Knowing how to put in practice written rules. Ethnographical analysis of the practical activities of Italian judges

In front to an unique procedural written law, certain and equal for all, many times the Italian judges put in practice the articles of the Code of Civil Procedure in ways so often profoundly different. These behavioural differences, besides to calling into question the principle that “law is equal for all”, highlight the eminently practical character of the interpretation of law. Interpretation of law, far from being a cognitive activity, it is a concrete and material practice, which is created, recreated and reinforced through experience and through continuous individual and collective learning occasions. Interpretation of law is not based on perennial and immutable axioms, but it’s an activity built in practice, through subsequent “translations” of the formal and abstract rules into the “concrete” lawsuits. The distance between written law and practicing of the magistrates doesn’t highlight a dysfunction, but expresses exactly the “space” of interpretation of each judge. Being a magistrate doesn’t mean to acquire a body of abstract knowledge on how to interpret the rules, but vice versa signifies really to be able to practicing as a judge in a court of justice. Since the interpretation of law is not a cognitive process, but conversely a practical and situated activity, for study the logics that characterize the “fabrique du droit”, it is necessary to pass beyond the “institutional facade” of tribunals for investigate the “real” doings of practitioners. In the light of the large debate of Practice-Based Studies (PBS) and of the tacit-knowing-approach, on the basis of the data collected during an ethnographic research developed in over two years in four Italian courts of justice, this paper aspire to paint the practical activities of judges and to reflect on the processes of knowing and learning located in the courts of justice.