Silvia Niccolai

If the jurist is a good shepherd: the romantic tale of strategic litigations and the warning of In pari causa turpitudinis

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Strategic litigations are a means of using the trial to create norms. What is new? Very little, from the views of a legal culture which, as the one that dominates from modernity onwards, is convinced that law is a matter of decisions and that everything in law is doomed to change, because it relies only on will. There is a lot new, however, from the views of a classical, ancient, or pre-modern legal culture, which thought that a rule was first of all an act of knowledge, and that the legal experience – a facet of the human experience, which always changes, and it is always the same – contained some unchanging principles, often expressed by ancient Roman maxims, which were considered as many observations and interpretations of facts. In Italy this culture (which can be said pre-modern because convinced that facts and values communicate), survived so long that it was still the target of harsh criticism in the second half of 1900. In 1966, this criticism invested an emblematic maxim, In pari causa turpitudinis, which, saying that no right can arise from crime, warns against the risks of abusing justice. The polemics marked the triumph of culture animated by noble aims of reform, by pastoral intentions of inclusion and emancipation, convinced that no fact, no human action, no relation must remain out of the scope of law. The ancient maxim, that posed some limits to the cases and matters on which law could intervene, was now deemed immoral, selfish, indifferent: formalistic. Expression of legal activism and romanticism, the polemics against In pari causa had good intentions, but also a cost: it made us forget that when it aims to a purpose, a trial does not deserve this name


  • strategic litigations
  • regulae iuris
  • facts
  • values


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