with the scientific collaboration of
ISSN 2611-8858

Topics

Legal Interpretation

Syntactic Ambiguity and Interpretation of Penal Statutes

Theoretical reflection on the proper methods for interpreting penal statutes has been rather insensitive to the interpretative challenge posed by the syntactic ambiguity eventually exhibited by the given legal text. In the realm of Chilean criminal law, one finds a clear example of this in the formulation of the rule of “superior responsibility” under art. 35 of Act No. 20357. By overlooking this ambiguity, one could be led to the assumption that the rule in question would only apply to superiors occupying military positions. The analysis of the specifically syntactic base of the potential indetermination of the legal provision can highlight the semantic and pragmatic factors that ought to contribute to the resolution of that ambiguity. The thus achieved interpretation results in the rule being also applicable to superiors occupying non-military positions.

Syntactic Ambiguity and Interpretation of Penal Statutes

On the Scope of the Rule of “Superior Responsibility” under Chilean Criminal Law

ECHR Driven Interpretation and Balance. An Appendix

This paper critically analyses the relationship between the ECtHR balance in implementing a right based on the ECHR and the ECHR-driven interpretation by the domestic judge in applying defenses. While ECHR-driven interpretation is kept within the boundaries of the wording of the law, the balance is per se integrative-additive, so it goes by definition beyond such boundaries. Consequently, the ‘case by case’ approach at a domestic level could be more difficult and this would require to involve the Constitutional Court.

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent (Part III)

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the val- ue protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent (pt. II)

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the value protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules.

Iura et leges. Because Law Doesn't Exist Without Right

The study argues the impossibility of the law as written rule without the law as rationality: the absence of cognitive content of the statutory law without the interpretation and the hermeneutical, decision-making and institutional context of the ius that founds the rationality of the lex beyond its prescriptive moment, subject to the majority or assembly principle. From the Romanistic foundation of ius, and from the Justinian compilation of iura et leges, the conceptual couple ius and lex, beyond that of law and rights, is illustrated both historically and theoretically as a decisive aspect to understand the law of the jurists, the judge-made, the comparative, the applied or simply the narrated ‘law’. What emerges is the overcoming of the voluntaristic, but also linguistic and analytical conceptions of law, in favor of a realism in which the ius always remains the ius of a lex, positive therefore, although detached from the religious or sacral bond of the lex. The ius is always positum even if filled with contents that the lex cannot entirely pre-define: its rationality is never that of a voting majority but it doesn’t dissolve the lex in an unformalized comment

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the val- ue protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules

The Protection of Trade Secret under Italian Criminal Law. Between Needs for Adequacy and Options for Rationalization

The paper focuses on the Italian criminal provisions regarding trade secret. It aims at analyzing the consistency between the criminal law system (recently reformed by D. Lgs. N. 63/2018) and the modern needs of data-driven economy. D. Lgs. n. 63/2018 modified the structure and the object of protection of art. 623 c.p. and it also filled the gap between the criminal law system and the civil law protection (art. 98 industrial property code). Problems regarding the compatibility of the different forms of protection may arise from this reform, as underlined by the case law of the ECHR too. Notwithstanding the risks related to the overlapping of the two regulations, the paper tries to differentiate the notion of trade secret of the two branches of law in order to demonstrate the need of the criminal protection of trade secret.