Autore: Denozza, Francesco
Titolo: In viaggio verso un mondo re-incantato? Il crepuscolo della razionalità formale nel diritto neoliberale
Periodico: Osservatorio del diritto civile e commerciale
Anno: 2016 - Fascicolo: 2 - Pagina iniziale: 419 - Pagina finale: 446

Max Weber famously established a close (and positive) relationship between law's logically formal rationality (which he regarded as the highest form of rationality in legal thought) and the rationality embodied in the capitalist mode of exercising economic activity. Both are expression, in the Weber's thought, of a more general phenomenon: the disenchantment (the migration from traditional to rational instrumental action) and rationalization of the world brought by modernity. In this framework, Weber especially undelines the role that law plays in making economic life more calculable. In a recent book Natalino Irti emphasizes (and regrets) the distance that separates the contemporary law (characterized by the use of general clauses and balancing) from the formal rational law (based on the method of subsumption ) that Weber considered calculable and therefore well suited to the needs of capitalism. In this paper I address some of the problems arising from Irti's considerations . I attempt to outline the difference between a system based on subsumption and one based on balancing and to explain the reasons why the contemporary capitalism may be in need more of flexible than of stiff rules. I conclude in the sense that if we want to get away from current dominance of the market logic (that in contemporary legal systems inspires the application of both the general clauses and the specific rules ) we must go beyond Weber and look for a way to combine the formal rationality with the substantive (wertrational; value-oriented) rationality.




SICI: 2281-2628(2016)2<419:IVVUMR>2.0.ZU;2-O
Testo completo: https://www.rivisteweb.it/download/article/10.4478/84992
Testo completo alternativo: https://www.rivisteweb.it/doi/10.4478/84992

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