11 THE ITALIAN LAW JOURNAL NO. 1 (2025) Making and Unpacking the Italian Legal Style(s) edited by Camilla Crea PREFACE The Shadow of Italian Legal Thought: From the Comparative to the Interdisciplinary by H. Alviar García
INTRODUCTION The Italian Legal Imaginary – Inside, Outside or Upside Down? Learning From the History of a Journal by C. Crea This article uses the anecdote of ‘Columbus’ egg’ – in its lesser-known literary version by Piero da Niccolò di Filicaia, concerning an anonymous architect and a dispute over the construction of a bridge – as a metaphor for reflecting on the ten-year journey of The Italian Law Journal. [...] ESSAYS The Legal Nature of Parody in Copyright Law: Learning from the Italian Way by M. Borghi This article examines the concept of parody in copyright law, focusing on the distinct approaches taken by the fair use system (American) and statutory exceptions (European), as well as the unique perspective of Italian jurisprudence. Both the fair use and statutory exception systems generally treat parody as a form of copying or imitation [...] _____________________________ by I. Boucobza Over recent decades, French-style presidentialism has grown increasingly captivating within Italy’s legal and political spheres. This enchantment is perhaps most evidently manifested in the speeches and proposed constitutional reforms advanced by the incumbent Prime Minister, Giorgia Meloni, and her adherents. […] ____________________________ Italian Hours and American Days: One Legal Scholar’s Travel Diary by F. Caponigri What defines the journey of a legal scholar between Italy and the United States? In this brief academic travel diary, one Italian-American female scholar reflects on her legal formation and research in the United States and in Italy. Highlighting the inescapability of the Italian cultural tradition in her legal education, Felicia Caponigri reflects on the impact of interrogazioni, […] _____________________________ The Virtues of Triangular Comparison. Looking at Japanese Law Through Italian Lenses by G. Colombo and A. Ortolani Japanese law has often been depicted in a highly stereotypical and Orientalist way. The reasons are manifold. The lack of direct access to Japanese sources, limited direct exchange with local experts, and sometimes even the stance of influential insiders rank among the most significant factors. Post-war studies by American scholars addressed this problem, but created another: […] ____________________________ Italian Style, American Advantage, European Culture by G. Comparato The traditional ‘Italian style’, conventionally, if somewhat stereotypically, described as positivist, dogmatic and deductive, seems increasingly peripheral in a context in which law and legal culture are subject to trends of Americanisation and Europeanisation that require a more substantive and interdisciplinary approach. […] ___________________________ by S.A. De Conca Whether law and technology is its own branch of the law is a thirty-year old question. This debate, dubbed the ‘law of the horse’, begun in the 1990s and spread to Europe from the United States, surviving to this day. When it reached continental Europe, the debate was shaped at a methodological, semantic, and epistemological level by the American scholarship. [...]
____________________________ No Private Ordering, Please, We’re Italian by L. Enriques and C.A. Nigro Private ordering enables investors to design firm-specific governance arrangements. Aided by specialized lawyers, sophisticated contracting parties can engage in complex private ordering exercises yielding agency cost-minimizing governance structures. Venture capital (‘VC’) contracting is a notable example. Through decades-long iterations, US VC contracts have emerged as the best real-world solutions to the challenges of financing high-tech firms, informing transactional practice globally. […] ____________________________ Law and Political Economy in Italy: Secured Lending by J.L. Esquirol Credit is key to business development. Access to credit, and lower-cost secured credit, may mean the difference between profits and losses, sustainability and bankruptcy. Allowing the conditional transfer of assets in order to guarantee loans is a comparative advantage that national legal rules can either enable or curtail. How these legal rules are constituted depend on the national political economy: […] _____________________________ Italian Scholarship and the Study of Civil Procedure in Perú: Comparative Insights from Experience by C.V. Giabardo This contribution seeks to provide, for the first time, a general picture of the dynamics of reception and adaptation of Italian legal scholarship in the study of civil procedural law in Perú. It does so by drawing both on personal experience and historical context, examining the impact of certain Italian scholars on the methods of study and research themes in Perú, within the broader framework of Latin America. […] _____________________________ Causa Concreta and Voluntariness: An Old Doctrine Rediscovered by H. Jiang and J. Gordley When a contractual performance was useless to one of the parties at the time of contracting or becomes so, his purpose in contracting is defeated. It may be unfair to the other party to allow him to withdraw. But if it is not unfair, can he do so? Leonard Lessius (1554-1623) believed that he could because […] ____________________________ Tu Solus Sanctus. Tullio Ascarelli and the Quality of Mercy by C. Heath Tullio Ascarelli in his article Antigone and Portia contrasts Antigone’s (‘Calvinistic’) and Portia’s (‘probabilistic’) perception of justice. This contribution argues that perceptions of justice in the ancient, polytheistic world were probabilistic rather than absolute, making Antigone an exception in her time. Monotheism liberated mankind from oppression and lawlessness at the price of becoming subject to justice. […] _____________________________ Legal Pragmatism: A Comparison with the Nordic Legal Method by K. Kelemen and F. Valguarnera The article explores the evolution of Nordic legal pragmatism through a comparison with other European legal traditions, particularly that of Italy. The authors analyze the defining characteristics and historical development of a pragmatic approach in Nordic law, particularly in Sweden, one that prioritizes problem-solving over theoretical abstraction. […] _____________________________ Decisionism or Schmittian Institutionalism: Schmitt as a Reader of Maurice Hauriou and Santi Romano by R. Porto Macedo Jr. Carl Schmitt is known for being a representative of decisionist legal thought. I consider that Schmitt’s decisionist thinking of the 1920s was transformed, without becoming contradictory, when it received, during the end of that decade, the influence of institutionalist legal thought, mainly through the works of Maurice Hauriou and Santi Romano. […] _____________________________ Italian Law in China? The Tientsin Concession and Its Legal Status by S. Mancuso Differently from the Italian colonies in Africa, whose status has never been put under discussion during colonial times, the Italian concession in Tientsin (today’s Tianjin) has been a possession that received less attention from the Italian government. The same facts of daily life in that remote Italian outpost were minimally present in the Italian chronicles of the time. […] ____________________________ Constitutional Values and Property Law. The Promoveatur Ut Amoveatur Iuris Strategy in Italy by U. Mattei The Latin expression promoveatur ut amoveatur (be promoted in order to be removed) alludes to a human resources management practice, developed within early bureaucratic organizations such as the Catholic Church, the Military, and the Judicial System, intended to marginalize, with no conflict, an undesired member of a hierarchy. […] _____________________________ Views of a Lawyer from Nowhere and Everywhere by M. Möschel This contribution argues that the author’s biography (Austrian-German citizen born and raised in Italy) makes him simultaneously a natural candidate and an outlier for the epistemological dual lens envisaged by this special issue. Whilst in terms of legal education the Italian legal and cultural tradition have exercised a profound influence on the author’s scholarship, […] ____________________________ From Rome to Paris, Looking for Administration by P. Napoli To the contemporary observer, administrative law is inextricably linked to a system of administrative justice that assesses whether State conduct conforms to the parameters of legality. However, from a historical perspective free from the fallacy of presentism, the issue is not to search the past for precursors of today’s administrative justice, but rather to inventory […] ___________________________ Italian Influence on European Law: Where Are the Women? by F.G. Nicola This article interrogates the conspicuous absence of women in European law through the lens of a recently published volume on the Italian influence on European law. The volume, which compiled biographies of eleven judges and advocates general serving at the European Court of Justice since its inception in 1952, reveals an unmistakable ‘Italian-ness’ that, until 2000, was exclusively male. [...]
____________________________ Human Autonomy and Artificial Intelligence Agency. A New Dilemma for Contract Law: Automated Contracting or Intuitu Homini Contracts by T. Rodríguez de las Heras Ballell Automation in forming and performing contracts is proving to be a major revulsive for Contract law. Contract law evolves with the transformation of our economy and society, and today’s economy is not only digital, but essentially automated. The penetration of AI in contracting involves ‘distancing humans’ from contracts and challenging the notion of (human) autonomy and its meaning and significance for Contract law. […] ____________________________ Katà Métron: A Jurisprudential Critique of Umberto Galimberti’s ‘Passer-by Ethics’ by L. Siliquini-Cinelli Pursuant to the aims and scope of this Special Issue, this invited contribution engages in the academic debate on the international standing of the Italian cultural tradition by critically assessing the proposal for a ‘passer-by ethics’ (‘etica del viandante’) set forth by the internationally renowned Italian philosopher and psychoanalyst Umberto Galimberti. […] _____________________________ Sociological Jurisprudence in Practice: How Interdisciplinarity Changes Judicial Decisions by G. Teubner The article discusses the potential of sociological jurisprudence in court practice and examines its effects in concrete cases. Current judicial decisions, selected from different European courts, will be scrutinized to determine whether alternative and socially adequate results can be reached when these decisions are confronted with sociological insights. […]
