Analisi e Diritto 2023-08-02T07:42:09+00:00 Analisi e Diritto Open Journal Systems <p>«Analisi e Diritto» is a six-montly, double blind peer-reviewed journal on analytic studies in Law and Philosophy of law.</p> Introduction 2023-08-02T07:28:42+00:00 Adriano Zambon <p>Introduction to the section "The Conversational Model in Legal Interpretation. A Debate"</p> 2023-06-29T15:08:29+00:00 ##submission.copyrightStatement## Legal Interpretation and Conversational Model. Some Remarks on Il modello conversazionale by Francesca Poggi 2023-08-02T07:42:09+00:00 Lorena Ramírez-Ludeña <p>In Il modello conversazionale, Poggi explores the question of whether the conversational model introduced by Grice adequately reconstructs our practices related to the interpretation of texts in the legal domain. And she does so by first analyzing Grice’s model very thoroughly, refining it to explain what happens in the normative sphere, and then focusing on the particularities of the legal field and rejecting its impact. In this paper, I first present some aspects collected in the book, and then make three minor critical remarks related to the type of thesis that Poggi maintains, the scope of her theses, and how Grice’s model could be affected by externalist considerations, which only show the importance of her work in thinking about legal interpretation.</p> 2023-06-29T00:00:00+00:00 ##submission.copyrightStatement## Portuguese House. Talking about Pragmatics with Francesca Poggi 2023-08-02T07:42:08+00:00 Jose Juan Moreso <p>This contribution highlights the virtues of the relevant book by Francesca Poggi (2020). In the second section, some general considerations about human communication through language are presented. In the third section, the central thesis of the book is introduced, according to which the conversational model and the Gricean cooperative principle are not applicable to the theory of legal interpretation, as well as some objections to this thesis. In the fourth section, an attempt is made to answer the question on what basis Francesca’s thesis is based, suggesting that it is her interpretative skepticism. Section five attempts to show the relevance of the last chapter of the thesis, in which the principle of cooperation finds a place in law through the analysis of private law standards, such as good faith. The sixth section concludes by defending a more charitable position than the author’s on the application of the cooperative principle to legal interpretation.</p> 2023-06-29T15:20:30+00:00 ##submission.copyrightStatement## Two Comments on Il modello conversazionale by Francesca Poggi 2023-08-02T07:42:08+00:00 Julieta A. Rabanos <p>This paper is based on a reflection on the reading of Francesca Poggi’s recent book, Il modello conversazionale. Sulla differenza tra comprensione ordinaria e interpretazione giuridica, in which the author intends to clarify some aspects of ordinary communication and legal interpretation, highlighting similarities and differences. In §2 I will raise the question whether a conception of a legal norm such as Karl Olivecrona’s independent imperatives, based on non-voluntaristic imperativism, could be a category of independent imperatives of interest to a position on legal interpretation that dispenses with legislative intent, thus establishing a neat separation between legislative authority and the approved text. In §3, I will raise the question whether it would not be more profitable to make further distinctions between the legal contexts in which Poggi analyses the application and applicability of Grice’s theory. I will try to show how these distinctions become necessary, in particular to assess the possibility that there are cooperative contexts in the legal field and situations where cooperative and non-cooperative contexts might exist simultaneously. Finally, I will draw a brief conclusion in §4.</p> 2023-06-29T15:26:03+00:00 ##submission.copyrightStatement## Pragmatics and Legal Interpretation. Il modello conversazionale by Francesca Poggi 2023-08-02T07:42:07+00:00 Chiara Valentini <p>Francesca Poggi’s Il modello conversazionale. Sulla differenza tra comprensione ordinaria e interpretazione giuridica significantly contributes to the theorical reflection on law, both on the methodological level and on the level of the theses that it introduces and defends. I will try to highlight the book’s theoretical reach under three aspects in particular. First, the twofold contribution to the contemporary philosophical debate as regards the interaction between legal theory and philosophy of language. Second, the connection between the theory of collective intentionality and legal interpretation, in the light of the conversational model. Third, the theoretical potentialities of such model, in a normative perspective as well.</p> 2023-06-29T15:36:06+00:00 ##submission.copyrightStatement## Values, Symbolic Legislation, and Collective Action. Regarding Il modello conversazionale by Francesca Poggi 2023-08-02T07:42:06+00:00 Josep M. Vilajosana <p>In this paper, the author deals with three issues, with the aim of complementing the analysis contained in Francesca Poggi’s book, with which he substantially agrees. Firstly (section 2), the author stresses that surely one of the reasons why Grice’s conversational maxims are not transferable to legal discourse is that they have been conceived for cases involving propositions and not rules. Secondly (section 3), the author proposes taking into consideration the phenomenon of symbolic legislation, which does not seem to respect conversational maxims or the principle of cooperation, but which is a very widespread practice. Finally (section 4), that the methodologically appropriate way to try to apply theories of collective action to phenomena such as legal practice is to establish clearly which are the classes of intervening subjects and the relevant actions, according to the required level of abstraction.</p> 2023-06-29T15:42:43+00:00 ##submission.copyrightStatement## The Specificity of Statutory Interpretation. In Conversation with L. Ramírez-Ludeña, J.J. Moreso, J. Rabanos, C. Valentini and J.M. Vilajosana 2023-08-02T07:42:06+00:00 Francesca Poggi <p>This essay aims to reply to some criticisms, formulated by Lorena Ramírez-Ludeña, José Juan Moreso, Julieta Rabanos, Chiara Valentini e Josep Vilajosana, against my recent book Il modello conversazionale (ETS, 2020). After summarising the central theses of my work, I will discuss my critics’ comments by dividing them into four groups. The first group aims at contesting my thesis that the conversational model neither applies nor is applicable to statutory interpretation; the second group criticises the thesis that the conversational model is a good explanatory model of ordinary conversation, including normative conversation; the third group of comments relates to the interpretative theory that my theses imply or presuppose; finally, the fourth group concerns aspects or topics that I did not adequately investigate in the text. I will argue that the criticisms of the first three groups are unfounded, instead I will concede the plausibility of those of the last group, which highlight certain aspects of my research that I will have to explore further.</p> 2023-06-29T15:47:51+00:00 ##submission.copyrightStatement## A Journey to Italy. The Pure Theory of Law in the Peninsular Legal Culture 2023-08-02T07:42:05+00:00 Pierluigi Chiassoni <p>The paper purports to recount a few episodes in the reception of the pure theory of law in Italian legal culture. After an introductory section casting some light on the reception before WWII, the narration focusses on the reception of the pure theory after 1945, by three leading jurisprudents: Giuseppe Capograssi, who advocates the total rejection of a legal theory he considers absolutely obnoxious; Norberto Bobbio, who sets forth a radical critique targeting Kelsen’s (supposed) (neo)Kantianism, the basic norm, and the Kelsenian theory of legal science; Riccardo Guastini, who claims Kelsen failed in his long-pursued aim of establishing a sharp demarcation between law and legal science. The recount will go along, so far as possible, with some critique of criticisms.</p> 2023-06-29T15:54:30+00:00 ##submission.copyrightStatement## “Pure Theory of Law” as Critical Legal Studies avant la lettre. Why Choose Kelsen’s Realist Theory of Interpretation over Schmitt’s Political Theory for the Left? 2023-08-02T07:42:04+00:00 Péter Techet <p>It is well known that left-wing Critical Legal Theory (CLS) often analyses the political power aspect of the law with Carl Schmitt. However, it ignores that Schmitt’s political theory of law did not reveal the ideology behind the law, but rather concealed it with meta-legal concepts. According to the thesis of this article, a true critique of the legal ideology is possible primarily through the “Pure Theory of Law”. Kelsen’s theory is not the theory of a “pure law”, but rather an anti-ideological (in this sense: pure) description of the political character of the law and, above all, of its application. In this respect, the political power of the judiciary, which is an important topic in Critical Legal Theory, is more visible with Kelsen than with Schmitt. Kelsen’s anti-ideological goal becomes particularly clear if we follow Michel Troper’s and Riccardo Guastini’s interpretation of the “Pure Theory of Law”.</p> 2023-06-29T15:59:13+00:00 ##submission.copyrightStatement## Hart’s French Bulldog. Gregory Bligh on The Philosophical Foundations of H.L.A. Hart’s Legal Positivism 2023-08-02T07:42:04+00:00 Charles Maxime Panaccio <p>This is a critical review of Gregory Bligh’s <em>Les bases philosophiques du positivisme juridique de H.L.A. Hart </em>(<em>The Philosophical Foundations of H.L.A. Hart’s Legal Positivism</em>). Bligh’s book offers a deep dive into all of Hart’s works, as well as into the works of his main “ordinary language” philosophical influences, J.L. Austin and the later Wittgenstein. It explores ordinary language philosophy’s fundamental philosophical commitments as well as those of its nemeses, the logical positivists. In the process, Bligh suggests that there was more to ordinary language philosophy than the theory of speech-acts and that its basic commitments have never quite left Hart as he went on to build his jurisprudential theses in contrast with Kelsen’s and Alf Ross’s. As for more contemporary debates in legal philosophy, Bligh argues in favor of fully going “back to Hart” and moving away from Joseph Raz’s peculiar philosophical universe. The review first provides an overview of the book’s extraordinary genealogical achievements. It is nevertheless suggested that while Hart’s early critique of logical positivism presents strong analogies with the critique he later made of Kelsen and Ross, they also differ in fundamental ways. It is then argued that although moving away from Raz may be warranted, this should not be done by going back to Hart’s original philosophical toolkit. Brian Leiter’s Hart-sympathetic jurisprudential naturalism is suggested as an alternative path since it fits many of Bligh’s inclinations.</p> 2023-06-30T12:18:30+00:00 ##submission.copyrightStatement##