Diversity and regimes of normativity: pluralism and monism in the legal orders between the modern and contemporary age
This research itinerary aims to investigate aspects of the configurations of legal systems, taking the relationship between legal protection and diversity as an analytical key.
In the centuries comprising the medieval and modern ages, the problem of legal protection was addressed starting from the idea of distinguishing legal persons. The concept of legal order counts pluralism and multinormativity among its main features; moreover, the autonomy of the law – defined as the phenomena of self-implementation of the legal system, as an immediate consequence of social, judicial and jurisprudential practices – plays an important role here. This systematic configuration aimed to promote the effectiveness of legal protection by appreciating the difference in, creation of and multiplicity of statuses inherent in legal persons.
In the 19th and 20th centuries, however, legal protection was implemented in a fundamentally different way, that is, it started from the idea of distinguishing the rights of the person. Here the concept of legal system possesses the features of a monistic legal order that takes place under the primacy of the statutory law; the autonomy of law changes its function in order to be consistent with the regimes of legality. This kind of systematic configuration aimed to offer a fullness of prevision of legal protections, the formalisation of rights, and the generalisation and unification of the concept of legal person, not to mention taking into account (the programme of) equality.
These links between systematic configurations of legal order (pluralistic or monistic) and forms of legal protection warrant further investigation, especially considering that these trends represent two poles of a much more complex historical picture, the nuances of which deserve more attention.
With reference to the legal systems in the modern age, which are characterised by the pluralistic paradigm, it would be interesting to investigate the classifications of normativity present in legal thought dealing with the organisation of complex socio-political spaces (think of the discovery of new continents), marked by the problem of (cultural, social, religious, territorial, legal) diversity.
With reference to the legal system in the contemporary age, dominated by the monistic paradigm, it would be interesting to investigate aspects of the specialisation of the statutory law in relation to situations of diversity that stressed the programme of equality. For instance, think about – to mention just three challenges to the liberal political and legal order related to problems of diversity – the social question, the problem of radical political dissent and the colonial issue in the 19th and 20th centuries.
The research will focus in particular on the development of European legal thought, also taking into consideration the framework of statutory law. Moreover, the possibility of targeted reflections on case law have not been ruled out.