Time of innovation and time of transition shaping the legal dimension: a methodological approach from legal history
| Autor | Massimo Meccarelli |
| Páginas | 23-44 |
Time of innovation and time of transition shaping the legal dimension:
a methodological approach from legal history
Massimo Meccarelli
1. Innovation and transition in law: a tentative conceptual setting; 1.1. Innovation
and legal change; 1.2. Ascriptive time and transition in law; 1.3. An example in
history: the transition to democracy and the aftermath of fascism in Italy; 1.4
Legal transition as a legal regime; 2. Innovation and transition shaping legal di-
mension: the objectivation of law; 2.1. The dyad “innovation-transition” and the
objectivation of law; 2.2. The transition from the ordo to the systema and the
disconnection of jurisprudence from the dynamics of objectivation of law; 2.3.
Innovation-transition as an analytical tool for understanding the constraints of
theoretical sustainability of legal concept; 3. Innovation and transition in law:
rethinking borders of legal disciplines
1. Innovation and transition in law: a tentative conceptual setting
Legal change constantly draws the attention of jurists. Its relevance lies
in the fact that it offers the possibility of multiplying the levels of analysis of
legal issues, by bringing its relationship with its social, political, economic
and cultural dimensions to the forefront. For a jurist, however, this is always
a challenge, since considering legal change - precisely because of its openness
to the pre-legal basis of legal forms - requires a continuous updating of the
instruments used to carry out an observation of law and its dynamics. The
purpose of these pages is to consider, from a historical perspective, the possi-
ble heuristic advantage that two analytical categories such as innovation and
transition can offer in this regard.
First of all, I would like to attempt some conceptual delimitations in order
to grasp the juxtaposition, such as the relationship between “innovation” and
situational value with re-
spect to the legal discourse; moreover, I would like to consider the dynamics
of the objectivation of law which can be observed in this light (i.e. dynamics
that help to identify law as a special form of normativity with its own “objec-
that this can have in relation to the wider problem of the interdisciplinary
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MASSIMO MECCARELLI
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challenge, that contemporary legal problems pose to legal science as well as
to the humanities and social sciences.
1.1. Innovation and legal change
If “innovation” designates a radical way of transformations occurring
to identify the dynamics of innovation in legal change? What makes a legal
change “innovative”? Could we speak of a time of innovation in legal experi-
ence? We can assess these questions tentatively, but the exercise may serve
different perspectives.
from the point of view of the object of the analy-
sis, legal innovation represents a change perceived (in the context in which
it occurs) as progress. Thus understood, “innovation” indicates an explicitly
-
of legal thought: when the purpose of a theory is to promote a radical propos-
al, the contrast between new and old is a typical argument. An example is the
well-known pamphlet by Cesare Beccaria, Dei delitti e delle pene.1 Despite the
descriptive character of the title, this essay aims to promote a radical change
in the penal system in line with “a society organized in a different way, to be
built on new political principles”.2 The book is related to a project for inno-
vation; to this end the rhetorical constructions of its pages often insist on the
contrast between new and old, where the new is just and correct and the old
is unjust and wrong.3
Self-assertive innovation can also be found in works that are not charac-
terized by an express purpose to mark a discontinuity, but which, at the same
his famous treatise De iure belli ac pacis. It is a work that intends to contrib-
ute to the establishment of a new legal framework for the new geopolitical
dimension, that has emerged since the discovery of the Americas. The author
2 Sbriccoli (1997) 177.
3 Among the many examples see the opening page of the book “A chi legge”, Beccaria
(1764).
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