Search

The present Article revisits my "Three Patterns of Law: Taxonomy and Change in the World's Legal Systems"—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions that produced the Three Patterns of Law hypothesis still hold. The question the present Article poses is whether a fourth pattern of law is now necessary to capture the new technological state of affairs and the new geopolitical balances of power: in particular, should a rule of smart law be introduced? This Article surveys some of the relevant legal transformations capable of impacting the mapping of each legal pattern to a given geography. Because the Internet (like law, religion, tradition, or language) is an informative-normative system that has produced a new frontier of development, and because of its ubiquity, I have used it as a test for the current viability of the hypothesis. I conclude that it is too early to add a fourth pattern of law; but it is, perhaps, too late to avoid a pattern of no law taking over global hegemony by substituting algorithms for lawyers. [ABSTRACT FROM AUTHOR]

The article offers information related to the emergence of a social theory of the commons. Topics discussed include the potential collapse of the intricate system within which all of life and its interaction with the planet; economic crisis, characterized by a whittling away of the established truths promoted and transmitted by the economics profession in universities, monetary institutions, and parliaments; and social crisis contributing to contemporary malaise.

The 'commons' is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that 'possessions' — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term 'possessions' to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an 'ecological' construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, 'possessions' encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations. [ABSTRACT FROM AUTHOR]

How much does the current state of comparative legal studies owe to Cold War political imperatives? What happened to our discipline once such imperatives declined in the aftermath of the bipolar world? Comparative lawyers have been completely naive about the impact of the Cold War on their own discipline both as it reached maturity in the 1950s and as it developed after the fall of the Berlin Wall until now. This consequence of the professional depoliticization of comparative law is especially troublesome since the Cold War has accompanied in its entirety the historical moment in which the common law tradition, especially in its U.S. epiphany, has been able to conquer global legal hegemony. Thus, the current disciplinary knowledge of comparative law, the very toolkit of our methodology, has developed in the context of the Cold War confrontation and has reached full global dominance in its aftermath. It is worth thinking about possible implications of this context on the professional project of legal comparativism if we wish to maintain an acceptable level of critical understanding of ourselves. [ABSTRACT FROM AUTHOR]

How much does the current state of comparative legal studies owe to Cold War political imperatives? What happened to our discipline once such imperatives declined in the aftermath of the bipolar world? Comparative lawyers have been completely naive about the impact of the Cold War on their own discipline both as it reached maturity in the 1950s and as it developed after the fall of the Berlin Wall until now. This consequence of the professional depoliticization of comparative law is especially troublesome since the Cold War has accompanied in its entirety the historical moment in which the common law tradition, especially in its U.S. epiphany, has been able to conquer global legal hegemony. Thus, the current disciplinary knowledge of comparative law, the very toolkit of our methodology, has developed in the context of the Cold War confrontation and has reached full global dominance in its aftermath. It is worth thinking about possible implications of this context on the professional project of legal comparativism if we wish to maintain an acceptable level of critical understanding of ourselves. [ABSTRACT FROM AUTHOR]

Recent judgments of the Italian Constitutional Court and the transformation of the joint- stock company Azienda Risorse Idriche Napoli (ARIN, Naples Water Resource Company) into the public concern Acqua Bene Comune Napoli (Naples Water Common Good) are important examples of how social and political movements of the common can be translated into positive law. The Constitutional Court's judgments establish the priority of the results of popular referenda over parliamentary legislation and the validity of certain forms of "constituent illegality," such as collective occupation, as allowed forms of political struggle. The conversion of ARIN demonstrates that the privatization of common or public resources, a widespread neoliberal practice, can be reversed by the collective action of the multitude. [ABSTRACT FROM AUTHOR]

The Italian commons (beni comuni) movement is a powerful example of the way in which social movements are emerging as the new pouvoir constituant serving not only to enforce the protections and guarantees of national constitutions but also, in the context of the declining power of the nation-state, as a counter hegemonic force against the neoliberal economic constitutionalism of the international economic institutions. The common goods social movement in Italy was born out of the concerted action of a number of civil society groups combatting neoliberal privatizations. This commons movement, as will be argued in this paper, is an instance of one of the many struggles taking place throughout the world; from the Bolivian Andes to the Indian Himalayas, where local people are pushing out the state and predatory multinationals, and resisting the collusion of state and market actors to enclose common spaces and resources. These individual struggles for the commons are emerging as a transnational social movement challenging the top-down economic constitutionalism of the World Trade Organization (WTO), and in the context of Europe what has been dubbed the 'troika' of the European Central Bank, the European Commission, and the International Monetary Fund (IMF). Part I argues that social movements are giving new life and meaning to the concept of popular sovereignty by challenging the assumptions underpinning the liberal constitutional form, namely of private property, and providing a much needed channel for political confrontation where parliamentary politics has failed to protect the public from predatory private actors. Part II offers a participant observation exploring the national constituent role played by the beni comuni social movement in upholding the protections and guarantees of the Italian Constitution. Finally, Part III attempts to describe the global commons movement as engaged in a form of bottom-up constitutionalism an emerging form of pouvoir constituant in a supranational constituent process of reclaiming commons from predatory multinational actors through bottom-up societal constitutionalism. [ABSTRACT FROM AUTHOR]

An introduction is presented to a special section on the 21st-century beni comuni, or common goods, social movement in Italy, which includes articles on topics include water resources, culture, and the environment.

The article discusses the doctrinal incoherence of comparative international law (CIL) which has difficulty in coexisting with the status quo based on the rhetoric of the rule of law. It notes that the ad hoc sampling of legal cultures by comparative law is contradicting to the diffuse character of international law in regional traditions. It mentions that the global political system can benefit from an international legal order which is based on democracy and respect.

Argues that the concept of law and economics has contributed to the attainment of worldwide hegemony by U.S. legal scholarship. Role of globalization in the paradigmatic shift in legal reasoning; Factors that can justify the early success of efficiency reasoning in the law; Significance of positivism to economists.

Elaborates on the theory of imperial law that is able to explain post-Cold war changes in the general process of Americanization in legal thinking. Role of the U.S. in world hegemony in the law; Discussion on Antonio Gramsci's notion of hegemony; Structure of U.S. law; Description of the repressive institution of global governance.

Analyzes the functions served by the law of trusts and asks whether the basic tools of contract and agency law could fulfill the same functions. Contrasting approaches to trust-like relationships; Economic analysis of the trust; Trust law's important contribution in its ordering of the relationships between those persons and third parties with whom they deal.

The article reviews the book "La causalità nel diritto della responsabilità extracontrattuale," by M Infantino.