Mauro Barberis

The Trouble with Formalism. Between Hermeneutics and Legal Realism

  • Abstract

Informations and abstract

Keywords: Hermeneutics; Legal Realism; Custom; Precedent; Legal Formalism.

Italian theory of law and legal interpretation is currently divided between hermeneutics, which seeks to recover the unwritten sources of law, and legal realism, which recognizes only written sources and ignores the hallmark of the former - i.e., the unintended effects of (intentional) human action. This paper illustrates that somewhat paradoxical contrast by comparing the theories of precedents and customs developed by Giuseppe Zaccaria in "La comprensione del diritto" (2012) with Pierluigi Chiassoni's latest essays on the same subject. The answer to the question posed in the title is left to the reader, but in the author's view the question is rhetorical.

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