Autore: Di Donato, Francesco
Titolo: La ricerca storica sulla magistratura. Aspetti metodologici e linee prospettiche
Periodico: Le Carte e la storia
Anno: 2012 - Fascicolo: 2 - Pagina iniziale: 5 - Pagina finale: 32

The history of the judiciary is studded with studies carried out, especially (thoughnot only) in Italy, with the methods of a juridical overall perspective, and aim at reconstructingthe normative institutes and the formal functioning of the judicial institutions.But the analysis of official sources is not useful to unearth the hidden power, which bydefinition leaves no trace, and when it does it is intended not to clarify but to mislead.Therefore the historiography (especially legal) on the judiciary often makes methodologicalmistakes that are missing the core of the problem. The heart of the matter, infact, lies in the arcane transformation of the jurisdiction into political power, a powerthat formally denies to be such and therefore is understood to be disguised and arcane,and therefore out of control and unaccountable. To identify the crucial points of historicalresearch on the judiciary therefore means to deal with these basic historiographicaldistortions and to propose an alternative method that employs research tools andhermeneutic tools much broader than mere normative analysis. New interdisciplinaryelements that the culture and ideology of lawyers traditionally considered alien to thepurity of the legal science, and therefore insignificant even for the historical reconstruction,enter the picture. Historical reconstruction is also strongly affected by anuncritical and technocratic positivism and comes to deform the correct description ofreality. The reconstruction of the history of the judiciary, on the contrary, needs a methodthat combines an interdisciplinary approach with a long term vision, and is able to overcomea formidable paradox: to shed light on a power which by its nature is intended tobe shrouded by the dark.




SICI: 1123-5624(2012)2<5:LRSSMA>2.0.ZU;2-Q
Testo completo: http://www.mulino.it/download/article/10.1411/38883
Testo completo alternativo: http://www.mulino.it/doi/10.1411/38883

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