Judicial Equity and the “mild” Ethnicisation of Italian Law
Authors: Raffaele Aveta
The article examines the recent changes occurred in the Italian legal framework, after the bursting of ethnic and multicultural factors. In particular, the reflection is focused on the action of the judicial power, which, when called upon to resolve a wide range of practical disputes, has demonstrated a remarkable aptitude for recognising the “thought of difference” in the regulation of inter-subjective relationships. This hermeneutic procedure has indeed turned out to be a valuable instrument in reinterpreting traditional legal categories and transcending the mechanical application of private international law, plugging normative gaps.
In the Italian system it is possible to identify three main ways in which culturally-sourced law enters the judicial system: the subjectivisation of the regula iuris; the commixture/linking of institutes and/or legal categories; and the valorisation of extra-normative elements. The relationship between these channels of communication is particularly complex and does not follow a general rule, inasmuch as the relative constitutive factors often overlap, giving way to a variegated record of case histories. These different means of communication seem to be informed by a single principle, general in character, capable of acting as a fluidifying agent in the choice of the solution most fitting to each individual case: the principle of reasonable equity. The approach and encounter between equity and reasonableness generates a structure of interpretative solutions which are suitable for the resolution of the many issues in pluralistic society within the unity of the system. The analysed case laws are illustrative of this tendency and lay the foundations for the construction of a full-blown model for the governance of multiculturalism in Italy. Thanks to its proper qualities, this model is distinguished from those of other European nations and contributes to a process of “mild ethnicisation” of the Italian judicial system.