Bologna’s Legal Realism
As elsewhere, so in Italy it was in the late 1960s that legal positivism fell into crisis – having first developed in a substantially uniform way in the 1950s and 1960s through the intersection of analytic philosophy and Kelsen’s pure theory – and it is out of that crisis that legal realism emerged.
It was not so much the American brand of realism as the Scandinavian variety that provided the input for the original conceptions developed in Italy. Two main realist schools took shape, especially through the work of Silvana Castignone and Riccardo Guastini, of the University of Genoa, and Enrico Pattaro, of the University of Bologna.
This activity once prompted Jerzy Wróblewski to say, “Scandinavian legal realism is no longer cultivated in Scandinavian countries but is now being cultivated in Italy,” particularly by Enrico Pattaro.
It was early on that Pattaro (b. 1941) began to take an interest in Scandinavian legal realism, starting from his dissertation – written under the guidance of Felice Battaglia and devoted to a study that looks at Hans Kelsen and Alf Ross in comparison – as well as in one of his first essays, “Validità o verificabilità del diritto?” (Pattaro 1966), which develops some of the themes in the earlier study and advances the thesis that the normativist and the realist perspective are in fact complementary and can thus be reconciled (Pattaro 1971).
Pattaro subsequently investigated the thinking of Ross and Karl Olivecrona, and especially of Axel Hägerström, the fountainhead of the Uppsala school, to whom he devoted a monograph (Pattaro 1974) offering an organic reading of his work from a socio-psychological angle underscoring the crucial role the idea of norms plays in the law. In fleshing out this view, he (Pattaro 1985) brings out the similarities that Hägerström’s theory bears to the one that H. L. A. Hart would expound more than 40 years later in his Concept of Law (Hart 1961).
Pattaro has also contributed to giving currency to the Scandinavians’ original work, especially through his translation of Olivecrona’s seminal Law as Fact (Olivecrona 1971), a translation done in close collaboration with the author himself and published under the title La struttura dell’ordinamento giuridico (Pattaro 1972b), making it possible for scholars in Italy to become familiar with Olivecrona and study his work almost as soon as the original came out.
In this way, Pattaro moved progressively closer to the basic tenets of Scandinavian legal realism, which he more clearly presented as an approach essentially concerned with bringing to the study of law the insights of analytic philosophy and, more broadly, of logical empiricism.
According to Pattaro, the grafting of analytic philosophy onto Kelsen’s legal positivism – a move that initially gave new impetus to this new theory, enabling it to flourish in Italy – turned out over time to be a sort of Trojan horse in Kelsen’s stronghold, this by making it possible to see that implicit in legal positivism is a value judgment, and once it is determined that a positivistic theory of law entails an ideological stance, the theory is thereby shown to be inconsistent with a value-neutral approach such as that which informs analytic philosophy (Pattaro 1972a).
In a series of works spanning from the investigations of the 1960s to The Law and the Right (Pattaro 2005), a distinctive conception is developed by Pattaro which he terms “normative realism,” arguing that on the one hand law needs to be recognized as a reality not unlike that of empirical facts, but at the same time it cannot be reduced to such facts. In so doing he thus offers an alternative through which to break the longstanding dichotomy between legal positivism and natural law theory.
On this view, law is a complex cultural, social, and empirical reality comprising entities both linguistic and nonlinguistic, the former termed “directives” (in a manner reminiscent of Ross), the latter inclusive of psychical phenomena (such as beliefs) and behaviors. In short, a norm is, for Pattaro, the belief that a scheme of behavior becomes objectively binding when certain circumstances obtain. It follows that in answering the question What is law? we cannot proceed from a formalist theory of law but must instead turn to that range of broadly linguistic-sociological theories that are concerned with language and behavior, from semiotics to the sociology of language, from anthropology to the history and sociology of law.
Proceeding along this line of investigation, the Bologna school has devoted its attention to Hägerström’s Romanist works on the origin of legal ideas in the archaic world (Faralli 1992). And for a proper understanding of these ideas, they have been approached from a twofold perspective at once internal and external: From an internal one, they have been set within the overall frame of Hägerström’s general philosophy, while from an external perspective they have been brought into connection with the positivist socio-anthropological inquiries of the late 1800s and early 1900s.
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