Search results

The paper takes into account a feature of Hans Kelsen's juridical thinking that has been so far rather underestimated: the weight of normativism on his theory of private law. The author closely connects Kelsen's critical approach to the notion of subjective right and further relates the legal norms to the institutions of the market economy. The interepretative assumptions of Kelsen are constantly confronted with the theoretical background that propelled the development of the modern constitutional state based on the rule of law.

Il saggio concerne il ruolo che la responsabilità da prodotto difettoso è suscettibile di svolgere nel governo dei nuovi rischi insiti nello sviluppo delle tecnologie digitali, tenuto conto di alcuni profili problematici, tra cui il concetto di prodotto (e di produttore), nonché quello di difetto (con le connesse questioni relative all'accertamento dello stesso). L'analisi dei suddetti profili viene svolta, oltre che sulla base della interpretazione della pertinente disciplina, anche alla luce di alcuni recenti esperimenti di soft law. The essay deals with the role that liability for defective product is likely to play in the governance of new risks inherent in the development of digital technologies, taking into account some debated aspects, including the concept of product (and producer), as well as the concept of defect (and its assessment). The analysis of these issues is carried out not only on the basis of the interpretation of the relevant legislation, but also in the light of recent forms of soft law regulations.

Soft law, as law not legally binding in the traditional sense, can be approached in a systematic perspective. Particularly, soft law raises two central issues: the mechanisms of compliance to soft law and its relationship with the law, or, better, with hard law, that is law legally binding. In European Union order the systematic perspective emerges with greater clarity: European soft law regulates relations between the European institutions; it is halfway between the sources of law and institutional gover nance. In the European dimension, soft law is a particular tool that removes an original "vice of competence" of the Union. In this way soft law recalls the implied powers of the European institutions, as it erodes in the same way the spheres of competence of the Member States. But even at national level, the lack of binding force in the traditional sense hides the political force of soft law: soft law represents a typical source for legal order which asks for instruments other than the formal procedures of constitutional institutions.