Para una cultura jurídica socrática en la era de la mercantilización de los derechos

This paper, based on the emblematic case of the Italian context, shows how the European legal culture of recent years has largely shifted from a culture built on written-positive rules (rule-based) to a jurisdictional culture characterised by the ceaseless creation of new forms of legal protection (right-based). This transformation has resulted in a preference for the practical reasoning of a substitute jurisprudence, which sometimes confronts the legislator through decisions that produce new rights without guaranteeing any serious democratic control in parallel. This work proposes considering a new Socratic-based legal culture to bring the adversarial approach to the centre of legal experience and, specifically, the trial phenomenon. This approach allows for a democratic reconciliation of the general normative premises adopted by the parties involved, while ensuring the rationality and systematicity of jurisprudential decisions.