modi e nei tempi più opportuni da lei desiderati”, supra note.
13 Cristina S. c. Stefano B., Suprema Corte di Cassazione – Sezione I Civile, decision of May 25th 2005 n°
9801. The decision touches important legal themes such as the role and the legal meaning of the family inside the society and the legal system.
It is an acquisition long shared by jurisprudence and doctrine that, in the law system designed by our Legislator in the 197514, the institution-family model, to whom the 1942 Civil Code had
remained anchored, has been overcome by the community-family model, whose interests are not put on a supreme level, but identified with those of solidarity of its members. The family is now a meeting and shared life point for its members, among which relationships of love and solidarity are established as well as related to each one of them. As observed by several Authors, constitutes an emblematic expression of this enhancement process of the individual sphere of the nuclear family’s members the recent law 154/01 on domestic violence, which provides the expulsion from the family house of the author of the violence by order of court, in the implicit attribution of the prevalence of the protection of the person, who is also victim, compared to the reasons of the family unit. […] The family is, therefore, not a place of compression and mortification of inalienable rights, but seat of self-realization and growing, marked by mutual respect and immune from any distinction of roles, and inside which individual members conserve their essential connotations and received recognition and protection as persons first than as spouses […]. (Cristina S. c. Stefano B.)
Compared to other legal text, the fluidity of the language used in this decision makes it clear and accessible not only for the law technicians but also – and, maybe, above all – for the “men of the street”. The message seeks to explain the changed perception of the family in the nowadays society, stressing on the need of respect of the individual sphere inside the family community. The asserting of protection of the individualism, as well as the rejection of the loss of personality and individual role as supreme sacrifices to the institution-family, are the key points through which the Supreme Court condemns the defendant to the compensation of the moral damage complained by the plaintiff. Since the right to sexuality is a way of expression and self-realization also inside the family – meant, in this case, as a couple tied by duties of solidarity and mutual comprehension – and since the violation of the honestly and fairness duties has frustrated the good faith of the plaintiff in realizing herself as woman and mother, the Court doesn’t see any logical obstacle to the extension of the Constitutional protection also to this fundamental right15. The decision has not just legal effects on the parties but it
leads to a general revision of the laws and principles which rule the marriage, the family and the individual rights related with them. Despite its easy style, the decision still remains logically constructed through specific normative references. Nevertheless, it is immediately recognizable that the Supreme Court of Justice abandons the hermeneutic style that has always been considered as a real guarantee of objectiveness and clearness in the application of the legal rules in a positive law system.
The reason of this simplification could rely both on juridical language evolution and need of reducing the gap between legal applications of positive law principles and public opinion. In Italy, the connection between legal decisions, law approval processes and public opinion relies on the press releases system. In other words, it relies on journalism. Journalism enhances to simplify the complexity and the hermeneutical approach of a trial or a legal procedure in order to give
14 The reference is to the Law number 151 of May 19th, 1975 - Family Law Reform, GU May 23rd n. 135, 1975. 15 Indeed, recalling the constitutional principle that recognize family rights as fundamental rights (see, in
particular article 29 of the Italian Constitution), the Court is moved by logic consequences to admit the right to sexuality as part of them.
comprehensible information to the public. Two branches seem to reach this goal: legal journalism (or so called “cronaca giudiziaria”) and parliamentary journalism, the first one deputed to report the development of a trial, from the beginning to the decision, the second one aimed to report results of political procedures (voting, lawmaking processes, technical commissions exams, official declarations about economic and social issues). Decodification and translation of legal decisions or parliamentary procedures are compulsory steps for those who are not legal technicians. Aside from specialized reviews (which are intended for lawyers, judges and jurists in general) and legal stories, newspapers and news broadcasting shows are the main sources of legal contents for the rest of the population. It has often happened that the result of a trial or a parliamentary procedure was compromised by the wrong, or just too invasive, perception that medias had of it16, but lately the success and the influence
of the law questions on public opinion through the information system is proved by the ongoing movement of disapproval against the present government and the opposite parties. The patent disrespect of the civil law system and the lack of communication and clearness is the main critic moved to the powers. In a time of crisis for the publishing houses, an old-fashioned magazine based on precise legal facts concerning policy makers (from the mafia involvement of the Prime Minister to the condemns of national companies for fiscal and banking frauds), has almost raised the 100% of sales the first day of publication17. The use of legal journalism seem to prove the strict relation
between public opinion and legal themes in Italy. Is the public opinion meant to influence the lawmaking process or even the trial decision making process? Since the Court decisions, even the Supreme Court ones, are not compulsory for Italian judges who are subject only to the law, information plays a key role. It is not the decision itself, but the logical reasoning followed by a Court that can influence different trials and lawmaking processes. Assuming this statement as true, in a positive law system what a Supreme Court cannot do, a good press does.
4. Law as language, possible functions in the Italian law system
The expressions “institution-family” and “community-family” seem to come from the pragmatic world. They remind to a sociological language, most commonly used in the psychological and philosophical field than in the law one. This remark implies also the different approach of the jurisprudence to the “outside world”, that is to say the world where the law and its complexity is
16 Since I man referring to a civil law system the stare decisis principle does apply, but the interpretation and
logical process according to which a rule has to be applied to a case can be influenced by external factors. And information can e considered as one of these factors. Among the most famous cases of information influenced justice I can mention the Tortora affair. See Dotto-Piccinini 2006.
17 I am referring to “Il fatto quotidiano”, daily magazine funded by the journalist Marco Travaglio and published
on September 23rd 2009. Even if the comparison with the edition percentile of the main national newspapers (such as “La Repubblica”, or “Il Corriere della Sera”) is not possible (indeed, the relation is 150 thousands editions for Il Fatto against the 620 thousands editions for Il Corriere), this magazine relies only on its readers without any national monetary incentive which is quite common among the Italian newspapers.
hardly understood. As depicted by several exponents of the American Law and Literature movement (Nussbaum 1991), a recurrent theme in novels and narrative literature in general –though the journalism field could represent a more reliable witness in such a case– is the common sense of distrust in Justice corroborated by a distorted perception of it elaborated by the society. A comparison with the decisions of the European Court of Human Rights or the International Court of Justice, marked by a specific and yet simple language, reveals how the need of accessibility to the contents and the principles issued by the juridical organs also for the recipients is felt with urgency. Italian high technical language is almost incomprehensible for those who are not concerned with the structure and the functioning of the positive law. Does the jurisprudence want to become accessible to everyone? Do the literary criteria help the redaction as well as the comprehension of a legal text?
The meta-language used by the law is actually a fundamental structure of the civil law systems and, above all, of the Italian one since it is leaded by rigid, we might say “codified”, expressions which allow to turn so different and unique facts and actions into homogenous legal categories18. And
the homogeneity can testifies the equal treatment provided by the law or, in other words, the guarantee of justice in the application of the norms. Therefore, in a civil law system the criteria elaborated by the literary critic can be used to adjust the logical sequences in a law text, even simplifying the expressions, but never to dismiss the meta-language characteristics. A too free style would threaten the function of objectivity and homogeneity whose the legal language is guardian. In his Analisi giuridica delle letteratura: un’esperienza italiana (Juridical analysis of the literature: an Italian experience), Fabrizio Cosentino (1996) defines the boundaries of the law as literature/language strand including juridical doctrine and jurisprudence as form of literary expression but the Author never reaches the point of analysing and writing legal or juridical text just through literary criteria (Sansoni 2001, 51). Nothing excludes that the decision of the Supreme Italian Court will have deep impact on the literature as well as on other expressive forms (cinema, theatre, etc.) –actually it is not surprising, since Latin literature includes, among the others, Cicerone’s defending and prosecuting works as they were literary dramas. Yet, what seems to be the real aim of the intersection between literature (style, language, etc.) and law is that of connecting the “man in the street” with the legal world in order to reassure the population about the pragmatic more than theoretical role of the law: a communicating function. In a cynic view, we might also define this aim as a way of reducing the risk of riots and revolutions: populations fight against what they feel as unjust, or as better said, when the natural law finds itself totally disconnected with the positive law. I will distort Martha Nussbaum’s words from
18 “[…] once the law was conceptualized as analytical, scientific, and practical, the literary and philosophical
concerns that were once part of law could only appear if they were yanked back ‘in’ […] As depicted by the stereotype, law is instrumental, analytic, rational, nonemotional, technical, mechanical, and –above all– doctrinal. It is a technological science or craft, a science perhaps not as completely autonomous as Langdell suggested at the end of the nineteenth century, but relatively autonomous nonetheless.” (Baron 1998, 1078- 1080).
their original context (the law in literature movement opposed the law and economics one) to better explain the potentiality of the literature and, therefore, of the literary style:
[…] literature, and the literary imagination, are subversive. Literary thought is, in certain ways that remain to be specified, the enemy of a certain sort of economic thought. We are accustomed by now to think of literature as optional: as great, valuable, entertaining, excellent, but something that exists off to one side of political and economic and legal thought, in another university department, ancillary rather than competitive.[…] But if literature is, from the political economist’s viewpoint, dangerous and deserving of suppression, this implies as well that it is no mere frill, that it has the potential to make a distinctive contribution to our public life […].I shall focus, then, on the characteristics of the literary imagination as a public imagination, an imagination that will steer judges in their judging, legislators in their legislating, policy-makers in measuring the quality of life of people both near and far. (Nussbaum 1991, 879)
If literature has the power of subverting the ordered society, a fortiori its style can be use by jurists in order to lead a pacification process which consists in making accessible to the “subversives” readers concepts and principles that would be ruled otherwise by the literature itself. As the French legal sociologist Jean Carbonnier (2002, 61) has written, describing the role of the legal literature during the revolutionary age of the XVIII century, “the desire to reform the reign was so strong that the legal literature became spontaneously an essential part of the literature tout court”. This constant osmosis between literature and law, then, is proved by the corresponding stealing of contents and style from literature to law and vice-versa. The tendency is recognized also by other civil law systems such as the French one.
Why have we made the choice of the interdisciplinary? One might say…because of militancy. We can say, otherwise, because of the belief that law can improve the citizens formation. If the law is the set of rules governing the life in a society and sanctioned by the public force, it’s necessary for everyone (juridical subjects?), whatever his or her path will be, to have access if not to the detail of its functioning mechanism at least to the principles that form it. (Sansone 2001, 51-60)19
This short passage is taken directly from a serious of essays elaborated by the French law schools since the 1980s on the possible application of the law and literature method also to that civil law system. The general thought is that literature allows to measure “a certain ‘spontaneous’ relationship between public opinion and law” (Dhoquois 1984, 41 ss.). Here again the literature and literary style “thermometer” function finds space and confirms the subtle need of reducing the distance between the Langellian scientific vision of the law and the general perception outside the walls of the legal minds. And even if the literary style cannot replace the scientific legal one, it would improve the juridical communicating skills nonetheless since “what the law is looking for is neither the charme nor the seduction of literary words and style […] what is needed by the law is not the 'style', the elegance