Dear all,this post is to remind you the bibliography that we quoted today about the future possible strands of Law and Literature in Italy and to ask you 3 new questions.
Bibliography:
1) Tullio De Mauro, Il linguaggio della Costituzione, in Costituzione della Repubblica italiana (1947), con introd. di T. De Mauro e una nota storica di L. Villari, Torino-Roma 2006, pp. VII-XXXII.
2) id., Obscura lex sed lex? Riflettendo sul linguaggio giuridico, in La parola al testo. Scritti per Bice Garavelli Mortara, a cura di G.L. Beccaria, C. Marello, Alessandria 2002, pp. 147-159.
3) Arianna Sansone/M. Paola Mittica, Diritto e letteratura. Storia di una tradizione e stato dell'arte, in ISLL Papers-Reviews, 19/12/2008.
4) Barbara D'Amico, How far can we apply Law and Literature to the Italian civil law system? In ISLL Papers - Essays, 22/02/2010.
Questions:
1) Can you provide an exemple of a legal novel written in Italian or in any language other than English?
2) According to the German Law and Literature movement, a "Dichterjurist" is a writer that studied law. Do you know any example in Italy?
3) Can you find the Italian Constitutional Court (Corte Costituzionale) verdict in which the art. 5 of our criminal code was declared partly uncostitutional in the year 1988? Against which article of the Constitution was it declared to be? Why?
About legal novels, if you mean works like the “Trial” by Kafka, I can also add “The stranger” by Camus, in which the author deals with the process in a very particular way. The protagonist is accused more for his morality than for the fact that he committed.
RispondiEliminaAnother example could be “The Judge and His Hangman,” by Friedrich Durrenmatt, I didn't read it so I can't say anithing about it. In Italy we have “ Testimone inconsapevole” by Gianrico Carofiglio and “Il diritto di non rispondere” by Marco Bellotto.
Examples of Dichterjuristen in Italy could be the authors of the legal novels that I have mentioned before: Gianrico Carofiglio, that has been an attorney, and Marco Bellotto that has been a criminal lawyer.Also we have Giancarlo De Cataldo, the author of “Romanzo criminale” that is a judge.
The sentence 23/3/1988 n. 364 declared the art.5 cp unconstitutional because it violeted the art 27 of the Constitution that appoints that “the criminal responsability is personal". Reading this article with also comma 2 and 3 of the same art. 27 and together with art 73 co 1 cost. and art 25 co 2 cost, we can say that the constitution doesnt't request only the guilt but also the effective possibility to know the criminal law. Because of this, art. 5 c.p. was uncostitutional in the part in which the unavoidable ignorance was't mentioned as a case of exclusion of the guilt (“not excusability”).
I'm sorry for my english, but it's very difficult to find specific and legal terms for me.
Camilla Bonadies
At the end of the yesterday lesson I was just thinking about Gianrico Carofiglio’s books, too.
RispondiEliminaI completely agree with Camilla’s opinion.
Gianrico Carofiglio in fact studied law at university and before becoming a successful writer was a judge.
I think this should be a right example about the relationship and, maybe, the interpenetration, between Law and Literature in Italy.
The first book published by G. Carofiglio, “L’arte del dubbio”, was born as a technical manual on interrogation, in particular how to demolish or strengthen a witness in the criminal trial.
At the very beginning this book was directed only to readers experienced in law, in particular, judges and lawyers.
After the first publication instead common people started to be interested towards this book, because was written not in legal terms, and was understandable by all; also it was on real concrete cases, so the common reader was able to understand them and to try to participate and resolve them.
The other books by Carofiglio, that now has abandoned judging, and has become a real writer (a politician, too), are very interesting because they show how his style and his way of writing have changed and have come closer and closer to the actual literature of the law.
In my opinion this is very interesting because underline the fact that also in Italy is possible a concrete relationship between Law and Literature; now in fact his books are still about legal questions but they really seems to be novels, legal novels.
I suggest some of them that I like most: “Ad occhi chiusi”, “Nè qui nè altrove” (which is not really a legal novel), “Il passato è una terra straniera” (2 years ago in cinemas came out a beautiful film from this book), and the last one published “Le perfezioni provvisorie”.
Finally I focus my attention underling that, as we can see, also the titles of these novel have changed in favour of literature: the first books had titles more “legal”, like “L’arte del dubbio”, “Ragionevoli dubbi”, “Testimone inconsapevole”….instead looking at the last one, in particular, is clear that we are in front of a real (legal) novel, which title is “Le perfezioni provvisorie”.
All regards,
Flavia Mancini
What Camilla wrote about the sentence n. 364 / 1988 it's correct. It has been a very important decision of the Court for penal law in general.
RispondiEliminaAnswering to question n.2 , I can say that I've yet finished to read Raffaele Cantone's " Solo per giustizia" (I think that it can be translated with " Only for justice " ).
Raffaele Cantone is a stipendiary magistrate who is still fighting against "Camorra" in Campania.His work tells about some of his most important and succesfull team results, as the process named Spartacus I.
I found it very interesting and stimulating, because not only informs about real events, but also explains correctly legal procedures from a different point of view. Something that, as we were saying during the last lesson , is really difficult to understand for a law student who's used to learn only theory by laws and handbooks.
Anna Leonetti
If we have to speak of legal novels I think we should first clarify what is meant by “legal novel”. The concept of “legal novel” is due to John Wigmore, the father of law-in-literature perspective. We found in his article, “A List of Legal Novels” published first in Illinois Law Review in 1908 and then republished, some years later, with another name (A List of One Hundred Legal Novels), the reference to a particular literary genre, that he considered of vital importance for the education of lawyers and their professional life.
RispondiEliminaWigmore has fixed this “list” with lawyers in mind, believing that lawyers could learn much from the great novel writers of the past. The author identify four categories of the novels that a lawyer should read and assimilate: the first class presents novels in which some trial scene is described; the second class collects novels in which the typical traits of a lawyer or judge, or the ways of professional life, are portrayed;the third class meets novels in which the methods of law in the prosecution and punishment of crime are delineated, and the fourth class is a collection of Novels in which some point of law, affecting the rights or the conduct of the personages, enters into the plot.
So there were marked as legal novels some famous works of Dickens (The Pickwick Papers, or Oliver Twist), of Fielding (Tom Jones), of Scott (Ivanoe), or Kafka (The Trial).
We obviously find many examples of legal novels in French literature too (the Pere Goriot of Balzac, the Count of Monte Cristo of Dumas, Les Miserables of Hugo), or in Russian literature (Crime & Punishment or
The Brothers Karamozov by Dostoevsky), just to mention a few.
If we have to think about our literary story, following the lines marked by Wigmore and the relative categories for istance, we can find a lot of works: I’m referring to Collodi’s Pinocchio, to Camilleri’s books (maybe one of the best known), to some titles of Gianrico Carofiglio (like “I casi dell'avvocato Guerrieri: Testimone inconsapevole-Ad occhi chiusi-Ragionevoli dubbi”, or “L’arte del dubbio”, or “Cacciatori nelle tenebre”), to “Eccellenze laiche” di Luigi Condemi di Fragastò, but I think that we could refer also to some works of Franco Cordero.
I’m not completely sure about that but I think that “Testimone Inconsapevole” of Carofiglio is the first Italian legal thriller. The main character is Guido Guerrieri, a lawyer from Bari, and the story is developed around the evolution of a criminal trial from the point of view of the lawyer.
Continuing on the theme, I think that Carofiglio is an example of “Dichterjurist”: Magistrate from 1986, Senator and counselor of anti-Mafia Parliamentary Committee during the XV legislature, Carofiglio has started his career like novelist in 2002 publishing “Testimone inconsapevole”, but i will not dwell on this because Camilla and Flavia have been exhaustive!
Luigi Condemi is a magistrate of the Corte dei Conti in Rome, with a double degree in Economics and Law. He is also an historian. Condemi has started his narrative adventure in 1986, publishing “Eccellenze Laiche”.
As I said before I think about Franco Cordero, author of the famous manual of Criminal Procedure, who has written a large number of essays but also novels (but I have to be honest, I’ve not read any of these works, except for the manual, unfortunately eheh).
About the third question, I prefer to read the sentence before answering!
Best
Alessia Guaitoli
1)An other example of italian legal novel can be "De profundis" by Salvatore Satta, where the main topic is the relationship between the "law" in its strict acception and the "justice" in its human acception.
RispondiEliminaBy the same author, we can cite "Colloqui e soliloqui di un giurista", where the attention is focused on the relationship between the substantial law and the trial "moment", to analyze which of them is the main one.
2)There are many italian writers who studied and practice law professions. After Salvatore Satta, we can cite, for example, Franco Cordero (criminal lawyer). Anyway, I think that one of the most particular writers is Corradò Calabrò, because its written works are mainly narrative and poetry, so, in this author, the "humanity" aspect seems to prevail on the "law" aspect.
3)About the italian Constitutional Court's verdict about the art. 5 of the italian criminal code, Anna and Camilla just said, rightly, that is actually a corner stone for our penal system. In particular, Camilla cited the articles 25, 27 and 73 of the italian Constitution.
I would like to add something because this is a topic I was interested very much about:
the art. 5 c.p. (criminal code) has been considered by the Court, in its original formulation, also contrasting towards the art. 3 Cost.(in both first and second paragraphs), infact:
-the first paragraph of this article establishes the equality of citizens towards the law, so the Court retains that the art. 5 of criminal code violates it as it doesn't distinguish the person who commits a crime consciously against the penal law by an other one who commits a crime without knowing, unguilty, the penal law;
-the second paragraph of art. 3 Cost. establishes that is a precise duty of the State to remove any possible obstacle (social, economic, etc) which, factually, impedes to realize the equality between citizens and, consequentially, the possibility to be aware about the penal law. So, the Court considers the possibility that a certain person could have not any ways to know the penal law without beeing guilty about it just because the State didn't do enough to accomplish its above-mentioned duty. Therefore, the penal judge has to verify all this before he can decide if a certain person can be judged "guilty" or "innocent".
Regards
To talk about legal novel, starting from the past , we can mention “Apologia di Socrate” that is a text written by Platone, we know that Socrate didn’t write anything. This novel is about a real trial where Socrate has to defend from the charge of corrupting young people, being not respectful of Gods.
RispondiElimina“Gomorra” by Roberto Saviano is a book about law and criminal organization and its consequence in the other fields, in every day’s life.
Wondering about Italian legal writers, I think about our Professor Paolozzi, I just passed penal procedure, or Siracusano and Musco, both professors of penal law, lawyers and writers.
Thinking about the judgment passed by our Constitutional Court, as we have said this morning, we have to distinguish between the subjective ignorance and the objective one. Of course excusable ignorance should take a place in judge’s mind but what I personally think is that could lead to a deep discretionary judgment.
Answer about legal novel and “Dichterjurist” in Italy: we know that legal novels or legal thriller, as we can also call them, is a literary kind which is strictly link with the term “Dichterjurist".
RispondiEliminaInfact a Dichterjurist is a person who study law at first, maybe he is a lawyer or a judge, and then he write some novels or some articles which deal with law: in these way they stress the relationship between law and literature.
They (like Carofiglio and Bellotto) write about stories of people that have to do with justice; it is a kind of writing very different from the American way to write legal novel because these stories are strictly connected with the Italian processes.
They follow the Italian procedural penal code, infact they have studied law, and their novels are like an Italian process: there is a public minister who question the accused and the witnesses and there is a lawyer who make question too. Everythings in these books are similar with the reality in our courtrooms.
But the legal novels doesn’t deal only with the law and procedural aspects infact writers make an introspective analysis of men and women, like Carofiglio that in his book talks about the personal life ( loves, friends, experiences) of the protagonist.
In my opinion is important also to underline that in Italian these kind of literature, which is legal novel or legal thriller, is present in many film: maybe most people know the film of Montalbano but they don’t know that it is a book written by Camilleri.
That is to say the there are many many Italian films or Italian fictions which deal with different aspects of law ( we can think about the fiction dedicates with police or carabinieri)
About the sentence 23/3/1988 n. 364, I would like only to add that the Court change (but maybe is not the correct translaton of the Italian term “novellare”) article 5 cp only the substantial sense and not the literary sense. So only reading the text of the article we could believe that the absolute ignorance subsist again.
Federica
Thank you all, you are doing very well! As soon as possible I will write a list of Italian legal novels at hand of your "tips". Alessia Guaitoli wrote a good summary of Wigmore's point of view that could be useful for all of you and Alessandro Fioco answered my question about the contrast between art. 5 c.p. and art. 3 Cost. In any case, all your comments are really good I am looking forward to reading more!
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RispondiEliminaVery interesting comments indeed! And thanks to Eleonora for all these useful information.
RispondiEliminaIt's an informative post.It represents a good combination of law and literature for doing law courses.Students can find many interesting and critical case solutions to do study literature on law.I very much look forward to read this post.
RispondiEliminafamous law professors