Autore: La Torre, Massimo
Titolo: L'evoluzione del diritto e la "pretesa di progresso". Per una modesta loso a della storia del diritto
Periodico: Ragion pratica
Anno: 2017 - Volume: 48 - Fascicolo: 1 - Pagina iniziale: 197 - Pagina finale: 224

This paper is an attempt to reconsider the notion of evolution of law against the background of a normative, not functional approach. Evolution of law thus is disconnected from its possible roots in a Darwinian cosmology or in a Luhmannian functionalist or system theory of society. In such approach evolution is rather interpreted as a punctual change (an improvement?) between two temporal sites. No grand "Weltanschauung" should here be presupposed. On the other side, law is considered as a historical practice and a normative concept that is projected towards a better state of affairs than the present one. In a legal decision there is embedded an intrinsic claim to progress: after the decision the world should be a better one that before it. In a sense, one might speak of an utopian projection of law. This however is not based on any thick philosophy of history, or on any history that could as such offer us a philosophy or a sense to itself. History is hardly a "magistra vitae", though it could perhaps be thematised as the case-law of morality, its «jurisprudence». The progress-inherent force of law could indeed be traced back to its performative character - this is the main argument of the paper. Law - Jürgen Habermas and Robert Alexy told us - has an intrinsic claim of correctness and justice. Now, the paper tries to show that such claim drives the law into a likewise pragmatically founded claim to progress.




SICI: 1720-2396(2017)48:1<197:LDDEL">2.0.ZU;2-8
Testo completo: https://www.rivisteweb.it/download/article/10.1415/86443
Testo completo alternativo: https://www.rivisteweb.it/doi/10.1415/86443

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