Page 252 - Gabrijela Kišiček and Igor Ž. Žagar (eds.), What do we know about the world? Rhetorical and argumentative perspectives, Digital Library, Educational Research Institute, Ljubljana 2013
P. 252
What Do We Know about the World?
A rapid overview of some sources of Italian legal system will provide
some previous guidelines for dealing with the question. In particular,
one must refer to the Italian codes of Civil (CPC) and Criminal (CPP)
procedure. Art. 360.1.5 CPC assumes that a judgment is invalid if the
reasoning relating to a crucial and controversial fact is “lacking”, “in-
sufficient” or “contradictory”. Beside that and in a very similar way, art.
606.1.e CPP specifies that a judgment is invalid if the argument is “lack-
ing or clearly illogical”.1 Briefly, according to Italian codified law, deci-
sions must be considered invalid when the argument is “insufficient”,
“contradictory” or “clearly illogical” and consequently judges are asked
to know what logical consistency clearly is and whether it is sufficient or
not. Consistency which does not appear to be perfectly coherent logical-
ly (such as, for instance, in Tarski, 1994), since the Legislator mentions
the contradiction as one kind of bad argument alongside others (i. e. in-
sufficiency and clear illogicality), not treating it as the only possible one.
So we must conclude that for serious judges – and namely the ones in the
Italian Supreme Court (s.c. Corte di Cassazione) – the problems are the
following:
1. to determine when a legal argument is contradictory;
2. to determine when it is clearly illogical (but not necessarily contra-
dictory);
3. to determine when it is insufficient;
4. to determine when there is no argument at all (lacking).
All these commitments imply precise viewpoints on logic and argu-
mentative sufficiency on the judges’ part. A very difficult task, it must be
conceded, for which no codified rules are provided and leaving perhaps
too much space for free will and responsibility. Are Italian judges (espe-
cially those in higher Courts) prepared to do that?
2. The Modern Formalistic Heritage
The fact is that Italian legal culture has been influenced for a very
long time by a formalistic model of reasoning, dating back to the ideas
of thinkers like Charles-Louis de Montesquieu (La Brède, 1689–Par-
is, 1755) and Cesare Beccaria (Milan, 1738–1794): authors who adopt-
ed a basic presupposition about the paradigm of certainty in knowledge.
They thought that no interpretation should be admitted in legal deci-
sions, because such a practice by judges would lead to unpredictability
1 It is important to notice that in Italian Civil and Criminal procedure, the judge must always declare
the grounds of decision in his/her judgment and not only the purview (so-called “obligatory nature
of the motivation”).
A rapid overview of some sources of Italian legal system will provide
some previous guidelines for dealing with the question. In particular,
one must refer to the Italian codes of Civil (CPC) and Criminal (CPP)
procedure. Art. 360.1.5 CPC assumes that a judgment is invalid if the
reasoning relating to a crucial and controversial fact is “lacking”, “in-
sufficient” or “contradictory”. Beside that and in a very similar way, art.
606.1.e CPP specifies that a judgment is invalid if the argument is “lack-
ing or clearly illogical”.1 Briefly, according to Italian codified law, deci-
sions must be considered invalid when the argument is “insufficient”,
“contradictory” or “clearly illogical” and consequently judges are asked
to know what logical consistency clearly is and whether it is sufficient or
not. Consistency which does not appear to be perfectly coherent logical-
ly (such as, for instance, in Tarski, 1994), since the Legislator mentions
the contradiction as one kind of bad argument alongside others (i. e. in-
sufficiency and clear illogicality), not treating it as the only possible one.
So we must conclude that for serious judges – and namely the ones in the
Italian Supreme Court (s.c. Corte di Cassazione) – the problems are the
following:
1. to determine when a legal argument is contradictory;
2. to determine when it is clearly illogical (but not necessarily contra-
dictory);
3. to determine when it is insufficient;
4. to determine when there is no argument at all (lacking).
All these commitments imply precise viewpoints on logic and argu-
mentative sufficiency on the judges’ part. A very difficult task, it must be
conceded, for which no codified rules are provided and leaving perhaps
too much space for free will and responsibility. Are Italian judges (espe-
cially those in higher Courts) prepared to do that?
2. The Modern Formalistic Heritage
The fact is that Italian legal culture has been influenced for a very
long time by a formalistic model of reasoning, dating back to the ideas
of thinkers like Charles-Louis de Montesquieu (La Brède, 1689–Par-
is, 1755) and Cesare Beccaria (Milan, 1738–1794): authors who adopt-
ed a basic presupposition about the paradigm of certainty in knowledge.
They thought that no interpretation should be admitted in legal deci-
sions, because such a practice by judges would lead to unpredictability
1 It is important to notice that in Italian Civil and Criminal procedure, the judge must always declare
the grounds of decision in his/her judgment and not only the purview (so-called “obligatory nature
of the motivation”).
