PP991
Analítico de Periódico
CASABONA, Salvatore
Uso e abuso dell'argomento "globalizzazione" nel ragionamento del giudice / Salvatore Casabona
Annuario di Diritto Comparato e di Studi Legislativi, v.8 (2017), p.131-157
FILOSOFIA DO DIREITO, RETÓRICA, ARGUMENTAÇÃO JURÍDICA, JURISPRUDÊNCIA, GLOBALIZAÇÃO
The purpose of this essay is to analyse in a comparative perspective the use (and also the misuse) of the argument “globalization” in the judicial reasoning. Paying attention to the case law of some legal systems (Italy, France, United Kingdom, United States, Canada and South Africa), it is possible to isolate at least four contexts of use in which the concept of globalization plays a role: a. scrutiny and interpretation of facts; b. interpretation of the rules applicable to the case; c. reference to globalization as rhetoric-persuasive argument in the judicial reasoning; d. reference to globalization as rhetoric- explanatory and illustrative argument either of the context in which the facts occurred either of the rules applicable to the case. However, the abovementioned phenomenon of globalization, to which judges refer in their reasoning, is characterized by its extreme vagueness and variability, for its permeability to own judge’s point of view and assessment that underline its intrinsic “symbolism” (good globalization – bad globalization), but above all for the fact that the concept of globalization is not determined – neither directly or indirectly – by law: all this inevitably implies several problems of reliability, rationality, controllability, acceptability with regards to the reference to globalization into the juristic reasoning.