2017 n. 3 – Index

Articles (peer-reviewed)

  1. ANDREA PENNINI
    Propaganda, Utopia and Identity. The duke of Sully’s European Gran Dessin

Abstract

In the Sixteenth century, the idea of Europe occurred a partial detachment from the concept of Res publica Christiana. This separation corresponded approximately with the affirmation of the early modern state (or dynastic state), which introduced a dialectic between authorities characterized by the same suprema potestas. In this complicated contingency raised the need to repair the divisions created by the fall of Universal powers, and to lay the foundations for a pacific and well-balanced coexistence between all the political institutions of the continent.
In fact, between the Seventeenth and the Eighteenth centuries, inspired by the wide utopian literature of the late Renaissance, numerous plans for a perpetual peace took place, built not only on balance of traditional authorities, but also on the construction of specific institutions of federal nature able to maintain this balances.
Among these projects, the paper focuses on the Grand Dessein attributed by the Duke of Sully in his Memoirs to the King of France Henry IV. I chose this subject essentially for two reasons. Firstly because, as once declared by Lucien Febvre, this Memoirs are full of a concept of Europe which is contemporary to us. In the second place because the federative plan, developed by precise historic and political dynamics, it is the outcome of an interesting intuition had by a French finance minister in a peculiar period, which is the half of the seventeenth century.
The Grand Dessein was an idea of a European Union composed of fifteen roughly equal states, under the direction of a Great Council, charged with resolving differences and disposing of a common army. These fifteen states are classified as six hereditary monarchies (France, Spain, Britain, Denmark, Sweden and Lombardy); five elective monarchies (Empire, Papacy, Poland, Hungary and Bohemia) and the Venetian, Italian, Swiss and Belgic republics. Sully tried to solve the longstanding religious problem. He distinguished three form of Christianity: Catholic, Reformed and Protestant. In each country the Church adhered to by the majority should remain dominant and no restriction should impede any dissenters who wished to do so from emigrating.
Sully’s pages represent – even if distant from the current discussion – a useful step toward a conscious construction of a European identity, able to maintain religious, political and cultural diversities in an institutional concord above the States. Indeed, the Sully’s project is often cited as one of the first grand plans and ancestors for the European Union. Two folio volumes of the memoirs were splendidly printed, nominally at Amsterdam, but really under Sully’s own eye, at his château of Sully in 1638; two other volumes appeared posthumously in Paris in 1662.

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  1. CATERINA BONZO
    Tommaso Maurizio Richeri between local and European law

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During the last years, the historiography has devoted greater attention to Tommaso Maurizio Richeri, as one of the most important jurists of the latest ius commune. He showed a full mastery of the Roman law and a far-reaching knowledge of the European legal literature in the 19th and 18th centuries.
His success lasted for a considerable period of time, until the end of the nineteenth century. The lifetime of this editorial success is due to Richeri’s skill to connect the Roman law, the latest European legal doctrine and the most recent case law of the sabaudian highest courts.
Despite many others jurists of that period, Richeri did not hold specific public legal offices; he was not a judge, he was not a law professor and he worked as a lawyer only at the end of his life. He was link to the traditional law, because his academic formation was based on the roman law, but he had also knew very much the modern European doctrine in law, likely during the period in which he was removed to French by his religious congregation.
Richeri was particularly keen on speaking to the jurist of his time, both to the lawyers and to the judges. He managed to highlight the innovation of the European juridical culture, in particular the Dutch elegant school. His scientific studies are certainly excellent and rich: the most important work is the Universa civili et criminalis Jurisprudentia, published in Turin in the end of eighteenth century (1774-1782): Richeri always coupled the Roman law with the most recent European doctrine (especially the Dutch Roman law) and with the sabaudian ius proprium. The juridical intention remained a practical one above all; the scientific approach was extremely precise, but the main goal was to serve practical needs (Praefatio, “ad usum fori accomodata”). The other important work of Richeri is the Codex in rerum senatum pedemontanum: this work was more related to the sabaudian legal regulation of the different institutions. It recognized above all the new aspects introduced by the king of Sardinia with the Leggi e costituzioni di Sua Maestà il Re di Sardegna (in the last edition, 1770). He included many references to foreign authors (especially Voet), but he devoted more attention to the details about the sabaudian jurisprudence of the supreme courts than to the doctrine. The practical target is clear and the work is a typical one of the traditional juridical literature of Sabaudian States. Richeri won an international reputation with the Universa Jurisprudentia: his work was reprinted until the 19th century, also out of the borders of the Sabaudian States, curiously also in an historical setting in which the codification had just been accomplished (Lombardo-Veneto). Many commentaries to the Austrian codification (Basevi, Taglioni, Mattei…) were based on the Richeri’s Jurisprudentia. The same method was adopted by the Manuale forense (Novara, 1838-1843), one of the earliest commentaries of the civil code, published in 1837, during the reign of Carlo Alberto: Richeri is the most important reference for Roman law. This fact shows the ‘international’ interest for Richeri’s work and the endurance of his scientific and practical method at the same time. In particular, for a long time the Universa Jurisprudentia has been regarded as a ‘bible’ of ius commune, the last and organic summary of Roman jurisprudence, comprehending also many links to the recent European experience.
This paper aims to highlight the international relief of Richeri’s production and his success during the time of codification, especially in the central and northern areas of Italy. Many jurists and booksellers bought a large number of copies of Universa jurisprudentia: obviously, this work was essential for the juridical practice until the middle of the 19th century. Recently, in the small Republic of San Marino – the only part of Italy in which the ius commune is still applied – many teachers of legal history have been selected for the judicial office during the 20th century: clearly, many of them have referred to Richeri’s work in their professional performance.

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  1. GIAN SAVINO PENE VIDARI
    Federigo Sclopis, from Turin to Europe

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Federico Sclopis (Turin 1798-1878) aimed to develop a close connection between Europe and his own land, Piemonte. He graduated in law in 1818, he was first functionary of the Interior Minister Prospero Balbo and in 1882, he became a magistrate. In 1829, he joined the Senate of Turin, the highest court of the Kingdom. In 1829, he was appointed member of the Science Academy of Turin, the most important academy in the region: thanks to this charge, he had the chance to get in touch with important Italian and European scholars.
In 1831, as Carlo Albert ascended to the throne, Sclopis was chosen as a member of the commission for the drawing up of the civil code, considered the most significant. Some people in the circles of the Court, many magistrates belonging to the State council opposed the creation of the codes, influenced by other’s opinions. Sclopis contradicted these views with four “speeches” named Della legislazione civile published in 1835 and inspired to the French model: the sources he used for these works were the ones belonging to the European legal thought and to the French, Austrian and Prussian codes. The aim was to build a code suitable for the needs and the features of the society of Piedmont, without exceeding in innovations and using simple and clear statements that could reduce the judge’s discretion. The new system of the codes guaranteed more certitude in the legal field, replacing the old system of “ius commune”, even if it implemented the role of the state legislation in the legal system. The introduction of the codes fostered the legal and institutional stability, encouraging a growing civil equality among the individuals, without the grant of a constitution.
The works for the civil code had a slow development and reached a conclusion only in 1837. Federico Sclopis, together with the Minister of Justice Barbaroux, was considered one of the most important inspirer. In the meanwhile, starting from 1835, he used to travel during the summer across Europe and he had the chance to deepen personal and scientific contacts. He travelled in France, England and Germany, not so often in the Italian peninsula. He had the opportunity to widen his views and to know important scholars and develop long-personal correspondence.
During these travels he perceived the Italian character that prompted him to imagine a cultural unity of the élites of our country, even if in the daily life many differences were still manifest. These experiences lead him to the publication of the work Storia della legislazione italiana with the aim to show – also abroad – the most important institution of the Italian peninsula. The three volumes were published between 1840 and 1864: this work had a good success also in Europe and was translated in French, English and German.
Sclopis abhorred demonstrations and protests: the events of 1848 struck him and he moved to opinions that were more conservative. He accepted the constitutional State and was appointed Minister of Justice in the first Government, chaired by Cesare Balbo. He even adapted himself to stand as a candidate in order to be elected for the first Chamber of the Deputies. As the president of the Council of Minister escorted the King during the war, Sclopis had the duty to represent the Government face to the Parliament and to oppose the claim of Lombardy for a constitutional assembly. After the fall of the Balbo’s government, he did not want to be anymore Minister, even if he was asked persistently.
In 1849, he was designated member of the Senate and he managed to travel again and to resume his studied; then, in 1853, he was elected President of the Regia Deputazione Subalpina di Storia Patria. Sclopis shared the ideas of national unification but he aimed to choose procedures that allowed the maintenance of local traditions. In 1859, he wrote his Diario Segreto, published after one century, which offers to the reader the chance to deepen the knowledge of his opinions. The Diario Segreto shows that Sclopis was not so eager about the development of national unification and he did not vote the laws that regulated the union of southern Italy.
As the Kingdom of Italy was proclaimed, he was elected vice-president of the Senate but he presided it because of the illness of the president, who died soon after. Even if his political charge was important, he did not have true political authority. In fact, the Convention of September that produced the translation of the capital from Turin to Florence, was signed without his approval and- due to this fact – he quitted the office of President of the Senate. In 1864, he was elected president of the Science Academy of Turin: during the last fifteen years of his life, he devoted himself only to scientific and cultural relationships and to the correspondence with foreign scholars.
The international fame of Sclopis, as a scholar and jurist, lead him to the presidency, in Geneva, of an important arbitration between United States and England regarding the “Alabama claims”. His skillfulness and his good reputation made possible to accomplish the arbitration with satisfaction on both sides. It was an important result for the international relationships at the end of the XIX century and at the beginning of the XX one. The arbitration was inspired by the aim of a peaceful coexistence between the countries, the same one that enlivened the Treaties of 1957. These Treaties celebrate in 2017 their sixtieth birthday and lead to have some regrets for the few advancements accomplished and a certain egoistical trend of the Stated in the last few years.

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  1. ANTONINO DE FRANCESCO
    The First Europe. Some Notes on the Myth of the Autochtony of Mediterranean Peoples: Antiquity, History and Nationalism

Abstract

The essay re-reads the failure of the treaty establishing a Constitution for Europe (2005) focusing on the resilience of nationalisms through an issue today largely neglected in political discourses: the antiquity (and the autochtony) of the European nations. The article aims to rethink the rich and complex afterlife of antiquarianism, which proved resistant to the rise of scientific disciplines and more adaptable to modernity than hitherto has been credited. It challenges the correctness of those underestimating the strength of national narratives insisting on the fact that they still dispose of a specific identity and often inform a peculiar political culture. Starting from the example of France, the essay is focused on Italy, the Balkans and Spain in order to evaluate how the uses and abuses of referring to the autochthony created a specific Mediterranean identity. The rediscovery along the 19th century of the ancient people – the Celts as the Iberians as the Phoenicians as the Italics as the Illyrians – proves how important for Mediterranean nationalisms was the reference to pre-classical antiquity. Through an analysis of the works published on this topic from 1789 onwards, the essay suggests how the national imaginaries connected networks and configured ideological assumptions, thus defining some political cultures and forging new narratives that are still today impacting.

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  1. MARIO RIBERI
    Nice and Savoy Deputees in Subalpine Parliament: The ‘petites patries’ between European Public Law and Principle of Nationality

Abstract

The 1860, the year of the Italian Unity, is also when Nice and Savoy were ceded to France as a price paid to unify Italy. In July 21 1858, during the meeting of Plombières between Cavour and Napoleon III, the prime minister of the Kingdom of Sardinia and the Emperor of France met in secret to secure an alliance against Austria in the Italian unification war. It was agreed that the Kingdom of Sardinia would cede the County of Nice and the Duchy of Savoy to France in exchange for French military support in an intended war against Austria. In March 1860, the treaty of Turin declared the annexation by France of the County of Nice and of the Duchy of Savoy. The annexation of Savoy and Nice was officially promulgated on 14 June 1860.
The paper focuses is attention on the study of the representation of the County of Nice and of the Duchy of Savoy in the Parliament of Turin (elected for the first time on 27 April 1848 and renewed for seven legislatures) until their annexation to France in June 1860, in application of the treaty of Turin. The exam of the Parliamentary activity is centered on to the initiatives of the deputies of Nice and Savoy and the debates in which they participated in the subalpine chamber installed in the political capital of the Kingdom of Savoy.
Besides the essay presents the most significant figures among the parliamentarians elected by the county of Nice and Savoy who succeeded one another at the Carignano Palace before annexation (including Giuseppe Garibaldi, one of the main artisans of Italian unification, Luigi Menabrea, Pantaléon Costa de Beauregard, Henry Montezemolo and others).
This study, at last, discuss the relations between the central power and Nice and Savoy. The Piedmontese administration considered these two frontier territories peripherals and the parliamentary interventions of these deputies shows a gradual disaffection with the House of Savoy because, in its Risorgimental policy, the Kingdom of Sardinia seems to forget les petites patries niçoise et savoisienne and their instances to achieve the Italian unification.

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  1. IDA FERRERO
    «La peine a commencé, dès lors, à devenir la pénitence»: Tancredi Canonico European Criminal Lawyer

Abstract

Tancredi Canonico was a professor of criminal law at the University of Turin during the second half of the eighteenth century. He had the chance to travel across Europe and to get in touch with many important jurists such as Karl J. Mittermaier. During one of his first journeys, he met the Polish jurist Andrea Towianski, whose religious beliefs determined a wide-ranging change in the attitude of Tancredi Canonico towards his personal life and his academic career. This contribution aims to analyze the development of his thought in the field of criminal law during his long academic career, in particular for what concerns prison regulations.
This specific legal field had attracted Canonico’s attention since the beginning of his academic career, and studying his works on this subject offers the opportunity to have a broad view on the legislative trends and the various practices adopted by the European states. Canonico combined the theoretical study with a deep practical knowledge. In fact, he visited many prisons in order to achieve a concrete experience of the life of the people detained inside them. His religious belief influenced his attitude in this field as well: he was convinced of the importance of the repentance of offenders, and of the awareness of the gravity of the crimes committed. He thought that the prison regulations had the duty to offer to the prisoners the tools that would ensure them working skills, the only useful means in order to avoid recidivism. In Canonico’s opinion, criminal regulation had the duty to customize the penalty to the features of the lawbreaker with the aim to prevent a uselessly cruel punishment. He focused his attention on the reformatories for young law-breakers: in his opinion, the legislation had to provide to those children the religious and practical education that would ensure they had the chance to find a decent job and to avoid recidivism. In particular, Canonico underlined the need to divide the young offenders from the poor orphans and not to lodge them in the same buildings: it could have been dangerous for the orphans and could have lead them to criminal activities. In his opinion, the government could offer to the young people who had finished their period of imprisonment a piece of land, with the purpose of guaranteeing them a future honest activity.
In fact, Canonico focused frequently his dissertations on penitentiary rules on the duty to offer to prisoners an education that would help them facing reality outside the prison. The main purpose was to guarantee to the other members of society that the people who had experienced imprisonment would not breach the law again and that they would devote their lives to penitence and work.
Canonico also had the chance to intervene during the meetings of the International Penitentiary Congress and to achieve a good reputation as an influential law scholar. His religious approach was shared by other scholars who thought that the most important target for their governments was to achieve, thanks to a proper prison regulation, the moral revival of the detainees, livened up by Christian beliefs. During one of the meetings of the Congress, he stressed the importance of allowing the people who had the charge to apply penalties a certain degree of freedom with the aim to tailor the punishment to the attitude and the needs of the detainee: the peculiarities of each person made impossible to imagine the application of the same rules to everyone. This approach to prison regulation was widespread in Europe and was promoted in Italy by Canonico.
In conclusion, my paper aims to show how the criminal law professor Tancredi Canonico affirmed, on one hand, the need to guarantee to the detainees a tailor-made penalty and, on the other hand, that each country in Europe should have used its prison regulations in order accomplish the most important object: the moral revival of the one who had breached the law, thanks to hard work and spiritual renewal.

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  1. LUIGI NUZZO
    Rethinking Eurocentrism. European Legal Legacy and Western Colonialism

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Trying to answer to the question if is it possible to apropriate the European legal legacy for writing a decolonialized history of international law and if is this task possible also for a european legal historian, this article aims to rethink the attitude of international lawyers to identify the international law as a scientific and systematic discipline. Focusing on the works of Carl Schmitt it intends to reconnect the international law and the colonial discourse revealing the ambiguous relationships between two different stories that seemed for too long time to be different and doomed to run in parallel without ever meeting.

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  1. FLORIANA COLAO
    Notes on the Thought of Filippo Vassalli, ‘European Lawyer’, and Guido Tedeschi, Italian Jurist, in Jerusalem for Racial Laws

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Guido Tedeschi (1907-1992) studied jurisprudence in Rome, under the guidance of his uncle, the philosopher of law Giorgio Del Vecchio, the civilian Alfredo Ascoli, the civilian Filippo Vassalli. He taught in Cagliari, Perugia, Siena, until 1938, when he was expelled following racial laws and reached Palestine; remained at the University of Jerusalem. Since 1929 he began to publish essays of civil and comparative law; Tedeschi opposed Kelsen’s ideas about the inability to separate law from the state to Savigny’s ideas about the right as expression of the people’s spirit. Tedeschi wrote that the “state and citizen” bond was explained by the “interpretation of the mystical Rabbi Simon Ben Iochai, if you are witnesses to me, I am God, if you are not my witnesses, I am not God”. In an essay by international law Tedeschi declared that it was contrary to the overrun of national law, in the name of the principle of statutory law; in this perspective Tedeschi criticized the French Italo Project for bonds. Vassalli also claimed that the Project copied the French code of 1804, and had a technical character overcome by history; recognized as a political merit in overcoming national legislation for a wider European perspective. The Fascist regime set aside the Project precisely in hostility with France and the “United States of Europe”. Tedeschi, a member of the Jewish Community of Italy, published in 1932 an International Convention against Anti-Semitism, hoping for supranational rules against anti-Semitic violence in Europe; the initiative did not follow.
In 1946 Vassalli held an inaugural lecture at the Italian-British Association; praising the “country of freedom” and the “law that adheres to the spirit of the people”, which is therefore respected, unlike Italy. Vassalli, the “father” of the Italian Civil Code of 1942, declared “not enthusiastic about the codification system,” an expression of “legal nationalism”; denied the political character of the code, though published in the 20th year of the fascist era. In Extrastatuality of Civil Law Vassalli claimed that the codes of the various states in Europe had broken the “communion of spirit,” enshrined in “common law.” Overcoming the national state and national sovereignty observed the transition from the nineteenth-century states to the different “Three Power Power”, Commonwealth, Urss, North American Confederation; he was afraid of a “finis Europae”. In Civil Law and Legislation Tedeschi recognized the idea of the “illustrious codifier” Vassalli, the civil law expression of “social conscience,” not only “act of the legislator”; the full Order Code referred to as a “legal fiction”. Tedeschi, however, considered it impossible to ‘subtract private law from the legislator’; called Vassalli’s idea of assigning the juridical order to a case-law beyond the national state as “at the time of Europe’s common law”. Tedeschi asserted that a European law demanded non-existent “political uniformity between states” and the adherence of national legislators, willing to give up portions of their sovereignty in favor of supranational organizations. After the tragedy of the Second World War, Vassalli placed the center of law in jurisprudence in the name of a “human right against the tyranny of the laws of the states”; Tedeschi asserted that subtracting the private right to statutory law was “antidemocratic and conservative”, since the “democratic state” presupposed a legal order based on the “legislator’s will”. Civil law and legislation called “people and citizens” to make legislation “more and more scientific, rational and democratic”, according to the rules of the “democratic game”. For Tedeschi “legislation” was more “democratic” and “certain” than “judicial law”; “defects in legislation” had to be resolved by the legislator, conciliating “freedom with social justice, democratic.” The Constitution could strengthen the assurance of legal certainty in defense of the citizens’ private rights. As to the past and the future of ‘unjust’ laws, Tedeschi concluded that “every country has, at every historical moment, the legislature and the jurisprudence it deserves”

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  1. GIOVANNI FINAZZI
    National identities and European Identity from the Point of View Roman Law and Juridical Tradition

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In this paper are examined the relations between national identities and European identity from the point of view of the historian of law. In order to determine the substance of common identity, is necessary to realize that contemporary civil law had received the legacy of roman legal experience, handed down from Corpus iuris civilis of the empreror Justinian to posterity and passed through the medieval and modern new elaborations. Roman law has been in force in the whole roman empire from the costitutio antoniniana of Caracalla, that naturalized all subjects of the empire in the year 212 a.D., but also before it was enforced not only on the roman citizens. In Rome, ius gentium in the normative meaning and ius honorarium created by the pretor were applied to strangers from the republican age and in the imperial age the citizens of strangers towns existing in the empire often asked the roman governor for being judged in accordance with roman ius gentium and ius honorarium. Then, in Middle Ages, from the second half of XI century until the modern codifications, roman law, known through the great compilation of Justinian, became in force in Italy and after in all Europe as ius commune, based on reasonableness and equity. Although the content of the modern codifications is in a prevailing degree made up by roman law, nowadays special legislations of the States and the rules of European Union are not in a direct relation with romanistic tradition. While special laws are expression of national identities, the rules of the Union give expression to a new european identity, not connected with roman law. But the main inheritance of roman law is the legal science, wich means that every juridical solution of a doubt case or problem is drawn from a sistem founded on rules and values and created by a professional class of men, through reasonable methods. Therefore in the western culture near the rules enacted by political power there is a legal science, based on the authority of jurists, that influences the enforcement of law. So, though the characters of roman legal system of classical period (open system without a frame of law, creative juridical doctrine, controversial law called ius controversum, casuistic or topic method) were very different from those of present systems of civil law (closed system with a frame of law, not creative doctrine, deductive method), the common identity is prevailingly to find in the legal science. In particular, methods used by present jurists (but also by lawyears and judges) to infer their solutions arise from methods used by roman jurists: for example, the technique of distinguish in classes (divisio per genus proximum et differentiam specificam), the analogical reasoning and the elaboration of regulae iuris, developed by classical roman jurists and utilized in the age of ius commune, are basic components of our juridical common identity. Also in the modern filosofical theories of legal argumentation are included topics already used by roman jurists, like arguments based on grammar, similitude, contrariety, absurdity, syllogism and enthymeme. The European jurist of nowadays, fully conscious of the common identity, i.e. of the romanistic juridical tradition, has the duty of making possible the armonization of national legal systems. To attain this aim is necessary to elaborate a systematics in which all the different national and European institutes can take place. Consequently, the jurist must compare the different legal experiences (national ones and European), expecially in the light of romanistic tradition, to find the expressions of common identity and the aspects of the national ones. This goal is relizable using the methods learned from romanistic tradition, without loosing the awareness of their common origin. From the systematical point of view, it means that the new European private law, as the national private laws, is to be framed as long as possible in the existing classes elaborated by romanistic juridical science. But when some rules cannot be framed in the existent classes, legal doctrine must modify sistematics amending present classes or creating new ones, as teach roman jurists and those who followed their example. Moreover, the knowledge of roman law and romanistic tradition enables to understand present juridical figures and concepts and to find pratical solutions of legal problems and doubt cases. In particular, it can explain some legal concepts that come from roman law, like good faith, and found concepts not provided for in the law, like exception of incorrectness (exceptio doli generalis), with considerable consequences on the ground of practice. Thus, is arrived the right time for legal historians and positive jurists to join forces in order to help to armonize European legal sistems.

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  1. MARIA ELISA D’AMICO
    Constitutional Secularism and Religious Fundamentalism in Italy and Europe: Considerations Stemming from Judicial Decisions

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The Author addresses the relationship between secularism and religious fundamentalism within the italian constitutional system.
Through an in depth investigation of the most significant case-law both at the national and at the supranational level, the Author questions how could religious fundamentalisms be reconcilied with the individual’s fundamental rights.
The Author then goes on by investigating the dilemma surrounding an approach to the relationship between the secularity of the State and religious forms of radicalization by underling the key role played by the so called “secularistic method” together with a case-by-case evaluation in the composition of conflicts among the individual, the community and the State.

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  1. MARIA ELISA D’AMICO
    European Judicial Framework and the Complex Protection of Fundamental Rights

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The Author explores, through an in dept analysis of national and supranational case-law, the chances and the criticism that stand behind the recurrent habit to defer to judicial authorities the resolution of conflicts as well as the discovery of new issues of law.
The investigation allows the Author to rethink and to reason on the complex relationship between the legislator and the judicial power in Italy by scrutinizing several cases that range from medically assisted procreation and voluntary termination of pregnancy to the use and the related meaning of religious symbols in public places and to the protection of fundamental rights of detained individuals.
Through the building process of a common European space of fundamental rights protection, the Author aims therefore at proving the potentialities inherent in this model together with a hope for the reconquest of the centrality of the law in compliance with the principle of legal certainty.

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  1. ANTONIO PADOA SCHIOPPA
    Europe: the uncompleted cathedral

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The present asset of the European Union is still heavily dependent on the multiple crisis that Europe has not yet overcome since ten years. Many measures have been adopted through financial, banking and budgetary policies by the member States, by the European Council and above all through the effective monetary policy led by European Central Bank that saved the euro. Yet unemployment is still unacceptably high, particularly with the young generations; and the migration stream has not been governed properly. This explains the high degree of insecurity felt by the european citizen and the wide stream of rejection of the Union by a large part of the public opinion.
The article argues that the right path to reestablish the citizen favor for Europe is to put in force a series of economic and institutional policies that must converge in giving the Union a true and effective government at the European level; investments must be devoted to several european public goods as energy, environment, cultural heritage, informatics. A common defense must be adopted, step by step. And Africa deserves huge investments by the Union, for helping its development, for limiting immigration and for a better increase of the european economy itself.
Much can be accomplished with the rules of the Lisbon Treaty, and therefore many issues may be faced at once. However a few crucial institutional reforms must be prepared with the active support of the European Parliament, that gas made important proposals in February 2017 and that will be reelected in 2019. Among them are a budgetary own power at the European level exerted by the European Parliament in co-decision with the Council; a general adoption of the majority rule abolishing the veto power; a reform of the future rules for amendments of the Treaties.
The imposing cathedral of the Union is now at stake, risking collapse.

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  1. ETTORE DEZZA
    The Grand Duke, the Philosophers and the Iroquois Code. The ‘contumax pro confesso habetur’ Principle and the Reform of Leopold II

Abstract

In the criminal practice of the late Middle Ages, the rule contumax pro confesso habetur clearly emerges on most of the European continent. In Italy, this rule has been widely applied since the thirteenth century, especially by the municipal courts, in connection with two elements that have the effect of connoting in a highly negative sense the default of appearance of the defendant: the growing of the public justice and the spread of the inquisitorial model. Working in close contact with two other key institutions, the confession and the ban, the rule contumax pro confesso habetur – as an expression of the presumption of guilt – plays a fundamental role in defining the deep characteristics of criminal justice in the age of the Ius Commune. In matter of fact, this rule represents a real architrave of the penal system, especially considering that the default of appearance of the defendant – normally qualified by the lawyers as a confessio ficta – involves a significant part of the total of criminal cases. In the age of reforms during the late eighteenth century the old Roman rules that prevented anyone to be condemned without being heard (D. 48.17.1.pr.; D. 48.19.5.pr.; C. 9.2.6), receive new blood from the position taken on the subject of the trial in absentia by a number of exponents of the Enlightenment, among which stand out the names of Voltaire and Filangieri, who repeatedly stigmatize the barbarism of the current system, worthy of an «Iroquois code». In the lively and stimulating context of the Grand Duchy of Tuscany, the new ideas in the field of trial in absentia are clearly manifested in an anonymous article that appeared in 1780 on the «Giornale de’ Letterati», published in Pisa. Very soon, these new ideas involve the same Grand Duke Peter Leopold of Habsburg, who expressly deals with the problem during the drafting of the famous Riforma della legislazione criminale Toscana del dì 30 novembre 1786, better known as the Leopoldina. In this context, the theme of the reform of the regime of the trial in absentia occupies a very prominent position, and it triggers an articulated debate among the proponents of wide-ranging reforms of illuminist inspiration (Cercignani) and those who instead show themselves more inclined to mitigate the harsh aspects of the traditional procedure than to realize radical innovations on the road to the protection of rights (Tosi, Giusti). The contrasted process of reform culminates in the drafting of a new discipline of the criminal trial in absentia (Articles 37-44 of Leopoldina) which, like the most well-known interventions of the Leopoldina on capital punishment and torture, constitutes a milestone in the history of the eighteenth-century penal reform. This discipline focuses on the full abolition of the principle contumax pro confesso habetur and on the equalization between the absent defendant and the present defendant, while maintaining a negative connotation with respect to the default of appearance, which is transformed from confessio ficta into a simple clue submitted to the evaluation of the judge.

Abstract

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  1. MASSIMO PARODI
    Federalism and Philosoplhy in Mario Dal Pra

Abstract

Mario Dal Pra (1914-1992) was the founder in 1946 of the “Rivista di storia della filosofia” – he was the director of this journal until 1992 – and professor of several disciplines at the Faculty of Literature and Philosophy at the University of Milan. In 1943 he directs a series of studies – called “Collezioni del Palladio” – animated by the group of intellectuals who is going to start the Vicenza section of the Action Party which ends in August, when the group is dispersed and some of its members, also Dal Pra, participate in the armed fight in the ranks of the Italian resistance movement.
Starting from the Dal Pra’s writing of 1943 – “Necessità attuale dell’universalismo cristiano” – the article reconstructs the intellectual and political context in which the author moves to secular positions, without rejecting his Christian background. At the same time, he manages to underline an explicit need for supranational ideals, which results in a collaboration with the European Federalist Movement, after the end of the war.
His philosophical positions, his suggestions about the method of the history of philosophy and some of his studies, in particular about medieval authors such as Scotus Eriugena, reconsider, on a theoretical field, some ideas developed during the period of struggle and political commitment.
The particular attention to religious and moral themes, which is evident also in the other collaborators of the series of the ’43, maybe helps to understand the route of the Action Party, destined to be absorbed soon by the other parties, ideologically more equipped for the new political Italian reality.

Abstract

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Lectures

  1. IAN WOOD
    Burgundian law-making, 451-534

Abstract

The law codes of the Gibichung rulers of Burgundy can be placed in very specific political contexts (c.500 and 517), but they can also be seen as legislation issued by late-Roman magistri militum, on the advice of members of the Gallo-Roman senatorial aristocracy, including Sidonius Apollinaris.

Abstract

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  1. RICARDO SONTAG
    (English version)
    Under the sign of Joaquim Silvério dos Reis (or of Judas)? Notes on the history of the delação premiada in Brazil.

Abstract

Would Joaquim Silvério dos Reis, the first and main delator of the Minas Gerais Conspiracy (1788-1789), have been the first beneficiary of the delação premiada in Brazilian history? The last statutes regulating this institute were promulgated in 2013. The Brazilian judiciary, in recent years, has frequently used such a juridical institute in processes related to corruption. Several jurists, in order to demonstrate the iniquity of the delação premiada, point out that Tiradentes, one of the main figures of the Minas Gerais Conspiracy and until nowadays honoured as a national hero, would have been the victim of this kind of delation, provided by the Portuguese Ordenações Filipinas. However, the same argument that seeks a continuity between the recent statutes and the old Ordenações Filipinas has also been used to show that, being an old institute, it is not strange at all (and therefore there would be no reason to question its legitimacy). In all these speeches, that constitute a memory of the Brazilian criminal law, there was no concern about otherness of the past and the eighteenth-century sources were not analysed enough. Such probe, guided by the notion of discontinuity, allows us to see, for example, that neither the pardon nor the awards provided for this kind of delator within the Ordenações Filipinas presupposed the juridical formalization of an agreement, instead of what law requires nowadays in cases of delação premiada. The processes in which Joaquim Silvério claimed his prizes (mercês) were not the Conspiracy process itself. There was no document that established – although in an approximate or open way – reciprocal obligations between the parties. And, within the mercês modus operandi, it could not exist. We could find different forms of negotiation at the background of any form of judicial process. However, crystallization of such negotiations in juridical institutes is not always present. Between 1990 and 2000, in Brazil, rewards for delators were gradually becoming an object of negotiation institutes, withdrawing from what we might call the logic of subjective right. A negotiated justice which barely resembles pre-modern criminal justice negotiations, where the “public interest” in punishing would not be fully realised in the name of peace between the parties. The new delação premiada negotiations are held exactly in the name of the public interest in increasing the range of punitive power. Thus, the current delação premiada is supported by the contemporary punitivist imaginary, which is more than the simple conviction that damages to the public treasury through criminal organizations should be regularly punished.

Abstract

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(Portoguese version)
Sob o signo de Joaquim Silvério dos Reis (ou de Judas)?
Notas sobre a história da delação premiada no Brasil.

Abstract

Joaquim Silvério dos Reis, o primeiro e principal delator da Inconfidência Mineira (1788-1789), teria sido o primeiro beneficiário da delação premiada no Brasil? A última regulamentação do instituto, no Brasil, é de 2013. O judiciário brasileiro, nos últimos anos, vem utilizando com frequência tal instituto em processos relacionados à corrupção. Vários juristas, para demonstrar a iniquidade da delação premiada, apontam que Tiradentes, uma das principais figuras da Inconfidência Mineira e até hoje homenageado como herói nacional, teria sido vítima de uma delação desse tipo, cuja previsão estaria nas Ordenações Filipinas portuguesas. O mesmo argumento, porém, que busca uma continuidade entre as recentíssimas leis e as velhas Ordenações Filipinas também já foi utilizado para mostrar que, por ser instituto antigo, não é nada estranho (e, portanto, não haveria razão para questionar a sua legitimidade). Em todos esses discursos que constituem uma memória do direito penal brasileiro, não houve a preocupação em respeitar a alteridade do passado e nem o devido aprofundamento nas fontes de época. Tal aprofundamento, guiado pela noção de descontinuidade, permite enxergar, por exemplo, que nem o perdão e nem os prêmios previstos nas Ordenações Filipinas pressupunham a formalização jurídica de um acordo, tal como acontece hoje nos casos de delação premiada. Os processos em que Joaquim Silvério reivindicou os seus prêmios (mercês) não era o próprio processo da Inconfidência. Não existia um documento que estabelecia – ainda que de maneira aproximativa ou aberta – as obrigações recíprocas entre as partes. E, pela lógica das mercês, nem poderia existir. Talvez seja possível encontrar diferentes formas de negociação nos bastidores de qualquer forma de processo judicial, todavia, nem sempre existe a cristalização de tais negociações em institutos jurídicos. Entre os anos 1990 e 2000, no Brasil, os prêmios para delatores foram se tornando paulatinamente objeto de institutos negociais, afastando-se, assim, daquilo que poderíamos chamar de lógica do direito subjetivo. Uma justiça negocial, porém, que muito pouco se assemelha com as negociações da justiça criminal pré-moderna, em que o “interesse público” em punir não era efetivado plenamente em nome da paz entre as partes. As novas negociações de delação premiada são realizadas exatamente em nome do interesse público em punir mais. As novas delações encontram suporte, assim, no imaginário punitivista contemporâneo que vai muito além da simples convicção de que os danos ao erário através de organizações criminosas devem ser regularmente punidos.

Abstract

  1. GABRIELE SCOTTI
    Dimensions of Italian emigration between 1880 and 1930

Abstract

When Italy was politically unified, the country had a lot of cultural, economic and social differences among the various regions. Even in the following years the royal government (ruled by the Savoy family), did not manage to promote equally an industrial and an economic growth, which could have responded to the labour demand with a proper supply.
So, between 1880 and 1930, more than 17 million people, both men and women, stepped over our national borders, either for a few months, or for a few years, or even never to return again. This historic phenomenon had a serious impact on many aspects of political, legal, economic and social life of our nation.
This essay wants to analyse in particular the aspects of emigration linked to public order, to the lack of interest of the Italian State regarding his migrants, to the profit of transport societies and to legal arrangements which were focused on migrant’s protection.

Abstract

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