All the strength it takes to defend peace

Let's face it: the first virtue of jurists is not exactly to capture the reader's attention. And it is precisely for this reason that the heart expands in a sigh of relief when reading Tommaso Greco's latest essay (Critica della ragione bellica, Laterza, pg.138, euro 16): for its warmth of conviction, for the cleanliness of its language and, above all, for that continuous reference to literary quotations that often teach a thousand times more than large folio volumes, Greco makes us love the same effort he forces us to make when, at the end of the reading, we are left alone with our thoughts. The first of which is to find like a sort of label to which, then, we only need to approach to understand what stature the author is. Well, if we had to stop in a quick turn of phrase Greco's thought, we would say that he militates under the banner of the disgruntled juspacifists. Juspacifist because from Bobbio, going back through the branches to Kelsen, Greco too believes that regardless of the remote reason, the proximate cause of wars is one and only one: wars deflagrate because ultimately states can use force to support their reasons.

Do you then want peace? Then set up a super-state above the states; let one of its judges decide right and wrong at the moment of conflict; but above all, equip this judge with the necessary strength to obtain respect for his rulings. Then, only then and not before, will you be able to say that you have dug a secure trench around the good of peace because then, only then, will we be able to discuss legal rights and duties which, therefore, as the jurist Greco recognises, find in coercion their 'essential part'. Greco recognises this truth, yes, but recognises it as a disgruntled spirit can recognise it: almost despite himself. He recognises it, we would like to say, with that nervous touch of one who, despite being in it, is not entirely happy to be in it. Hence, at times, that reticent desire to escape from it that leads him to affirm and deny and that therefore leaves a divided impression on the reader's intelligence. So it is, for example, when Greco writes - and he writes this in vigorous polemic with Kelsen - that relations between states 'are to be considered binding, before and regardless (sic!) of the effectiveness they receive from the existence of institutional guarantees'. So, pray tell: is it or is it not appropriate to discuss legal (let us insist: legal) rights and duties independently of institutionalised sanctions? The author is poised on an unstable balance: sometimes he says yes, sometimes he says no. And as chance would have it, he says no by over-stylizing Kelsen's magisterium, skewered by Greco because, according to him, Kelsen has reduced 'the concept of law entirely to the level of sanction', almost as if the efficacy of legal norms comes only from there, from the fear of force. Instead.

Certainly: Kelsen derives the mandatory nature of individual norms from their belonging to a system that is effective as a whole. But as for effectiveness, he specifies: 'if we examine the motives of the men who apply and obey the law, we find in their minds certain ideologies, among which the idea of justice plays an essential part' (which changes over time and places). As we can see, even in Kelsen, law is like the distillate of those customs and beliefs that pre-exist it and which ascend from the obscure and muddy depths of the popular soul. Only for Kelsen this swarm of primitive rules must be investigated by sociologists or anthropologists, not by jurists. Because it is those and not these who study actual human behaviour. Jurists, on the other hand, have to deal with the world of ought-to-be, immersing themselves in the knowledge not of what actually happens, but of what must happen according to the dictate of legal prescriptions. Of legal prescriptions, we have said. And we come to the point. It is certainly true, in fact, that the legal system - domestic or international, it makes no difference now - cannot disregard the norms that envelop it and hold it close; but it is equally true that it is a matter of moral, political or religious norms. And as such, they are 'other' norms, contiguous but still unassimilable to law, at least until they too are assisted by organised sanctions. In this sense it is said (Bobbio says) that force is the instrument, but not necessarily the foundation of law. If he had always kept this distinction in mind, Greco would have written pages that were not very interesting (which in fact they are); but pages that were truly all beautiful.