Cermeg

Acta Methodologica - # 3
Series of the Research Centre on Legal Methodology

Milan (Italy): Giuffrè 2008

«The parties to all trials may speak in their own defence in the presence of the other parties, with equal status, before an independent and impartial court» (Constitution of the Italian Republic, art.111 sect.2).

Is the adversarial principle simply a prescription enshrined in positive juridical norms, albeit of constitutional rank, or does the hearing of the parties by a third and impartial subject reveal the profound and original structure of what we call ‘law’? And in what way should the statements of the parties, and their evaluation by the judge, be organized from the logical point of view?

The connection between principle and method appears in many respects to be decisive in trial proceedings and in legal expertise.

ABSTRACTS

MAURIZIO MANZIN

On the adversarial system as a principle and as a method

The article discusses the concept of parity between the parties to the trial by drawing on an ancient source (Seneca’s Medea) and relating it to the type of dialogue that develops in the adversarial trial as established by the Italian Constitution (art. 111). It then rapidly surveys the main schools of legal theory that have addressed the question of judicial reasoning and identifies three main issues. Subsequently, after briefly describing the intellectual route followed by Francesco Cavalla in his research on forensic dialectic and rhetoric (which has culminated in creation of the Research Centre on Legal Methodology), the article dwells on three levels of adversarialism - ontological, logical and deontological - arguing that this is a ‘principle’ (and not just a ‘rule’) in nature. The article concludes by signalling the difficulties and opportunities encountered by full realization of paritarian dialogue between the parties in criminal and civil trials, and it suggests some possible remedies.

FEDERICO PUPPO

The rhetorical form of the due process

The article illustrates and clarifies the criterion used to order the essays in the book. All together, the contributions show that adversarialism and rhetoric cannot be separated with reference to the practice of the law; indeed, the one can only exist in the presence of the other, and vice versa.

AMEDEO G. CONTE

An Hypothetical Life.In Memory of professor Ernesto Molinari

A tribute to E. Molinari written by A. G. Conte on behalf of the Research Centre on Legal Methodology.

EUGENIO RIPEPE

European legal culture and judicial rhetoric: a theatrical preview

Aeschylus’ tragedy Eumenides is probably the first example of judicial rhetoric in European juridical culture, although to date it has not received the consideration accorded by jurists to Sophocles’ Antigone. It is indisputable that numerous rhetoricians of antiquity, in one way or another, made reference to the stories narrated in the Oresteia. Moreover, it is the text of the Eumenides that reveals Aeschylus’ familiarity with rhetorical techniques: it provides the first representation of a judicial trial that is historically known, and it describes trial proceedings that would be encoded only many centuries later. It constitutes a maximum example of the affirmation of the principles of impartiality, adversiarialism, definition at trial of the matter in judgment, with its juridical qualification, and punishment commensurate with the personal liability of the accused, which became constitutive of Western legal culture. The essays shows how, in the passage from law as vengeance to law embodied in the trial, the persuasive function (performed equally by the parties at trial) assumed a fundamental role.

AUGUSTO CHIZZINI

Notes on orality and rhetoric in the genesis of the civil trial

The essay investigates the origins of orality and the rhetorical dimension in the civil trial. It argues that the civil proceeding originally sprang from the trial of common law - centred on the ordo iudiciarius - which consisted substantially in formal regulation of the exercise of rhetoric inherited from the classical tradition. During modernity, however, the structure of the trial changed and rhetoric was entirely precluded. Indeed, the modern trial arose and developed in radical opposition to the original system under the dominance of the Leviathan of the absolutist state. Hence, whilst rhetoric was once the primary method used in the rational and controlled search for the truth, in both reconstruction of the facts and recognition of rights (where the trial pivoted on the cross examination assumed as the method with which to establish the probable truth), with the advent of modernity - abetted by the bureaucratization of the judge’ and the emergence of the asymmetrical trial - the adversarial principle was viewed as an impediment to the judicial search for truth and consigned to systematic thought in its rationalist and empirical variants. Hence rhetoric, reduced to a slavish formalism, appeared inadequate to meet the new judicial exigencies. However, the current crisis of the justice system may, on the one hand, undermine the predominance of the asymmetric trial model, and on the other, foster development of an isonomic model more consonant with the requirements imposed by the redistribution of powers (in particular jurisdictional). Thus restored, perhaps, will be the original environment wherein the positions of the parties to the trial can be re-equilibrated and space given to rhetoric in the search for judicial truth.

DANIELE VELO DALBRENTA

Nemo inauditus damnari potest

The aim of this essay is to put the classical configuration of the audiatur et altera pars principle - whose feature is, broadly speaking, ethical - into connection with its contemporary conception, whose character is instead axiomatic-procedural, in order to verify where the two models differ, and where instead they are in continuity. More
specifically, the thesis here supported is that, through a technical-juridical ‘neutralization’ of the problematical audiatur et altera pars principle, the role and the space of private parties within the administration of criminal justice have been progressively reduced, when not marginalized, so betraying the criminal process’ reason for existence. It is emblematical, in regard to such a theme, the (nowadays commonly accepted) distinction between the (so called) ‘inquisitory’ and ‘accusatory’ patterns of criminal trial: a distinction, nevertheless, that - when critically analysed - looks oversimplified, fictitious, or in any case ambiguous, for the very reason that it occults the undeniable dialectical foundation of the process.

PAOLO SOMMAGGIO

The adversary principle as criterion of rationality for the due process

The essay examines issues concerning the adversarial system raised by recent case-law pronouncements which establish the nullity of a rulingif the judge has not taken consideration of the arguments adduced by the parties to the trial. This testifies, the author maintains, to a cultural change which throws into crisis the traditional normativist conception. The innovation introduced by case law therefore entails investigation into the theme of the adversarial principle which starts from textual bases. The norms that refer to this principle seemingly indicate that the trial dialectic is the crux of the entire legal system and that it is envisaged for every type of trial. Nevertheless the jurisprudence analysed by the essay does not explain why the adversarial system should be the means preferred by the legislator to ensure the settlement of disputes, and it deems ‘obvious’ the fact that it is an essential postulate of the legal order. Nevertheless, some contributions to the doctrinal debate seem to evince change, in that they also conceive adversarialism as a method whereby the trial can lead to decisions which, besides being formally correct,   are also substantially fair because of their dialogic content. The essay then investigates the logical nature of the adversarial process founded upon the principle of non-contradiction. Its rigorous rational basis makes it possible to argue that the trial dialectic is the best knowledge-generating technique because it yields largely endorsed decisions (because they take account of the arguments put forward by the participants in the debate). Three main consequences ensue from these considerations. The first consequence is rejection of the ‘third’ argument with respect to matters contended by the parties and introduced by the judge into the trial debate. Judicial reasoning, in fact, seems to have shifted from a ‘modern’ to a post-modern reference framework in which the judge decides in light of ’subjective’ arguments and subsequently creates a connection with a norm of law. The author proposes that the secularization of the trial should be radicalized by positing the judge’s reasoning as the premise for the outcome of the adversarial process, not as an argument extraneous to it. The second consequence is revaluation of the roles of the parties to the trial, who are no longer simple actors on a ’stage’ (the adversarial process understood in the ‘weak’ sense), but true protagonists of the trial and the sentence. Defence counsel can and must resume its proper role: that of protecting the reasons of the client. This role entails not merely recounting the facts to the judge, embroidering them with greater or lesser artistry (only because there is no alternative), but the conduct of complex reasoning, as much in fact as in law, which the judge must necessarily consider lest the ruling be overturned. Obviously, this requires rediscovering the art of argument, which is the ability to construct reasoning acceptable (also) through confutation. The third consequence pertains to methodological matters. The problem concerns, in fact, the organization of the trial materials with a view to dialectical disputation which does not consist in mere persuasion, understood as the simple capacity to convince the adjudicator, but which may also be deceitful or, indeed, false. This method should at minimum ensure that the party’s reasons are expounded so that they overcome the objections of the adversary. The outcome of the process, what remains after the clash of arguments, should (like the flour produced by the grinding of the millstones) be gathered by the judge as the material basis for his/her ruling. From this methodological perspective, therefore, judges are required to perform a role of great delicacy: that of custodians of the adversarial process, which is perhaps the most important and difficult of functions. By contrast, it should be no longer permissible for the judge to continue, even unintentionally, to perform the role of paternal guardian of the citizen and steward of the law, when in reality s/he adjudicates on the basis of subjective impressions and personifies the repressive face of unjustified power.

ADELINO CATTANI

Persuading and convincing. Why is it possible to dissuade and not to *dis-convince?

We can persuade or convince somebody of something. We can, on the contrary, dissuade but not *dis-convince somebody. Why in our vocabulary we have not a reverse term indicating the act opposed to the act of convincing? Perhaps this fact is significant as well as it is significant that we have not a term opposed to dedicate, something like to *dis-dedicate.

GIOVANNI FIANDACA

On truth and the adversarial process in the criminal trial

On the assumption that adversarialism inheres in manifold aspects of the criminal trial, from its purposes to its search for the truth, the article demonstrates the untenability of theories which maintain that the adversarial process is more an instrument to guarantee the rights of the accused than a method to verify the facts. Given the ethical-political, even more than speculative, need to protect the notion of truth against the scepticism typical of post-modernity, the article stresses that a number of criminal law theorists - most notably Taruffo, Ubertis, Ferrua, Ferrajoli, Francesco Cavalla and the members of his school - maintain that the objective adversarial system can be used to ascertain the truth guaranteed by the dialectics of evidential proof. Because it is therefore impossible to be satisfied with a mono-subjective solipsism in the probatory process, for this would amount to legitimating - also unintentionally - possible arbitrariness, the problem is whether or not there exist methods of reasoning able to give rigour - or more rigour - to the judicial proceeding, also bearing in mind the complexities introduced by the increasing recourse made to ’scientific’ proof in criminal trials.

VITTORIO VILLA

The “due process of law” between rules and principles

The prevailing opinion, in the context of legal dogmatics (for instance Ferrua), distinguishes, within the provisions contained in the new article 111 of our Constitution, between provisions that express principles (for instance those present in the second paragraph of the article) and provisions that express rules (for instance those contemplated in the second part of the fourth paragraph). This is certainly a thesis that can be shared, and one which also shows that the sedes materiae argument cannot be used to justify the distinction between rules and principles: constitutional texts can perfectly well contain rules, just as legislative provisions can perfectly well express principles. The issue of how a distinction can be made, within article 111, between principles and rules constitutes an excellent “testing bench” for corroborating a thesis of a more general character: the one whereby this distinction, over and above cases that can be considered paradigmatic instances of a rule or a principle, is to be considered as relative and gradual, in that it constitutes the result, always revisable and contingent, of interpretative strategies serving to attain the most disparate objectives (which can be of either a cognitive or a political character), rather than objective data resulting from the description of the purported “ontological properties” of norms. In this specific case too the distinction between rules and principles constitutes the result of an interpretative strategy, a strategy which is also of great value in that it seeks to find a compromise between the excessive broadening of guarantees for the accused (which would be the case, for instance, if the principle of cross-examination in the formation of evidence was projected beyond the “general theme of the trial”) and a reductive interpretation of cross-examination unduly widening the limits of the exceptions contemplated.

AURELIO GENTILI

Adversary trial and right decision in the civil trial

Debate may be deemed as well the required method for a right decision, and a simple principle usually adopted by Laws, since it’ s useful. Right decision and debate may be considered from two points of view: the discourses of the actual case, an ideal and complete discourse about the case. From the first point of view debate is just a useful technique, from the second it is the dialectic technique on which depends that the decision is right.

PAOLO MORO

Ethics of debate. The constitutive principle of legal deontology

The ancient masters of classical rhetoric teach that the lawyer’s activity isn’t a logic of the rule, but it’s a methodology of controversy. Judicial experience testifies that legal logic is not able to be described in a settled diagram, such as analytical procedure, but it’s constituted by the exercise of confutation and debate in the dialectical structure of the controversy. Then, debate shows practically the aim of trial that imposes at parts and judge a cooperation in the discussion of controversy and compels all the participants to find in the dialogue a common point of view in the dispute. So, debate is a principle of direction for lawyer’s dialogical action in the trial and for the trial and it appears also the constitutive code of judicial ethics that is, in short, a methodology. In the same judicial order, the bond of debate is the fundament of the lawyer’s conduct, because the lawyer must respect the duty of loyalty and correctness, the duty of faithfulness, the duty of defence and the duty of truth. To refuse debate as constitutive principle of judicial methodology and ethics means to refuse the social function of the lawyer, direct to protection of fundamental human rights and to fulfilment of justice; in other words, it means to assign the lawyer the role of simple servant of political and judicial powers. For these reasons, classical culture hands down that, as Quintilianus says, rhetor is vir bonus dicendi peritus, suggesting that lawyer is surely a man good at eloquence (dicendi peritus), but above all he’s a man of honour (bonus).

CARLO CHELODI

Rhetoric discourse in civil proceedings

It is common belief to think about rhetoric as a specific feature only criminal lawyers possess and use. Despite this general idea of who uses rhetoric more than others, facts show that lawyers practicing mostly in civil trials indeed make abundant use of oratory because a lawyer’s ars operandi is mainly logical, focusing on guaranteeing the conclusions of which he seeks satisfaction for - just like rhetoric works. Hereby, it is sought to focus on the trial’s stages and levels taking close looks at “corroboration / validation techniques” of the “truth in lawsuits” - starting off from on - field experiences - as coherent, linear and rational liaison between premises and conclusions, also highlighting the implementation / the usage of methods and reasoning which merely are, rhetoric. To persuade and to be sharp in rhetoric is strongly bound to strict rules that call for professional attitude foreseeing contractual and ethical liability along with unavoidable technique - mastering and a broad - not solely legal - culture. Professional skills cannot be put aside. They are purposely set in confrontation with the numerical expansion of lawyers and with the present abundance of rites and redundant legislative news. Such elements hinder that kind of due professionalism and kind of rib both legal practice and trial. It is broadly hoped for that new methods of access to legal profession are found, that substantial changes in trials are operated and that a deeper ethic perspective is taken in consideration. These must not go without careful evaluation oh historical and philosophical studies in legal architecture.

AURELIO GENTILI

The two forms of rhetoric in civil proceeding

According to the author, in civil proceedings can be found two rhetoric forms: the lawyer ’s one and the judge’s one. Both have a psychological side, to persuade, as well as a rational side, that’s to say correctness. The lawyer’s rhetoric is of a strategic kind, and concerns the way to argue in client’s favour. Therefore, premises depend on conclusion. A lawyer doesn’t tell necessarily the truth, even if to persuade he needs to look he does. The judge’s rhetoric is of a more objective kind: he looks to inquire impartially his decision premises in Law and facts. Really, however, neither he can verify the meaning of Laws, nor ascertain facts without discretional evaluation. So, he too partly feigns. Then, in civil proceedings nobody entirely tells truth. But this is not strange: truth is not the aim in prescriptive speeches, as those made in a trial.

GIUSEPPE ROSSI

Adversarial litigation and the formation of legal rules

Taking as a starting point two examples taken from the XVI century works of Rabelais, the essay deals with the relationship between legal rules and conflicting arguments of the parties to a trial. According to the traditional stanpoint of legal positivism, legal rules pre-exist the very beginning of litigation; on the other hand, the final result of litigation is not a consequence of the arguments of the parties, but of a prior decision by the legislator, which is turned into reality by the judge. Modern theories of interpretation recognize the role of the interpreter as an individual in (co-) determining the actual content of legal rules; nevertheless, interpretation is still viewed basically as a unilateral activity, and mostly as the peculiar duty of the judge,The essay, taking hints both from historical experiences and current legal provisions from codes of civil procedures, tries to argue that legal rules are precisely defined as the outcome of the specific exchange of arguments between the parties.

LETIZIA MINGARDO

A recente example of conflict between biojuridical endoxa: the Welby vs. Antea Onlus case

The progress of science and technique, and the consequent interventionism on human body (healthy or ill) increasingly state bioethical questions to the attention of the jurist, and, most especially, of the judge. The aim of the present paper is to analyze the judicial decision about a recent case that deeply interested the Italian bioethical debate, the ‘Welby vs. Antea Associazione Onlus’ case. Piergiorgio Welby, suffering from muscular dystrophy, asked the Court of Rome to order the suspension of the life-sustaining treatment, but the judge rejected his request. The critical analysis of that decision will be performed by using tools of legal logic and judicial argumentation, such as, i.e., the principles of non-contradiction and identity. More specifically, the author will also follow the rhetoric scheme for argumentation provided by Francesco Cavalla in his book Retorica, processo, verità (Franco Angeli, Milano, 2007), as well as the analysis of the use of commonplaces in the bioethical debate that Francesca Zanuso suggests in her book Neminem laedere (Cedam, Padova, 2005). The aim of this kind of test is to show the profiles of contradiction that the decision presents, as well as the fact that the judge does not seem to be completely aware of the vagueness of the involved endoxa: for this reason, the conflict between healthcare self-determination and inviolability of life does not seem to find a justified composition.

FEDERICO REGGIO

Restorative justice and criminal trial: which means of rational control for the consensual forms of conflict-resolution?

In this brief essay, the Author takes into account some implications of Restorative Justice’s intersections with forms of negotiated justice. By claiming the urgency of introducing a new paradigm of justice, whose ‘fulcrum’ is setting persons - as individuals and members of a society - rather than the State or an abstract concept of ‘legal order’ at the centre of justice’s attention people, Restorative Justice advocates tend to suggest the need of adopting ‘alternative’ instruments of response to crime. Doing justice, according to a restorative view, is aimed at rebuilding a relationship of ‘dialogue’ and mutual respect between victims and offenders, whose most concrete outcome is repairing the harmcaused by crime. Such an approach brings Restorative Justice’s advocates to sympathize with forms of agreed-upon solutions to social conflicts, in which victims, offenders (and their communities) are involved in determining how the ‘wound’ of crime can be repaired. By calling themselves ‘alternative’ to the traditional functions and logics of the process, nevertheless, those regulatory schemes provoke us to verify whether the discovery of patterns regulated on a consensual base really represent the ‘end’ of the model of justice that the trial embodies, or instead show that some of its theoretical frameworks and practical implications are still valid and able to provide an unavoidable contribution to criminal justice.

PAOLO HERITIER

Beyond the distinction between rethoric and science. Anthropological and iconological grammars

By means of the analysis of Robilant’s and Legendre’s philosophy of law, the paper propose an extension of rhetorical view to the figurative as central topic for understanding our society. So a passage from legal epistemology to normative aesthetics by the concept of ‘nomogrammatics’ ( the analysis of plural forms of legal text) is done. Thinking legal texts as humanism did, beyond the aporia of legal positivism, it means to go beyond clear distinction between ” two cultures” (certain knowledge of science and uncertain knowledge of literature): in a rhetorical new way of thinking an anthropological and iconological grammar. The Jean-Marc Ferry’s suggestion of a “iconological grammar” intends to revalue rationality of iconological toward a figurative rhetoric, as a part of a philosophy of law that is abreast of the contemporary image society.