Sabino Cassese, Il mondo nuovo del Diritto. Un giurista e il suo tempo
| Autor | Giacomo Delledonne |
| Páginas | 243-248 |
Sabino Cassese, Il mondo nuovo del Diritto. Un giurista e il suo tempo, IL MULINO, BOLOGNA, 2008, 376 PP., ISBN 978-88-15-12535-4, € 28,00.
Page 243
This book1 is intended to be, according to its author, an “intellectual biography”2. It has arisen from a series of lectures organized by the Italian Institute of Human Sciences (SUM) in Florence, in which some leading scholars have been summing up their activity and the evolution of their research topics – their “education, context and prospects.”3 The author is now a judge at the Italian Constitutional Court, where he has been sitting since 2005.
After deciding not to write “confessions” nor “a critique of myself” nor “a chronicle of events which I witnessed”4, this “intellectual biography” has three main focuses. The first one is a survey of transformations in law, institutions and understandings of them – it tries to “describe legal world as it was when I started having to do with it, and as it is today.”5 The second one consists of outlines of people who have somehow been an embodiment of these changes – “they have symbolized the new turn in events and intellectual history. They have been important to me (so it is pleasant for me to recall them) but also to a wider circle of people, or better still to the whole history of this period.”6 The third one is more similar to a collection of memories. The result is an “objectified subjective history, mainly seen with hindsight” – “not a sketch onPage 244 myself but on a period.”7 It may be said that the author has fully caught and tried to get over the dramatic alternative which was stressed in two famous iambic pentameters by W.B. Yeats: “The intellect of man is forced to choose Perfection of the life, or of the work, And if it take the second must refuse A heavenly mansion, raging in the dark.”8
The work is written in a particularly plain, no-frills style, revealing Cassese’s intention of drawing the balance of his activity without any embellishments or needless reflections9. Moreover, the book is enclosed in a list of more than thousand writings which Cassese has brought out since 1953.
Two landmarks may be found in the basic context of the new world of law – internationalization and globalization. The legal side of globalization is a massive process of ‘juridification’ (giuridicizzazione, Verrechtlichung): “as economic development accelerates, the legal machine ... becomes larger and expands its range of action ... Law penetrates into politics, administration, and society.”10 The main actors of this “juridification” are the courts: “All in all, juridification leads towards judicialisation. Penetration of law takes place basically through proceedings.”11 “Juridification” also concerns the global arena itself, where “an elevated standard of institutionalization”12 may be observed. Some transnational organizations do not act as agents of the states – their lawmaking can directly affect not only states but also individuals. These developments have triggered serious problems with regard to the traditional concepts of public law, first of all the notions of sovereignty and state. Global and national legal systems now interact in a non-hierarchical way. That is, of course, an effect of “openness to international law” (Völkerrechtsfreundlichkeit), a key feature in post-1945 constitutionalism – but the crisis of sovereignty and supremacy,Page 245 to advantage of such concepts as networks and dialogue, is chiefly a result of the more recent globalization process.13
Two guiding threads dominate the survey of the main transformations in legal systems since the 1950s: hidden continuity in the evolution of systems, and similarities between legal traditions beyond self-styled differences. On the one hand, Cassese’s early interests focused on the fascist corporative regime as an unsuccessful forerunner of the post-war welfare systems.14 Historical approach is crucial in order to enrich legal studies from this side. A meaningful example of the second trend is Cassese’s long-standing inquiry into Tocqueville’s and Dicey’s assumptions about French droit administratif and alleged inexistence of administrative law in common law systems: “my basic argument is that the two trends developed because of mutual contrast but evolved thereafter in the same direction ... problems and solutions are similar. The ways in which problems arise and chosen solutions change in relation to different contexts. Asked whether...
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