Joint Straus/Senior Emile NoËl Fellow
Academic Year 2011-2012
Roberto Bin is full Professor of Constitutional law at the University of Ferrara (Italy). His current research agenda focuses on theory of the constitution, the constitutional adjudication, the legal sources in the system of the EU law. He is author of some books and articles (the complete list of publications is available at http://www.robertobin.it/bibliografia.htm). He is also co-author (with G. Pitruzzella) of Le fonti del diritto (Bologna, 2009) and of some textbooks on constitutional law (Diritto costituzionale, XI ed., Torino 2010, with G. Pitruzzella), public law (Diritto pubblico, VIII ed., 2010, with G. Pitruzzella), and European institutions (Profili costituzionali dell’Unione europea, Bologna 2008, with P. Caretti). He is member of the editorial board of “Quaderni costituzionali”, “Rivista di diritto costituzionale” and “Le Regioni”, and editor in chief of the on-line journal “Forum di Quaderni costituzionali” (http://www.forumcostituzionale.it).
Legal text and judicial adjudication: What lawyers can learn from modern Physics
In a seminal article in the Harvard Law Review (The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1, (1989)), Professor Tribe suggested a new approach in the field of constitutional interpretation: the paradigm shifts in physics caused by Quantum theory, could drive a revision in constitutional jurisprudence too. My current research project develops further this thesis (I have made, in a recent paper, an attempt at investigating some of these questions: it could be read on-line in Italian at http://www.robertobin.it/ARTICOLI/Estratto%20TQ.pdf).
My research project is related to two connected aspects of legal interpretation.
The first aspect attempts to apply the Uncertainty Principle of Heisenberg to the relations among legal interpretation and the legal text. Here, the question is: how interpretation changes the text? In the civil law legal systems courts select the normative acts relevant in the judicial (through the applications of criteria as the chronology, the formal hierarchy, the relevance of arguments as the sedes materiae etc.): Thus, I wish to explore whether similar processes are relevant in a common law legal system too.
The second aspect is essentially connected with the Principle of Entropy: entropy might explain how legal norms are used by judges in order to derive the “norm of the case”. In this process, arguments as the Verfassungskonforme Auslegung or the interpretation of national law “in accordance with the requirements of EU law”, as well as the judicial recourse to foreign law, cause a characteristic “disorder within the system”. In this disorder the sources of the legal material, used for deriving the “norm of the case”, could lose any relevance. My intent is to explore how motivation of judicial decisions tries to rebuild the relevant information about the sources of the used materials – an effort that could be regarded as infringing the principle that entropy can never decrease.