Praticanti Avvocati & Jus Postulandi – La Sentenza della Suprema Corte di Cassazione, II Sezione Civile, numero 3917 del 20 Gennaio, depositata il 29 Febbraio 2016.

ABSTRACT
Col presente Articolo pubblichiamo la Sentenza della Suprema Corte di Cassazione, II Sezione Civile, del 20 Gennaio 2016 (depositata in Cancelleria il 29 Febbraio 2016) numero 3917 con la quale, in virtù del Principio di Diritto affermato, sono stati chiariti tutti i dubbi interpretativi inerenti all’Jus Postulandi dei Praticanti Avvocati Abilitati al Patrocinio. Nel silenzio della legge, ed in assenza di specifici precedenti in thema nella Giurisprudenza di Legittimità, fino ad oggi, tale disciplina rimase controversa.

L’articolo, che precede al testo della sentenza (riportata per intero nell’appendice in fondo), è scritto da chi ha seguito, passo dopo passo, l’intera vicenda, in fatto ed in diritto, studiando la questione approfonditamente per anni.

Nell’articolo sono riportati ed indicati (in esclusiva per i lettori del sito) i motivi di diritto che hanno reso necessario proporre il ricorso in Cassazione. L’indicazione dei motivi di diritto eccepiti, sostenuti ed argomentati durante lo svolgimento del ricorso, è necessaria ed utile a qualsiasi giurista (Avvocato; Professore; Ricercatore; etc…) che, al di là della massima, voglia comprendere profondamente il Ragionamento Giuridico della Suprema Corte.

Exempli Gratia, un giurista (avvocato) interessato a “ripresentare” la questione di legittimità costituzionale, potrebbe comprendere quali sono stati i motivi di diritto proposti e non cosiderati dalla Suprema Corte al fine di: non rifondare un ricorso sugli stessi motivi; e/o affiancare a quelli, altri motivi non precedentemente considerati. Per un ricercatore, di contro, ciò è fondamentale per comprendere le “direttrici evolutive” del Diritto e della Giurisprudenza.

Il testo della sentenza, infatti, non esplicita chiaramente i motivi che sono stati rigettati. Tale silenzio è “forte”, soprattutto, nel secondo e terzo motivo del Ricorso.

Non solo, i commenti, pubblicati fino ad oggi, hanno mostrato una certa superficialità nell’affrontare le istanze giuridiche alla base della decisione.

In sintesi: il principio di diritto affermato dalla Suprema Corte risolve la questione giuridica inerente all’Jus Postulandi dei Praticanti Avvocati con Abilitazione al Patrocinio. In particolare, era dubbio se i Praticanti Avvocati con Abilitazione al Patrocinio potessere, oppure no, proporre appello verso le decisioni del Giudice di Pace, quando la “res contesa” rientrava per valore, materia e territorio, nella loro “competenza”.

La Suprema Corte chiarisce che, nel silenzio della legge, la disposizione normativa debba essere INTERPRETATA RESTRITTIVAMENTE. Pertanto, al Praticante Avvocato con Abilitazione al Patrocinio non è riconoscita la possibilità di proporre appello contro le sentenze del Giudice di Pace (anche qualora la “res contesa” rientri nei limiti di valore, materia e territorio, attinenti al suo “Jus Postulandi“).

La pronuncia riguarda la disciplina del tirocinio forense, ratione temporis, disciplinata dall’art. 7 della L. n. 479 del 16/12/1999 che modificò l’art. 8 del R.D.L. n. 1587/1933.

Di contro, oggi, la disposizione legislativa “in forza” è quella dell’art. 41 della legge n. 247/2012 che ha introdotto la “nuova disciplina dell’ordinamento della Professione Forense”. Questo articolo esclude ai Praticanti Avvocati “… un proprio …” Jus Postulandi. Essi, di contro, possono “… esercitare attività professionale in sostituzione dell’avvocato” presso il quale svolgono “la pratica e comunque sotto il controllo e la responsabilità dello stesso anche se si tratta di affari non trattati direttamente dal medesimo, in ambito civile di fronte al tribunale e al giudice di pace, e in ambito penale nei procedimenti di competenza del giudice di pace, in quelli per reati contravvenzionali e in quelli che, in base alle norme vigenti anteriormente alla data di entrata in vigore del decreto legislativo 19 febbraio 1998, n. 51, rientravano nella competenza del pretore”.

La sentenza della Suprema Corte può essere vista come una decisone che si pone “in linea” con gli attuali sviluppi legislativi e con le attuali politiche riformatrici che si sono affermate nella riforma dell’Ordinamento Forense del 2012.

INTRODUZIONE

La sentenza della Suprema Corte di Cassazione, II Sezione Civile, del 20 Gennaio 2016 (depositata in Cancelleria il 29 Febbraio 2016) numero 3917 pone fine alle discussioni ed alle controversie che si erano venute a formare sull’Jus Postulandi dei Praticanti Avvocati con Abilitazione al Patrocinio. Da tempo, infatti, ci si chiedeva se i Praticanti Avvocati Abilitati al Patrocinio avessero, oppure no, la facoltà di proporre appello contro le sentenze emesse dal Giudice di Pace, quando la “res contesa” rientrava nei limiti (per: valore; materia; territorio) indicati dall’art. 7 della Legge n. 479/1999.

La questione giuridica affrontata e risolta dalla Suprema Corte ruota attorno alla INTERPRETAZIONE dell’art. 7 della L. n. 479/1999 (cd. Legge Carotti). Un articolo che elenca dettagliatamente e tassativamente i limiti dell’Jus Postulandi attribuito ai Praticanti Avvocati dopo il conseguimento dell’Abilitazione al Patrocinio. Quest’ultimi, infatti, possono esercitare la professione dinanzi al Giudice di Pace ed al Tribunale in composizione monocratica entro alcuni limiti.

La Cassazione ha affermato che l’art. 7 della Legge n. 479/1999 debba essere INTERPRETATO RESTRITTIVAMENTE in quanto eccezione alla regola generale espressa dall’articolo 82 del codice di procedura civile. Con tale affermazione, la Suprema Corte ha ribaltato la tesi dei Ricorrenti che sostenevano, sì, una INTERPRETAZIONE RESTRITTIVA: ma NON della disposizione legislativa (enunciato normativo) che attribuiva l’Jus Postulandi al Praticante Avvocato d’innanzi al Giudice di Pace ed al Tribunale in composizione Monocratica (regola generale); ma delle disposizioni legislative (enunciati normativi) che ponevano le eccezioni a tale Jus Postulandi ponendo dei limiti per valore, materia e territorio (eccezioni alla regola generale che attribuiva l’Jus Postulandi).

Tale disposizione legislativa che riguardava i Praticanti Avvocati nell’esercizio del loro tirocinio, infatti, è un enunciato normativo che, in quanto tale, non può essere interpretato per analogia (e/o esteso a casi simili) proprio perché riguarda i soli Praticanti Avvocati. Di contro, tale disposizione legislativa (nei soli confronti dei Praticanti Avvocati) si suddivide in: una regola generale, che concede a quest’ultimi l’Jus Postulandi dinanzi al Giudice di Pace ed al Tribunale in composizione monocratica; ed una regola speciale, composta da un elenco tassativo di eccezioni, che limita per valore, materia e territorio, l’Jus Postulandi dato. Questa, secondo i ricorrenti, era la struttura della norma esaminata analiticamente.

In questa prospettiva, sempre secondo i ricorrenti, si sarebbe dovuto INTERPRETARE RESTRITTIVAMENTE l’elenco tassativo di eccezioni e limiti.
Una diversità d’opinione, rispetto quella affermata dalla Suprema Corte, che è parte della normale dialettica giuridica necessaria all’evoluzione del Diritto.

Di sfondo, c’erano altre questioni:
• l’applicabilità dei termini e della sanatoria prevista dall’art. 182 c.p.c.;
• alcune eccezioni d’incostituzionalità dell’artt. 82 e 182 c.p.c. (ovvero: d’alcune loro interpretazioni);
• la nullità della sentenza per violazione del principio del contradittorio (che fu messa: sia in narrativa; e sia all’interno degli altri motivi presentati). Essa svolgeva un effetto rafforzativo, echeggiando: sia come un autonomo argomento di diritto; sia come un argomento a fortiori che ribadiva come tali violazioni comportavano la, e furono commesse in, violazione del principio del contradittorio, comportando la nullità prevista dall’art. 101 c.p.c. .

La scelta della Corte di non considerare l’eccezione di nullità detta supra (omettendo alcun riferimento ad essa nel testo della sentenza) sembra più una decisione di economia processuale fatta per evitare un nuovo processo di appello nel quale, il giudice di rinvio avrebbe dovuto decidere secondo il principio di diritto affermato dalla Corte.

In altre parole, la Suprema Corte ha volute evitare una dichiarazione di nullità per una sentenza con la quale si dichiarava nullo un appello, per evitare un nuovo processo di appello nel quale, il Giudice di Rinvio (applicando il principio detto), avrebbe dovuto dichiarare nuovamente la nullità dell’appello !?!? Tutto chiaro?

Tale scelta, non si spiega se non come una decisione di economia processuale. Infatti, solo pochi mesi prima, la Suprema Corte aveva affermato la nullità d’ogni decisione presa in violazione del principio del contradittorio, escludendo la così detta “terza via” e/o la possibilità del giudice d’eccepire d’ufficio qualsiasi questione senza concedere i termini per integrare il contradittorio.

ANTEFATTO

Come ricostruito dalla Suprema Corte, “E.L. ed Ep.Lo. convennero in giudizio il Comune di Rapallo, proponendo opposizione avverso il verbale loro notificato, relativo a contravvenzioni al codice della strada, e chiedendone l’annullamento”.

Infatti, la sanzione era del tutto infondata ed illegittima in base allo stesso verbale ed al rapporto sull’incidente redatto dall’agente di polizia municipale. Durante il procedimento di opposizione, per confermare la sanzione amministrativa emessa, l’agente di polizia municipale del Comune di Rapallo cambiò completamente versione. Per confermare la legittimità della sanzione, egli raccontò i fatti in modo completamente diverso rispetto al verbale ed al rapporto sull’incidente da lui stesso redatto!! Sulla base di tale testimonianza, paradossalmente, il Giudice di Pace di Rapallo rigettò l’opposizione e confermò la sanzione amministrativa compensando le spese di giudizio.

La sentenza fu impugnata per diversi vitia. Tra i più “grossolani” c’erano: la contraddittorietà fra quanto testimoniato dall’agente di polizia municipale e quanto dichiarato nel verbale e nel rapporto sull’incidente; la contraddittorietà della sentenza e del suo sillogismo. Infatti, era impossibile sussumere la conclusione assunta dal Giudice di Pace, una volta poste come premesse: la fattispecie fattuale emergente dal rapporto e/o dalla testimonianza; e la fattispecie giuridica indicata dalla sanzione amministrativa presente nel verbale notificato. Infatti, la sanzione amministrativa emessa dal Comune di Rapallo NON era “compatibile” in entrambe le “versioni” date. A tutto ciò, s’aggiungevano una pletora di altri vitia, in fatto ed in diritto, che rendevano necessario un appello. “Ciliegina sulla torta” era il fatto che, l’agente di polizia municipale, di fatto, dando due versioni completamente diverse: o, fece falsa testimonianza; o, dichiarò il falso in un atto pubblico.

L’appello fu presentato da un Praticante Avvocato con Abilitazione al Patrocinio (… che nel caso specifico fui Io …). Questo poiché fino all’ora, di fatto, ciò era “permesso” nel Foro di Chiavari. Nessuna eccezione, di solito, veniva sollevata sulla questione nel silenzio della legge. Nessuna indicazione diversa fu data dal Consiglio dell’Ordine degli Avvocati di Chiavari, quando chiesta.

Durante il procedimento d’Appello, infatti, l’avvocato Nicatore (che rappresentava il Comune di Rapallo), non sollevò alcuna eccezione circa l’assenza dell’Jus Postulandi del Praticante Avvocato con Abilitazione al Patrocinio. La questione, di contro, fu sollevata (in violazione: del principio del contradittorio; dell’art. 101 del Codice di Procedura Civile, come novellato dall’art. 45 della legge n. 69 del 18 Giugno 2009; degli artt. 24 e 111 della Costituzione) dal Giudice del Tribunale, Dott. Del Nevo, il quale la rilevò direttamente in sentenza, senza concedere alle parti i termini per integrare il contradittorio. Su tale eccezione rilevata d’ufficio, il Giudice dichiarò la nullità dell’appello per difetto d’Jus Postulandi, così evitò d’entrare nel merito dello stesso. La sentenza, infatti, non si pronuncia, neppure per obiter dictum e/o indirettamente, su alcuno dei motivi di diritto e di fatto oggetto dell’appello, né tanto meno sulla legittimità o meno della sanzione.

La sentenza fu notificata dal Comune di Rapallo a E. L. e Lo. Ep., subito dopo il suo deposito in cancelleria, così che iniziarono a decorrere i termini brevi per proporre Ricorso in Cassazione.

Fu grazie all’avv. Stefano Savi del Foro di Genova, all’ora Presidente dell’Ordine degli Avvocati di Genova, che il Ricorso fu reso possibile.

Da qui, in poi, devo fare alcune precisazioni. Da una parte, ho da ringraziare diversi giuristi (Avvocati; Professori; Ricercatori; etc…) coi quali ho avuto, a vario titolo, scambi d’idee sul thema (… essi hanno reso possibile trasmutare questo ricorso in una dotta disquisizione giuridica, ove la riflessione sui principi di diritto prevaleva rispetto il fatto sottostante …). Dall’altra parte, ho da dire che ogni responsabilità sulle strategie processuali, sulle eccezioni e sulle argomentazioni giuridiche, usate per sostenere il ricorso (e per l’esito avuto) è solo Mia, nessun biasimo può essere imputato a loro.

Per finire, preciso che il merito del principio di diritto affermato (che piaccia oppure no) è del Giudice Dott. Del Nevo e degli Eccellenti Giudici della Suprema Corte di Cassazione, i quali hanno arricchito di molto i motivi di diritto posti alla sua base.

Tale decisione della Corte, ed il principio affermato, non è una “vittoria” dell’avv. Nicatore (e/o del Comune di Rapallo) che, di contro, non hanno eccepito la questione in Appello ed hanno rivestito un ruolo passivo in Cassazione, limitandosi a “ripetere” quanto affermato ex ufficio dal Giudice Dott. Del Nevo. Anche in Udienza Pubblica (il Comune di Rapallo) si è limitato a sostenere (in una battuta) l’inammissibilità del Ricorso (… una tesi non accolta dalla Suprema Corte di Cassazione).

RICORSO IN CASSAZIONE & LE QUESTIONI GIURIDICHE AFFRONTATE

Col primo motivo di ricorso si era fatta una succinta ricostruzione storica dello sviluppo legislativo inerente all’Jus Postulandi dei Praticanti Avvocati. In essa, furono indicati anche i precedenti della giurisprudenza di merito sui quali era basata la decisione del Giudice Dott. Del Nevo (exempli gratia, la prima sentenza in thema fu emessa dal Tribunale di Modena, sentenza n. 38/2006).

Tale introduzione, che fungeva da argomento storico per guidare il ragionamento giuridico verso le conclusioni prospettate dai ricorrenti, proseguiva nel sostenere che l’art. 7 della L. n. 479 del 16/12/1999 conferiva ai Praticanti Avvocati Abilitati al Patrocinio l’Jus Postulandi di proporre appello contro le sentenze del Giudice di Pace, in quanto, il legislatore non lo escluse.

La possibilità d’appellare le sentenze del Giudice di Pace, infatti, non compariva nell’elenco tassativo dei limiti all’Jus Postulandi concesso (come detto supra). Esso, infatti, non era indicato nei limiti di materia, valore e territorio.

Si era reputato che la Suprema Corte di Cassazione (Cass. Civ. Sez. Lavoro, sentenza n. 10102 del 29 aprile 2013) avesse “aperto” ad una interpretazione capace di distinguere fra limiti oggettivi (limiti per: valore; materia; territorio) e limiti funzionali (e.g., attinenti al tipo di: atto; rito processuale; grado di giudizio; etc …). Infatti, nella sentenza n. 10102/2013, la Corte rigettò il ricorso per la violazione dei limiti di valore, riconoscendo (di contro) al Praticante Abilitato l’Jus Postulandi per le cause di lavoro di competenza del Tribunale monocratico (in funzione di giudice del lavoro) quando rientravano nei limiti di valore e territorio previsti. Questo poiché la legge non le escludeva (non ponendo limiti funzionali, e.g. inerenti al tipo di: atti introduttivi; e/o riti processuali; … ma solo oggettivi). Infatti, la Suprema Corte sottolineò che il tenore letterale della norma che riconosceva l’Jus Postulandi negli “affari civili” (limitatamente “alle cause, anche se relative a beni immobili, di valore non superiore a lire 50 milioni”) comprendesse anche le materie del lavoro e della previdenza in quanto non escluse nei limiti successivamente posti.

Allo stesso modo, si ritenne che la legge, nell’attribuire tale Jus Postulandi negli “affari civili”, comprendesse anche la possibilità in capo ai Praticanti Avvocati di proporre appello contro le sentenze del Giudice di Pace quando la “res contesa” rientrava nei limiti di valore, materia e territorio, indicati dall’art. 7 della L. n. 479 del 16/12/1999.

Di tutt’altra opinione è stata, invece, la II Sezione della Corte di Cassazione, che escluse “categoricamente” tale possibilità. Una decisione che, da un punto di vista di politica del diritto, potrebbe inserissi “in linea” con gli attuali sviluppi normativi che hanno “ristretto” ulteriormente l'”indipendenza” e l’Jus Postulandi dei Praticanti Avvocati dopo l’introduzione della “nuova disciplina dell’ordinamento della professione forense” come indicata supra.

Col secondo motivo di ricorso si sosteneva la violazione e la falsa applicazione dell’art. 182 c.p.c. per i motivi, qui infra, illustrati. Questi motivi sono stati posti, anche, alla base delle questioni di legittimità costituzionale degli artt. 82 e 182 c.p.c. verso gli artt. 2, 3, 24, 111 della Costituzione (eccepite nel terzo motivo di ricorso). Le questioni di legittimità costituzione riguardavano alcune interpretazioni di questi articoli, ovvero alcune norme (proposizioni normative) estratte dalle disposizioni legislative (enunciati normativi) e non le disposizioni legislative in quanto tali.

I ricorrenti vollero superare la dottrina della “nullità assoluta ed insanabile” dell’atto introduttivo sottoscritto da soggetto privo d’Jus Postulandi (all’interno del processo civile) osservando come questa dottrina, di fatto, fosse già stata superata all’interno del Nostro Ordinamento nel 2000 (e/o almeno si erano create delle “brecce”).

La giurisdizione tributaria, infatti, sollevò tale questione alla Corte Costituzionale che, in tale occasione, affermò che l’atto introduttivo del giudizio (ricorso), depositato e sottoscritto da persona sprovvista d’Jus Postulandi, non comportasse l’inammissibilità (e/o una nullità assoluta ed insanabile) dell’atto introduttivo stesso, bensì il potere del Giudice di assegnare un termine perentorio per permettere alla parte di sanare tale irregolarità, nominando un difensore con Jus Postulandi (sentenza n. 186 del 13/06/2000).

Questo creò, all’interno del Nostro Ordinamento, una disparità di trattamento che si accordava poco con l’art. 3 della Costituzione, non essendoci motivi razionali atti a giustificare ciò.

Infatti, le discipline degli artt. 12 della L. 546/1992 (Jus Postulandi nel Processo Tributario) e 82 c.p.c. (Jus Postulandi nel Processo Civile) sono sostanzialmente simili. Esse non giustificano un diverso regime delle nullità.

Così la disparità che si è venuta a creare fra la giurisdizione ordinaria civile e la giurisdizione tributaria creava un problema con l’art. 3 della Costituzione. La prima rimase ancorata ad antiche tradizioni (per di più di creazione dottrinale), la seconda s’evolse fino a permettere la sanabilità del vitium.

Così, i ricorrenti, assumendo che l’agire del Legislatore è un agire razionale (mirante ad armonizzare la legge ai principii costituzionali), sostennero la tesi secondo la quale con la novellazione del 2009 il Legislatore, razionalmente, volle eliminare tale disparità di trattamento, portando ad una “uniformazione” della disciplina proprio con l’art. 182 cpc.

Fu sostenuto che, i motivi che spinsero il Legislatore a novellare il codice di procedura civile non potevano essere quelli di conservare lo “stato delle cose” immutato, ma introdurre in esso delle novità! Queste “novità” dovevano rispecchiare i principii costituzionali e portare “discipline uniformi” e razionali all’interno dell’Ordinamento.

Nel caso specifico, fu sottolineato come l’articolo 182 cpc, muovendosi in tale spirito, avrebbe uniformato le diverse discipline che si erano venute a creare sui difetti di procura e di rappresentanza tra la giurisdizione ordinaria civile e quella tributaria. In altre parole, avrebbe uniformato le conseguenze che avrebbero colpito l’atto introduttivo firmato da soggetto privo di Jus Postulandi.

Non a caso, l’art. 182 c.p.c. fu introdotto nel diritto processuale civile (dopo forti resistenze). Il suo tenore letterale sembrava proprio introdurre (nel processo civile) il principio affermatosi nel 2000 all’interno del processo tributario detto supra.

Per tali motivi, i ricorrenti sostennero che il Giudice mis-usò e disapplicò l’art. 182 cpc, poichè questo articolo, come novellato nel 2009, non si limitava ai difetti di rappresentanza e/o di procura degli avvocati.

Questo punto, espresso sintenticamente, fu uno degli argomenti presentati. Un argomento che può essere ampliato di molto, osservando come vi sia un forte parallelismo fra i due articoli. Entrambi, infatti, prevedono l’Jus Postulandi per i soli iscritti agli albi professionali, rilegando la difesa personale come eccezione alla regola per alcune cause di modico valore. L’art. 12 della L. 546/1992, in altre parole, fu modellato sulla base dell’art. 82 cpc anche se estendeva l’Jus Postulandi ad altri professionisti iscritti nei relativi albi (e.g. Commercialisti).

Infatti, la lettera della disposizione legislativa, autorizzava il Giudice, una volta rilevato un qualsiasi difetto di rappresentanza e/o di assistenza e/o di autorizzazione, ovvero un qualsiasi vizio che determini la nullità della procura al difensore, di assegnare alle parti un termine perentorio per la costituzione della persona alla quale spetta la rappresentanza o l’assistenza, per il rilascio delle necessarie autorizzazioni, ovvero per il rilascio della procura alle liti o per la rinnovazione della stessa.

Quindi si ritenne che il tenore letterale era così ampio da inglobare qualsiasi difetto: di nullità; di procura; di rappresentanza. Infatti, non solo riguardava i soggetti che operavano come “sostituti processuali” (avvocati), ma anche i rappresentati di persone giuridiche. Escluderne l’applicazione ai soli Praticanti Avvocati avrebbe creato una disparità di trattamento ingiustificata nel nostro Ordinamento verso gli artt. 3 e 24 della Costituzione.

Per tali motivi, si ritiene che l’art. 182 c.p.c. fosse applicabile nel caso specifico. Ogni diversa interpretazione sul modus procedendi e sull’interpretazione degli artt 82 e 182 cpc avrebbe contrastato coi principii costituzionali (art. 2; l’art. 3; l’art. 24; l’art. 111) visti: sia come criteria esegetici delle fonti subordinate; e, sia come “linee guida” per il Legislatore.

Nonostante ciò, la Suprema Corte decise di ribadire (all’interno del processo civile) la pre-vigente dottrina della “nullità assoluta ed insanabile”, “tagliando corto” sui motivi dedotti e sostenuti.

CONCLUSIONI

Con questo articolo si sono illustrati tutti gli aspetti rilevanti e tutte le questioni giuridiche sottostanti, che sono state sostenute e sono state poste alla base della decisione presa dalla Suprema Corte, così che qualsia giurista (Avvocato; Professore; Ricercatore; etc…) possa acquisire una piena consapevolezza sul thema, su come sono avvenuti gli sviluppi giurisprudenziali e quali sono state le argomentazioni proposte e scartate dalla Suprema Corte.

In questo modo, qualora qualcun’altro voglia ripresentare, studiare e/o sviluppare, la questione può aver chiari tutti i punti e tutti gli aspetti che sono stati già: prospettati; studiati; eccepiti; argomentati; considerati; e … rigettati dalla Suprema Corte.

RINGRAZIAMENTI:

I ringraziamenti sono molteplici, mi scuso se nel farli possa omettere qualcuno. Innanzi tutto, ringrazio l’avv. Stefano Savi per aver reso possibile questo ricorso. Da grande penalista, lo ha arricchito sottolineando l’importanza d’un’esposizione chiara, sintetica e centrata sui punti chiave. Tutti insegnamenti importanti, che hanno “corretto” le “cattive abitudini” acquisite da alcuni civilisti, che di contro, “tendono” a dilungarsi in argomenti ridondanti per “tuziorismo” difensivo. Si ringrazia l’avvocato Michaela Calzetta (penalista) che ha contribuito alla redazione dell’atto introduttivo.

Ringrazio il Foro il Genova in generale (… da sempre, per tradizione, Scuola di Massima Eccelenza Giuridica …) per: averMi “adottato”; aver reso possibile trasformare questo ricorso in una costruttiva crescita giuridica, una occasione di riflessione atta a contribuire all’evoluzione del Diritto ed alla sua chiarificazione, … tutte cose che non furono possibili nel “fu” Foro di Chiavari.

Ringrazio anche tutti i Professori e Ricercatori con i quali, a vario titolo, ho avuto l’occasione di parlare e/o avere brevi, ma significativi scambi. Tra di essi, voglio ringraziare il Prof. Costanzo (costituzionalista dell’Università di Genova) ed il Prof. Costantino (processualista civile dell’Università degli Studi Roma Tre). Il primo ha arricchito la riflessione giuridica portandoMi a riflettere su alcuni themae, oltre a “spronarMi” con la sua chiarezza concettuale ad abbandonare gli stili “confusi e confondenti” che, di contro, s’affermano nella pratica, prendendo talvolta il sopravvento. Il secondo Mi ha indicato alcuni suoi articoli che lessi con molto piacere, articoli che ho trovato fondamentali per giungere ad una più profonda comprensione del processo civile. Entrambi, in ogni caso, hanno: trasmesso la “passione” per il Diritto; permesso di trasformare un procedimento giuridico (… diciamolo pure, di modesto valore …) in un’occasione di crescita giuridica ineguagliabile.

Grazie.

APPENDICE: La Sentenza della Suprema Corte di Cassazione, II Sezione Civile, n. 3917 del 20 Gennaio, depositata il 29 Febbraio 2016. Testo Integrale.

TESTO DELLA SENTENZA

Suprema Corte di Cassazione
Sezione II Civile
Sentenza 20 Gennaio – 29 Febbraio 2016, n. 3917

REPUBBLICA ITALIANA
IN NOME DEL POPOLO ITALIANO
LA CORTE SUPREMA DI CASSAZIONE
SEZIONE SECONDA CIVILE

Composta dagli Ill.mi Sigg.ri Magistrati:

Dott. BUCCIANTE Ettore – Presidente -

Dott. MIGLIUCCI Emilio – Consigliere -

Dott. MATERA Lina – Consigliere -

Dott. LOMBARDO Luigi Giovanni – rel. Consigliere -

Dott. PICARONI Elisa – Consigliere -

ha pronunciato la seguente:

sentenza

sul ricorso 20029/2011 proposto da:

E.L.N. (OMISSIS), EP.LO. (OMISSIS), elettivamente domiciliati in ROMA, PIAZZA CAVOUR presso la CORTE DI CASSAZIONE, rappresentati e difesi dagli Avv.ti SAVI STEFANO, MINOTTI DANIELE, quest’ultimo per proc. not. del 2/10/2015 rep. n. 36958;
ricorrenti -

contro

COMUNE RAPALLO (OMISSIS), IN PERSONA DEL SINDACO P.T., elettivamente domiciliato in ROMA, VIA DEGLI SCIPIONI 268-A, presso lo studio dell’avvocato PETRETTI ALESSIO, rappresentato e difeso dall’avvocato NICATORE ANDREA;
controricorrente -

avverso la sentenza n. 286/2011 del TRIBUNALE di CHIAVARI, depositata il 18/04/2011;

udita la relazione della causa svolta nella pubblica udienza del 25/11/2015 dal Consigliere Dott. LUIGI GIOVANNI LOMBARDO;

udito l’Avvocato Minotti Daniele difensore dei ricorrenti che ha chiesto l’accoglimento del ricorso;

udito l’Avv. Petretti Alessio con delega depositata in udienza dell’Avv. Nicatore Andrea difensore del controricorrente che ha chiesto il rigetto del ricorso;

udito il P.M. in persona del Sostituto Procuratore Generale Dott. CELENTANO Carmelo che ha concluso per il rigetto del ricorso.

Svolgimento del processo

1. E.L. ed Ep.Lo. convennero in giudizio il Comune di Rapallo, proponendo opposizione avverso il verbale loro notificato, relativo a contravvenzioni al codice della strada, e chiedendone l’annullamento.

Nella resistenza del convenuto, il Giudice di Pace di Rapallo rigettò l’opposizione.

2. Sul gravame proposto dagli attori, il Tribunale di Chiavari, in composizione monocratica, dichiarò la nullità dell’atto di appello, in quanto sottoscritto da praticante avvocato, ritenuto non abilitato alla sottoscrizione dell’atto di impugnazione.

3. Avverso la sentenza di appello propongono ricorso per cassazione E.L. ed Ep.Lo., formulando tre motivi.

Resiste con controricorso il Comune di Rapallo.

Entrambe le parti hanno depositato memoria ex art. 378 cod. proc. civ..

Motivi della decisione

1. Col primo motivo di ricorso, si deduce la violazione e la falsa applicazione della L. n. 479 del 1999, art. 7, per avere il Tribunale ritenuto che il praticante avvocato non fosse abilitato a proporre appello innanzi al Tribunale in composizione monocratica avverso le sentenze del giudice di pace; a dire del ricorrente, dovrebbe invece ammettersi il patrocinio del praticante avvocato nel giudizio di appello innanzi al Tribunale in composizione monocratica avverso le sentenze del giudice di pace, poichè il detto art. 7 non distingue tra giudizio di primo grado e giudizio di appello.

La censura non è fondata.

Va premesso che il caso sottoposto al giudizio di questa Suprema Corte, essendo relativo ad una causa iniziata con ricorso depositato il 17.9.2009 e ad un atto di appello proposto l’11.5.2010, è soggetto ratione temporis alla disciplina del tirocinio forense di cui al R.D.L. 27 novembre 1933, n. 1578, art. 8 e successive modificazioni (e non alla nuova disciplina dello svolgimento del tirocinio di cui all’art. 41 della sopravvenuta L. 31 dicembre 2012, n. 247, che ha introdotto la “Nuova disciplina dell’ordinamento della professione forense”).

Il R.D.L. 27 novembre 1933, n. 1578, art. 8 (convertito, con modificazioni, dalla L. 22 gennaio 1934, n. 36 e successive modificazioni) prevede che il praticante avvocato, durante il periodo di pratica forense, possa esercitare un patrocinio limitato nell’attività professionale (solo dinanzi alle Preture del distretto della Corte di Appello nel quale è iscritto per la pratica) e nel tempo (dopo un anno di iscrizione nel registro e per non più di sei anni: R.D.L. n. 1578 del 1933, art. 8; L. 27 giugno 1988, n. 242, art. 10, recante “Modifiche alla disciplina degli esami di procuratore legale”), sottoposto ad una particolare vigilanza del Consiglio dell’ordine di appartenenza (R.D.L. n. 1578 del 1933, art. 14, lett. c) e a speciali adempimenti attinenti alla frequenza di uno studio di avvocato e all’esercizio del patrocinio (R.D.L. n. 1578 del 1933, art. 17, n. 5; R.D. 22 gennaio 1934, n. 37, artt. 1 e segg. recante “Norme integrative e di attuazione del R.D.L. 27 novembre 1933, n. 1578 sull’ordinamento della professione di avvocato e di procuratore”; D.P.R. 10 aprile 1990, n. 101, artt. 1 e segg., recante “Regolamento relativo alla pratica forense per l’ammissione all’esame di procuratore legale”).

Viene, pertanto, riconosciuto ai praticanti avvocati uno speciale status abilitativo provvisorio, limitato e temporaneo, giustificato dalle esigenze di svolgimento del tirocinio e in vista degli esami da affrontare per conseguire l’abilitazione all’esercizio della professione forense e l’iscrizione nel relativo albo (in tali termini, Corte Cost.: Sentenza n. 5 del 1999; Sentenza n. 127 del 1985; Ordinanza n. 75 del 1999; Ordinanza n. 163 del 2002).

Tale speciale status abilitativo provvisorio costituisce eccezione alla regola generale per cui il patrocinio legale è consentito previo superamento dell’esame di stato ed iscrizione all’albo degli avvocati; pertanto, le norme che consentono l’esercizio del patrocinio a chi, come il praticante avvocato, non ha superato l’esame di stato e non è iscritto nel detto albo professionale introducono un’eccezione ad un principio generale e come tali sono di stretta interpretazione.

A seguito dell’entrata in vigore del D.Lgs. 19 febbraio 1998, n. 51 che ha soppresso l’ufficio del pretore ed ha istituito il giudice unico di primo grado, l’ambito di esercizio di tale speciale abilitazione riconosciuta ai praticanti avvocati è stato rideterminato dalla L. 16 dicembre 1999, n. 479, art. 7, che stabilisce che i medesimi, dopo il conseguimento dell’abilitazione al patrocinio, possono esercitare l’attività professionale ai sensi del R.D.L. 27 novembre 1933, n. 1578, art. 8 nelle cause di competenza del giudice di pace e dinanzi al tribunale in composizione monocratica, limitatamente: a) negli affari civili: 1) alle cause, anche se relative a beni immobili, di valore non superiore a lire cinquanta milioni; 2) alle cause per le azioni possessorie, salvo il disposto dell’art. 704 c.p.c., e per le denunce di nuova opera e di danno temuto, salvo il disposto dell’art. 688 c.p.c., comma 2; 3) alle cause relative a rapporti di locazione e di comodato di immobili urbani e a quelle di affitto di azienda, in quanto non siano di competenza delle sezioni specializzate agrarie; b) negli affari penali, alle cause per i reati previsti dall’art. 550 c.p.p. (in tali termini, la lett. b, relativa agli affari penali, è stata modificata dal D.L. 7 aprile 2000, n. 82, art. 2 terdecies, convertito con modificazioni dalla L. 5 giugno 2000, n. 144).

Orbene, come è dato constatare nell’esame del testo della disposizione appena richiamata, nell’elenco delle materie per le quali il praticante avvocato è abilitato al patrocinio dinanzi al Tribunale elenco che ha carattere tassativo non sono richiamate le cause di competenza del giudice di pace ai sensi dell’art. 7 c.p.c. (cause relative alle apposizione di termini e all’osservanza delle distanze per il piantamento di alberi e siepi; relative alla misura e alle modalità d’uso dei servizi condominiali; in materia di immissioni e in quelle relative ad interessi o accessori da ritardato pagamento di prestazioni previdenziali o assistenziali); nè è comunque prevista la possibilità in generale per il praticante avvocato di esercitare lo ius postulandi dinanzi al Tribunale in composizione monocratica quando tale organo eserciti ai sensi del combinato disposto degli artt. 341 e 350 cod. proc. civ. le funzioni di giudice di appello avverso le sentenze del giudice di pace.

Poichè la disposizione di cui alla L. 16 dicembre 1999, n. 479, art. 7 introduce una eccezione alla regola generale per cui il patrocinio legale è subordinato al superamento dell’esame di stato e all’iscrizione nell’albo degli avvocati, se ne impone una stretta interpretazione e ai sensi dell’art. 14 preleggi non ne è consentita l’interpretazione estensiva, non potendo quanto essa prevede essere esteso oltre i casi da essa considerati.

E’ ben vero che le cause che l’art. 7 cod. proc. civ. individua per valore come di competenza del giudice di pace (cause relative a beni mobili di valore non superiore a 5000 Euro e quelle relative a risarcimento del danno prodotto dalla circolazione di veicoli e natanti di valore non superiore a 20.000 Euro) potrebbero rientrare in astratto tra quelle per le quali la L. n. 479 del 1999, art. 7, lett. a), n. 1 (cause di valore non superiore a lire cinquanta milioni delle vecchie lire) ammette il patrocinio del praticante avvocato dinanzi al Tribunale in composizione monocratica.

Tuttavia, nel silenzio della legge, deve escludersi che il legislatore abbia inteso concepire un sistema nel quale il patrocino del praticante avvocato nel giudizio in appello dinanzi al Tribunale in composizione monocratica sia consentito per alcuni segmenti della competenza del giudice di pace (quelli individuati per valore) e non per gli altri, con conseguente incoerenza del sistema.

In definitiva, nel silenzio della legge relativamente alla possibilità del praticante avvocato di esercitare il patrocinio in grado di appello e in considerazione del fatto che le norme che riconoscono lo ius postulandi al praticante avvocato sono di stretta interpretazione, va esclusa la possibilità di riconoscere al praticante avvocato l’esercizio dello ius postulandi in grado di appello dinanzi al Tribunale in composizione monocratica.

Alla stregua di quanto sopra deve enunciarsi il seguente principio di diritto: “Il praticante avvocato non è legittimato ad esercitare il patrocinio nel giudizio di appello che si svolge dinanzi al Tribunale in composizione monocratica nelle cause civili di competenza del giudice di pace”.

2. Col secondo motivo di ricorso, proposto in subordine, si deduce la violazione e la falsa applicazione dell’art. 182 cod. proc. civ., per avere il Tribunale una volta verificato che il difensore degli appellanti era privo di ius postulandi omesso di assegnare agli stessi un termine perentorio per il rilascio della procura alle liti, secondo quanto prevede l’art. 182 cod. proc. civ..

Anche questa doglianza è infondata.

Secondo la giurisprudenza di questa Corte, dalla quale non v’è ragione di discostarsi, l’iscrizione nell’albo professionale di cui al R.D.L. 27 novembre 1933, n. 1578, artt. 24 e segg., ha natura costitutiva ai fini dell’esercizio della libera professione forense davanti ai Tribunali o alle Corti di appello, con la conseguenza che l’atto introduttivo del giudizio di impugnazione sottoscritto da un praticante procuratore, non ancora iscritto nell’albo professionale degli avvocati ed abilitato a svolgere soltanto l’attività indicata nell’art. 8 del R.D.L. cit., è affetto da nullità assoluta ed insanabile, rilevabile anche d’ufficio in qualsiasi stato e grado del processo, data la stretta attinenza alla costituzione del rapporto processuale (Sez. 1, Ordinanza n. 20436 del 23/09/2009, Rv. 610035; Sez. 1, Sentenza n. 2538 del 23/03/1988, Rv. 458282; Sez. 3, Sentenza n. 26898 del 19/12/2014, Rv. 633782).

Poichè il difetto di ius postulandi dà luogo ad una nullità assoluta e insanabile, è escluso che il giudice possa concedere, ai sensi dell’art. 182 c.p.c., comma 2, un termine perentorio per la sanatoria di un vizio insuscettibile di essere sanato.

3. Col terzo motivo di ricorso, proposto in estremo subordine, si eccepisce infine l’illegittimità costituzionale degli artt. 82 e 182 cod. proc. civ., come interpretati dal giudice di appello, per violazione degli artt. 2, 3 e 24 Cost..

La questione di legittimità costituzionale, come prospettata dal ricorrente, è manifestamente infondata.

Questa Corte ha già affermato, e non può che ribadire, che la questione di legittimità costituzionale della disposizione dell’art. 182 c.p.c., comma 2, denunciata, in relazione all’art. 24 Cost., in quanto affida alla discrezionalità del giudice istruttore l’assegnazione di un termine per la regolarizzazione del difetto di assistenza, rappresentanza o autorizzazione, è priva di rilevanza allorchè non si tratti di difetti attinenti alla capacità processuale, quali sono quelli cui si riferisce la disposizione denunciata, ma di nullità assoluta e quindi insuscettibile di produrre qualsiasi effetto o di essere sanata dell’atto di citazione, ai sensi del terzo comma, dell’art. 82 cod. proc. civ., per mancanza dello ius postulandi (Sez. 2, Sentenza n. 4357 del 26/07/1985, Rv. 441821).

Quanto agli altri profili della dedotta questione di legittimità costituzionale, essi non superano la soglia dell’assoluta genericità e, comunque, risultano manifestamente infondati, risultando gli artt. 82 e 182 cod. proc. civ., nella interpretazione datane da questa Corte, perfettamente compatibili con le norme costituzionali richiamate.

4. Il ricorso deve pertanto essere rigettato. In considerazione della questione giuridica sottoposta e dell’assenza di precedenti specifici nella giurisprudenza di questa Corte, le spese del presente giudizio di legittimità vanno compensate tra le parti.

P.Q.M.

La Corte Suprema di Cassazione rigetta il ricorso e compensa tra le parti le spese del presente giudizio di legittimità.

Così deciso in Roma, nella Camera di Consiglio della Seconda Sezione Civile, il 20 Gennaio 2016.

Depositato in Cancelleria il 29 Febbraio 2016

Communication

The last part of “A Critical Study on How the Psychopathological Construct of Antisocial Personality and Psychopathy Has Imploded. An Alternative Empirical Theory Overthrows the Psychopathological Explanation” will be delayed until further notice. This is due “some problems” with the computers (where all the materials and notes about these studies were stored). BOTH most of the data, articles and notes (that have been gathered since 2005), AND most of the minutes, drafts and sketches (that have been written in the last 10 years of studies and researches), have been destroyed by some technicians that, unfortunately, “touched” them. As I need both new hardware (… the minor of the problem …) and to gather, to organized and to re-write, all of the previous materials (… that, actually, it is the main problem … in term of time … and not only …), I do not know when it will be possible to proceed with the publications. The damage has been huge, VERY HUGE. Most of the information and data were gathered worldwide in the last 10 years. Moreover, nowadays, I am doing these works in the free time.

Anyways, a very brief and partial idea about the content of the second part of A Critical Study on How the Psychopathological Construct of Antisocial Personality and Psychopathy Has Imploded. An Alternative Empirical Theory Overthrows the Psychopathological Explanation” could be get (incidentally) from the De Nova Superstitione (that I published in Italian both like Post and like book in PDF on this website). You can translate it in English, even if some people have already told Me that the translations (that have been done by the computers) are NOT good. In particular, you can read:  De Nova Superstitione, Chapter IIIL’Inganno del Post Hoc, Ergo Propter Hoc“, paragraph,La Pervasività dell’Influenza Sociale“.

The studies, which I announced in Forthcoming Page, have the same problem, as their materials were stored in same place.

As I am writing this post the 24th of December, I want to say to my Readers (that, in these seven months of activity of this website, have reached the number of 8.300): Merry Christmas and Happy New Year.

A Critical Study on How the Psychopathological Construct of Antisocial Personality and Psychopathy Has Imploded. An Alternative Empirical Theory Overthrows the Psychopathological Explanation.

COMMUNICATION

The First Part of this Post have been published in PDF like an Article with Index, Bibliography, etc… . You can get a copy (only for personal use): either on the page “Law & Criminology“; or on the page “Psychology & Epistemology“. The title is: “A Critical Study on How the Psychopathological Construct of Antisocial Personality and Psychopathy Has Imploded. The Implosion of the Construct“.

Alternatively, you have a link here: A Critical Study on How the Psychopathological Construct of Antisocial Personality and Psychopathy Has Imploded – The Implosion of the Construct – Article

The Second Part of this Post (about “the Alternative Empirical Theory that Overthrows the Psychopathological Explanation“) will be published with delay, due the reasons that I illustrated in the “Communication” of the 24 Dicember 2015 (see: “Comunicati stampa – Press Release“).

However, a very brief and partial idea about the content of the Second Part could be get (incidentally) from the De Nova Superstitione (that I have already published in Italian both like Post and like book in PDF on this website). In particular, you can see: De Nova Superstitione, Chapter III, “L’Inganno del Post Hoc, Ergo Propter Hoc“, paragraph: “La Pervasività dell’Influenza Sociale“.

You can translate it in English, even if some people have already told Me that the translations (that have been done by the computers) are NOT good.

 

PREVIEW

Many persons asked Me to translate the De Nova Superstitione in English. Most of the people, indeed, cannot read Italian. Moreover, the translations, which are done by computers, are not good. They can translate efficiently basic statements, but not structured discourses.

The De Nova Superstitione has “captured” and caught a lot of interest for two reasons.

The first one is about the main topic and aim of the Book: a Critical Study about the Epistemological Status of Psychology, Psychopathology and Psychoanalysis. In particular, the discourse about the Law of Hume and Psychopathology was much appreciated. It has been, indeed, a quite neglected topic, so long so far, in Psychology.

The second one is about an incidental argument, which I used like example to prove the weakness and misuses of the Psychopathological Constructs. This argument focuses on the construct of antisocial personality and behaviors. It was proved (with: empirical studies; and, logic arguments) how this construct imploded. Furthermore, an alternative Empirical Theory (which is able to explain those phenomena) was presented.

As, at the present tense, I do not have time to translate in English the De Nova Superstitione, I decided to write a brief Post to allow people to read about how psychopathological constructs are weak and misused.

This is a very actual topic, nowadays.

This Post reports studies and original ideas that have been done, written and presented (by the writer), since 2005/2006.  Actually, this critical study has been well known (… worldwide …) by several criminologists and psychologists since 2005/2006. On the contrary, it was not accessible and reachable for every other person. Outside the niche, it was not easy to get it, at all.

It happened for different reasons. But, one of them was that clinical psychologists do not like that people know how much weak their “constructs” are!! They tend: to “hide” all these critical studies; and, to “dissuade” and to “hinder” this kind of research in University.

So, unless you are not already famous and important, your critical studies have few chances to reach the general public. In particular, it happens when they do not support the monopolies of knowledge (a là Innis), which (… inside each discipline …) conserve the relationship of power among the members.

This is why, you can read about them ten years later their development and presentation.

 

ABSTRACT

This article shows how the psychopathological construct of antisocial personality and behaviours has imploded. Furthermore, a New Empirical Theory, which is able to explain those phenomena, is presented. This theory was developed in 2005/2006 by the writer. Then, it has been presented to several criminologists and psychologists (… worldwide …) since 2005/2006. Now, this article allows everyone to know about this critical study.

 

Rationale – Background

Introduction

The Paradigm of Antisocial Personality and Behaviour has always been a very weak and misused construct since the beginning. It is a good example of how the psychopathological constructs became a “modern scientific” form / manifestation of the Human Superstition. Ordronaux (1873) was the first author, who became aware about this. Indeed, he stated that this concept is “… an attempt to return to belief in demon possession of the Middle Ages and a revision to superstition”[1]. From that time, the number of the researchers, who criticized this construct and “how” it is used, increased.

Exempli gratia, Kinberg (1946) said that the concept of psychopath “should be abrogated as theoretically unsatisfactory, practically misleading and destructive to scientific thinking”. Karpman (1948) stated that it is “a myth … a nonexistent entity”.  Vaillant regarded this construct to be a misleading stereotype.

Blackburn (1988) affirmed: “it must be concluded that the current concept of psychopathic or antisocial personality remains «a mythical entity» …”[2].

Calvaldino (1998) suggested that this construct is nothing more than “a moralism masquerading as medical science”. He updated both the Blackburn’s critics and the Ordronaux’s critics. The former, indeed, admitted that: “such a concept is little more than a moral judgment masquerading as clinical diagnosis”. The latter argued[3] that: “the only disease to which the moral nature is subject is sin”.

Toch (1998) observed that the term was a form of negative counter-transference.

Shadish et al. (1999) underlined how the process of validation of the psychopathological construct has never been completed.

Cooke, Michie and Hat (2006), reported how this construct is quite controversial in the academic literature. In the same year, the present writer presented and illustrated “how” the construct: imploded on itself; was lacking in any scientific criteria; and, could be explained with a more Empirical Theory that was able to abandon these modern forms of Superstitions.

Although all these critics were well proved and based, they were neglected and refuted by the establishment. The latter, according to the Kuhn’s theory (1962; 1970), was committed to defend the Paradigm. The critical views were: denied; ridiculed; not taught. The researchers, who dared to show interest in them, were actively: dissuaded; discouraged; isolated. Their studies and works were hindered. They were also attacked with argumenta ad personam. The latter is a strategy that is largely used by psychologists to defend their inconsistent constructs (Epis, 2011/2015).

So, the establishment, instead of considering those critics and improving its constructs, has weakened and weakened them, meantime.

For instance, Hill, Murray and Thorley (1986) warned their colleagues that: “… psychopathic personality is an intriguing tale of confusion and inconsistency”.

Blackburn (1988) made the same critics with “softer” and “more indirect” words. He advised clearly that the construct had a very weak point. According to him, “the taxonomic error of confounding different universes of discourse” was present in the construct. This error leaded to create “a diagnostic category that embraces a variety of deviant personalities. Such a category is not a meaningful focus for theory and research, nor can it facilitate clinical communication and prediction”.

Nevertheless, as I told supra (above), the establishment refused to consider all those warnings. Instead of working for decreasing the heterogeneity of the construct, they increased it as much as they could!! At the end, the construct became so heterogeneous to include two opposite and contradictory types in the same set: the criminal psychopath; and, the non-criminal psychopath.

In other words, several psychologists put into the same set: serial killers (such as Jack the Ripper) committed to criminal activities; and, people (such as Mather Teresa of Calcutta) who, on the contrary, were committed to pro-social behaviours!! Some criminologists attempted to reduce all the violations of the Criminal Law like a manifestation of psychopathy!!

Please, do not think that they were joking. I have also thought it (in first instance), but they were not joking at all. They were strongly “devoted” and convinced in what they were saying. All their career and social prestige came from that!!

So, the present writer had to recognize the self-evident implosion of the psychopathological construct for the reasons that you can read infra (below).

 

Antisocial Personality’s Construct: Birth, Development and Implosion

Before explaining the reasons of the implosion of the construct, a brief résumé (about the “lifespan” of the antisocial personality’s paradigm) is given.  It will be very useful to understand: both, the biases that work in the creation and in the confirmation of the psychopathological paradigms; and, how superstitions can even appear “scientific beliefs”, once they are masked to psychopathological constructs!!

 

Birth and Development

The first label, which described the antisocial personality and behaviours, was: “manie sans delire” (Pinel, 1801). Then, this construct was called: “moral derangement” or “derangement in the moral faculties” (Rush, 1812); “moral insanity” (Pritchard, 1835). At the end, the label has become: antisocial personality disorder (e.g., DSM IV – R); psychopathy (e.g., Lange-Eichbaum, 1931; Henderson, 1939; English Mental Health Act, 1983; Cleckley, 1976; Hare, 1980); sociopathic personality disorder or asocial personality disorder (e.g., Gelder M., Gath D. and Mayou R., 1983); dissocial personality disorder (e.g., ICD-1O[4], F 60.2); and so on.

If you want, you can invent another name!! We need it!!

This construct is a good example of how the psychopathological discourse is completely dominated by: plenty of biases; a lot of fallacies; trickeries such as that one of nominalism; and, an absent epistemological awareness and reflection (Epis, 2011/2015).

The first label, which described the antisocial personality and behaviours, was: “manie sans delire” (Pinel, 1801). Pinel wanted to explain the behaviour of some people who were: violent and social dangerous; committed to criminal activities; cruel and callous; inclined to kill the others. As he could not explain this phenomenum, he used the ancient trickery of the nominalism. He gave a name to something that he was not able to understand (at all). So, he created the illusion to have explained and understood something that he did not!! Bateson (1972) called this trickery: explanatory principle. Actually, psychopathology (… most of the times …) is nothing more and nothing less than: an explanatory principle; and/or, the ancient trickery of nominalism.

This point is pretty important to understand: both, one of the intellectual dishonesties (a là Lakantos) that belong to the clinical psychologists; and, how Psychopathology became a new set for gathering different forms of the modern Superstitions.

So …, I will give you a brief example, … before proceeding with our discourse.

Do you know Treponema Pallidum? It is a micro-organism that causes an infection to the Central Nervous System. Well …, it happened that the human beings (before discovering this microbe) considered “mental ill” the people who were suffering from this infection!! This micro-organism (alone) was the responsible of the 15% of all the psychiatric population. This is how, superstation works. A physical concrete problem (the real cause) is neglected and transferred to an inexistence dimension: a “thought’s illness” (a false and fabricated cause)[5]!?!? There is not any difference from believing in psychopathology to believing in demons’ possession. The psychosocial mechanisms, which underlie and lead those phenomena, are exactly the same. They are used to explain whatever human beings are not able to explain, using the trickery of the nominalism!! So, nowadays, instead of calling a Shaman and/or a Priest, people call a more “modern and fashionable” psychologist!!!! But, there is no change, except (… maybe …) that Shamans and Priests were better than Psychologists!!

Oh God …, save us from psychologists!

So …, now you know “what” psychopathology is and “how” psychopathology works and explains the phenomena. Therefore, we can proceed in our speech.

Although Pinel used psychopathology, like an explanatory principle, for explaining the violent and cruel behaviour, soon this construct moved away from the objective facts (the criminal activities; the social dangerousness; and the cruel behaviours) to landing at “ghostly and eerie traits” that allows any kind of abuse, misuse and interpretation.

Indeed, this construct was re-baptized: moral derangement (Rush, 1812); moral insanity (Pritchard, 1835); … and it ended to include whoever acted in a different manner from the others. It was immediately declined to wide abuses and misuses.

So, as you remember, Ordronaux (1873) had to report how it was an attempt to mask superstitious ideas for science.

According to Prichard (1835), moral insanity (at the end; and, behind the usual doctrinal and technical words and jargon) was just to perform: “the common actions of life in a different way from that usually practised” by the majority. So …, singular, and/or eccentric, and/or wayward persons were all considered moral insane. Therefore, moral insanity showed clearly another aspect of the true nature of psychopathology: to be an instrument of homologation and social control a là Foucault. To be an instrument to force everyone: to be an uncritical lemming; to follow the flock like a sheep. If you do not follow uncritically the flock, … you are “insane”!!

It is exactly how it happened in the Past: the same substance with different forms. People, who do not believe in the superstitions/beliefs of the Majority, nowadays are accused to be mentally insane, whereas, in the Past, they were accused to be heretics, etc…!!

Do you remember Socrates? Actually, he is a very good example.

Oleson (1998) defines Socrates like an eccentric Sophist. Although he presented (in a very peaceful manner) original ideas, Socrates was considered “the most dangerous man in Athens” (Lindsay, 1918). He was accused of: corrupting the young people of Athens; introducing new Gods; etc… . At the end, he was executed for those false “irrelevant and untrue rumours”. If you think that he was an isolated case, you do not have any idea, how much you are wrong[6]!!

Indeed, most of the peaceful men of this World, who have dared to present a mere original and/or different idea from those that were wanted and supported by establishment, have been always persecuted. “Scientists and statesmen alike have been persecuted by established authority. Mahatma Gandhi, Martin Luther King, Jr., and Nelson Mandela …” as they simply stood “against the powers of established orthodoxy when they disagreed with the existing order” (Eysenck, 1995)[7].

Oleson (1998) supported the idea of Eysenck (1995) using the studies of Ellis (1927) who argued: “that society sought to imprison its great men at every opportunity”.

So…, this is how the majority of times, these constructs are used. Rarely, are they used against serial killers such as Jack the Ripper!! The latters are not as common as media attempt to make people believe!! Actually, they are pretty unusual. Those few cases are used by Power to create social panic. This is a good mean to: both, make people believe in the “rightness” of those superstitions; and, make people renounce their rights and civil liberties to “get” security (a là Bauman)!?!?

Although Milton (1981) stated that the notion of moral insanity, nowadays, has few in common with the construct of antisocial personality and psychopathy, he is right only, and only if, we compare moral insanity with the definitions that were given by: the DSM-IV-R; and, some National Acts such as the English Mental Health Acts 1983. On the contrary, he is hugely wrong if we compare it with the everyday practice that has been done by psychologists and clinicians.

Indeed, only the formers require the presence of objective criminal activities. The latters, on the contrary, have developed (in the practice; and, in the literature) a construct that is used wider and wider than Prichard’s moral insanity.

Whereas moral insanity was (… at least …) connected with an objective behaviour (to act in a different manner from majority), the construct of antisocial personality and psychopathy has lost any link with: both, objective facts; and, criminal behaviours.

Psychologists and clinicians reduced it to be a mere set of personality traits. As personality traits are also very arbitrary and weak creations, the construct came back to be an incongruent, contradictory, unfalsifiable theory. In practice, personality traits allow any kind of interpretation and misinterpretation without any limit. So …, the construct bended to any sort of abuse and misuse. It was not a case, indeed, that two opposite and incompatible types were originated by the same construct: the criminal psychopaths; and, the non-criminal psychopaths.

Whereas the formers are committed to cruel and criminal activities; the latters are normal, pro-social persons, who are well integrated in the society. Just to give an example, Mather Teresa of Calcutta was considered a non-criminal psychopath by several clinicians.

This leaded to a construct that was unable to satisfy any principle of demarcation[8].

Indeed, it was unable to satisfy both the test of validity and the principle of falsification. Any kind of behaviour (both antisocial; and pro-social) was used to confirm the diagnoses, once they were done!! So, they could not be verified and checked with any contra-factual evidence. In other words, once an arbitrary diagnosis is done by a psychologist, any behaviour is retrospectively interpreted to be a confirmation of the diagnosis itself!!

This was one of the reasons that made some researchers take critical positions on this construct, as I wrote in the introduction.

As Kanner said, at the end of the circus and pseudo-scientific jargons (which are used by psychologists to making their superstitions look like science): “a psychopath is somebody you don’t like”.

Please, note: I do not deny the existence of crimes and criminals. I believe: they must be punished. But, I fight the attempt to re-introduce a new “hunting to the witches” a là Maleus Maleficarum[9].

An evidence of how psychologists misuse this construct is given by the necessity, which most Parliaments had, to limit with law its application[10]. Nevertheless, psychologists did not care about law[11]!! So, they extended widely and widely the application of their construct. Therefore, more and more persons committed to pro-social behaviours were considered psychopaths.

This leaded to the creation of a very contradictory construct.  Some authors split the paradigm in two different constructs: the antisocial personality (which kept a connection with an objective criminal activity); and, the psychopathy (which was connected only with personality traits).

Other authors kept a unique paradigm. So, antisocial personality and psychopathy became two different degree of the same “mental illness”.

The increment of the number of the diagnostic scales increased the contradictions among the diagnoses. Most of the time, the diagnoses are made only on “sensations and feelings”, which clinicians have at the moment without using any scale.  This phenomenon was proved during the hearings of the English Mental Health Tribunal. During the contra-examination, it was proved that the diagnoses were done without considering any diagnostic scale (e.g., DSM-IV-R; PCL-R). They were made only using a vague and unclear “clinical experience”. The latter is an “elegant word”, a jargon, which clinicians use, to say that they decided without fallowing any criterion, but their feelings as they had in that moment!!!!

Most of the times, the scales are used only ex post. Before, clinicians decide if somebody is psychopath or not. Then, clinicians create, with a retrospective interpretation (a là Weick), a connection between the factual elements and the theoretical items of the construct, forcing the comparison and assessment.

Epis (2011/2015) used this construct to prove how the functional fixation, the absence of any epistemological awareness and reflection, the confirmation bias, and other fallacies, work within the psychopathological constructs.

Implosion

A very interesting example, of how the paradigm imploded, is given by Lilienfeld (1994). This is just an example. But, endless other examples can be given.

Lilienfeld (1994) arrived to formulate and to support a theory with an incoherent logical structureP AND NOT P.

The author discovered a positive correlation between persons that were diagnosed psychopaths and/or antisocial with the existing scales and the frequency of altruistic and pro-social behaviours.

Instead of inferring incoherence, and/or a contradiction, inside the Paradigm, he elaborated a “wonderful” auxiliary assumption to save it.

He concluded that “the assessment of psychopathy might need to incorporate behaviors that are heroic or altruistic (e.g. helping individual … )” as in their absence a “substantial subset of psychopaths (who) perform frequent pro social behaviors” could not be detected and they may result “false-negative”.

In other words, he suggested like diagnostic criterion for the antisocial behaviour, the pro-social behaviour!! He made an incoherent and illogical reasoning that can be synthetized with the logical model: P AND NOT P.

This is a documented case, which is a good example of how psychologists: both, think most of the times in their everyday activities; and, develop their constructs!!

Although the strong establishment’s blind effort to save this inconsistent Paradigm, the Paradigm imploded.

Interlude: It is time for a “Scientific Revolution” a là Kuhn.

So …, … nowadays …, only few defamed Rebels …:

  1. “guilty” for having reported the inconsistency of the paradigm;
  2. “guilty” for having refused to prostitute themselves to a corrupt System and its “Servants”;
  3. “guilty” for having rejected to worship the illogical and superstitious constructs / idols that psychologists sell for science;

can advance a “Bold” New Hypothesis a la’ Popper, which is able to overthrow the existing collapsing paradigm with a New Empirical One!!

This article, indeed, reports a brief résumé (6.000/7.000 words) of the ideas that Dr Luca Epis presented in his Dissertation in Criminology in 2005/2006. Those ideas and thesis became the object of a very “deep and strong disagreement” between Prof David Farrington and Dr Luca Epis.

Nevertheless, this disagreement was also the change for: making the corruption of the System be evident; proving the trickeries, illegalities and unlawfulness, that the Establishment does for “fighting” whoever dare prove its lies; and, so on.

This is the beginning of a “Scientific Revolutiona la’ Kuhn.

These are the chronicles of Bold Researchers, Bold Rebels, and their “Scientific Revolution”!!

… It is in progress to be published …

INDEX OF THE SECOND PART

A New Theory Overthrows the Psychopathological Explanation

Theoretical Backgrounds

The Ambivalent Nature of the Human Behaviour

The Pervasive Nature of the Social Influence 

Self-Fulfilling Prophecy and the Human Behaviour as a Natural Adaptation to the Environment

 The Epis’ Theory

 First Passage

 Second Passage

 Conclusion

 

[1] This quotation has also been done by McCord and McCord (1964).

[2] Blackburn’s critics were caused mainly by the heterogeneity of the construct of psychopathy.  Indeed, the latter includes a large amount of different types!

[3] Against the moral insanity, which was the antisocial personality’s name, that was used at his time.

[4] The aim of the International Classification Diseases (ICD) is to promote an international uniformity in the classification of the ailments. Its origin was in the work of Jacques Bertillon, who produced the Bertillon Classification of Causes of Death at the International Statistical Institute in Chicago. The latter became the Manual of International Statistical Classification of Diseases, Injuries and Causes of Death (ICD). In the 1948, the World Health Organization (WHO / OMS) assumed the responsibility for revising the ICD every 10 years.

[5] This happens also when the real cause is social.

[6] Other very famous similar cases are: Giordano Bruno; Thomas More; etc… .

[7] “Research funds are suddenly cut off, even though promised. Irrelevant and untrue rumours are spread to impugn the offender. He may lose his job, or at least fail to be promoted. He may be barred from the library and other facilities; privileges of all kinds may be withdrawn. In extreme cases, he may be suffering bodily attacks, his family may be threatened, bombs may be planted under his car, he may be burnt at the stake – it is difficult to list all the sanctions orthodoxy can muster to assert its right to be regarded as guardian of truth” (Eysenck, 1995).

[8] The problem of demarcation focuses on the method of scientific investigation. In particular, it refers to the criterion that is used to mark the boundary between what science is and what science is not. Exempli gratia, this criterion was: the induction for the Empiricism; the test of validity per the Logical Positivism; and the principle of falsification for Popper.

[9] The Malleus Maleficarum was the book, which was published by two Dominican Monks (Kraemer and Sprenger) in 1487 for “diagnosing” the “witches”. It was the “precursor” of DSM!!

[10] Some Nations (such as England) request an objective criminal activity. Other Nations (such as Scotland) deny the existence of this “mental illness”.

[11] There are plenty of examples that support this.

NIETZSCHE ON RULE OF LAW AND DEMOCRACY – PART I (Introduction; Nietzsche’s Nihilism & Empiricism)

BLOGGER’S COMUNICATION:

Nietzsche on Rule of Law and Democracy è stato pubblicato in forma integrale.  Il Saggio in PDF con l’Indice, la Bibliografia, le note a piè di pagina, etc …, lo potete trovare nella pagina DIRITTO & CRIMINOLOGIA.

ENGLISH

Nietzsche on Rule of Law and Democracy have been published.

The Book in PDF with IndexBibliography, etc … is available in the page LAW & CRIMINOLOGY.

ABSTRACT

Although this study presents and elaborates the philosophy of Nietzsche about Rule of Law and Democracy, it is an analysis of the Simmonds’ Legal Theory. Simmonds was Reader of Jurisprudence at the University of Cambridge in 2005/2006. Right at that time, he developed and published an article, Law as a Moral Archetype, where he presented (for the first time) “his” Legal Theory. This study reports one the first criticisms, which were done, about “his” Legal Theory as it was published and lectured at that time.

It is argued that Simmonds’ Legal Theory is not original at all. Simmonds took previous ideas of other philosophers (such as: Plato; Saint Augustine; Ockham; and the Italian Ardigò) to elaborate a “different theory” from Finnis’ Legal Theory, which (on the contrary) took a lot from Saint Aquinas. But, Simmonds did not archive a good result, as he “corrupted” the former philosophical ideas to something that (at the end): sounded “weird” and “discriminatory”; leaded to totalitarian and intolerant views.

Furthermore, this study presents the Epis’ Legal Theory (as it was formulated at that time): Law as a Social Prototype.

 

INTRODUCTION

Truth, Nihilism and the “empiricism” of Nietzsche

According to Vattimo G. (1974; 1986; 1988; 1992), Nietzsche prepared the groundwork for the Post-Modernism. This is supported by the strong relationship between the Nietzsche’s Nihilism and the Post-Modernism’s view. Indeed, Nietzsche was “the prime theorist of nihilism in modernity … (and) … also one of the prime precursors of postmodern theory in the philosophical tradition. This means, then, that Nietzsche’s thought contains large elements of what—in retrospect—may be called “postmodern”. It also suggests that to a certain extent his theory of modernity may in fact be prophetic of postmodernity” (Woodward A. 2002).

Even if I disagree with Vattimo G. (1986; 1988; 1992) and Woodward A. (2002), this study starts analysing Nietzsche’s Nihilism.

Nietzsche’s Nihilism is the logical answer at any attempt (made by Humanity) to investigate the foundation of Truth, Values and Life’s meaning, inside metaphysical realms inhabited by Gods and Idols, instead of the physical and empirical one. Nietzsche explained this, using the paradigm of Christian Morality.

But, Nietzsche’s philosophy is not a Discourse pro or contra either metaphysics or physics in themselves. Nietzsche’s philosophy does not want analysing the different theories of knowledge for supporting one of them, instead of another one. Simply, Nietzsche wanted to put the individual at the centre of his philosophy. He wanted to suggest a change of prospective. According to Nietzsche, the singular individuals are the source of their own Truth, their own Values and their own Life-meaning.

Indeed, all the time human beings attempt to look for an answer outside them(selves), they fall into nihilism. There is NOT any empirical reality outside the individual experience. The empiricism of Nietzsche is not Materialism and/or Reductionism (against any metaphysical reality in itself). It is not also scientism. But, the empiricism of Nietzsche is an individual empiricism for the reasons that are clarified infra (below).

  

The only EMPIRICAL REALITY is the INDIVIDUAL EXPERIENCE

After Nihilism proved that: no absolute Truth exists; all the different points of view have the same epistemic value and dignity; no Certainty is real; etc …; … individuals found themselves in front of a choice. On one hand, they could choose to believe in, and to live for, their own Truth (that comes from their own living experiences). On the other hand, they can choose to “believe” in, and to serve, the point of view of someone else.

Knowledge and Power

Nietzsche would have agreed with Foucault that Power and Knowledge are the two faces of the same coin. The society, indeed, is nothing more than a relationship of power among people. People are divided in two main groups: Masters and Slaves. The form (which those two groups and their bond take) changes: from Time to Time; from Culture to Culture; from Legal System to Legal System. But, at the end, the substance is always the same. Few persons lead; the majority follows.

Knowledge, Ethics and Education, are functional means for this kind of hierarchical structure. As Power cannot employ brutal physical force to make people serve its own interests in the modern societies, the role of creeds, beliefs and propaganda, is dramatically increased.

Indeed, beliefs have become the new form of “slavery’s chains”. They are used by Power to make people serve its own interests. But, beliefs have nothing to do with Truth. Simply, to believe is to have faith in something like a dogma. Persons do not have any knowledge about their beliefs, but they are certain of something as someone else told it!!!! In other words, people accept as true, rely on, anything that is stated and supported by Authority, Social Pressure and Groupthink. These forces make people live and believe in a Hyper-Reality (which they build for their own aims), but Hyper-Reality is NOT Reality. Hyper-Realty is a Realm of illusions and lies. People have faith in those beliefs (and act in compliance of them) as a sheep follows the flock!!!!. But faith, … it does not matter in / for What (Religion; Science; State; etc…) is always been one of the worst mean to archive Knowledge. This is Nietzsche’s message.

Nowadays, the framework of Weick’s studies about sensemaking and enactment could be operatively used to explain as Power uses and misuses beliefs to pursue its own aims. They should not be limited for approaching only the working contexts inside the Companies. Actually, they are very useful for analyzing the general social dynamics.

From Knowledge to Nihilism

As knowledge has served and has been serving Power and its interests, any investigation on beliefs’ foundations turns to be untrue.

Gods and Idols are used to found most beliefs as they cannot be founded anywhere else. Moreover, God was (in a retrospective way) the first Global Panopticon!! As Power could not control people 24 hours per day, Power makes people believe that God can. So, people complied with Power’s Will, fearing the punishment of God. In other words, God was employed by Power like a Panopticon’s gaoler!!!! God’s job was: to watch everyone 24 hours per day; to punish those people who disobey or infringe Authority’s norms. But, a God reduced to be a Panopticon’s gaoler is not anymore God. Can you believe in an omnipotent Being, who created the entire universe to make all His Creation be a Panopticon? Can you believe in a God who reduced Himself to be a Panopticon’s Gaoler and/or a Prison Director?!?!?!?

No, it is not believable.

 “I conjure you, my brethren, remain true to the earth and believe not those who speak onto you of hopes beyond the compass of the earth! Poisoners are they, whether they know it or not”

Nietzsche, Thus Spake Zarathustra, Prologue, III.

Why are Gods and Idols used to found Truth and Values?

Surely has God been a good mean of Social Control.

Yet, God has been and is a way to exit from the Agrippa’s trilemma (also called: Munchhausen trilemma).

The Agrippa’s trilemma is an Epistemological Argument that goes back to Ancient Greek Skepticism. In the modern time, Hans Albert has re-formulated it. According to Albert, the Munchhausen trilemma is able to prove the impossibility to found and to justify any truth and/or value with any existing method (deductive; inductive; causal; transcendental; logical; etc …). The trilemma proves the impossibility to found any truth. Any attempt, indeed, falls into one of these three cases:

  1. regressive argument ad infinitum or progress ad infinitum. Each proof requires a further proof ad infinitum. This argumentum: both, is not practicable; and, does not provide any certain foundation;
  2. vicious circle and/or circular argument (known in scholasticism as diallelus). The belief is based on circularity (a logical circle in the deduction). At a certain stage of the chain of arguments, a proof needs for its own foundation a previous “proof”, which needs for its own foundation the subsequent proof!! In other words, the latter is based on the former; the former on the latter. Exempli gratia, A is based on B, B is based on C, C is based on D. But, D is based on A. This is a circle. It does not lead to: both, any certain foundation; and, any final proof;
  3.  break of searching. At a certain point, people get tired to look for proofs and evidences of their beliefs. So, they end their researches at some stages. They create an assumption. An assumption is nothing more than a hypothesis that is not proved. Yet, they pretend those assumptions to be self–evident (axiomatic argument)!! But, this is nothing more than cheating.  According to Albert, even if an axiomatic argument can appear “reasonable” to lay people, it is nothing more than a random suspension of the principle of sufficient reason. It does not lead to any certain proof. It leads only to: both, Dogmas; and, ipse dixit!

So, at the end, Truth and Values cannot be found with any method. Thus, God was employed like “break of searching”. God was able to link together: the axiomatic argument with the Authority argument.

But, God was not the source of the beliefs that were founded on Him!

As we told supra (above), those truths and values were “all too human things”.

Where you see ideal thing, I see – human, alas all too human things

Friedrich W. Nietzsche, Human All Too Human

Nietzsche used the Catholic religion like paradigm. Christian beliefs, indeed, have changed continually from Time to Time to serve the Power’s interests. Those changes were not a change of mind of God, but they were a change in the historical interests of the pro tempore Power.

According to Weick’s framework, Power uses beliefs to make people work in compliance with its aims. The beliefs have been used and have been in the progress of being used by Power like human software. To make a computer do something, you need software. In the same way, to make people do something, you need to make them believe something.

The paradigm of God works also for idols.

Science, Psychology, Technology, Economics, Finance, Political Ideologies, etc…, could be idols. They are idols each time they demand faith. They are idols each time people have faith in them. They are idols each time they ask for homologation.

There is no difference in having faith in them and/or in God. There is no difference for people to homologate themselves in God’s Will and/or in Psychological / economical / political / etc … / constructs. All of them are human creations.

The social mechanisms behind faith and homologation are the same. Both of them, soon or later, lead to intolerance, discrimination, fanaticism, violence, and all the worst actions that Humanity has done in the History.

As Dominican monks were able to commit the most ferocious atrocities “in the name of” God, due the same blind faith (nowadays) scientists, psychologists, statesmen, financiers, …, can commit any kind of atrocity “in the name of” their new Idols. Instead of a Theocratic Tyranny (with its Holly Inquisition), these idols will found a Technocratic Tyranny (with its Profane Inquisition[1]). But, both of them are the same. Both of them demand homologation, faith, submission to the Power’s will. Sciences, indeed, is just a Power’s matter. The same beliefs and truths, which are part of the Scientific Paradigm, are consequences of the relationships of power among the members of that Scientific Community (Lyotard). Changes in the relationships of power become changes in the beliefs and in what is assumed to be true in that Paradigm, …, and vice versa. Power and Knowledge are the same, as we told supra (above).

Into Nihilism. The Choice: are You a Master or a Slave?

As Truth cannot be reached by any Science, any Religion, any Discipline, and any Methodology; …

As Truth and Justice, at the end, are nothing more than the interest of the most Powerful a là Trasimacus; …

As Power is, in its very Nature, the force to impose one point of view onto any others; …

… People find themselves into Nihilism.

So, the question is: is it possible to survive into Nihilism?

According to Nietzsche, it is.

Nihilism states only that it is not possible to found any Truth and/or Value in the external World. Each person should become the source of his/her own Truth and Values. Some people are able; other people are not. The latter prefer to follow the truth and values of other people instead of theirs own.

In other words, Nihilism marks the boundary between Masters and Slaves. Masters are those people who are able to trust themselves and to determinate their own Truth and Values.

On the contrary, slaves need to “trust” and to “serve” the point of view of someone else.

So, Nihilism puts the human beings in front of a choice.

Nihilism asks: “Are you a Master or a Slave?”

The answer depends from the individual ability to stand alone into Nihilism or not.

A Master is able to: stand-alone into Nihilism; go against the flow; be different from the flock; be creator of his own universe, truth, values, and life-meaning.

A Slave is not able. He/she prefers acting like a sheep and/or lemming. He/she needs: to follow uncritically the flock; to homologate and to uniform him/herself to the group to feel “normal”; to believe that who acts differently from the group is crazy. Psychopathology is the creed of the slaves. Psychopathology is a creation of the slaves’ thought. They demand norms and models. They need to homologate themselves to those norms and models. To be a flock of sheep, they need to be uniformed to those norms and models. Thus, they cannot tolerate anything that is different from their norms and models. Everything is different, indeed, must: either, be eliminated; or, be forced to conform to their norms and models. Everything is different from them, it is a threat and menace to: the flock; the Only-Allowed-Thought. As they think themselves normal, sane, right, …, everything is different must be abnormal, insane, crazy. As it/he/she is insane, they feel themselves to be justified, to force it/he/she to homologate to the flock. So, psychopathology has become the New Profane Inquisition. Psychopathology has become the justification and the instrument to make people: uniform to the flock; be uncritical servants of the Power and its Only-Allowed-Thought. Psychopathology has become a “mean” to create a new form of slavery. To be “normal” is to comply with, to believe in, the Only-Allowed-Thought.    

So, which will your answer be, when you find yourself in front of Nihilism?

 

From Nihilism to Individual Empiricism: the implosion of the dichotomy between Nietzsche’s Philosophy and Christian Religion!!   

Once human beings find themselves alone into Nihilism, they can only make one of the two above choices.

People, who are overwhelmed by fear, will look for a shelter into the point of view of someone else. They will not be able to live without absolute certainties; so, they will ask for someone, who is able to give them dogmas. They will look for an Only-Allowed-Thought at which uniform themselves. On the contrary, individuals, who are able to stand alone into Nihilism, will find a new beginning. Paradoxically, although Nietzsche’s speech seemed to be against the Christian God, they discover themselves “God’s sons”!!!!

According to the Bible, God made human beings look like Him. God was the Creator. He was the first being able to stand alone into Nihilism. Hence, his sons should be creators; his sons should be able to stand alone into Nihilism; … as He did at the beginning of the Time.

The superman of Nietzsche is this. According to Thus Spake Zarathustra, he is able to transmute himself into a Child (after having been a camel and a lion).  The Child is the final step of his evolution. The Child is a creator. The Child is able to stand alone into Nihilism without fearing it.

But, whereas God was the creator of the entire Universe, the child is the creator of his own universe.

God was not a lemming. Could His Sons be lemmings?

God was not a sheep. Could His sons be uncritically followers of the flock?!?!

Thus, I disagree:

  1. both, with Woodward A. (2002), who describes Nietzsche like a nihilist who simply attempts to destroy any value to lead to a complete nihilism;
  2. and, with Vattimo (1998), who thinks that it is not possible to go over Nihilism (exempli gratia, searching a new foundation for Truth and Values), but it is possible only to change our attitude to it. In other words, Vattimo suggests accepting to live in a meaningless World.

Nietzsche does not abandon the idea of Truth. He suggests to change prospective.

The sense of truth. – I approve of any form of scepticism to which I can replay, “Let’s try it!” But I want to hear nothing more about all the things and questions that don’t admit of experiment. This is the limit of my “sense of truth”; for there, courage has lost its right” (Gay Science, 51).

 

From Man to Super-Man

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, people discover themselves sons of God. On the other hand, society cannot long to be a flock of sheep.

Society has also to transmute itself from a flock of sheep to group of free Individuals, who are able to co-exist and to collaborate in their own (very strong) differences.

Only this kind of society will be a true Democracy.

Indeed, no democracy (at all) can exist among flocks of sheep as homologation is the worst kind of Tyranny.

It does not matter the form and/or the name that has been taken by tyranny. It does not matter the reason “in the name of” which, Homologation is demanded.

Without a doubt, flocks of sheep are always dominated by a Totalitarian Regime as they demand homologation. The only difference among these Regimes is about: the degree of how tyranny is overt or covert; and, the concrete historical / cultural form that has been taken by the Regime itself.

As we are going to explain in Part III, Democracy can exist only, and only if, there are free Individuals, who are not homologated among them.  

 

[1] Psychopathology is: a new Malleolus Maleficarum (Epis, 2011/2015); the form that has been taken and has been in the progress of being taken by the Profane Inquisition. Indeed, it is used to “attack” whoever acts and/or believes differently from the flock. It is used to commit and to justify any modern atrocity “in the name of”: Homologation; and, Only-Allowed-Thought. Most of the times, it is used to (even) create the behaviours and situations that are used to justify (later) its use / intervention. It is an instrument able to trick the Legal System (with all its Rights and Liberties).

NIETZSCHE ON RULE OF LAW AND DEMOCRACY – PART II (Simmonds’ Legal Theory & Epis’ Legal Theory)

NIETZSCHE ON RULE OF LAW

Simmonds’ Legal Theory

At the University of Cambridge …,

… that “marvellous University” where the “Right Very Most” finest minds are (!!!!) …,

… there was a Reader in Jurisprudence who thought to have discovered the “hot water” in 2005!!

He was a very lovely and enjoyable person. Indeed, rarely have I found (in the entirely World) so pleasant lectures. Each time I demonstrated the inconsistency and wrongfulness of one of his theories and/or teachings, he was used to reply that those theories/teachings were thought by one of the Finest Cambridge Mind!! For most people, a sufficient reason to prove the rightness of those theories / teachings!! Of course, populaces agreed with him, clapping at those “self-evident” words.

On the contrary, I was used to laugh a lot. I found so hilarious his sense of humour that I laughed so much that I wept for Happiness!! His lectures were so entertaining and mirthful that they were a blessing break from the usual pedant, doctrinaire and hollow, vain Cambridge speech.

Simmonds (2005a; 2005b) claimed to have archived a Legal Theory able to support “an understanding of law as a substantive moral idea” versus “an understanding of the law as a morally neutral instrument, serviceable for wicked purposes as well as good”. But, his theory is: both, wrong; and, NOT original at all. It was copied from Plato and the Italian Ardigò. Actually, the theories of Plato and Ardigò were far, … far… , far better than Simmonds’ theory. The latter was a bad copy, which “corrupted” the good ideas of the formers.

Simmonds believed to have overcome the conflict between Rule of Law and the “mundane view of law” with his Legal Theory: Law as a Moral Archetype. According to Simmonds, Law is an “approximation to an intellectual archetype”. His theory is based on two assumptions:

  1. the first postulate is: Law is “structured by archetype”;
  2. the second postulate is: the “archetype is an intrinsically moral idea”.

But, both his postulates / assumptions are wrong!!

Moreover, although Simmonds attempts to deny that his archetype lives in a metaphysical realm, he fails to prove this.

At a first look, Simmonds’ theory seems to be a mere reformulation of the two platonic worlds.  The strong affinity between Simmonds and Plato is supported by the example of archetype, he used: the concept of triangle.

Simmonds rejected the empirical definition (which had been made by Euclid[1]) as he preferred an understanding of triangle in term of: degrees of approximation between a geometrical form and an ideal archetype of triangle. Does it sound like Plato (!!), does it not?

Indeed, he wrote: “So triangles do not constitute triangles by satisfying a set of criteria” (!) “but by approximating to an ideal archetype; and not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a)[2].

There is only one difference between Plato and Simmonds. For the former, there is not prejudice and discrimination among triangles. Triangles are equally triangles, even if they can have different forms and characteristics. Equilateral triangles, isosceles triangles, scalene triangles, right triangles, obtuse triangles, acute triangles are all equally triangles for a Platonic idea of triangle. But, for Simmonds, they are not equal, since they reflect a different degree of approximation to the ideal archetype of triangle!!

But, are we sure that exist only an ideal archetype of triangle?!?!

Why is the existence of six different ideal archetypes of triangle not possible?!?!

Is it possible that those six different archetypes of triangle come from a common meta-archetype of triangle?!?!

And, if so it is …, are we sure that the function / role / nature of this meta-archetype of triangle is to discriminate among triangles?!?!

No, we are not. Simmonds was hugely wrong.

Law of Hume versus Simmonds’ Moral Archetype 

According to the Law of Hume, this meta-archetype belongs to a Descriptive Realm. It does not belong to any Normative Realm. So, it cannot be used to discriminate among triangles. It can only say if A is: either, a triangle; or, not a triangle. In other words, it defines the entities that belong to the set of triangles. If we apply it to Law, it will be the same. The Archetype will only say if something belongs, or not, to Law.

That is all, Folks.

But Simmonds makes his archetype say something of very different.

According to Simmonds, not all triangles are equally triangles but “they are triangles to the degree to which they approach the ideal”.

In other words, Simmonds violated the Law of Hume. He passed from an entity, which belongs to the Descriptive Realm, to an entity, which belongs to a Normative Realm. He confused between these two dimensions.

Simmonds’ archetype is not an archetype. It is a normative choice that has been masked behind a descriptive form.

For this reason, he arrived to state that: “not all triangle are equally triangles: they are triangles to the degree to which they approach the ideal”.

All the Legal Theory of Simmonds is based on this huge mistake. He confound between the Descriptive Realm and the Normative Realm.

An entity can only belong to one of these two Realms. An entity cannot pass from one of them to another one. So, Simmonds’ Legal Theory implodes in itself. On one hand, it was the result of a very wrong reasoning (which was done by one of the “finest Cambridge mind”). Simmonds misused philosophical ideas without: having awareness of them and their implications; knowing what he was doing!! On the other hand, if he knew what he was doing, he was willingly cheating. He used one of the most antique logical fallacies.

As a result (it does not matter how or why), he created a wrong and dangerous theory able to “prostituting” itself to support any intolerant and totalitarian Regime, which wants to impose its own ideal onto any other one else!!

Ideals, indeed, change: from Culture to Culture; from Time to Time; from Person to Person; etc… .

The Holy Inquisition, on the contrary, would have found very interesting the Legal Theory of Simmonds!!

Simmonds Background

Where does Simmonds’ Legal Theory come from?

The University of Oxford and the University of Cambridge have a long tradition of rivalry. Thus, when Oxford says A, Cambridge says Z.

It makes quite easy their job!!

As Finnis (Oxford) had taken a lot from Saint Aquinas (Aristotelism), Simmonds (Cambridge) was forced to take a lot from: Saint Augustine (Platonism); and Ockham, who opposed his teaching to those of Aquinas.

So, Finnis and Simmonds played this historical endless recursive game between these two Universities and these two opposite philosophical points of view.

But, Simmonds “corrupted” the ideal of Plato with Ockham’s philosophy.

From Saint Augustine, Simmonds took: the strong dualism; and, the idea of Law as a Moral Archetype. The imperfect human beings tend endless to, without reaching it, a Moral Archetype.

From Plato, Simmonds took: both, the Theory of Form (Phaedo); and, the Doctrine of Love. From the former, Simmonds took his first postulate[3]. As nothing in the World is more than a shadow (Plato, Cavern’s Myth), Law comes from an immaterial ideal that is neither physical nor mental. According to Plato, this ideal comes from nowhere in the space-time, as it lives in a Metaphysical World (the World of Ideas). From the Doctrine of Love, Simmonds took the dynamical relationship between Law and its Ideal.

But, neither Plato nor Augustine stated what Simmonds affirmed later: “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” (Simmonds, 2005a).

Simmonds took this idea from Ockham’s thought. Ockham fought Aquinas’ teachings. As Simmonds wanted to fight Finnis’ theory, he: either, had to pick up from Ockham; or, had to create something new.

Simmonds picked up from Ockham (… it was far easier…).

According to Ockham, Moral and Legal norms cannot be found with reason (and/or introspection a là Finnis and Saint Aquinas). Behaviours are good only if they are conformed to God’s commands. There is no intrinsic reason in them. Good and Bad are only the outcome of arbitrary norms / commands of God. So, even the wickedest things can be the absolute Good if God commands them.  Bad is only to disobey to (to not comply with) God’s norms and/or commands.

Now, Simmonds does not speak about God, as God has never ever commanded anything. Moreover, nowadays, God is an unfashionable argument among Scholars. On the contrary, the Moral Archetype is based on Power’s Will. As there is not any intrinsic reason of what Good is (Ockham), Simmonds’ Moral Archetype becomes an arbitrary normative entity used by Power to make triangles homologate to its Will. So, Simmonds’ Moral Archetype discriminates among triangles. This is the reason why not all triangles are equally triangles. They are “triangle” due the degree to which they comply with Power’s Will.

At the end, the Legal Theory of Simmonds has opened the doors to any Totalitarian Regime behind vacuum, in appearance agreeable, void words.

Nietzsche versus Simmonds

Where you see ideal thing, I see – human, alas all too human things

Friedrich W. Nietzsche, Human All Too Human

Both Nietzsche and I agree that different triangles have different forms and characteristics[4] as different Human Beings have different: Culture; Race; Ethnicity; Nationality; Ideas; Beliefs; Experiences; etc… . BUT, neither Nietzsche nor I agree with Simmonds when he says that “not all triangles are equally triangles” as “they are triangles to the degree to which they approach the ideal” of  triangle.

This is for the reasons I have explained supra (above) et infra (below).

Prototype versus Archetype

When Simmonds speaks about Moral Archetypes, he creates:

  1. a surreal hybrid: between Plato’s Epistemology and Ockham’s Ethics;
  2. and, a monster (chimera) which continuously swing between a Descriptive Realm / Dimension and a Normative Realm / Dimension.

Simmonds does not have any clear idea about the difference: between Epistemology and Ethics; between Descriptive Realm and Normative Realm. Simmonds’ Legal Theory confounds the Nature of Law with the Political Domain of a Legal System.

On the contrary, when I speak about Law as a Social Prototype, I speak about empirical things. I speak about a Descriptive Theory that explains the Nature of Law without: both/either, entering inside the normative contents; and/or, judging among triangles. I keep a distinction: from Epistemology to Ethics; from the Descriptive Realm to the Normative Realm.

What is a Social Prototype?

A Social Prototype is exactly the opposite of the Simmonds’ Moral Archetype. To understand the prototype, you have to change the perspective. You cannot start from any metaphysical Realm, but you have to start from the empirical and physical Realm.

Simmonds, indeed, made the same mistake of Raz (Epis L., 2015). As he could not found “his” theory in the empirical facts, he founded it entirely onto ontology and metaphysics. It was a way to deny the reality of facts. But, Law does not come from any metaphysical Realm!! On the contrary, Law comes from the historical living experience of a society.

As this writing is to say, Law as a Social Prototype is the final evolution of the Ardigò’s Social Ideal. On the contrary, Simmonds Law as a Moral Archetype is the last regression of the Ardigò’s theory from a Positive Stage to a Metaphysical Stage.

According to Ardigò (1901), every society creates its own Social Ideal (Idealità Sociale). The Social Ideal does not come from any metaphysical Realm. It is the natural outcome that is caused by the inborn and innate Law of the Nature. They are “written” inside: both, the Social Organism; and, the Human Beings.

The Social Ideal is also called Justice. It is: the Specific Force of the Social Organism; the set of the implicit norms (Natural Law) that are naturally created by the Society and its members. Those norms are innate and necessary. The Social Organism, indeed, cannot exist without them.

So, Ardigò created an empirical theory that was able to sketch out a framework for understanding the two dimensions of the Legal System: the implicit dimension (Social Ideal); and, the explicit dimension (Positive Law). But, Ardigò gave merely a sketch. He was not able to find and to indicate those innate and inborn mechanisms.

Epis’ Social Prototype ends “what” Ardigò started. Epis’ Social Prototype applies the framework of the Social Psychology, Cognitive Psychology and Social Cognition, to Ardigò’s Social Ideal.

Indeed, in all its dimensions, Law is nothing more and nothing less than a particular kind of social norm. So, Law as a Social Prototype is a very empirical and positive theory able to explain:

  1. the Nature of Law;
  2. the Legal Interpretation;
  3. the relationship and dynamics between the implicit and explicit Legal Dimensions;
  4. the innate psychosocial mechanisms that rule the Legal System;
  5. the whole Legal Domain / Realm in its every levels and aspects.

Law as a Social Prototype is also able to explain the relationship among Morality, Justice and Law. All of them are sub-sets of the main set of the social norms.

Whereas several scholars have linked the moral norms to the legal norms, none of them was able to explain their relationship. They refused to proceed with an interdisciplinary approach. They refused to apply the Social Psychology, Cognitive Psychology and Social Cognition, to their disciplines. So, their theories are weak, … very weak.

Simmonds’ Moral Archetype is an example of this in Jurisprudence. Wikstrom’s Situational Action Theory of Crime Causation is another example of this in Criminology. Indeed, Epis has always advised Wikstrom to improve his theory and studies, using the Social Psychology, Cognitive Psychology and Social Cognition, since 2006. For instance, you can give a look to Epis’ writing: Morality and Crime.

Finally, Law as Social Prototype resolves several legal and philosophical problems such as: the violation of the Law of Hume; the conflict between Natural Law and Positive Law.

Epis’ Prototype and Simmonds’Archetype: the Final Conflict

Simmonds’ Moral Archetype and Epis’ Social Prototype represent the final opposite views that are possible to have about the Nature of Law.

They evolve and synthesis all the previous Legal Thought.  Simmonds re-elaborated the antique theological and metaphysical perspectives into a modern lay one.  Epis re-elaborated the empirical and positive legal theories (which have been developed inside the Legal and Philosophical Thought) into an Integrated and Interdisciplinary Theory. Exempli gratia, Epis enriched and advanced the Ardigò’s Legal Thought with the framework of the Social Psychology, Cognitive Psychology and Social Cognition. At the end, Epis’ Legal Theory is able to:

  1. understand the Legal Phenomenum in its Whole Unity;
  2. illustrate the different layers, strata and levels, which constitute the Legal Reality;
  3. describe “how” those levels work and interact together.

In other words, Epis’ theory is a Model, which is able to consider all the different factors and variables of the function: f (Law). Of course, the Model has some limits!! It considers only the factors that belong to the Social and Psychological Sciences. In other words, it cannot tell you “how” the fly of a butterfly in Amazon Forest can affect a legal proceeding in Italy. But, actually, … it can … in somehow.

According to the Chaos’ Theory, the movement of atoms, which has been caused by a Brazilian butterfly, can influence the outcome of a rain and/or a storm in Italy. For instance, at least, it can make some drops of rain and/or hail fall more somewhere instead of somewhere else. A little difference of few millimetres and/or centimetres can cause an unpredicted slip to a Lawyer, who is going to notify a Legal Act. Well, if the Lawyer has waited for the last legal day (as most of the time, they do), this little unpredicted bother (… which was caused by an innocent Brazilian butterfly…) is a sufficient factor[5] that, alone, is able to affect deeply the entire legal proceeding[6].

Exempli gratia, there is no time for notifying the summons before the end of the legal term. This will cause: the invalidity of the notification of the summons; and, the loss of the rights.

This is “why”, I strongly advice Lawyers (… and more generally any reasonable person …) to not wait for the last moment. Fate is a capricious Child, with an extraordinary sense of humour. So, you cannot ever know when He decides to play a joke on you.

According to Nietzsche, the Simmonds’ archetype is an idol as: it comes from metaphysics; and, it demands faith.

On the contrary, the Epis’ Social Prototype is not an idol. It does not demand faith. It is a descriptive theory that is able to indicate those clear psychosocial mechanisms that rule entirely the Law’s Realm.

Law and Responsibility

Law itself is neutral. Legal Systems themselves are neutral.

Law is not: either moral or amoral; either good or bad.

As Bernard Show said: “everything has its abuse as well its use”.

Law’s moral qualification depends mainly on “how” people use Law.

Indeed, every Legal System can be misused and abused. For instance, different weights and measures can be applied from case to case. Although the norms, rights and liberties, are formally the same for every person (Paper Rights), they can be applied substantially in a very different way from person to person (Real Rights).  Exempli gratia, the norms and facts can be interpreted in different ways[7]. Moreover, Economical and Psychological factors can deny people to access their Rights and Liberties.  Different economic conditions make people have different degrees in the access to their Rights and Liberties. Social Pressure, Groupthink, Propaganda, Authority’s Compliance, Psychopathological Constructs and Standard Deviations do not allow any free determination. If there is not any real free determination, no responsibility exists at all. Responsibility asks for a real and substantial individual freedom. So, no responsibility can exist in a flock of sheep. People, at the end, discover themselves to be nothing more than slaves “in chains”, who pay for responsibilities of other persons.

So …, the question is: who is the responsible one for the actions that are done by the flock of sheep?

Well…, the answer is obvious. The shepherd, who leads the flock, is responsible with all his guard dogs[8].

Responsibility and Democracy cannot exist in a flock of sheep. They need a different kind of social group. The flock of sheep must to be transmuted in a group of Free Individuals. This will be possible if, and only if, the Human Being transmutes himself from man to superman.

Epis’ Legal Theory: Law as Social Prototype. A new Legal Theory able to overcome: both, the Law of Hume; and, the conflict between Natural Law and Positive Law.

Law as a Social Prototype is a Legal Theory able to overcome: both, the Law of Hume; and, the conflict between Natural Law and Positive Law.

Law as a Social Prototype overcomes the Law of Hume as it belongs only to the Descriptive Realm. This theory clarifies: the Nature of Law; and, “how” the Legal Domain works in all its different aspects and levels. In other words, it tells us everything about “triangles” (a là Simmonds) without judging among “triangles”.

Law as a Social Prototype overcomes the conflict between Natural Law and Positive Law. It explains clearly the relationship and dynamic forces between these two Legal Dimensions of a Legal System: the implicit dimension (Social Ideal / Natural Law); and, the explicit dimension (Positive Law). It evolves the Ardigò’s framework with the inborn psychosocial mechanisms, which govern those intrinsic natural processes. Without them, Law and Society cannot exist.

As both the implicit norms and the explicit norms are social norms, it is possible to understand clearly the underlying forces behind their endless recursive interaction.

But, … wait a moment, I have already heard Simmonds’ legal theory with a better formulation!! Simmonds “thieves” the Italian Ardigò of his ideas!!

Whereas I recognize the Ardigò’s Thought, Simmonds took a lot from Ardigò without: both, recognizing it; and, evolving his’ framework.

Actually, Simmonds regressed and retreated the empirical ideas of Ardigò from a Positive Stage to a Metaphysical Stage. Moreover, he “transmuted” the Ardigò’s theory from a good descriptive theory to a huge philosophical nonsense: something that was tremendously in violation of the Law of Hume.

Simmonds took a lot from Ardigò; it is self-evident. Ardigò was one of first philosopher, who clearly described the Legal Domain and Dynamics like a recursive endless interaction between an implicit dimension (Social Ideal / Justice) and an explicit dimension (Positive Law)[9].

Simmonds has simply translated the Ardigò’s theory in English. Instead of using the Italian terms, Social Ideal and Justice, he used Moral Ideal and Moral Archetype.

But, the structure, the dynamics and the connexions between the implicit and explicit Domains, are those that Ardigò used.

There is only one difference. Whereas Ardigò evolved the previous Thought from a Metaphysical Stage to a Positive Stage, Simmonds regressed it from a Positive Stage to a Metaphysical Stage!!

On the contrary, Epis wanted to advance the Ardigò’s Positive Thought. Actually, he did it as it was explained supra (above).

Justice and Morality

The philosophy of Nietzsche criticizes any attempt to found the Rule of the Law “outside the compass of the earth”. But, Nietzsche is not amoral. Nietzsche does not renounce values. On the contrary, Nietzsche advanced a Positive Idea of Morality. The Positivism of Nietzsche was an Individual Positivism. As I explained supra (above), he overturned the perspective.

So, Nietzsche’s Morality and Ardigò’s Justice can be integrated.

Whereas Morality comes from the Living Experience of each Individual, Justice comes from the Living Experience of each Social Organism (Society).

In other words, something is either just or unjust in terms of Social Life and Existence; something is either good or bad in terms of Individual Life and Existence. Both of them are the best values’ adaptations, which both an Individual and a Social Organism can do, living in those particular historical environments, they experienced.

So, the Social Dimension and the Individual Dimension coexist in harmony.

Between Justice and Morality, the same dialogical recursive interaction, which exists between the implicit and explicit Legal Domains, happens. Justice is the outcome of the Social Dialectic among the different Individual Moralities. But, Justice leads the Social Organism, leaving as freer as it is possible the Individuals.

When Morality moves from Society to Individuals, Morality and Justice (Social Ideal) overlap. This is not good. It means that all the Individual Dimensions are uniformed and homologated to the Social One. As a result, Justice cannot be the outcome of the Social Dialectic among the different moralities and values of the Individuals. As Individuals have to conform themselves to the Social Ideal, they cannot have and develop any their own different Real Morality and Values. In fact, a homologated individual is nothing more than a lemming and/or a sheep of the flock. Homologation becomes part of his/her habitus, forma mentis. As the Social Ideal does not come from the Social Dialectic among the ununiformed individual moralities and values, the Social Ideal comes from somewhere else.

So the question is: Where does Social Ideal come from?

If it does not come from the Social Dialectic among the different moralities of the Individuals that are at the bottom of the Social Pyramid, then it can only come from the top of the Social Pyramid. It means that the Social Ideal is a creation of the Power. It is an arbitrary construct that has been created by Power to advantage its own interests. As Power does not want to reveal the Real Nature of the Social Ideal to its servants, Power presents its Social Ideal like an Idol. But, Social Norms (it does not matter if they are: Law; Morality; Values; etc…) do not come from any Metaphysical Realm. Social Norms are the most concrete and empirical thing that can exist. As I have widely explained and demonstrated, Social Norms come from the Social Conflict and Social Dynamic Forces that govern and underlie the Social Organism.

So, the Individual Morality cannot be homologated to the Social Ideal. If it happens, Justice is reduced to be “the interest of the most powerful” a là Trasimacus.

This is why Nietzsche does not want believers, but people who trust themselves.

“… Verily, I advise you: depart from me, and guard yourselves against Zarathustra! … Ye say, ye believe in Zarathustra? But of what account is Zarathustra! Ye are my believers: but what account are all believers! Ye had not yet sought yourselves: then did ye find me. So do all believers; therefore all believers is of so little account. Now do I bid you lose me and find yourself; and only when ye have all denied me, will I return unto you.” (Thus Spake Zarathustra, I, XXII).

On the contrary, if each individual is free to create his own Morality, then Justice is the outcome of the Social Dialectic among all these different views. So, Justice comes from the bottom of the Pyramid, instead of the top. In this case, a Real Democracy can exist.

Only Individuals, who are really free and self-determined, are equal forces that are able to equilibrate and to balance the forces of the other individuals, who are members of that Social Organism. So, each Individual can be an Independent Power that is able to limit the Power of the other persons. This equilibrium of forces is the best insurance for the Democracy.

Moreover, Individuals can only live and testify their own values and truths. The only things, they can know and understand, are their unique living experience. Each time they acts, attests and say, something that come from outside their own individual experience, they make themselves be ridiculous. Indeed, they do something without having any idea of what they are doing. They are just marionettes in the hands of someone else, who uses them like stupid pawn.  This is as: “Ultimately, 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).

Each person is the Best Adaptation to his/her particular kind of Historical Experience.

Each person brings to the Social Dialectic his/her particular Experience, Morality, Truth.

This is essential for the survival of the Social Organism. The ability of the Society to adapt itself to the new circumstances depends entirely on the ability of its individual members to adapt themselves to the new circumstances. If they are (or have to be) uniformed to an Ideal, then they cannot adapt themselves to the new circumstances (as they come). As a result, Society will be unable to adapt itself to the new situations. So, the Social Organism will be dying.

Homologation is Death: Social and Individual Death.

Who preaches for homologation is a “priest” of death. Nowadays, psychologists are them. They preach for: homologation; standard deviations and their constructs. The latters are, at the end, nothing more and nothing less than moral ideals (that are expressed with a misleading form). They are instruments that are used to control people. They are instrument that are used to homologate people to the Power’s Will. But, they lead to one of the most dangerous outcome, as I explained supra (above).

At the end, Nietzsche recognizes the importance of the Rule of the Law inside the actual level of Conciseness of the Humanity. But, the Rule of the Law does not come from Metaphysics. The Rule of the Law comes from: the Individual and Social Empirical Live; and, the Rational and Logical Thinking that is made on these Experiences. Nietzsche would have agreed with Ardigò.

Rule of Law like Supremacy of Law above Power

Rule of Law could be understood like the Legal Principle: pacta sunt servanda.

It is a Latin brocard[10] that means: the agreements have to be respected.

Pacta sunt servanda is the first and essential principle for any Legal System and any Social Organism. Any Legal System and any Social Organism to exist needs this principle. Indeed, no Legal System, no Social Organism can exist without it. If the agreements are not respected, then an endless conflict and war will exist among the members of the Social Organism. So, the Social Organism will be weak and divided. Therefore, it will be defeated by another Social Group that it is able to:

  1. both, have more free and ununiformed individuals;
  2. and, have a stronger cohesion among its members.

The former makes the Social Organism be stronger. The absence of homologation (among the Social Members) allows the Social Group: to deal with wider different situations and environments; to adapt itself better to the new circumstances.

The latter makes a good balance between the Individual Freedom and the Social Needs.

If everyone respects the other different views …;

if everyone complies with the principle Pacta sunt servanda …;

solidarity and empathy are the natural outcome.

As a result, the Society will have cohesion.

But, the principle pacta sunt servanda does not apply with the same intensity to every agreement.  Indeed, the Social Contract is the highest Pactum. The Social Contract is both an implicit and an explicit agreement among individuals, who decide to form a Society and/or Nation. It contains the main values (Social Ideal) of the Society. The Social Contract is the hard core of the Ardigò’s Social Ideal.

As the Government receives its powers from the Social Contract[11], Government has only those powers that the Social Contract gives to it. So, Government must comply with: both, the regulations that limit its power and its exercise; and, the values and legal principles that come from the Social Ideal.

In other words, this means that Rule of the Law is the Supremacy of the Law above the Power. Power is submitted to the Social Ideal that comes from the Historical Social Dialectic among free Individuals with different Moralities and Values.

Only in these terms, an impersonal Power a là Ardigò can lead the Society.

On the contrary, we have a Power that betrays the Social Ideal to impose its own tyranny. Therefore, the Social Ideal will be reduced to be a Horse of Troy as I wrote in Rule of Law and English Legal System.

According to Nietzsche, individuals learn from their Living Experiences the Prudence. Prudence advices people to use the Rule of the Law as a mean.

Rule of law as a mean. – Law, reposing on compacts between equals continues to exist for so long as the power of those who have concluded these compacts remains equal or similar; prudence created law to put an end to feuding and to useless squandering between forces of similar strength. But just as definitive an end is put to them if one party has become decisively weaker than the other: then subjection enters in and law ceases, but the consequence is the same as that previously attained through the rule of law. For now it is the prudence of the dominant party which advises that strength of the subjected should be economized and not uselessly squandered: and often the subjected find themselves in more favourable circumstances than they did when they were equals. – The rule of law is thus a temporary means advised by prudence, not an end” (Human, All too Human, II, 26).

Accounting to Nietzsche, the Rule of the Law has two origins.

The former is originated inside a Utopian Society where everyone is formally and substantially equal to any other person. In this case, Rule of Law comes from a Social Contract that is done by Equal Forces. Rule of Law is the outcome of the Social Experience that has been done by those equal forces/persons. They have learned that it is useless an endless conflict among them for the reasons I explained supra (above).

The latter is originated inside a society where there is not a substantial equality among its members. Nevertheless, the dominant persons have learned that it is sager to economize their forces than to waste them with useless conflicts.

In both the cases, the Rule of the Law does not come from Metaphysics. Rule of Law comes from the Individual and Social Living Experience. It is a conscious, empirical and rational, choice.

In other words, the Rule of the Law is a mean to avoid the Hobbesian bellum omnium contra omnes (Hobbes, 1909). But, Nietzsche does not advice to create a Leviathan a là Hobbes (1909). Nietzsche recommends, on the contrary, overturning the perspective. This leads, as I explained, to Ardigò’s Social Ideal. So, at the end, the Rule of the Law is not compatible with the Simmonds’ Moral Ideal.

The Simmonds’ Moral Ideal is a Horse of Troy for the tyranny of the Leviathan. In fact, Popper (1995) declared Plato an enemy of the Open Society. But, Simmonds did not consider Popper. Maybe, he neglected him: … Popper was not a member of his College!! Maybe, Simmonds did it: … he was also an enemy of the Open Society!!

On the contrary, the Rule of the Law is compatible with the Ardigò’s Social Ideal.  The Ardigò’s Social Ideal and Epis’ Social Prototype are the mean for the creation of a real Democracy. They are friend of an Open Society!!

[1] According to Euclid, a triangle is a two dimensional geometrical form with: both, three angles, whose sum (α + β + γ) is equal to 180°; and, three sides, which are composed by a straight line segment, whose the length of one of them is never: both, the same; and, longer; … the sum of the others two.

[2] Simmonds (2005b) repeated this concept: “Actual instances of triangles constitute triangles in virtue of the degree to which they approximate to the ideal “triangle” of mathematical definition. So the triangles that one comes across do not constitute triangles by fully satisfying a set of criteria, but by approximating to an ideal archetype. Indeed, not all triangles are equally triangles: they are triangles to the degree to which they approach the ideal”.

[3] The first postulate is: Law is “structured by archetype”.

[4] Some of them are equilateral triangles; some of them are isosceles triangles; some of them are scalene triangles; some of them are right triangles; some of them are obtuse triangles; some of them are acute triangles.

[5] Which is not considered by my model.

[6] Actually, this example is taken by real cases. It happened that lawyers, who waited for the last useful day for notifying a summons, slipped and broke one of their legs. So, their clients lost all their rights.

[7] So, even if the Paper Rights tells that an identical Legal System exists for everyone, the Reality is different. The Legal System changes from person to person.

[8] Nowadays, we live in a very strange time. The responsible one is always the poorest sheep. The shepherd is never responsible with his guard dogs!!

[9] Ardigò was one Italian scholar. He belongs to the Italian Positivism.

[10] Brocards are Legal Principles that have been created during the Medieval Age. They have been taken by the Roman Law (which was considered an expression of Natural Law). The name “brocard” came from the name of the bishop of Worms, Burchard, who died in 1025. The bishop Burchard wrote 20 volumes: Regulae Ecclesisticae. These books are a collection of maxims and sayings. Some of those Legal Principles were collected in those tomes.

[11] The Government does not receive those powers from God.

NIETZSCHE ON RULE OF LAW AND DEMOCRACY – PART III (Democracy)

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” …

COMUNICATO STAMPA / PRESS RELEASE: RINGRAZIAMENTI / THANKS

Con questo POST desidero RINGRAZIARE tutti i Lettori del Blog. Nato due mesi fa, ha superato i 2000 lettori. Di questi, la metà sono Italiani, mentre i restanti provengono da tutto il resto del Mondo. Essi appartengono: sia, ad Istituzioni Academiche e/o Università; sia, alla Popolazione Generale. Per tali motivi è stato deciso d’implementare la Dimensione Internazionale.

Così …,

… la lettura più attesa di quest’Estate, Rule of Law and English Legal System, è rivolta a  tutti!! Veramente, a Tutti!!

Il Blog ha deciso anche d’unire: la dimensione rigorosa, accademica, degna di pubblicazione scientifica; con la dimensione ironica e satirica. Quest’ultima non sminuisce la prima, ma l’arricchisce.

Nonostante ciò, il Blog rimane 100% Italiano!

Al momento non sono state attivate le funzioni di: pingback; commento; etc…. Il Blog è gestito interamente da chi scrive nel tempo libero. Con più tempo, e maggiori risorse, da dedicare al Blog, saranno attivate. In ogni caso, se avete qualcosa d’importante da dire sui contenuti dei Posts, inviateMi un email.

Un GRAZIE a TUTTI.

I thank you all the Readers of this Blog. The Blog was born two months ago; at the present tense, the Readers have surpassed the 2000 people. Half of them are Italians; half of them are from all the rest of the World. They belong to:  both, Academic Institutions or Universities; and, all the rest of the People. Hence, the International Dimension will be implemented.

So …,

… the most waited reading for this Summer, Rule of Law and English Legal System, is addressed to, and useful for, anyone! Really for Everyone!!

The Blog has also decided to join: the rigorous, academic, dimension (worth to be a scientific publication); with, an ironical, and sometimes satirical, one. The latter does not diminish the former, but the former is enriched by the latter.

Nevertheless, the Blog remains 100% Italian!

At the present tense, for several reasons, the Blogger has not still activated: the comments; the pingback functions; etc… . This is as the Blogger has to do everything by himself in his free time.  As more time and resource are available, they will be activated.  Nevertheless …, if You have something of important to say about the Posts, send Me an email. I will be pleased to read your comments for improving the writings.

THANKS.

Rule of Law and English Legal System (PART I: Abstract; Introduction; Rule of Law like Universal Principle)

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 onea 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 (PART II: Dicey; Adler)

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).

Rule of Law and English Legal System (PART III: Raz; Allan; Law’s Mystification)

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 assumptionsYet, 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 uncriticallyAuthority; 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 SuperstitioneAlcune Questioni sullo Status Epistemologico della Psicologia, Psicopatologia e Psicanalisi. Published in: www.lukae.it. See page “Psychology & Epistemology – Psicologia & Epistemologia”.