What Is to Be Done? Tullio Ascarelli on the Theory of Legal Interpretation

by Camilla Crea

The teachings of Tullio Ascarelli, a well-known scholar of commercial law and of comparative law on the international scene, has left a lasting mark on Italian legal culture insofar as they are one of the most elegant and complex expressions of the ‘revolt against formalism’ and the need to go beyond the folklore of the ‘old Italian style’. The centrality of the theory of legal interpretation, in constructing and developing the complexity of the legal experience, is filtered and strengthened herein by referring to literary works. In particular, ‘Antigone and Portia’ is a means for communicating, at a transnational level, the eternal dialectic existing between the certainty of positive law and the need to develop it through the interpretation and application of all legal texts, between the declarative nature of the interpretation and its creativity. Jurists and judges, the good ones, are supposed to mediate between these two antipodes, in the always perfectible – because always historicised – quest for a reasonable, equal and, as far as possible, just interpretation of concrete cases. Far beyond Law and Literature movements, beyond Feminist legal theories, beyond the natural law tradition, the apparent contrast is re-proposed and recomposed within the harmony of history, by immersing law, as an ongoing action, in society and in the flow of human activity. 

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