(L’usage alternatif du droit en Italie)
04 / 1993
The idiom "alternative use of the Law", currently quite widespread in Latin America and adopted by legal services, was created in Catania, Italy, in 1972. Roberto Bergalli, a criminologist critic, expounds in an article with a broader content (Usos y riesgos de categorias conceptuales : conviene seguir empleando la expresion "uso alternativo del derecho" = Usage and risk of conceptual categories - should the idiom "alternative use of the law" still be used ?)the story , the context and the characteristics of the alternative use of the law in Italy.
In Europe, after World War II, the crisis of judicial mediation in social democracies stirred up deep thinking over the matter by judicial critics. As a matter of fact, in the late forties, Europe opened up to a new style of relation between the civilian society and the State, and constitutional law evolved toward more social and democratic considerations. Nevertheless, the traditional postulates of the rule of law (power division, distinction between lawyering and administration, separation between public and private affairs ...)together with the bases of economic democracy (open market)and political democracy (parties, parliament)started to decay. Moreover, economic concentration, political armed fights in the seventies and the loss of legitimity of the providence State after the first energy crisis severely challenged the three roles devoted to the law : social orientation, conflict settling, and recognition of power.
In the case of Italy, a left-side political culture favoured realism in normative interpretation. Besides, the novel practices of the judges is followed by answers from law theoreticians. Thus, the "Magistratura Democratica" current promoted reflections on the key questions of the judicial crisis, causing confusion in the interpretation of standards, and going astray from traditional exegetical practices. It was in this context that the Catania meeting took place (15th-17th May 1972), promoted by the law department of the Political Sciences Faculty. The productions worked out during this meeting were published under the title of "L’uso alternativo del diritto" ("Alternative use of the Law"), in two tomes. And the said idiom became widespread after this publication was issued.
During this period, which was quite decisive for the future of Italian democracy, a political violence strategy was initiated : the "strategia della tensione" (tension strategy)which started with a terorist attempt in 1969 and ended with the death of Aldo Moro in 1978. This situation gave birth to the dealing of terrorism with exceptional legal proceedings. Such climate showed the loss of the sense of righteousnes, which was no longer in a situation to bring any response to the capitalistic concentration and administrative centralisation processes, as violence rose and new paradigms emerged.
In front of this situation, the proposals of alternative use of the law were not limited to alternative practices. Extensive epistemologic work was performed, giving birth to new orientations for lawyers, whom the author terms "law theoretician judges", and "political lawyering functions". So far, the "Magistratura Democratica" has performed a huge work of law interpretation, to such a point that it is now considered as a "deputy to the political power". This pulls down the myth of apolitic magistrates, the latter being considered as just sticking to the dominating values. Confronted with the mediatisation and politisation of some famous trials, which degenerated into hasty judgements giving a scapegoat of some sort for public opinion, magistrates kicked back and proved the vanity of a State of Law.
The experience of the Italian judges was a contribution to better lawyering in the fields of administrative law, constitutional law, the penal code and the organisation of justice.
Roberto Bergalli a specialist of the juridical and judicial in Italy, is following the situation in Latin America closely. With this text, he aims at restoring the origins of the idiom "alternative use of the Law". His opinion is indeed that Latin-American legal sociology, who picked up the term, refer only to the French influence of "A Criticism of the Law", deeply marked by the structuralist movement. Apart from the theoretical aspect, analysis of the Italian movement is quite interesting, although dealt with in a few words and with lots of bibliographic references, as the author’s purpose is not to develop this topic but rather to provide a comparative frame for the study of the Latin-American situation.
Original card in French in Dph data base. The ’title/sub-title’ field corresponds to the ’translated title’ field in the French card.
The text of the Catania meeting : Pietro Barcellona (Ed.)"L’uso alternativo del diritto", 2 volumes, Roma-Bari : Laterza, 1973. Spanish version available : Barcelona, Fontamara, 1977.
Articles et dossiers
BERGALLI, Roberto, Usos y riesgos de categorías conceptuales: conviene seguir empleando la expresión 'uso alternativo del derecho'?, ILSA in. El otro derecho, 1992/03/01 (Columbia)