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Guida per l'applicazione dei principi generali della difesa integrata obbligatoria definiti dall'allegato III della direttiva 2009/128/C

Il saggio analizza gli aspetti di interesse prettamente civilistico del cosiddetto "Jobs Act dei lavoratori autonomi" (legge 22 maggio 2017, n. 81), mettendo in evidenza le novità in tema di strategie di tutela del contraente debole-lavoratore autonomo con specifico riferimento all'inserimento di clausole abusive nei contratti ricadenti sotto il suo ambito di operatività e all'abuso di dipendenza economica, e segnalando i tratti di continuità dello strumentario scelto con soluzioni proprie della legislazione consumeristica, nell'ottica di una possibile convergenza tra discipline .

Il saggio è occasione di analisi della storiografia applicatasi al tema a partire dalle prime riflessioni in materia alla fine del Medioevo.

Can the concept of European identity together with that of national identity – as provided for in current EU law - satisfy the needs of present-day multicultural society, which implies that cultural and linguistic pluralism are safeguarded, promoted and/or protected? This is the basic question to which this work tries to answer. After having deepened the concept of collective identity from the general theory of law point of view, we tried to apply the results to the EU law. The coexistence in the latter of both of the European and of the national identities was interpreted by the doctrine in two senses: a) in a de iure condito approach, the double concept would be founded on past cultural legacies; b) in a de iure condendo approach, the same double concept should only be seen in a future perspective. From a positive law standpoint, then following the first approach, one asked if the European Union is a legal system aimed exclusively at the past culture, or if, after all, it offers ideas aimed at opening up to today’s multicultural society. From the analysis of the primary EU law, one could check that both of art. 22 of the Charter of Fundamental Rights of the EU (Charter of Nice) and of art. 167, par. 1, of the Treaty on the Functioning of the European Union-TFEU do not refer to the concept of cultural pluralism, that would imply cultural choices coming from below, from spontaneous communities, but to the concept of cultural diversity, that instead meant going towards cultural choices determined from above, from the State or from other public authorities. Therefore, the EU law approach to cultural diversity was (is) top-down. Indeed, if we refer to “the cooperation [of the EU] with third countries and the competent international organizations in the sphere of culture”, as stated in par. 3 of the same art. 167 TFEU, it allows us to give a different interpretation to the concept of cultural diversity. This was possible by observing the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, approved by the European Union in 2006. The Convention made it clear that cultural diversity is a matter for local communities, formed by the same individuals who practice it, according to the bottom-up approach. Then, the international law, recognized by the EU law, considers this concept as a product from the bottom, deriving from cultural collective identities and not from public authorities. In this way we could assimilate the concept of cultural diversity to the concept of cultural (and linguistic) pluralism. In conclusion, the current EU law allows us to deal with both of the cultural collective identity aimed at the past, managed by public authorities, and of the cultural collective identity aimed at the future left in the hands of spontaneous communities. The latter allows us to respond, at least in nuce, to the needs of the today multicultural society, from which Europe can not ignore. On the level of public actions, cultural diversity – as a fruit of freedom of man – makes use of the promotion and of the safeguard. Regarding linguistic diversity, to which the EU law always responds with promotion, in reality protection action should be granted, if it is true that linguistic diversity is a real fundamental human right.

In 2012 an unpublished book by the Austrian legal philosopher Hans Kelsen, Secular Religion, has been posthumously published. This book, written by Kelsen between 1952 and 1964 in the United States, severely criticizes those theories of politics and culture that misinterpret modern social philosophy, science and politics as new religions, mainly adopting the controversial concept of “secular religión.” In the first part of the paper, we reconstruct the genesis of the book and the complex events that led to its final version, and we underline the motives that led Kelsen to write this vehement polemic in defense of the spirit of modernity, and eventually to withdraw it. In the second part of the paper, we investigate some of the main methodological and theoretical contributions that this work, albeit its critical tenor, is able to give to an anthropology of modernity.