L'evoluzione del diritto e la "pretesa di progresso": per una modesta loso a della storia del diritto

• Autores: Massimo La Torre
• Localización: Ragion pratica, ISSN 1720-2396, Nº. 48, 2017, págs. 197-224
• Idioma: italiano
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• Resumen

  • 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.