ALLE SOGLIE DEL DIRITTO: NORMATIVITÀ E NORME DEL COSTUME. CON UN SAGGIO INEDITO DI GEORG HENRIK VON WRIGHT
What do the redistribution of unclaimed tickets at the Vienna Opera, the ringing of church bells on a Sunday in a Catholic village, the acclamation of a king after his election by the population, the etiquette of not applauding during a classical concert, and the courtesy of bringing a gift to a birthday party have in common? Throughout this research, I have examined these and other examples of the extension of the term custom—a term which, both in ordinary and in scientific language, designates a phenomenon whose theoretical analysis only confirms what observation already suggests: it reveals itself as heterogeneous, not only in the diversity of the phenomena that compose it, but also in the ontological nature of those phenomena. In particular, this thesis investigates the normative force of customs, asking whether it is possible to identify a specific form of normativity proper to custom, distinct from that of law and morality. The inquiry begins from two emblematic examples—the practice of redistributing unclaimed tickets at the Vienna Opera and a Swedish anecdote narrated by Elof Åkesson—which reveal that certain actions are considered appropriate within a community even without legal or moral prescriptions. These cases introduce the central question: in virtue of what do some behaviours appear appropriate as ruled by norms of custom? The study unfolds in five chapters. The first explores the ontological nature of custom as a social institution through the classical theories of Rudolf von Jhering and Ferdinand Tönnies. The second examines Cajo Enrico Balossini’s analytical reconstruction of the juridical relevance of custom, providing an epistemological tool to identify rules of custom within social reality. The third discusses Burton M. Leiser’s semantic and classificatory analysis of “custom” and related notions, clarifying their interrelations. The fourth analyses Georg Henrik von Wright’s philosophy of normativity, including an unpublished essay—Custom: The Basis of Morality—to situate custom within the wider field of normative phenomena. The fifth develops the theoretical results of the previous chapters, underlying how appropriateness could play the role of the key to understanding normativity of customs. In the fifth and last chapter, it will be also outlined the basic elements for a “philosophy of custom”. The thesis argues that custom functions as a threshold phenomenon between law and morality: it shares with law elements of organisation, authority and social sanction, yet differs in its normative foundation. Acting according to custom means acting under rules recognised as appropriate by a community. Appropriateness thus emerges as one distinctive criterion of the normativity of custom, also unifying the variety of customs: one ontological question this thesis has dealt with was whether there is truly a correspondence between the various empirical phenomena and the theoretical notions we use to describe them (such as conventions, social rules, or traditional practices). At the end of this research, we can advocate that, rather, we are dealing with a single phenomenon that the literature conceptualises through different theoretical frameworks and thus designates by different terms. In conclusion, this thesis offers new conceptual tools for redefining the boundary between social normativity and law, opening a plurality of future investigation in this direction.
[costume, norme del costume, regole sociali, forza normativa, filosofia del diritto, ontologia sociale], Settore GIUR-17/A - Filosofia del diritto
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