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In this scenario, the enforcement of individual rights in criminal matters has become a core goal of EU legislation.


Alongside these developments, new interactions between national and supranational jurisprudences have emerged, which have significantly contributed to a human rights-oriented approach to European criminal law. The book analyses the main developments of this complex phenomenon from an interdisciplinary perspective. Criminal and procedural law, constitutional law and comparative law must thus be combined to achieve a full understanding of these developments and of their impact on national law.

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Just think how common it is to refer to such a concept in everyday conver- sation about law: we as jurists often, or even always, speak about codes actually the systematic product of a certain type of legal knowledge or, even more clearly, about systems of sources of law or sets of rules, organized in hierarchical way. These issues will not be considered in this paper, but they are the frame within our considerations will be developed.

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In order to reach this aim, our paper will be organized as follows: at first, we will consider what we, as jurists, usually refer when we talk about the system; then we will study its genesis and its development from an historical-philosophical point of view; lastly, we will try to draw up some conclusions. But, before all, a short epistemological clarification is needed. In other words: do we discover them or do we create them? It is clear that we cannot go into details here, but it is a problem very similar to the one of Platonism in mathematics; and its answer depends on which kind of conception you have.

In a nutshell: if you were a legal positivist, and so, from a certain point of view, a conventionalist, you shall probably choose for the idea 1 P. GROSSI, Della interpretazione come invenzione la riscoperta pos-moderna del ruolo inventivo della interpretazione , in Quaderni fiorentini per la storia del pensiero giuridico moderno, 47, , pp. The crisis of the doctrine of sources, however, forces us to reconsider this compromise. Great constitutional and international supreme courts, in fact, also bestow on themselves the power to choose their sources.

While, as for principles, which are the wider moral domain of law, the possibility to speak in term of system seems to be more problematic, being princi- ples plural and conflicting in nature, sometimes inconsistently. By the way, it is not so easy, in real cases, to distinguish rules from principles, and so to draw a clear line between them7: in this way, our common idea of system is put under discussion.

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From this point of view, it is clear that the word refers to the idea of putting together different things organized in a certain way: from this point of view, not every kind of collection can be defined or identified as system, but only that one that is organized according to a certain type of order. In legal domain, legal norms are types of entities: which kind of re- lations they should have to recognize the existence of a system has been the main question discussed by one of the prominent philosopher of law of the last century, Hans Kelsen, whose legal formalism represented one of the theoretical basis for the development of the 20th-century legal theory.

For reasons that we are going to see, the basic idea discussed by Kelsen is that legal system must be considered from a formal point of view as set of norms organized within the unity and coherence given by the hierarchy of norms. In fact, coherently with its Kantian philosophi- cal background, according to Kelsen it is possible to recognize the ex- istence of a system once a hierarchical order is given: A legal order is an aggregate or plurality of general and individual norms that govern human behaviour, that prescribe, in other words, how one ought to behave.

A plurality of norms is an order if the norms constitute a unity, and they constitute a unity if they have the same basis of validity. The appeal to the basis of the validity of a legal norm can- not go on interminability.

It leads in the end to an act whose subjective meaning, a norm, cannot be interpreted on the basis of positive law as its objective meaning. The subjective meaning of this last act can only be presupposed as its objective meaning. The norm that is the subjective meaning and, in virtue of the presupposition, also the objec- tive meaning of this last act is the basis of the validity of all other legal norms belonging to a legal order. The forgoing remarks show that a legal order is not a plurality of valid norms on the same plane but rather a hierarchical structure Stufenbau of superior and subordinate norms.

A conflict between legal norms at different level in the normative system cannot take place9. In this view, it is not possible to admit the validity of legal norms outside the given legal system: Only a competent authority can create valid norms; and such compe- tence can only be based on a norm that authorizes the issuing of norms. For this reason alone does the legal norm belong to the legal order whose norms are created according to this basic norm And, in the face of its well-known problematic aspects, such theory has become the widespread conception of law according to which the validity of a given legal norm N1 depends on the existence of a su- perior, higher-ranked, norm N0, authorizing the issuance of N1.

Stanley L. PINO, A.

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Introduzione critica al pensiero giuridico e al diritto positivo, Torino, , pp. One of the most interesting aspect of this conception is that the pyramid of norm can be, so to say, extended out- side a single legal order for being the imagine of relations among dif- ferent legal systems. In fact, since there is more than one legal order each state or sovereign power has its own Stufenbau , it is also neces- sary to understand which kind of relations are possible among different legal systems. And, as it happens with legal norms inside a system, dif- ferent legal systems can be hierarchically ordered in a pyramid, with mutual relations of horizontal coordination once systems are at the same level or vertical subordination once they are at different lev- els These three concepts become interdependent, almost equivalent: system is given once it is ordered in a certain way, that is hierarchical; hierarchy it is given once we have a certain type of order, that is systematic; order is truly existent once we can say to have a system, that is hierarchy.

Torino, , pp. Lineamenti di una teoria, Torino, , p. Un profilo storico , Milano, , p. Europe as a laboratory for legal pluralism, trans.

Il contrasto penale allo sfruttamento lavorativo: dalle origini al nuovo art. 603 bis c.p.

Norberg, Cambridge, 1st ed. And this is what we would like to try to do in the next sections. For reasons already mentioned, this kind of notion is strictly related with the one of hierarchy, at least in the development of the modern thought.

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We cannot give here all the reasons in support of this claim 22, but we may remember some relevant arguments in favour of that. In fact, the term started to be used with the meaning we usually assign to it by the 6h Century A. To tell the truth, as well known it is possible to find out an idea of systematization even in the Roman legal experience: but it cannot be 21 M. Volume I. Dalle origini alla Scuola storica, Milano, , p. XVI our translation. La nascita del pensiero sistematico, Milano, This is exactly the way made by the Scientific thought during the Enlightenment and Positivism: periods in which the ideal of knowledge became mathematics and its deductive method, already legitimised, among others, by Descartes or Leibniz.

And so, even if we could have different objects, we can justify the possibility to use just one type of method in different fields, in order to obtain, for example, certainty, the basic aim of the Cartesian method. Wolff, better than others, gave an explicit definition of legal system ac- cording to which the connection among different legal rules is a type of concatenation and logical development.

From this point of view, we may say that Wolff can be considered one of the great father for the legal systematic theory. But not only: it may be considered one of the best example of philosopher according to whom knowledge means certainty, with theoretical privilege assigned to science. The system becomes the model to which each science must tend towards: there is no scientificity without systematicity.

Secondly, the system is no more a deductive set of prop- ositions, but it is a set of proposition that must be deduced from one principle. To make the connection between systematicity and scienti- ficity possible, Kant adopted mathematics as model This is the premise: a certain kind of knowledge can be really con- sidered as such if and only if it can be organized as system, like mathe- matics is.

Rather, every discipline must look at mathematics as model of rationality: in fact, a system can be defined as such if and only if its propositions can be deduced from one principle, so to build up a certain kind unity, that is hierarchy. Deep is the role played by this conception in the legal field, with Kelsen and his legal formalism, that assumes the external system for law, so to say a logical connection among norms, the different parts of 34 M. By the way, even the development of logic knew that kind of approach towards mathematics, as it happened with Boole and logicians after him we cannot deal with this kind of topic here: let us refer to F.

Saggio di logica giuridica, Padova, That means: organized in a deductive way, as mathematics is. For having systematicity we must search for logical connections among propositions, that means, in the legal field, among legal propositions, so 36 See among others M. And this is what makes possible the Kelsenian legal for- malism: we do not care nothing then the formal side of legal norms. But, as we may see and verify, it is a philosophical conception total- ly unable to understand and explain what is happening to law in the real world today: the limits of the traditional conception of the system of sources of law, or the picture of pyramid of norms or legal systems, are well known and so it is not necessary to remember them.

In which hierarchies are not given as immutable premises, but re- searched as problematic and moving, sometimes non-existent in which law can be really different from the idea we have of that. OST, M. We tried to give our contribution with our F. Pulling the strings of orality and dialogue. The word said, the body viewed: the role of the senses. Orality and the preparation of the actor.

Pedagogy, history and memory of orality. In the early days, when the hearings moved forward, and it was time to hear the witnesses, I used to get so anxious that I would feel a pain on my back that would leave me breathless. The effort to maintain the appearance of security would rob me of my body strength. And I was sure that fear and anxiety were stamped on my face, molding my tone of voice and escaping through my gestures. Everyone would notice: she is a new judge who is unable to hold hearings.

The feeling of these first days has certainly gone by. The lawyers and attorneys took me by the hand and experience taught me how to do it. The lawyers kept on ask- ing and asking, as they are supposed to do, and at each answer I man- age to find the gaps and loops.

After some time, it no longer hurt. It was just tiresome. After the 15th, 18th hearing of the day I usually went home happy. There were thousands of stories to tell, to laugh about, and to suffer. There were thousands of stories about life as it is, about law as it is. I felt as tired as someone who have run several kilometers. But it was not the body muscles, bones, nerves that was worn out.

It was the soul that was sucked in by the conflict and needed time to recover. There was the weight of a responsibility that is not taught at any law school: the responsibility of the unwritten law that lives inside the courtrooms. They are the places where a part of the memory of law is kept, which is embodied, made by senses, exposed through them, in the tac- tile perception that comes from the soul.