The puzzle of desuetude
Journal title SOCIOLOGIA DEL DIRITTO
Author/s Livio Perra
Publishing Year 2015 Issue 2014/3
Language Italian Pages 17 P. 47-63 File size 138 KB
DOI 10.3280/SD2014-003003
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This essay expresses the surprise experienced by the author at the discovery that an issue of importance for law, that of desuetude, has seldom been the subject of specific investigations in literature. The article comprises two parts. In the first, the author distinguishes between two different conceptions of desuetude: (i) desuetude as a deontic phenomenon, i.e. as a phenomenon that belongs to the realm of Sollen, and (ii) desuetude as an ontic phenomenon, i.e. a phenomenon that belongs to the realm of Sein. In the second part, the author then formulates the question "Can desuetude abrogate a norm?", furnishing two answers that have already been formulated in literature, one in the affirmative, the other in the negative, yet adding a third one. According to the first (affirmative) answer, desuetude can determine a norm’s inapplicability. According to the second (negative) answer, desuetude cannot determine a norm’s inapplicability. According to the third answer, proposed by the author, desuetude does not determine a norm’s inapplicability, but its quiescence
Keywords: Desuetude, Customary rule, Deontics, Repeal, Validity, Reviviscence
Livio Perra, Il puzzle della desuetudine in "SOCIOLOGIA DEL DIRITTO " 3/2014, pp 47-63, DOI: 10.3280/SD2014-003003