Roberto Bin, A discrezione del giudice. Ordine e disordine una prospettiva ?quantistica', Franco Angeli, Roma (2013)
| Autor | Giuseppe Martinico |
| Páginas | 196-202 |
196
P A N Ó P T I C A
Panóptica, Vitória, vol. 8, n. 2 (n. 26), p. 195-202, jul./dez. 2013
ISSN 1980-775
Roberto Bin,
A discrezione del giudice. Ordine e disordine una
prospettiva ‘quantistica’
, Franco Angeli, Roma (2013)
Reviewed by:
Giuseppe Martinico
The new book by Roberto Bin is characterised by a highly innovative and interdisciplinary
approach.
The author develops a series of intuitions that were already present in previous essays,
transforming them into a very rich and inspiring book.
His research originates from the argument explored by Laurence Tribe, in an old but still
important piece, “The Curvature of Constitutional Space: What Lawyers Can Learn from
Modern Physics” (Harvard Law Review, Vol. 103, No. 1, 1989, pp. 1-39).
The goal of the work is described in the Introduction: law still has to experience its quantum
revolution, since it has to abandon some cliché which does not correspond to reality.
To embark on such an enterprise the author decides to examine judicial discretion in the
application of the law, starting from the difference existing between judges and legislators in the
modern constitutional systems, the latter being the “only authority who is able to lay claim to full
democratic legitimacy, any enforcement of public power that is not securely grounded in his instructions appears
arbitrary and unacceptable” (p. 7).
On the contrary “With increasing frequency, judges’ decisions appear unconstrained, taken on the basis of
personal beliefs, rather than embedded in criteria fixed by the legislator” (p. 7).
The issue of the discretion of the judges has always gathered the attention of scholars. In this
sense, Bin recalls two very different approaches to the subject: Kelsen’s pure theory of law and
the theory of interpretation by Dworkin.
These are two very different conceptions but both share, according to Bin, a “Newtonian”
flavour when perceiving the judge as “external” to the interpretation, as he/she were a kind of
Laplace’s Demon, an external observer who does not influence the observed system: (“However,
what these approaches have in common is the postulate of a clear separation between the object and the subject of
legal interpretation/application. A ‘legal datum’ does actually exist, to be constructed and applied to a concrete
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