Francesco Di Donato

Historical research on the judiciary. Methodological aspects and perspective lines

  • Abstract

Informations and abstract

Keywords: judiciary; legal ideology; jurisdiction; hidden power; legal and institutional historiography (critique of).

The history of the judiciary is studded with studies carried out, especially (though not only) in Italy, with the methods of a juridical overall perspective, and aim at reconstructing the 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 by definition 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 methodological mistakes that are missing the core of the problem. The heart of the matter, in fact, lies in the arcane transformation of the jurisdiction into political power, a power that 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 historical research on the judiciary therefore means to deal with these basic historiographical distortions and to propose an alternative method that employs research tools and hermeneutic tools much broader than mere normative analysis. New interdisciplinary elements that the culture and ideology of lawyers traditionally considered alien to the purity of the legal science, and therefore insignificant even for the historical reconstruction, enter the picture. Historical reconstruction is also strongly affected by an uncritical and technocratic positivism and comes to deform the correct description of reality. The reconstruction of the history of the judiciary, on the contrary, needs a method that combines an interdisciplinary approach with a long term vision, and is able to overcome a formidable paradox: to shed light on a power which by its nature is intended to be shrouded by the dark.

Trova nel catalogo di Worldcat

Article first page

Article first page