In such a changing and uncertain social and economic context, in which the traditional categories of law seem to chase the phenomena of the present, Treccani and the Corriere della Sera Foundation propose the initiative The words of law, a series of seminars entrusted to experts from the world of law, but also of economics and institutions: a cycle open to all, especially to students of Italian schools. The first keywords on which the in-depth analysis will take place evoke categories with which our lives (not just the legal debate) have encountered in different ways in recent months: State, public administration, work, national interest, public intervention in the economy, process.
The idea comes from the awareness that words matter, especially in law. the word in the form of the consent exchanged between the parties that creates the private law governing contracts. the word of the judge who condemns or acquits the accused. the exchange of vows that unites the spouses in marriage. always the word, in the form of an oath, which determines the installation of a new government and above all with the words that the laws are written.
Not only that, therefore, legal rules are made up of words or communicated through language. In law, it is the words that create reality and impose or prohibit certain behaviors. In this sense, the word of performative law, because it is not limited to describing or conveying a meaning, but contributes to the creation of rights, relationships, new juridical subjects. At the same time, the words of law fix socially shared values. In the first articles of the Italian Constitution, words such as work, inviolable rights, duties of solidarity, social dignity, equality are engraved: values which constitute the foundations of the republican order and which must inspire and guide the action of public institutions.
The centrality that the word assumes in the law allows it easilyafter all, to grasp how dangerous it is to make an improper use of it: the risk, first of all, of an epistemological break, the inability to build a relationship between people. The Tower of Babel metaphor associates the violation of a command with the fact that men begin to speak different languages and lose the ability to understand and cooperate with each other, so that the tower stops being built.
There are many ways to look at the relationship between language and law. As language governed by its own rules that are learned naturally, so the legal rules in historical experience were adopted and respected before the legislators began to order them. In the European experience there has been an overlap between the different languages spoken, the cultures of the peoples and the different legal traditions. Today in the European Union several linguistic formulations are confronted and the same rules apply in all the member states, to ensure equal legal ground and the free movement of persons and things.
In all legal systems, however, including the European one, the words of law, understood as positive law, written law, live in the interpretative activity. There is no legal rule that does not invoke it. The activity of the interpreter, therefore, is a necessary and unavoidable process. therefore, in the relationship between the word of the law and the interpretation that today plays a significant part in democratic legitimacy, in the social consensus of the law, in the relationship between the powers of the State.
Everything demands an exercise of truth and honesty in the use of the words of law. Frequently, in fact, the question arises as to whether the law should use a common language in order to be easily understood by all. This instance was at the basis of modernity: Napoleon himself would have imposed that the text of the civil code of 1804 was easily understandable and Stendhal was inspired by the simple and clear language of the French code in writing his works. Much importance was given to the clarity of the language by our constituents: We feel that this draft of the Constitution was not written by Ugo Foscolo …, said Piero Calamandrei in the speech delivered in the House on March 4, 1947. A great effort was therefore made. . Although not written by linguists, the Italian Constitution is generally considered an example of linguistic excellence. The objective was, in fact, also to develop a text that was understandable by anyone, even by that 59.2% of citizens over 14 years without elementary education in the immediate post-war period. To pursue this goal, the Constituent Assembly even gave Pietro Pancrazi, an esteemed literary man of the time, the task of stylistically improving the text of the draft Constitution.
The use of a simple and accessible language responds to essential needs, first of all legal certainty and the predictability of its effects. However, this is not an easy goal to achieve, given the tumultuous and sectoral nature of the production of legislation. On the other hand, clarity should not be confused with a trivialization of the rule, which can lead to descriptive genericity. The generic term often has an insufficient denoting capacity: it can mean many things and leaves a space for the interpreter who can choose at will.
Everything demands a new approach to the language of the law, useful to preserve a coherence in the relationship between the democratic decision of the legislator, the protection of the principle of legality and the trust it generates in those required to respect that rule.
Roberto Garofoli (Taranto, 20 April 1966), magistrate, section president of the Council of State, since 13 February undersecretary of state to the Presidency of the Council of Ministers in the Draghi government. Andrea Zoppini (Rome, September 15, 1965) lawyer and full professor of Private Law at the University of Roma Tre. The participants in the first two meetings organized by the Corriere della Sera Foundation (chaired by Piergaetano Marchetti) and Istituto Treccani (chaired by Franco Gallo) on 17 March and 31 March dedicated to Pandemic (law, institutions and society) with Antonio Aloisi, Giuliano Amato, Marta Cartabia, Roberto Garofoli
The program. Pandemic, state, work: themes, ideas
The initiative will start on Wednesday 17 March at 5 pm on the websites and social channels of Corriere della Sera, Fondazione Corriere della Sera and Treccani, with a meeting opened by Franco Gallo (president of the Treccani Institute), which will be attended by Massimo Bray (Director General of the Treccani Institute), Marta Cartabia (Minister of Justice), Roberto Garofoli (Undersecretary to the Presidency of the Council of Ministers), Piergaetano Marchetti (President of the Corriere della Sera Foundation), Andrea Zoppini (Full Professor of Private Law Institutions, University of Roma Tre). The subsequent events, all focused on keywords, will take place on a monthly basis and will continue, on the same platforms, until the end of the year with the following program: Pandemic (law, institutions and society), Wednesday 31 March; State (and globalization), Wednesday 28 April; Public Administration (and development), Wednesday 26 May; Public intervention in the economy, Wednesday 30 June; Work (and digital economy), Wednesday 27 October; Process (and economic efficiency of the country), Wednesday 24 November; National interest (geopolitics and law), Wednesday 22 December.
March 14, 2021 (change March 14, 2021 | 15:29)