Silvana Dalla Bontà
Il valore della giustizia consensuale
pp: 13-46
DOI: 10.7382/121197
Abstract
By interlinking the concepts of justice, consent, and participation, the article explores the value of consent-based justice, arguing that a more comprehensive understanding of justice has gradually emerged. Justice is no longer confined to the authoritative outcome of litigation but extends to settlements achieved through consensual procedures, in which disputing parties are empowered to express their voice, exercise self-determination, restore relationships, and reach sustainable, durable, and effective agreements. This evolution entails a genuine paradigm shift, calling for a collaborative – rather than competitive – approach to conflict. Such a cultural transformation presupposes a profound reconfiguration of education, not only for legal professionals,
but also for society as a whole.
Keywords
Justice – Consent – Participation – Empowerment – Relationship.
Abstract
This paper analyses how conflicting collective subjectivities, understood as multitudes, can generate constitutionally oriented practices capable of influencing political direction and contributing to legal production beyond representative bodies. Starting from the dialogue between Zolo and Negri and from a broader critical genealogy, it is argued that legal creativity can emerge from grassroots mobilisations that resist normalisation and, selectively, interact with institutions, including the judiciary, as a space for guaranteeing rights. The agonism/antagonism dichotomy is reversed: the antagonist is no longer the people, but institutional politics, which, by imposing unshared policies, conflicts with widespread interests and the prevailing public interest; the agonist, on the other hand, is the multitudo, which claims the welfare of the polis. A form of dynamic self-representation thus emerges, detached from institutional channels, capable of producing law and influencing decision-making processes through constitutionally oriented practices.
Keywords
Participation – Conflict – Representation – Practice – Legal Production
Anteprima
Abstract
The expansion of peaceful dispute settlement mechanisms now constitutes a structural feature of the international legal order and of the multilevel legal system. This phenomenon affects both relations between States and disputes between private parties, which are increasingly characterized by a transnational dimension. This article offers a systematic reconstruction of amicable dispute resolution mechanisms and analyses their underlying principles – consent, good faith and cooperation – as the cornerstones of consensual justice. The analysis further extends to the interactions between international law, European Union law and domestic legal systems, highlighting dynamics of convergence as well as persistent challenges in terms of effectiveness.
Keywords
Consensual Justice – General Principles – Dispute Resolution – Multilevel Legal System
Abstract
This article examines the historical development of the notion of consensus in Western diplomatic practice between the 15th and 17th centuries. Rather than approaching consensus as a stable normative category, the article analyses it as a process emerging from diplomatic experience and its progressive conceptualization in treatises on the role of ambassadors. Focusing on a corpus ranging from the works of Bernard de Rosier and Ermolao Barbaro to those of Alberico Gentili and Abraham de Wicquefort, the study shows how diplomatic writing articulates moral virtues, legal norms, and political reasoning in order to regulate relations between powers. The article argues that diplomacy should be understood as an interpretative practice, in which agreement is constructed through language, prudence, and mutual recognition, rather than being imposed through coercion or abstract normativity.
Keywords
Diplomacy – Consensus – Political Language – Early Modern Europe – International Order
Abstract
This essay examines three “biosocial” dynamics that shape how consent forms and how conflict is managed in contemporary societies: (i) cooperation as an evolutionarily stable strategy, (ii) imitation and synchronization mechanisms, and (iii) persuasion as a pervasive mode of self-affirmation and social influence. Drawing on evolutionary theory, agent-based modeling, and complexity frameworks, the article argues that cooperative patterns can emerge and persist even under competitive pressure, especially when grounded in reciprocity and supported by stabilizing collective dynamics. The analysis then connects micro-level coordination (e.g., spontaneous synchronization, conformism) with the diffusion of beliefs and norms via imitation, including memetic transmission and the debated neurobiological basis of mirroring. Persuasion is treated both as a psychological and institutional phenomenon, discussing compliance principles (e.g., reciprocity, authority, scarcity) and their affinities with legal argumentation and consensual dispute resolution. Against “declinist” narratives, the essay suggests that available evidence does not support a linear increase in politically driven violent deaths. It concludes by proposing that law should better harness these cooperative tendencies through mediation and restorative practices, collective remedies (e.g., class actions), strategic litigation, and iterative, participatory regulation.
Keywords
Restorative Justice – Legal Education – Cartabia Reform – Mediator – University
Abstract
The article examines the development of consensual and restorative justice as interconnected phenomena, highlighting the crisis of the traditional judicial model and the rise of participatory justice. This model emphasizes the voluntary involvement of individuals directly affected by a dispute or offense, who play an active and decisive role in managing the resulting conflict. Such conciliatory and restorative practices have emerged in response to contemporary challenges in justice administration, offering alternatives to the formal civil and criminal processes. While traditionally considered distinct, both approaches share the common goal of delivering justice that meets the needs of the parties involved, reduces reliance on judicial procedures, and calls for a reconsideration of the judiciary’s role.
Keywords
Participatory Justice – Restorative Justice – Alternative Dispute Resolution – Mediation – Jurisdiction
Abstract
This paper analyzes the impact of emerging biotechnologies on biolaw, questioning the role of natural law in the technoscientific era in a philosophical perspective. The author contrasts “neutral biolaw”, grounded in ethical relativism and legal positivist, with “natural biolaw”, which recognizes human dignity as the objective foundation of law. The author proposes a “critical” bioethics, oriented toward interdisciplinary dialogue and human rights as a shared ethical minimum. Faced with developments in genome-editing, neurotechnology and artificial intelligence, natural biolaw calls for prudent, human-centered governance, capable of balancing progress and the protection of the human person. Natural law, renewed and dynamic, becomes the ethical reference for guiding technology.
Keywords
Biolaw – Natural Law – Emerging Biotechnologies – Human Dignity – Governance
