NIETZSCHE AND DEMOCRACY

Epistemology and Morality versus Politics: from the creation of the Superman to the realization of Utopia   

I agree with Thomas Mann (1948). Nietzsche is “remote from politics”^[1].

Nevertheless, the demand to investigate the “political philosophy” of Nietzsche springs out from the different attempts (which have been done from time to time) to use his “innocently spiritual” Thought (Thomas Mann, 1948) to support anti-democratic Regime.

Although Schutte (1984) and Detwiler (1990) argue that the Nietzsche’s Thought can justify “highly authoritarian systems of government”, Nietzsche is against any anti-democratic Regime. This is clear, as I wrote supra (above). Nietzsche defends and supports the Individual Freedom. His philosophy is ontological incompatible with any totalitarian Regime. Individual Freedom and authoritarian Regimes cannot co-exist together.

Indeed, according to Montinari (1975): “all’interno di una … democrazia … non puo’ mancare una “dimensione Nietzsche”, la dimensione … della liberta’ di spirito che nasce dalla carica critica, razionale e liberatrice del suo pensiero e che non si stanca mai di rimettere tutto in questione”^[2].

Nietzsche’s Thought was corrupted by Elisabeth Nietzsche Foster (his sister). She made Nietzsche’s Thought be compatible with the German political ideology of Nazism (Montinari, 1975; Wicks, 2004)^[3].

But, Nietzsche’s Philosophy was clearly anti-Nazism.

The anti-Nazism of Nietzsche is self-evident from:

1. his anti-racism;
2. his idea that “the concept of “pure blood” is the opposite of a harmless concept”;
3. his anti-anti-Semitism (Duffy M. F. and Mittelman W., 1988);
4. the idea of man like a free thinker;
5. his ideas about idols;
6. etc… .

On the contrary, Hunt (1991) argues that the Nietzsche’s Thought can be interpreted in any possible way, due its ambiguity. So, Nietzsche can appear: anarchist; totalitarian; liberal; etc…; … as Nietzsche expressed himself like a Sphinx (Blondel, 1991).  But, Nietzsche does “not hold any of the standard political ideologies” (Hunt, 1991). So, it is meaningless an account such as that one of Ansell-Pearson (1994). The latter attempted: before, proving that “Nietzsche is liberal individualist”; then, explaining “on which he departs from liberalism”!!

This sketch indicates how much Nietzsche’s work was strongly misunderstood.

Paradoxically, Nietzsche predicted this outcome.

“But it would be a complete contradiction of myself if expected ears and hands for my truth already today: that I am not heard today, that no one today knows how to take from me, is not only comprehensible; it even seems to be right” (Ecce Homo, Why I write good book, I).

For these reasons, I agree with Warren (1985) when he says: “… that the Nietzsche’ s thought has entered the cannon of political philosophy in an unsatisfactory manner, and that the relation of Nietzsche and political philosophy needs to be reconceived”. Nevertheless, I do not agree with Warren (1985) on the “strategy for doing” this re-evaluation. Instead of starting from the centrality of the philosophy of power and human agency, I suggest to follow the exegetic criteria, which Nietzsche gave us in Ecce Homo: “Listen to me! For I am thus and thus. For not, above all, confound me with what I am not!!” (Ecce Homo, Prologue).

The mistake to use the concept of Will to Power comes from a “literal application” of this expression without understanding what it means.

Will to Power does not refer to individuals. It refers to the World itself.

As individuals are parts of the World, they participate to Will to Power.

“This world is the will to power — and nothing besides! And you yourselves are also this will to power — and nothing besides! (Nietzsche, Will to Power, 1067).

Will to power is the Dynamical Force that makes World / Existence be.  It looks like the concept of Spirit that is used inside the Hermeneutic Philosophy (Gadamer, Heidegger, Betti, etc…). Indeed, according to Davey (1991): “… there is a substantial hermeneutic foundation to his thinking which has, astoundingly, been neglected”.

The present writer affirms that the political thought of Nietzsche should be extracted by his moral and epistemological philosophy. The political philosophy of Nietzsche is an indirect consequence of his moral and epistemological ideas.

The difficulty to understand Nietzsche comes from the ambiguity of his discourse. His aphorisms look like Buddhist Zen Koans. Nietzsche used ambiguity as, at the end, “no one can extract from things, books included, more than he already knows. What one has no access to through experience one has no ear for” (Ecce Homo, Why I write good book, I). So, long explanations are useless!!

“Every deep thinker is more afraid of being understood than of being misunderstood. The latter perhaps wounds his vanity; but the former wounds his heart, his sympathy, which always says: “Ah, why would you also have as hard a time of it as I have?”” (Beyond the Good and Evil, 290).

The political idea of Nietzsche is to create a Utopian Society that is composed by free Individuals. As Individuals must be the opposite of lemmings, the Utopian Society has to be the opposite of a flock of sheep.

Nietzsche expressed his anti-authoritarian view, exempli gratia, in On the New Idol (Nietzsche, Thus Spake Zarathustra, I). The State is described to be an Idol that imposes its Moral Ideal a là Simmonds onto its servants. So, between the Power of the State (Leviathan) and the Simmonds’ Moral Ideal (the Cultural Paradigm that is imposed by the State) there is a strong bond. This is clear from the Nietzsche’s works, even if his Cultural Aspects and Implications have usually been underestimated (Blondel, 1991).

Although some authors have attempted to restrict the interpretation of On the New Idol to some particular types of forms of Government (Sokel, 1983; Strong, 1976), these interpretations “have nothing to do with the text of On a New Idol” (Hunt, 1991)^[4].

On the New Idol refers to every State that has not transmuted itself from the flock of Sheep to the Utopian Society.  Indeed, sheep/lemmings have always homologated themselves to something that was given to them. On the contrary, a group of free individuals is made by free spirits. This is clear from the literature that has influenced Nietzsche’s work. Exempli gratia, Holderlin (1822; 1994) was one of his preferred writers (Blondel, 1991)^[5].

Nietzsche does not want a society of imitators (lemmings).

“Imitators. – A: “What? You want no imitators?” B: “I do not want people to imitate me; I want everyone to set his own example, which is what I do”. A: “Thus –?” (Gay Science, 255)

Nietzsche does not want believers. Believers are servants of idols.

All the conflicts and wickedest things have been the consequence of believers’ determinations. They want to impose their own Moral Ideal (a là Simmonds) onto any other one. The Christian Church gave an example of this with its Holy Inquisition. To save the soul of people from the fire of the Inferno and Satan, Inquisitors created the Hell on the Earth.  Like real devils, they enjoyed: to torture and to burn people; to commit any atrocity. They were servants of Satan; they were not ministers of God at all. They betrayed God. They killed Him and His Teaching!!

Nowadays, this is done with the New Profane Inquisition. Psychopathology is used and misused to reload the Hell on the Earth (Epis L., 2011/2015). Its constructs, standard deviations and demand of Homologation, are the new Idols “… in the name of …” new and old forms of abuse, torture and violence, can be done.

The only way to exist from this foolishness is to create Utopia.

The only way to create Utopia is to transmute the Human Being from man to superman.

This is possible only proceeding with the three passages described by Nietzsche: Camel; Lion; Child. Nietzsche’s philosophy has several Alchemical Elements. Indeed, these three passages are a new metaphor for the three Alchemical Stages: Nigredo (the Black Stage Alchemicae Operae); Albedo (the White Stage Alchemicae Operae); Rubedo (the Red Stage Alchemicae Operae). But, I do not know about These Enigmatic Things! So, I cannot tell you about Them. Yet, you may read other writers such as: Zosimus Alchemista (Zosimos of  Pannopolis); Maria Prophetissima (Mary the Prophetess; Mary the Jewess); Stephanus Alexandrinus (Stephanos of Alexandria; Stephen of Alexandria); Pseudo-Democritus; Gabir Ibn Hayyan; Senior Zadith; Paolo di Taranto; Basilius Valentinus (Johann Tholde); …; Julius Evola (1931); … and/or someone else, who knows about Them.

The superman is what I descried in the first chapter. So, I will not long more on this topic. Yet, I want to tell something about the view of Thiele.

I disagree with the “heroic individualism” presented by Thiele (1990).

“The Hero has the fate of Tantalus, whose reach is insufficient and whose efforts unending. For the fruit of his struggle is unattainable: he is a mortal who seeks immortality, a man who desires to be a god. But as he reaches for what he cannot grasp, he also grows in power, and therefore welcomes the temptation to overstep his limits. Unaware or contemptuous of the boundaries of human life, the hero is forever in state of transgression. He is hubristic, and he both suffers and glories in his struggles to be more than he is fated to be”.

Thiele (1990) has completely misinterpreted the concept of hero of Nietzsche. On the contrary, Thiele (1990) described the ideal of the romantic hero, exempli gratia, that one, which was used by Byron (1841) in his Childe Harold’s pilgrimage.

The superman is a different kind of hero.

He:

1. overcomes his old nature of follower;
2. transcends duality and the antinomy between egoistic and un-egoistic^[6], reaching the Unity^[7];
3. goes “beyond the Good and Evil” to obtain the condition describe by Alexander Pope in An Essay an Man: “Self-love and Social are the same”.

Nietzsche does not desire to be god. Nietzsche does not want to create a new idol. He wants to be a Child^[8] (Thus Spake Zarathustra, I, I) as I explained supra (above).

“…“Dead are all the gods: now do we desire the Superman to live” – let this be our final will at the great noontide!” (Thus Spake Zarathustra, XX, III).

The Child is a creator of his own values. The Child has awareness. The Child reaches the Unity that has been described by Alexander Pope with his masterpiece: An Essay on Man.

“Nothing is foreign: Parts relate to whole:

One all-extending all-preserving Soul;

Connects each being, greatest with the least;

Made Beasts in aid of Man, and Man of Beast;

All serv’d, all serving! Nothing stands alone;

The chain holds on, and where it ends, unknown”.

Alexander Pope, An Essay on Man.

Nietzsche expressed this interdipende (exempli gratia) with these words: “Thou great star! What would be thy happiness if thou hadst not those for whom thou shiniest!” (Thus Spake Zarathustra, Zarathustra’s Prologue).

The aim of superman is: to find himself … “…find yourself…” (Thus Spake Zarathustra); to be free from any others … “… become what you are” (Thus Spake Zarathustra). It is not to dominate the other persons, but to allow them to be also free.

The aim of superman is to be genuine: “Are you genuine? Or just a play-actor? A representative? Or the actual thing represented? – Ultimately you are even just an imitation play-actor …” (Twilight of the Idols, Maxims and Barbs, XXXVIII).

The aim of superman is to go beyond the duality good and evil: “Good and evil are the prejudice of God” (Gay Science, 259).

For all these reasons, I disagree with Thiele (1990).

“To say it again, little of “ill will” can be shown in my life; neither would I be able to speak of barely a single case of “literally ill will”. On the other hand all too much of pure folly!” (Ecce Homo, Why I write good books, I).

This pure folly is: the pure folly of creating a better human being; the pure folly to create a Utopian Society.

A Society where the Human Being has transmuted: “All … passions in … virtues, and all … devils (in) angels” (Thus Spake Zarathustra, I, V). A Society where “the noble man also helps the unfortunate, but not – scarcely – out of pity, but rather than from an impulse generated by superabundance of power” (Beyond Good and Evil, 260).

A New Hope: from a flock of sheep to a “group” of Free Individuals

The individuals, who are able to pass through the three stages (Camel; Lion; Child), arrive to transmute themselves from men to super-men.

This means two things. On one hand, they transmute themselves. On the other hand, they transmute the Society whose they are members. As they are not any more lemmings, Society is not any more a flock of sheep.Society transmutes itself from a flock of sheep to a group of free Individuals, who are able to co-exist and to collaborate in their own (very strong) differences. So, a true Democracy will begin.

As I wrote supra (above), no democracy (at all) can exist among flocks of sheep. Since they are enslaved by homologation, only Tyranny exists.

It does not matter the form and/or the name that has been given to this tyranny. It does not matter the reason “… in the name of …” Homologation is demanded.

Flocks of sheep are always dominated by a Totalitarian Regime. They ask for homologation. They ask for idols. They are not able to live in a different way.

On the contrary, Utopia is made by Free Individuals.

So, you have to choose: do you want to be a lemming/sheep or a Free Individual?

Do you want to stay in a flock of sheep or to create Utopia?

Only you, by yourself, can decide. Only you, by yourself, can free yourself. No God, No Bodhisattwa, No other one else, can help you in this.

It is Time for a New Hope. It is Time for a New Era / Epoch.

It is Time for who is ready.

[1] Thomas Mann (1947), Nietzsche’s Philosophy in the Light of Contemporary Events, Washington: Library of Congress

[2] “ Inside a Democracy … a “Nietzsche’s dimension” cannot miss. It is the dimension of the “freedom of Spirit” that comes from the critical, rational and liberating, power of his thought, which re-put everything under re-examination without getting tired”.

[3] Elisabeth Nietzsche Foster and her husband Bernhard Foster were both Nazis. They lived in Paraguay. When, they came in Germany to take care Friedrich Nietzsche, Elisabeth used the philosophy of her brother to elevate her position in the Nazis Society. In Paraguay, Elisabeth and her husband worked actively “to establish an Arian, anti-Semitic German Colony called” Nueva Germania (Wicks R. 2004). This is how the Nietzsche’s Thought was made compatible with the nationalism of Hitler and Mussolini (Wicks R. 2004).

[4] Sokel (1983) restricts the application of on the New Idol only to “ossified bureaucratised State”; whereas Strong (1976), only to “nationalistic States”.

[5] Holderlin (1822; 1994) in the Hyperion wrote: “… The person who wants the State to be a school for morality has no idea how much he is sinning. None the less, wanting the State to be his heaven, man has created a hell. The State is a rough walnut shell covering life, nothing more. It is the wall of the garden in which men grow flowers and fruits. But what use is the garden wall if the soil is dry?”.

These ideas are present in the On the New Idol of Nietzsche.

[6] “The propositions over which everybody is in fundamental agreement – not to speak of everybody’s philosophers, the moralists and other hollow-heads and cabbage-heads – appear with me as naïve blunders: for example that belief that “un-egoistic” and “egoistic” are antithesis, while the ego itself is merely a “higher swindle”, an “ideal”. There are neither egoistic nor un-egoistic actions: both concepts are psychologically nonsense!” (Ecce Homo, Why I write good books, V).

“What makes one heroic? – To approach at the same time one’s highest suffering and one’s highest hope” (The Gay Science, 268).

[7] The concept of unity is so clear, so evident, obvious, in his writing: “An “idea” – the antithesis Dionysian and Apollonian – translated into metaphysic; history itself as the evolution of this “idea”; in tragedy this antithesis elevate to unity; from this perspective things which had never before caught sight of one another suddenly confronted with one another, illuminated by one another and comprehended…” (Ecce Homo, The birth of Tragedy, I).

[8] “Three metamorphoses of the spirit have I designated to you: how the spirit become a camel, the camel a lion, and the lion a child”

…

“But tell me, my brethren, what the child can do, which even the lion could not do? Why hath the preying lion still to become a child?

Innocence is the child, and forgetfulness, a new beginning, a game, a self-rolling wheel, a first movement, a holy Yea.

Aye, for the game of creating, my brethen, there is needed a holy Yea unto life: its own will, willeth now the spirit; his own world winneth the world’ outcast” …

Blogger’s Communication:

Rule of Law and English Legal System has been published like book in PDF with Index, Bibliography, etc … . I strongly recommend reading it: both, in PDF; and, in its whole unity. You will be able to find it in the Blog’s Page: Law & Criminology (Diritto & Criminologia).

ABSTRACT

Although few changes and additions have been done, this writing reports studies made in 2005/2006.

Even though the writer believes that:

1)       a corpus of legal values should be written inside each Constitution;

2)       and Judges, Lawyers and People, have the duty to defend those values against the tendency of Power to go beyond them; …

… the study affirms that the principium of Rule of Law (and/or Supremacy of Law) does not include a corpus of legal principles (and/or values) inside itself, as somebody affirmed.

The principium of Supremacy of Law means “only”: the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution, when Power believed to be above the Law. It happened, exempli gratia, in France during the Ancient Regime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above the Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Bureaucrats, Banks and Financial Powers, are all under the Law. In other words, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued: the Euro-group is above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, the Euro-group is not above the Law. Actually, all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981).  Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, people have forgotten the real meaning of Supremacy of Law. Power started again to act above the Law a là Ancient Regime!!

Warning: the style is sometimes ironical, satirical, metaphorical. Nevertheless, contents and facts are real, rigorous, scientific and academic.

INTRODUCTION

Rule of Law’s True Meaning

The principle of Rule of Law is also called Supremacy of the Law. Rule of Law is a principle of Formal Validity. It states that Law is above the Power. In other words, it is the basic principle of any modern Legal System, after the French Ancient Regime!

The Supremacy of Law affirms that Kings (Presidents; Governments; Constitutional Bodies; Judges; Courts; Authorities; Committees; Groups; Bureaucrats; Financial Powers; Banks; etc…) are under the Law. Their actions and decisions are legitimate only, and only if: both, the Law gives them that kind of power; and, they use that power following the right procedures.

Otherwise, Power is unlawful, illicit and illegitimate.

Their commands should not be in force.

In this latter case, people are NOT bind by Power’s decisions. People have the RIGHT to resist and to fight against those illegalities, illegitimacies and unlawfulness. 

Unfortunately, Power does NOT like to be bound. As a result, the principium of Supremacy of Law was reduced to be a simulacre a là Bauderillard (1981).

First of all, Supremacy of Law was called with a “less evocative” name: Rule of Law.

Then, Rule of Law was defined with new pleasant and agreeable principles. At the question: “what is the Rule of Law?”, lawyers started to give any possible answer. So, the clear, basic and simple, principium of Supremacy of Law became a void and nebulous concept.

At the end, People and lawyers started to forget its real meaning.

Meanwhile, Power started again to act above the Law.

For instance, the writer will give some examples that happened at the University of Cambridge. They are very useful to understand what it is happening nowadays. What people learn in the Universities, people do in the World!! Although the writer decided to speak about it with a satirical and ironical style, the facts are true.

Rule of Law like Simulacre

As we told supra[1], the principle of Rule of Law is the principium of Supremacy of Law above the Power. This is its very Nature. This is its DEEP REALITY.

However, images, in the flow of the time, tend to lose their meanings. Step by step, they become void concepts that: either, mask their deep realities; or, lose any relation with them.

According to Bauderillard J. (1981), they become Simulacres. Once they are Simulacres, they are void concepts that can be filled with any arbitrary meaning, which Power[2] wants. In this way, Justice is reduced to be nothing more than “the interest of the most Powerful one” a là Trasimacus.

They are a “mobile army of metaphors” ready to prostituting itself to any pro tempore Power. As History and Social Sciences teach, the Winners and the Establishment (Lyotard, 1983) decide what it is true and false. This is as Power and Knowledge are the “two faces of the same coin” (Foucault). Changes into Power’s relations become changes into Paradigm’s beliefs. Changes into Paradigm’s beliefs become changes into Power’s relations.

Thus, we should keep in mind this basic truth, when we study any Social Sciences’ constructs. Actually, it does not matter if they are about: Law; Psychology; Economy; Finance; etc… .

Law and Sensemaking

As the principium of Supremacy of Law was reduced to be a simulacre, Power can use it like a Horse of Troy to put in and put out from the Legal System whatever it wants.

This makes Law be applied in a very discriminative way. Law will have different meanings for different people.  For the majority of people, Law will be an instrument of “slavery” in Power’s hands. For a small elitist group, Law will be always a Declaration of Rights in defense of their own liberties and interests.

English Legal History, behind what propaganda says, it is not an exception. Whereas at Bentham’s time, the common law was used to defend the privilege of aristocracy above common people; nowadays, Law is used to defends the interests of financial powers above Peoples and Nations.

Thus, the writings of Bentham should be still considered a current issue.

According to the Bentham, English tradition is committed to “save the appearance” with a lot of rites and false beliefs. Lawyers’ writings, instead of reviling those trickeries, mask them[3].

Whereas English Lawyers / Judges claim to apply simply “neutral” Law (Universal Principles; Acts of the Parliament; etc…), they make always arbitrary (discretional and political) choices. They use their power to defend the privilege of the Establishment against common people.

The American Realism clarified that Judges do NOT apply neutrally the Law. Judges create and change the Law in each case. They do (always) political choices. Also Perelman demonstrated this. He gave some good historical examples of how, the same Law got very different interpretations and applications. The latters followed the pro tempore political ideas. This is possible for different reasons. But, an army of Troy’s Horses makes it far much easier.

The allegories of the Classical Literature are still very useful for understanding the present time. A Horse of Troy does not need to be necessary physical!! It could be everything, even a theoretical concept.

Thanks to them, the Establishment can use Law (as well as: Psychology; Economics; etc…) to lead people: both, to do; and, to believe; … what they want. Weick’s studies about sensemaking and enactment are very useful for understanding these dynamics. They should not be limited for approaching the working contexts inside the Companies.

All in all

There are two wrong views. The first one, nothing can be known (Post-modernism). The second one, everything is true. Both of them reduce Truth and Justice to be whatever Power wants. They allow Power to control people with sensemaking. But, sensemaking has nothing to do with Truth and/or Justice. Sensemaking is just Power’s manifestation.

This is what it is happening inside the Social Sciences (Legal System; Psychological constructs; Finance; etc…).

As Nietzsche wrote: “This world is the will to power — and nothing besides! And you yourselves are also this will to power — and nothing besides!” (Nietzsche, Will to Power).

RULE OF LAW

Rule of Law “is an ambiguous expression” that can have different meanings for different writers (Hood Phillips O. and Jackson P., 1987).

Hence, a clarification of the concept (advised by analytical jurisprudence and philosophy) is indispensable, at the present tense.

In absence, we could just enhance entropy. Everyone will speak about different things, using same words.

At the present time, there is no agreement among lawyers about the nature of Rule of Law. Lawyers, Judges and Academics, defined Rule of Law differently. Moreover, Rule of Law presents different conceptualizations: both, among the legal Traditions and Systems; and, inside the each legal Tradition and System (such as: English Common Law; Canadian Legal System[4]; etc…).

For instance, according to American constitutionalism: “the rule of law promises predictability in social life by placing constitutional limits on the kinds of power that governments may legitimately exercise, as well as on the extent of those governmental powers” (Shapiro I., 1994). Otherwise, this cannot be true for Countries such as: Australia. Australian Constitution simply regulates the exercise of the sovereignty. It does not state any legal principle and/or value able to lead and to bind the Power. Hence, Rule of Law is a mere principle of formal validity (like Hart’s rules of recognition) for those Nations with an “amoral constitution”. Everything is valid, if the Power acted under the Law.

American conceptualization of Rule of Law has its foundation in a written constitution. This is ontologically constituted by two corpora (parts). The first corpus gathers the regulations about the exercise of sovereignty (exempli gratia, the relation among the Constitutional Bodies). The second corpus gathers a set of political and legal principles that bind the actions of Sovereignty. This latter was the hard core of the Social Contract. So, if the Sovereignty acts against those values, each Judge can refuse to apply those Acts and/or commands.

Law rules Nations only, and only if, each person (it does not matter his/her social strata) can “win” the Sovereignty each time the Sovereignty acts above the Law. But, this must happen in a substantial way. It is not enough that it exists only theoretically speaking.

Rule of Law has also another aim: to prevent any kind of despotism, also that one of the pro tempore Majority above the Minorities. But, this could happen only, and only if, Nations are ruled by constitutional principles (Schwartz B. 1955).

Allan (1993) considered this point inside English Discourse. He recognized that “… the problem lies (in) the difficulty of articulating a coherent doctrine which resists a purely formal conception of legality – according to which even brutal decrees of a dictator, if formally “valid”, meet the requirements of the rule of law – without instead propounding a complete political and social philosophy”. Allan (1993) confirmed that Rule of Law, inside English constitutionalism, looked like a secondary rule of Hart, as: “rule of law is able to distinguish between commands of a legitimate government from those of anyone else”.

Allan (1993) stated that it is “very doubtful whether it is possible to formulate a theory of rule of law of universal validity”.

On the contrary, the present writer affirms that it is possible. It is enough to exit from the Babel Tower. It is enough to go back to the original and real meaning of Rule of Law: Supremacy of Law above the Power.

Nevertheless, Allan (1993) affirmed that Rule of Law is a living part of the English Constitution. It is able: both, to bear some legal moral values and principles; and, to bind the sovereignty of the parliament. But, Allan is hugely wrong. According to English Constitutionalism, Westminster Parliament has no limit (Barendt,1998). In other words, “there is no legal limit to what the “Queen – in – Parliament” can enact in a statute” (Wilson, 1979).

This is historically well proved.

Rule of Law like Universal Principle of any Legal System

The present writer disagrees with Allan. He believes that it is possible to formulate a theory of Rule of Law of Universal Validity. It is enough to remember its original and deep meaning. Rule of Law is the principium of Supremacy of Law. This principium states the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution when Power believed to be above Law. It happened, exempli gratia, in France during the Ancient Regime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Judges, Courts, Bureaucrats, Officers, Banks and Financial Powers, are all under the Law. In other word, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued the Euro-group is above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, it does not mean that it is above the Law!! Actually, it means that all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981).  Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, we have arrived to the present time. Lawyers are lost inside nebulous concepts. Power has started again to act a là Ancient Regime.

English constitutionalism is used like example for understanding how it has happened.

[1] Supra means above in Latin.

[2] Power is used a là Foucault.

[3] Exempli gratia, Bentham wrote this about Blackstone’s books (one of his “masters”).

[4] Exempli gratia, Rule of Law has received three different approaches in Canadian Constitutionalism: rule of law like impartial administration of rule; rule of law like procedural fairness; rule of law like substantive justice (Conklin W. E. 1989).

RULE OF LAW AND ENGLISH LEGAL SYSTEM

According to: Dicey (1902); Heuston (1964); the Report of the Committee on Ministers’ Powers (1932); … the Principium of the Supremacy of Law born in the Middle Ages. Then, it was challenged and questioned only during the Stuart time. Some evidences, which are usually used, are:

1. according to M. Allen et al. (1994), the Bracton principle: “quod Rex non debet esse sub homine sed sub Deo et Lege” quoted by the King in the Prohibitions del Roy (1607);
2. the Petition of Right (1628);
3. the abolition of the: Court of the Star Chamber; and Privy Council’s jurisdiction in England (1641);
4. the Glorious Revolution (1688);
5. the Dicey’s Doctrine on Rule of Law (1885);
6. and, the Report of the Committee on Ministers’ Powers (1932).

The work of Dicey has strongly been influential. Indeed, Dicey represents the final highest peak of the conceptualization of Rule of Law.

On the contrary, the Report of the Committee on Ministers’ Powers (1932) is an “Official Recognition”. The Report states: “The supremacy or rule of law of the Land is a recognised principle of the English Constitution”. According to the Report, it has always been a living part of English Law since the Middle Age.

Although Rule of Law have been recognized a characteristic of English Politics and Legal System since the Norman Conquest (Dicey, 1902)[1], Role of Law has always been a nebulous concept, at the end.

On one hand, everybody agrees that Rule of Law has been a fundamental principle of English Legal System. On the other hand, nobody knows what Rule of Law means!! Actually, it should be a very useful principle!!

Hence, our first Quest is to answer at the question: “What does Rule of Law mean?”

For answering at the question, the Dicey’s work should be examined.

DICEY  

Dicey (1902) affirmed Role of Law to include three different principia:

1. The Absolute Supremacy of the Regular Law as opposed to Arbitrary Power;
2. The Equality of every man in front of the Law. This principle includes two aspects: a) everyone has to obey to the Law; b) everyone is subordinated at ordinary tribunals’ jurisdiction;
3. The belief that: “the law of the constitution … are not the source but the consequence of the rights of individuals, as defined and enforced by courts”.

Whereas these three principia seem “reasonable” at a first consideration, they hide plenty of trickeries and practical problems. The latters make them be: void concepts. At the end, they drop to be political slogan, propaganda and marketing! Nothing more! Nothing less! Indeed, they have been used in very different manners as History proved.

First Principle

According to Dicey, the first principle affirms: “… no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”.

This principle seems to be affirmed by Courts in different times. For instance, in Black – Clawson LTD v. Papierwerke waldhof aschaffenburg AC (1975), Diplock stated: “The acceptance of rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”[2].

Although this principle appears to be plain in the English constitutionalism, it is not as plain as it can appear. Indeed, it is not possible to define clear boundaries between an arbitrary use of power and “what” it is not!

Although Dicey (1902) stated this principle to be able to limit the arbitrary power, Heuston (1964) gave contrary evidences. Heuston (1964) wrote that it is “difficult to distinguish between regular law and arbitrary power”. For instance, Law can give arbitrary power to someone. In this case, the two dimensions overlap!! Heuston (1964) presented two historical leading cases. The first one happened in 1627. The Court of King’s Bench, in Darnel’s Case, granted the King of a common law legal power to imprison anyone on suspicion without cause shown!! The second one happened in 1941. The House of Lords, in Liversidge v. Anderson, recognized the legitimacy of statutory legal power (similar to the previous) granted by the Parliament to the Home Secretary!!

As a result, Heuston (1964) affirmed that the supremacy of law simply requires that everyone (in any position) “must be prepared to justify his acts by reference to some statutory or common law power which authorises him to act precisely in the way in which he claims he can act”. Therefore, Rule of Law does NOT limit any arbitrary power[3].  It means only that power should be given by Law. Nevertheless, even this is not so plain[4]!! As I told supra (above), a nebulous concept allows to be applied in very different manners from case to case. At the end, a “different” Legal System exists for everyone! But, this is nothing, really nothing, if You compare: Law; with Psychology. Whereas the former is still bound by facts, the latter is just pure fantasy of the Psychologists!! Nowadays, the huge abuses are done, indeed, with Psychology.

On the contrary, Dicey affirmed that supremacy of law “excludes the existence even of wide discretionary authority on the part of the government”. But, English Legal History proved this to be untrue!!

According to Jennings (1943), Dicey’s ideas derived from the doctrine of laissez – faire. In other words, Dicey described his political choices rather than empirical facts about English Constitution. Jennings (1943) observed that Dicey neglected completely: both, the existing wide Discretional Powers of the Public Authorities and Government; and, the Unlimited Power of the Parliament.

“Parliament … can pass what legislation it pleases. It is not limited by any written constitution. Its powers are not only wide, but unlimited.” (Jennings I., 1943).

 Sovereignty of the Parliament Versus Rule of Law

The principium of Sovereignty of the Parliament prevails onto Rule of Law as there are not any substantial principles and/or values able to limit the former. All the attempts, which were made[5], failed.

According to Heuston (1964), the principium of Sovereignty of the Parliament was developed “almost entirely by the work of Oxford men” such as: Hobbes; Blackstone; Dicey. This principium states that: “what the parliament doth, no power on earth can undo” (Dicey, 1902).

Although Wilson (1979) recognized that Rule of Law does not limit the Sovereignty of the Parliament, he attempted to justify some limitations to Executive’s powers. But, Wilson (1979) failed in his attempt. Exempli gratia, the arguments are; contradictory; nebulous; rhetorical games. For instance, Wilson (1979) argued that the “arbitrary power … (of) the Executive is in the hands of the Parliament … If it clearly grants the Executive wide arbitrary power then the Executive has wide arbitrary power. … the principle of rule of law …justifies the principles developed by the courts that powers should only be used for the purpose for which they have been granted”[6].

What does all this mean?

It means simply: Executive should comply with the principle of formal validity; and, Courts can verify if it happened. Nothing more! Nothing less!

This is as English Law lacks a corpus of legal values and moral principles able to bind the arbitrary use of Power.

English Legal System, indeed, is quite different from Italian Legal System. In the latter, the Parliament and the Government have not arbitrary Powers. Their Powers are limited by a corpus of moral values written in the Constitution. The Constitutional Court can annul, invalidate and cancel, all those legal norms that do not comply with those constitutional principles.

In U.S.A., on the contrary, each Judge can deny application to norms (Acts and Statutes) that are in contrast with Constitution[7].

Only in these latters Nations, Rule of Law can limit the arbitrary use of Power. Indeed, Power cannot go beyond some moral limitations written in the constitution. This is as: first, Rule of Law affirms the Supremacy of Law above the Power; second, a constitutional corpus of legal values and principles binds Power.

This is not possible inside English Legal System. Although Role of Law affirms the Supremacy of Law above Power, at the end, there is not any constitutional corpus of legal values and principles able to limit Power!!

Power can be limited only, and only if:

1. a corpus of moral values is written inside the Constitution (in other words, in the Social Contract);
2. Courts and Jurists (lawyers) are brave and able enough to defend those values against Power’s tendency to go beyond them;
3. There is a real division of Powers. Powers should be able to balance and limit each other.

English Legal System lacks all of them, as it is shown infra (below).

Second Principle

According to Dicey (1902), Rule of Law affirms the equality of every man in front of the Law. “Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. In other words, Dicey affirmed: a) the existence of identical rules for everyone; b) the absence of special privileges. Actually, this principle is quite controversial. Alder (1989) affirmed to be a “ridiculous proposition” as Dicey’s statement has always been untrue in every time. The existence of different conditions and special privileges among people has always been part of the Very Nature of Every Government.

Moreover, if we consider the difference between formal equality and substantial equality, Dicey’s idea will be far … far …far more untrue.  The formal equality is a pleasant and agreeable declaration. But, it is void and useless as much as it is agreeable!  The substantial equality is just a Utopia. It has never ever existed in the World[8]. Exempli gratia, the article 3 of Italian Constitution affirms the formal and substantial equality among Italian Citizens. The Republic had the duty to remove any obstacle to this. Well, it is clearly evident that substantial equality does NOT exist even in Italy. So … … .

Nonetheless, Alder (1989) believes even the formal equality difficult to be realized at full circle.

Third Principle

According to Dicey (1902), the third principle is the absence of general principles. It means “… the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determinating the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of constitution”.

According to Dicey (1902), a corpus of fundamental moral principles does not exist inside English Legal System. They are only “the consequence of the rights of individuals, as defined and enforced by the courts”.

In other words: on one side, he created a vicious circle; on the other side, he did not say anything of useful.

On one hand, indeed, everything is enforced by the Courts is Law. As a result, Courts have to enforce those individual rights defined and enforced by them(selves)!!!! (Vicious circle).

On the other hand, Courts have to enforce any act of the Parliament. In this latter case, the rights of individuals are only “what” the pro tempore Majority of the Parliament chooses they are!! Indeed, “no Parliament can bind its successors or be bound by its predecessors” (A. Beale, 1994).

The Westminster Parliament has no limit (Barendt,1998). “There is no legal limit to what the “Queen – in – Parliament” can enact in a statute” (Wilson, 1979).

All in all

Behind Dicey’s pleasant words, Rule of Law is nothing more than a principle of Formal Validity. English Legal History is clear. Dicey has attempted simply to use Rule of Law like a Horse of Troy to put inside the Legal System his political ideas.

The reason could be noble, but he chose the wrong way.  He made Rule of Law: a nebulous concept; a set of pleasant words that mask the reality. In this way, Role of Law started to be applied in different manners. It makes the Legal System to be applied differently from person to person!!

 

ALDER

John Alder (1989) criticized the Dicey’s doctrine of the Rule of Law. He wrote: “His rule of law could not therefore be regarded as a statement about what British law is necessary like. It could be either a political statement as to what the law should be like, or a statement about what the law happened to be like at the time”.

According to Adler (1989), Rule of Law is a political idea. “The majority of modern lawyers would regard the rule of law as essentially a political or moral idea, although none the less important for that, since it affects the way the law is developed and applied”.

So…, we should give a look at the political ideas of two influential English lawyers: Raz and Allan!

[1] The other English Legal System’s characteristic was: the principle of Supremacy of the “Central Government”.

Until the Glorious Revolution, the Central Government was represented by the Crown.

From the Glorious Revolution to now, the Central Government was represented the Parliament (Loveland I., 1996). This latter is composed by three organs: the Crown; the House of Lords; the House of Commons.

[2] Exempli gratia, you may see Black – Clawson LTD v. Papierwerke waldhof aschaffenburg AC (1975) in: Keir D. L. and Lawson F. H. (1979), Cases in Constitutional Law, Oxford: Oxford University Press.

[3] Exempli gratia, Entick versus Carrington (1765).

Entick sued two king’s messengers (armed with warrant of the Secretary of State for arresting him) for: having trespassed into his house and goods; and, illegitimacy of the warrant. The Secretary of the State was not able to justify the warrant’s legitimacy within any specific law. He argued that those warrants had always been issued and none complained for them!!!!!

Camden C. J. declared: “This power, so claimed by the Secretary of the State, is not supported by one single citation from any law book extant… If it is law, it will be found in our books. If it is not to be found there, it is not law” (Entick versus Carrington, 1765).

The act of the Secretary of State was “unlawful” as: it did not comply with the principle of Formal Validity.

[4] Exempli gratia, in Malone versus Metropolitan Police Commissioner (1979), Robert Megarry V-C states: “… England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what it is expressly forbidden”. In this case, the tapping of telephone was lawful as “simply … there is nothing to make it unlawful”. In other words, the discretion of power was affirmed above Role of Law. This happened as: no corpora of moral values exist inside English Constitution. Thus, an arbitrary use of Power is not prevented.

The decision was appealed to the European Court of Human Right. The Court affirmed that: UK violated the article 8 of the ECHR (Malone versus United Kingdom, 1984).

[5] Exempli gratia: Dicey (1902); Raz (1977); Allan (1993).

[6] Some of these principles quoted by Wilson (1979) are: “The power should be used for the purpose for which they were given”; “The power should be exercised by the person or body by whom they were intended to be exercised”; “The authority must be free to make a genuine exercise of any discretion which has been given to it”; “The authority in exercising its power should observe any procedures which have been expressly laid down in the statute or which the courts will imply into it”.

[7] The difference is: Italian Constitutional Court eliminates the unconstitutional norm from the Legal System; American Judges (USA) can ONLY deny application to norms (Acts and Statutes) that are unconstitutional for a singular case. But, they continue to exist inside the Legal System.

[8] Nietzsche copes with the difference between substantial and formal equality (Epis L., 2015, Nietzsche on Rule of Law and Democracy).

RAZ AND ALLAN (University of Oxford versus University of Cambridge)

Raz (1979) and Allan (1993) are two of the most influential Lawyers in England, at the present time. Hence, we should examine their political idea.

As Dicey did, they gave to Role of Law some different meanings. They attempted to “re-define” Rule of Law as a set of Moral and Legal Principles. But, their attempts have leaded to create a contradictory and nebulous concept, as I told supra (above).

It is not a case that: everyday legal practice has refuted what they affirmed.

Their different views are expression of the Historical Rivalry between the two Universities.

RAZ

Raz (1979) attempted to challenge the “skeptic” view.

According to Raz, “rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree”. From this idea, some “substantial” principles can be derived by Intuition^[1].

But, Raz’s theory is in contradiction with English Legal History and Legal Practice.

“All law should be prospective”. Are You sure? Do You remember “Gold Standard”? Have you heard about the University of Cambridge?

One of the principles, which Raz got by Intuition, was: “All law should be prospective …”. Whereas this principle appears to be true inside most of the Legal Traditions (exempli gratia, Italian one), it is false inside English Legal System!!

English Parliament, for example, violates this “principle” in 1931 with “gold standard”. The Government ordered to the Bank of England to not exchange Notes into Gold. Then, the Parliament: both, created an Act, which made “the paper currency inconvertible”; and, ratified all the illegal actions done by the Government and the Bank of England before the Act (Jennings I. 1959). In English Tradition, Banks and Financial Matters have always been above Law!!

Also at the University of Cambridge, this principle is not followed at all. An example is given in the Appendix[2].

“Law must be capable of guiding the behaviour of its subjects” & its Logic Inferences! 

Raz tried to infer some logical consequences from his basic Intuition: “law must be capable of guiding the behaviour of its subjects”. But, these deductions are: according to the Formal Logic, invalid; according to the Logic of Value, a rhetorical game, a sophism. Nothing more! Nothing less!

First, Raz confused the Principium of Supremacy of Law with a judgment about Law’s Nature and Aim.

Second, Raz put together some ideas that he gathered from different historical experiences. Then, he told them to be a logic consequence of his basic “Intuition”!!

Next, Raz pretended to have used Formal Logic for inferring them. But, he could not. Law is a normative language. Formal Logic can be used only within descriptive language. The Logic of Value, on the contrary, can be used with normative language. But, the latter is just Rhetoric, Sophists’ Art, for supporting some argumenta instead of some others. It does not allow inferring anything of true or valid!!

In other words, Raz forgot the Law of Hume. Yet, Hume was Scottish. So, it is normal that Oxford men do not like him!

Law of Hume; Formal Logic and Logic of Values

The Law of Hume is an important criterium of demarcation between empirical facts and not empirical facts. The Law of Hume defines the boundaries between the Realm of Formal Logic and the Realm of Logic of Values. Only in the former: both, the statements can be evaluated in terms of true and false; and, the reasonings in terms of valid and invalid. In the letter, none of them are possible.

This is as everything is just: a political choice; a game of rhetoric; a sophism; a decision made to defend some interests against others. The Logic of Value, or New Rhetoric a là Perelman, does NOT permit any control on: both, validity; and, truth; … about what it is said.

So, Raz cannot apply the formal logic within the normative language^[3]!!

As a result, he put inside to Rule of Law his Political ideas.

All in all

Raz made several mistakes. They were so huge that: if students had made them, they would not have passed their exams!!

Soooo …,

… why has Raz’s theory been so influential?

It was only because he was a Lecture of the University of Oxford. Indeed, everybody, who supported his theory, was used to say: “ipse dixit”!; “ipse dixit”!; “ipse dixit”!.

INTERLUDE: OBITER DICTUM (Social Psychology; Rousseau; Hobbes)

Social Psychology is something of exhilarant. Social Psychology is one of the few disciplines that are worth to be studied in Psychology. Social Psychology shows how the Worst of Human Behaviours is not the outcome of individual dispositions and/or traits, but the results of psychosocial mechanisms such as: conformism; social pressure (Asch S. E., 1951, 1955 a, 1995 b, 1956); compliance to Authority (Milgram S., 1963, 1965, 1974; Hofling C. K. et al. 1966; Brief et al. 1991; Brief et al. 1995); groupthink (Esser J. K., 1998; Esser J. K. and Lindoerfer J. S., 1989; Moorhead G. et al. 1991); effect of mere exposition (Zajonc R., 1968); social norms (Sherif M., 1935, 1936, 1937); social identity (Zimbardo, P. G. 1972, Prison’s Experiment);  etc…; etc… .

Truly, each individual is a genius (a real GENIUS), and “endless” GOOD a là Rousseau (Emile), until he/she is NOT corrupted by society. Society “transmutes” its members in “stupid beasts” (a là Hobbes)!! If the group’s stupidity is increased, the person’s foolishness and brutality are also increased!! So …, both Rousseau and Hobbes are right. Human beings born “endless good” in their natural state as Rousseau stated. Then, society makes them become “stupid beasts” as Hobbes (and even Rousseau) argued. But, Hobbes was wrong when he suggested his Leviathan. A central power (which: decreases individual rights and liberties; and, enhances social control) creates and enhances only brutality. It will increase social conflict and violence as it produces a permanent captivity. The Global Panopticon makes this be even stronger. Indeed, Hobbes’ ideas[4] were developed in England under a Central Power. Hobbes had never known human beings in their Natural State, but he knew English people educate at the University of Oxford!! The brutal and violent human beings, who he knew, were the result of that kind of society and education. Hobbes wanted to ingratiate himself with the existing Central Power, when he wrote the Leviathan.

The groupthink, the conformism, the social pressure, the compliance to Authority, the social identity, leads people to act irrationally. Under those factors, people lose their natural and original ability to act like intelligent and moral beings.

Indeed, the Psychosocial Mechanisms tend to prevail onto Individual’s REASON and MORALITY^[5]. Rarely are individuals an exception! The Academic World, indeed, is moved by those mechanisms. The same psychologists, who pretend to know them, are determined more than others by them^[6]! Psychologists do not help individual freedom and determination, but social homologation. This is a fact. We should not be surprised that a recent experiment has found people to be more inclined to compliance to Authority than they were at Milgram’s time. But, this is very dangerous. As History taught and proved, all the Worst Things, which happened in the Human History, happened when the compliance to Authority prevailed onto individual reasoning and determination.

At the end, the psychosocial mechanisms have to be considered for studying any Social and Psychological Science and Construct, as they work: both, intra the experts’ group; and, infra the experts’ group. Psychosocial mechanisms are the deus ex machina.

An Example of Psychosocial Mechanisms in Legal Setting         

During a Civil hearing, a Judge invented a regulation that did not exist. He was not crazy. He wanted: both, to state his power; and, to taste the ability of lawyers to defend legality. He took the Code of Civil Procedure and he pretended to read a regulation. But, he invented one completely.

At the hearing, twenty lawyers (more or less) were present for different reasons. None of them recognized the mistake. Only one person (who was NOT a Lawyer, yet[7]) was able to recognize that the Judge was inventing the regulation! He took the Code and started to read the real one, meanwhile all the rest of the lawyers continued to believe at the inexistent regulation that the Judge invented[8]!! It was extremely amazing to see them!! After the mistake was clarified, some of the expert Lawyers continued to believe in the inexistence regulation!! Outside the Court’s room, they argued that maybe it was not on the Code, but in some other Act!?!?!?

Back to Raz …

To sum up, the success of Raz’s theory cannot be explained by legal reasons. But, it can be elucidated by those psychosocial mechanisms, I told supra (above).

People believed in Raz’s theory as he was a Lecturer of the University of Oxford. It was enough for them. It was not a matter that his theory was nonsense inside the English Legal Tradition!!

PAINE VERSUS BURKE: GENERAL WILL AND HISTORICAL EXPERIENCES

English Legal System, indeed, is not based: either, on ontological principles (a là Natural Law); or, General Will (a là Paine). It is based on historical rights (a là Burke). The latters have been created by, and reflected the, pro tempore relations of Power among people and social strata / classes.

The General Will a là Paine, indeed, requests a Social Contract. In other words, the Social Contract is the Written Constitution of a Nation. Whereas most of the Modern Legal Systems are based on a Written Constitution, English Legal System is NOT.

English Legal System is, in somehow, still based on Historical Rights a là Burke. This means people’s rights: both, do not come from any eternal ontological principle; and, do not come from any social contract. But, people’s rights come from the pro tempore relations of power that are negotiated, continuously, inside the social conflict and dynamics.

For these reasons, the Westminster Parliament: both, has no limit; and, cannot be bound by its previous decisions.

It can enact what it pleases, as whatever it pleases to the Parliament represents and reflects the pro tempore rights and relations of power that have been determined by the eternal social conflict.

An example of a Legal System a là Burke.

An example of a Legal System a là Burke is given by the International Law.

After the Second World War, the International Tribunal of Nuremberg (1945) and Tokyo (1946) were created. They were an act of creation made by the Winners. These Tribunals did not comply: either, with the ongoing International Law; or, with existing eternal international principles. It was a mere act of creation, which was able to transmute the International Law: from, a Law for States a la’ Grotius; to, a Legal System that includes individuals like possible titular of rights and duties a la’ Kelsen. It was simply as: the pro tempore “most powerful” a là Trasimacus wanted it. Nothing more! Nothing less!

Before the International Tribunal of Nuremberg (1945) and Tokyo (1956), this has never happened.

For instance, after the First World War, this kind of proposal was considered impossible. France and England proposed the creation of a Tribunal for processing the German Imperator “… for supreme offence against international morality and sanctity of treaties” (Greppi E., 2001). But, according to the International Law, it was unmanageable as International Law refers only to States’ responsibilities. International law could not be applied to individuals (Orlando V., 1940).

Although the English Prime Minister Lloyd and his French colleague Clemenceau argued the existence of two legal precedencies (the cases of Luis XVI, in France; and Charles I, in England), the wisest and sagest Italian Prime Minister Orlando (an outstanding jurist) observed that both of them were a legal precedence only inside the National Law, but not inside the International Law.

They simply stated that a sovereign can be judged according to the National Law.  But, they do not say that International Law can be applied directly onto individuals, even if they are organs of the State (such as: imperator).

ALLAN

Whereas Raz started from Intuition, Allan (1993) began from the “general living idea” (which English lawyers have about Rule of Law). According to Allan, English Lawyers understand Rule of Law as “… an amalgam of standards, expectations, and aspirations”. Rule of Law “encompasses traditional ideas about individual liberty and natural justice, and, more generally, idea about the requirements of justice and fairness in relations between government and governed”.

Allan’s method was better than Raz’s method. As I explained supra (above), English Legal Tradition is not based onto ontological principles, but historical rights. Hence, Allan (who has been a finer lawyer than Raz) wanted to start from the pro tempore idea, which Lawyers had at that time, about Rule of Law.

Unfortunately, Rule of Law lost its deep meaning. What he found was a simulacre, as I explained supra (above).

Rule of Law like: Substantial and Procedural Fairness; Natural Justice; Equality; Separation of Powers … Where and When!?!? Have you ever been at the University of Cambridge?!?!?

According to Allan, Rule of Law expresses the: concept of Justice (substantial and procedural fairness); notion of Equality; Universal Suffrage; Separation of Power.

Actually, Allan failed to formulate a descriptive theory of the Rule of Law. Allan presented: either, his own Legal and Political idea about Rule of Law; or, the pro tempore more fashionable Legal and Political idea, which English Lawyers had about Rule of Law at that time.

But, Rule of Law is not what Allan said! The facts give opposite evidences.

For instance, Rule of Law does not include at all, the separation of Power.

Separation of Power and English Legal System   

Rule of Law has nothing to do with Separation of Powers.

Separation of Power is a different “subject matter” (Conklin W. E., 1989). Moreover, it is NOT a principle of English constitutionalism.

Although one of the first philosophers, who formulated the doctrine of the Separation of Power, was John Locke in the 1690; the English Constitution has never ever recognized any real division of Powers, as it was done, exempli gratia, in France and/or in U.S.A. (Fenwick, 1993).

According to Fenwick (1993), the division of Powers inside the English Constitution does not exist. There is nothing of Montesquieu’s ideas.

The “judges can create law”.

“The ministers, who are member of executive, sit as members of the House of Commons which is a legislative body”.

“Lord Chancellor is a minister as well as head of the judiciary, and it is also a member of the House of Lords in its legislative capacity”.

“The executive can effectively determinate the legislative output of Parliament, theoretically a separate body”.

On the same advice, Schwartz B. (1955) stated “in Britain the doctrine of the separation of powers today means little more than an independent judiciary”.

English constitutionalism is based on the fusion of Powers rather than their separation (Barendt E., 1998). According to Bagehot W., “the efficient secret of English … constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”.

This is confirmed by the Report of the Committee on the Ministers’ Power (1932): “In the English constitution there is not such thing as the absolute separation of legislative, executive, and juridical power; in practice it is inevitable that they should overlap”.

This is an evidence of how everything, REAL EVERYTHING, can be put inside a simulacrum!

Universal Suffrage

Universal Suffrage is not part of Rule of Law at all. It is a political choice, a legal principle and/or value, which is completely autonomous, independent, from Rule of Law. Otherwise, the same English Legal History has confuted Universal Suffrage to be an aspect of Rule of Law!!

Equality

I have already spoken about it, when I wrote about the second principle of Dicey.

Procedural and Substantial Fairness … Does Allan remember when a Graduate Student of the Faculty of Law invoked Rule of Law at the University of Cambridge? What has it happened to …Fairness?  

Rule of Law does not include any procedural and substantial fairness as it is proved by English Legal History and Practice. On the contrary, it requests only the formal respect of the Law.

Indeed, when Rule of Law is not applied like Supremacy of the Law above Power, Rule of Law expresses the principle of Formal Validity. Nothing more! Nothing less!

But, it is more fashionable to tell people that English Legal Tradition overflow of Fairness (procedural and substantial fairness)! However, this is just political propaganda. They are empty words, behind which there is a simple principle of Formal Validity. That is all, Folks!!

Unfortunately, even this principle of Formal Validity is not respected most of the time. So, Rule of Law, at the end, loses all its meanings. Under the sermons about fairness, there is nothing.

An example of this happened at the University of Cambridge, Faculty of Law. It happened where, the best Lawyers were. It is reported in the appendix.

It shows how Rule of Law is not applied: either, like formal validity; or, procedural and substantial fairness. But, it is applied as: both, Power can do whatever it pleases; and, Authority can and must use its powers to hide its own responsibilities.

Fairness is an “inexistent” reality. It exists as long as people are forced to be silent. It exists as long as all the abuses, unlawfulness and illegalities, are hidden.

RULE OF LAW LIKE PRINCIPLE OF FORMAL VALIDITY

To sum up, Rule of Law is the less evocative name of the principium of Supremacy of the Law above the Power.

It means two basic things.

First, it affirms that any Power to be legitimate have to be: both, given by Law; and, used complying with the procedures and porpoises that Law stated.

Second, for anyone in any position, it affirms a principle of formal validity. This principle requests people to obey and to apply Law.

In other words, Rule of Law is the basic command of a Legal System.

The principium of the Sovereignty of the Parliament, on the contrary, states that Parliament is the only subject that it is above Law. This is why Parliament: both, can create and change the Law; and, cannot be bound by previous Law.

These principles are not a tautology as Raz (1977) affirmed. They are the two basic constituents of any modern Legal System. Without them, the modern Legal Systems cannot exist. Without them, only Ancient Regime and despotism exists.

I have to make a clarification.

This principle makes a distinction between two situations. In the first one, a person has some kind of power onto other persons. In the second one, there is not the former condition. In the first case, it is allowed to do only what the Law allows to do. In the second case, it is allow doing everything, except what the Law denies.

Replying to the critics about this idea of Rule of Law

Rule of Law, as I postulated, has been accused to be unable to distinguish between a despotic government and a democratic one (Turpin C., 1995; Raz 1977). These critics are unjustified and unfounded for the reasons I have explained supra (above).

Actually, Rule of Law can distinguish between a despotic government and a democratic one, only, and only if, it means Supremacy of the Law above Power. Truly, the distinction between despotic governments and democratic governments cannot be done by a concept of Rule of Law, which is reduced to be a nebulous and vague concept as some authors have done.

As I explained, it makes Rule of Law become a simulacre of its real meaning. It has two consequences: first, the attention is moved from Supremacy of Law above Power to something else; second, Rule of Law becomes a vague concept, an instrument of Legal Mystification a là Bentham. In the latter case, Rule of Law can be applied in different manners from case to case. At the end, a Despotic Government will be possible behind the appearance of a Democratic one!!

There is only one way to distingue between despotic governments and democratic governments. The democratic governments need three elements:

1. Rule of Law applied like Supremacy of Law above Power;
2. a corpus of fundamental principles and values written inside a Constitution (Social Contract);
3. Judges, Lawyers and people, who are brave enough to defend those values against the tendency of Power to go beyond them.

Without these three conditions, there is only a despotic government. It could be more evident (overt) or more veiled (covert), but it remains a despotic government.

Although English constitution is “one of the first” (Boutmy E., 1891), it has not evolved into lex scripta. English Lawyers, instead of attempting to create a corpus of legal values, have tried to put some of them inside Rule of Law. But, it was the wrong choice. It leads to create vague concepts as I have told.

On one hand, according to Jeffrey Jowell (2000), some authors attempted to transform Rule of Law in a principle of institutional morality, as it was the only instrument they had to: both, limit “the abuse of power”; and, force power to be fairly exercised.

On the other hand, English lawyers love ambiguous concepts, despite lex scripta[9]. This is as: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them” (Bishop Hoadly, 1717). Ambiguous concepts give Lawyers far more power to be free to interpret Law as they like. This allows Law to be applied in very different ways from case to case, as it was argued by Bentham. It is an instrument of Legal Mystification.

LAW’S MYSTIFICATION

Bentham described five instruments for mystifying Law. But, mystification is not only a legal issue. It is a common Social and Psychological Sciences affair[10].

Bentham’s five mystification instruments

The first instrument employs descriptive instead of normative statements. This allows full arbitrary power. Those statements become: for someone, compulsory commands; for someone else, not obligatory directives.

The second instrument uses wide and void concepts. They can be interpreted, from time to time, from person to person, as one likes.

The third instrument applies legal simulation. They make fiction become more important than facts.

The fourth instrument engages pseudo-descriptive statements. They are in their appearance descriptive, but they tend to lead people: conducts; and, beliefs.

The fifth instrument involves pseudo-technique language. It makes the discourse be incomprehensible for profane people.

Rule of Law and Legal Mystification

Rule of Law had its own clear meaning. It expressed the principium of the Supremacy of the Law above the Power.  Then, it was made a nebulous and void concept.

In this way, its original meaning has been weakened. So, it has become an instrument of mystification since it began to be a nebulous concept.

Exempli gratia.

From one hand, people believe to live in a Legal System based on: procedural and substantial fairness; equality; and plenty of other noble principles.

On the other hand, they do not simply “exist”! They are NOT for everyone! They are applied in very different manners from case to case.

_____________________________________________________________

[1] Intuition seems to be a characteristic of the University of Oxford’s actual Jurisprudence. Also Finnis, indeed, based all his work about Natural Law and Natural Rights on Intuition!

[2] See Appendix, Does “Rule of Law” mean that “All law should be prospective” a là Raz? NO, NO, NO, and still NO! Rarely have I seen a desperate case as You are! … But … wait a moment. Who is Raz? Here at Cambridge, we have never ever heard about Him. Here at Cambridge, we do not say that name!

[3] There is only one case where it is possible. The structure of the sentence is a syllogism. The main assumption is given by the Legal Norms.  The second assumption is given by the Facts. The conclusion is given by the logic consequence between these two assumptions.  Yet, this syllogism tells only: the formal structure of the sentence is logic. It does NOT tell anything (at all) about the content of the two assumptions. Both of them can be false and untrue. Thus, a logic conclusion can be made by false/invalid assumptions.

[4] Exempli gratia : Homo Homini Lupus est; Bellum omnium contra omnes ; etc… .

[5] The present writer studied plenty of these phenomena mainly among: Psychologists; Legal and Academic Contexts; Neighbour’s relations; Group’s dynamics.

[6] Actually, psychologists are the worst of all. They are so obsessed to appear normal, that they tend always to:

• comply with Authority’s Requests (it does not matter how much they are illegitimate, illegal and/or amoral);
• Homologate them(selves) to the groupthink;
• Etc… .

They consider mentally ill, whoever acts outside the Normal Distribution. Thus, they enslave themselves inside the Normal Distribution they created. Then, they attempt to enslave all the rest of people inside their Normal Distribution!! At the end, they are both prisoners and gaoler of a New Tyranny: the theocracy of the idol Homologation. Like Procuste, they cut out everything they believe to be outside the standards they give!

[7] And, then who chose to not become like them!

[8] This shows how much strong social mechanisms and Authority obedience are.

People tend to follow uncritically:  Authority; and Majority!!!!!

But, … remember the lemmings! Remember the lemmings! Remember the lemmings before following the Majority!!!!!

[9] Latin for: written Law.

[10] In particular, it is very common in Psychology. The present writer has studied plenty of cases of Mystification, which were done by Psychologists. Moreover, whereas Law is bound by facts, Psychology is not. Most of the things, psychologists say, are only their own fantasy! Psychology is only a game of interpretation. So, it is very easy for them to abuse of their power and position. See: Epis L. (2011/2015), De Nova Superstitione – Alcune Questioni sullo Status Epistemologico della Psicologia, Psicopatologia e Psicanalisi. Published in: www.lukae.it. See page “Psychology & Epistemology – Psicologia & Epistemologia”.

Con questo scritto sostengo che l’azione di rettifica prevista dal D.P.R. n. 131 del 26/4/1986 (artt. 51 e 52) non si limita ad accertare il valore venale del bene. Di contro, produce almeno altri due effetti. Da una parte, influenza le dinamiche del mercato del bene. Dall’altra parte, finisce col co-determinare il valore stesso del bene (oggetto d’accertamento) con un meccanismo dialogico ricorsivo.

Questi due effetti (sebbene siano sempre presenti) sono meno visibili durante i periodi di crescita economica. Di contro, diventano palesi nei periodi di crisi (stallo; e/o recessione). In questi ultimi, possono determinare situazioni paradossali nelle quali il venditore, non solo perde tutto il percepito con la vendita, ma arriva a rimetterci maggiori cifre. Questo avviene in quanto, una volta rettificato il valore per ricomputare le imposte indirette, lo stesso è in seguito usato per rettificare il reddito personale del venditore. Quest’ultimo accertamento, basandosi su un atto divenuto definitivo, non può più essere impugnato. Il venditore cosi si trova costretto a pagare le maggiori imposte dirette, con tutte le relative sanzioni (il raddoppio dell’imposta), sul un reddito mai percepito.

Nulla rende il concetto più chiaro d’alcuni esempi.

Esempio: la vendita d’Azienda.

Un imprenditore nel 2010 acquistò un Forno in difficoltà.

Il valore d’avviamento del Forno fu di 180.000,00 euro[1]. Un valore ritenuto assai generoso. L’Agenzia delle Entrate inviò nel 2013 un Avviso di rettifica e di liquidazione nel quale contestò tale valorizzazione. Secondo l’Agenzia, il valore d’avviamento del Forno era di 385.000,00 euro. Senza approfondire le questioni inerenti al computo del valore d’avviamento, ciò che rileva è cosa conseguì.

Sebbene il compratore abbia realmente pagato 180.000,00 euro, ed il venditore incassato quella cifra (costituendo quest’ultima l’intera capacità economica di entrambi i soggetti), una volta rettificate le imposte indirette, le imposte dirette sono ricomputate automaticamente sul queste. Questo comporta per il venditore, dopo aver pagato nel 2011 il 45% d’imposta sul percepito, dover pagare nel 2013 un altro 45% d’imposta sul maggior valore stimato (mai percepito) più tutte le relative sanzioni (il raddoppio dell’imposta).

L’effetto pratico di tutto ciò è che il venditore nel 2010 incassa 180.000,00 euro ed alla fine nel 2013 si ritrova costretto a versare allo Stato 173.250,00 euro d’imposte dirette più 92.250,00 euro di sanzioni. In altre parole, il venditore è costretto a dare allo Stato più di quando abbia percepito dalla vendita!!        

Gli effetti sul compratore sono ridotti. Quest’ultimo ha da pagare solo la rideterminazione delle imposte indirette che prevedono aliquote più basse. Inoltre, per lui, la rettifica diventa solo una presunzione semplice per un accertamento sulle imposte dirette verso la quale può dare prova contraria.

Esempio: vendita di due posti auto.

Prendiamo un piccolo costruttore che nel 2007/2008 (… in piena crisi …) decise di realizzare alcuni posti auto all’aperto in una zona periferica di basso pregio. Piuttosto di rimanere inerte, … mandando a casa i tutti i suoi operari…, in modo sprovveduto agì al motto: “meglio poco che niente”. Egli non sapeva che in economia e nel diritto tributario è: “meglio il “niente” che il “poco””. Il niente, infatti, non è tassato, mentre il poco, una volta rettificato, arriva a toglierti anche quello che non hai mai avuto[2].

Ecco cosa accadde.

Durante la costruzione dei parcheggi, il valore reale di quei posti auto all’aperto, s’aggirava tra i 14.000,00 e 18.000,00 euro l’uno. Per coprire i costi di produzione, il costruttore fu costretto a vendere alcuni posti auto nel 2008. Supponiamo che: i posti venduti furono due (uno di 12 mq a 14.000,00 euro; ed uno di 20 mq a 16.000,00, per un toltale di 30.000,00 euro); e che l’acquirente fu uno (Tizio).

L’Agenzia delle Entrate nel 2009 rettificò entrambi i valori portandoli da 30.000,00 euro a 81.440,00 euro! L’acquirente, a causa della rettifica sulle imposte indirette, si ritrovò un “debito improvviso” di 10.545,50 euro. Una cifra notevole che comportò una maggiorazione dei costi preventivati per l’acquisto più d’un terzo.

Per il venditore, di contro, comportò la rettifica dell’IRPEF del 2007, con le relative sanzioni, per non aver dichiarato un maggior guadagno di 51.440,00 euro!

Anche in questo caso, le tasse reclamarono più di quanto guadagnato dal contribuente. Ecco alcuni esempi di come in Economia, Scienze delle Finanze e Diritto Tributario, il Niente sia meglio del Poco.

Un Sistema Fiscale che nemmeno lo Sceriffo di Nottingham riuscì ad architettare (!).

Torniamo agli effetti citati supra.

Da questi esempi risulta chiaro il primo effetto. L’azione di rettifica influenza in modo innegabile il mercato oggetto del suo controllo. In alcuni casi può paralizzarlo; in altri può determinare la sopravvivenza d’alcune imprese piuttosto che d’altre. Non solo, le stesse contrattazioni non avvengono più come risultanza d’un libero mercato (ovvero dell’incontro tra lettera e denaro). Esse sono influenzate dalle aspettative che le parti (il venditore e l’acquirente) hanno sull’agire d’un terzo soggetto (l’Agenzia delle Entrate). Nessuna persona razionale, a meno che non sia completamente sprovveduta e/o autolesionista, venderebbe un bene per un prezzo minore rispetto, non quello determinato dal mercato ma, quello utilizzato dall’Agenzia per la rettifica. Farlo, condurrebbe agli effetti visti supra.

Il secondo effetto concerne il valore di rettifica applicato e come questo, non sia la mera costatazione di cosa avviene nel mercato ma, sia influenzato dalla stessa azione d’accertamento.

Essendo economicamente dannoso vendere per cifre minori rispetto quelle applicate dall’Agenzia delle Entrate nelle sue rettifiche, il mercato tenderà ad omologarsi a quest’ultime. Ciò comporta che l’azione di rettifica dell’Agenzia co-partecipa alla creazione dei valori venali applicati. Non solo, una volta rettificati alcuni beni (divenuti definitivi gli accertamenti) quest’ultimi sono usati come giustificazione e motivazione per fondare altre rettifiche su beni simili. In questo modo, è persa ogni connessione colla realtà controfattuale del mercato. Le rettifiche finiscono per fondarsi su un’iperrealtà virtuale originata dagli stessi accertamenti. Poco importa che questi diventano definitivi, non poiché accertino alcun valore reale ma, poiché almeno una parte (di solito il compratore) ha trovato “più economico” pagare la maggiore imposta indiretta piuttosto che sostenere un contenzioso legale. Una scelta che preclude al venditore ogni possibile azione d’impugnazione autonoma dell’atto, sebbene ne abbia di motivi.

Mentre lo Sceriffo di Nottingham di tanto in tanto perdeva con Robin Hood, oggi vince sempre.

Che cosa intendo dicendo ciò?

Qualcuno di Voi, letti gli esempi supra, potrebbe aver pensando che, ricorrendo alla Giustizia Tributaria, ogni possibile danno sarebbe stato nullificato.

Tralasciando che ogni procedimento legale ha in se una fortissima alea, nel sostenere ciò non mi riferisco all’esito del Ricorso ma a qualcosa d’altro.

Essendo “prassi” compensare le spese di giudizio, l’annullamento dell’atto impositivo non nullifica i danno causati da esso. Al contribuente restano da pagare: le parcelle dell’avvocato; l’IVA; i contributi unificati; … dei diversi gradi di giudizio.

E’ inutile ricordare come una buona percentuale di questi costi, finiscono nelle “tasche” del Fisco. Paradossalmente allo Stato conviene produrre accertamenti infondati. Nella peggiore ipotesi ci guadagna tutti quei tributi che sono generati come conseguenza del contenzioso legale.

Non a caso, la stragrande maggioranza degli accertamenti è di modico valore (al di sotto dei 20.000,00 euro). Infatti, sono questi i casi dove il Fisco vince sempre. Da una parte, molti contribuenti preferiscono pagare quanto “accertato”, non per aver evaso ma, perché questo gli costa meno del sostenere un contenzioso legale! Dall’altra parte, qualora gli atti siano impugnati, il Fisco comunque ci guadagna i tributi derivanti da ciò! In questo modo (soprattutto nel caso in cui sia decisa la compensazione delle spese), il Fisco ci guadagna in ogni caso.

[1] Era un piccolo Forno in difficoltà con un reddito annuo decrescente sui 35.000,00 euro. Un reddito esistente grazie al lavoro non retribuito: dell’imprenditore e di sua moglie.

[2] Infatti, un basso profitto fa scattare: il redditometro; gli studi di settore; il valore venale del bene; una serie di presunzioni e di meccanismi legali; … . Questi alla fine tolgono al cittadino non solo quel poco che ha guadagnato (… sul quale ha pagato regolarmente le imposte…) ma anche quello che non ha mai avuto. In questi casi, exempli gratia, i soli costi per potersi difendere (attraverso un contenzioso legale nei suoi diversi gradi di giudizio) supera la sua capacità economica.

L’articolo 91 del Codice di Procedura Civile stabilisce che la parte soccombente sia condannata dal giudice al pagamento delle spese processuali a favore di controparte. Nel liquidarle in sentenza, il giudice utilizza una formula generale nella quale include sempre l’I.V.A. ed ogni onere accessorio. Questo, però, non significa che l’I.V.A. sia sempre dovuta nella concretezza d’ogni caso. L’I.V.A. è dovuta solo quando non è (… per la parte a favore della quale è stata liquidata…) un costo deducibile. Negli altri casi non è dovuta, costituendo un indebito arricchimento. Infatti, qualora richiesta dalla controparte, questa la incasserebbe due volte (una volta dallo Stato; una volta dalla parte soccombente). Ricordo come il quantum non sia “roba da poco”. Sebbene vari in base all’effettivo ammontare della parcella liquidata, spesso e volentieri supera i 1.000,00 euro.

Contrariamente da quanto sostenuto da molti avvocati (!), il fatto che l’I.V.A. sia liquidata in sentenza non significa che il giudice abbia riconosciuto la sua doverosità nello specifico caso. La Cassazione ha affermato che tale liquidazione include sempre la condizione: solo “se dovuta”.

In questo modo, per economia processuale, la sentenza (nella parte in cui liquida l’I.V.A.) non diventa: né oggetto di giudicato; né autonomo vizio d’impugnazione. Semplicemente, qualora il pagamento dell’I.V.A. sia richiesto, la parte soccombente ha il diritto d’eccepirlo in fase esecutiva, contestando il titolo esecutivo attraverso un’opposizione al precetto e/o all’esecuzione.

Questa interpretazione è, inoltre, l’unica conforme allo Spirito della Legge. La condanna alle spese legali, infatti, è una forma di risarcimento extra-contrattuale che consegue al principio generale del neminem laedere (Corpus Juris Civilis). Ha lo scopo di “risarcire” un soggetto, chiamato “ingiustamente” in giudizio, dei costi effettivamente sostenuti per potersi difendere. Ciò ribadisce a fortiori come l’I.V.A. sia dovuta solo, e solo se, è stata un costo per quel soggetto. Non ha rilevanza, di contro, la questione se il giudice abbia liquidato come spese legali un quantum minore rispetto alla parcella effettivamente pagata da controparte. Questo poichè il giudice, nel liquidare le spese, decide un quantum “equo” rispetto alle tabelle di riferimento ed all’attività svolta. Gli onorari dei vari professionisti, infatti, sono fortemente eterogenei. Sarebbe ingiusto condannare una parte, a risarcire una controparte che, per sua scelta, abbia optato per un professionista particolarmente costoso.

Con questo post si è tentato d’informare chiunque sul thema in modo che, nell’eventualità, sappia: cosa fare; e come valutare i pareri degli avvocati. Un post scritto dopo aver verificato per anni che nella pratica l’I.V.A. era solitamente fatta pagare quando non dovuta.