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Friday, March 9, 2012

Usa/Italy Comparison

These are the 3 questions asked by prof. Skeel at the end of his classes. You can try to answer here!

1) How does Italian legal education and practice differ?
2) What implications for the future of law and humanities?
3) Amanda Knox trial in law-literature perspective?


  1. I tink that differences between our legal education and practice and the US one, are a lot.
    First of all we have to consider that our sistem came from a civil law tradition and the american, the anglo-american sistem came from a common law tradition, with all the differences that this entails.

    In these 3 classes we finded out that law and litterarature has a great importance in the US legal education. The developement of this movement makes law and literature really important for the trainig of the man and women of law and has also crept in the practice of law, as Professor Skeel showed us.
    In the US judges’opinion it isnt inusual to find a not objective lenguage and a personal prospective on the case. Litterature is considered like somethingh that helps the law’s technical to better understand people, what happen to them because of their education, of their culure, of the context in wich they grew. Litterature is also considered like an help that allows to keep high the attention on social problems.
    And it’s also important to consider that law is mostly made by normal people, by agencies and not by technical.

    In our sistem things are really different; our education is focused on tecnique, it’s not easy to find a judicial opinion written in a “literary lenguage” even if maybe thigs will change.

    This has been my firts approach to law and umanities and even if, obviously, I still know few things about this way to tink and approaching to law, I think that this prospective could be really usefull.
    Tinking at law like something that deeply belong to people, that regards all the aspects of life, maybe could help to consider that law is made for people first, so it has to be understandable to them all (that i tink it’s one of the greatest problem in the italian sistem). And to tink that way it is necessary to consider more the umanistic aspect of lawyers and judges’s formation and find the perfect balance (or at least the best balance possible) between the man of law as man and the man of law as technical.
    Chiara Cencelli

  2. I completely agree with Chiara's opinion,at the base of diversity,there is a difference between our system and the Anglo-american's one, founded on a Common Law system,in which we can find the pratical training of scholar and the absence of codification.
    I think that our legal education system gives us a theoretical approach extremely important because it forms the foundation of the method but maybe alone it is not sufficient for such pratical skills.I believe that if we combine the theory with a bit of practice during the University it would be a great idea!
    I think that the connection between law and humanities is in itself,natural and necessary so i belive that the intercultural exchanges and the internationalization of legal scholarship could bring an encrees for the L&H future like Prof.Skeel said.
    I m sure there will be a development as the diachronic rapprochement between Common Law and Civil Law system over the years.
    Have a nice weekend!
    Benedetto Loris Gaudino

  3. I definitely agree with Benedetto and Chiara about the diffences between the U.S.A. legal system and the Italian legal system, but I think that there’s surely another aspect to stress. Our processual law, in particolar art. 113 cpc, binds judges to decide the case focusing only on positive law rules, and restricts equity judgements in very narrow limits (cases of lower value, judges of the lowest grade, or cases concerning rights that plaintiff or defendant have power to dispose of). In this situation, the judge has no chances to profit of his education, maybe only if he has to fill of concrete content one general provision, such as “bona fide” or “mala fide”. In equity judgements intstead, the judge can profit of his “private science”, valutating facts and elements in a elastic way, for some scholars replacing his personal evaluation to the legislator’s one. In this context, Italian Universities and Law Schools decide to provide to young students a formal approach, that focuses on positive law rules and theories about them, overlooking about relationships between law and other fields of human nature and culture, giving only some education in philosophy and history.

  4. As said before, many are the differences between the civil law system and the common law one. A very strict following of judicial precedent is what characterizes the English legal system.

    The 'stare decisis' principle means that the courts follow the judgments of courts above them in the hierarchy. They can deviate from those in special situations, but otherwise, they have to follow precedent. In Civil law, on the other hand, which originated from Roman law, as codified in the Corpus Juris Civilis of Justinian, the abstract rule, whose applicability to every single case has to be checked, has a great relevance, because cases are solved in regards to those general rules and principles of the code, and the statute itself.

    I think it’s also hard to predict a too bright future for the “Law and Humanities’ movement” in our country. Let’s consider alone, for example, judicial opinions: as the previous assignment proved (quoting the most interesting judicial opinions according to a "law as literature" point of view), it's not so easy to find a truly interesting one in Italian, both for the strictness and rigor that seem to define our legal opinions’.

  5. I found an article on "Panorama" of 15th Febbruary about Amanda Knox.
    There are many american publishers that want to buy rights about a probable Amanda Knox's book : "memory of prison".
    However Amanda has taken to negotiate Robert Barnett, the same publisher of Barack Obama, Bill Clinton, Elton John.
    We are talking about advances about 600 000 $!!!!!!!!!!
    This could be a (bad) example of the connection between law and literature. There are too many people accused of crimes who get rich writing this (terrbile) kind of books!

  6. I completely agree with Chiara. Is unbelievable how people can be' involved in such brutal crimes and than be' welcomed as stars. But we can t lay the blame only on the investigated but also on the journalists who ride involving events and the curiosity of readers. I prefer the objective side of law which rejects any emotional and subjective way to' analyse facts
    and to' tell them to' the variegated public of readers

  7. What implications for the future of law and humanities?

    I think that it would be difficult to see a big development for an academic discipline such as Law and the Humanities if we think about relevant results from here in five years for example. But in a larger horizon of time, I think there may be more possibilities for this domain.
    Even if in the 'law systems' we can often find traditionalist and conservative tendencies, they'll inevitably have to adapt to the modern and dynamic reality.
    So thinking even just about our university of Roma 3, we know that just a fiew yers ago there weren't all these courses in english and, most important, courses which try to link more and more law students to different academic fields and disciplines (for example 'chinese law','law and the humanities','the legal protection of culture heritage').
    Another reason that could be in favor of the future of 'law and the humanities' is the fact that, at least in Italy, most of the law students have attended a ‘classical’ type of study in highschool, which is tightly linked to the ‘humanities’. For this reason maybe always more and more persons will be interested in following such a course, and maybe this would help to spread the diffusion of this branch of knowledge through the different law universities.
    Obviously, these are just suppositions but, personally, I think that the field of law and the humanities is a great opportunity to open our view about law, and even to read and study topics which can clearly be more fascinating then the dry and systematic study of the majority of law subjects.

  8. I'm honest: it's so hard to me to forswear my "civil law" scholar point of view and to completely change my approach to law. Law and humnities classes will help me for sure to better understand other legal systems so different from the one I use to face everyday. In my own opinion, our legal system provides legal certainty better than american system, because everybody can prospectively and potentially foresee legal consequences of his actions because these cosequences are written and codificated before and these are not the results of personal or subjective opinions of judges. On the other hand, I appreciate the fact that in american system law concernes different aspects of social life, and it really involves peaple partecipation; but that's fine as long as peaple who debate about legal questiones are at least basically informed, otherwise the risk is to trivialize and to banalize it; a vivid example of such trivialization is the debate about Amanda Knox trial in USA; of course I'm not going to anlyze specific aspects of this trial and neither mistakes made during it, I just want to underline that most of criticisms against our legal system were originated from ignorance about it: american mass medias criticize a system so different from theirs, making unappropriated, acritical and superficial comparisons between two very different legal systems , without an appropriated knowledge about these differences.

  9. I share the opinion of Martina, is also very difficult for me to abandon a vision of law improntat on civil law. However I find it essential to use the distinction between civil law and common law to understand why the 'Italian law and U.S. are so different. Many factors, such as the diffusion of news from around the world through television and increasingly the internet, international trade, and the creation of large companies based anywhere in the world has meant that the differences would decrease, and gave the impulse jurists to create institutions that are common between the two legal systems. Thanks to these changes even the pose of the lawyers of various legal systems, thanks to a loyal partner, has become more similar through a mutual understanding of different systems. I believe that in future the differences continue to exist only between the national, international, as already happens, you will create a field where to apply the common law created by the combination of the two legal systems. This then will have some involvement in national systems. As has happened and is happening with the European private law.