session on "Trust in Law - Mechanism for Global Crisis Resolution", at the St. Petersburg Legal Forum, May 18, 2016.