Criticizing the modern, rationalistic temptation to legislate on language, this article argues that issues of 'political correctness' are an aspect of the eternal problem of definitions in law. This problem has in its turn profound connections, on the one hand, with the need, entirely human, for a correct (not one-sided or arbitrary) relationship with reality; and, on the other hand, with the insidious attempt – which is all the same typically human – to deny reality, with its conflicts and ambiguities, and to replace it with a false, less challenging reality of 'objective' certainties. In law, the problem of definitions has historically followed many and different itineraries; this article briefly traces some, trying to show that the ideal of an objective definition – an ideal epitomized in the 'norm' idealized by legal positivism – has always co-existed, in the legal experience, with the different ideal of a subjective definition (dialectical, controversial, negative, refutative), of which the ancient maxims of equity, the regulae iuris, offer a model. The problem of legal definitions in law is then a matter of forms of reason that confront each other throughout the history of law, the one investing on a calculating and instrumental rationality, the other relying on a more porous and flexible reason. In the legacy of this second point of view – which, the article maintains, has more than one analogy with the paths of contemporary Feminist 'Radical' Thought – antidotes can be found to the temptation to legislate on language, which is risky. If objectivity tries to suppress subjectivity, in fact, this is in the name of the illusion, that problems that trouble the human conditions can be fixed, defined, solved once and for all. It is instead the open texture of these problems, which cannot be defined once and for all, that encourages the work of language and thought. And these latter are the resources for a living together really capable of freedom and equality, of change and future.
La nouvelle histoire du droit
