2015 n. 1 – Index

  1. ANTONIO PADOA SCHIOPPA
    France and Italy in the History of Law: Mutual Contributions and Osmosis

Abstract

Mutual influences between France and Italy in the field of law have been constantly present in both directions since the middle ages. Some examples are briefly recalled: Feudal law, born in Carolingian kingdom and settled in written form in Lombardy two centuries later; the new legal science of the bolognese Glossators of the XII Century, early adopted and developed in new directions in Provence and Languedoc; the Orléans School of Law of the XIII Century, at the origins of the Commentators School flourished in Italy in the XIV Century; the Humanistic School of Law, whose approach Alciatus helped to establish in Bourges, reaching its climax in France in the XVI Century; the new doctrines of the French philosophes and of the milanese Beccaria in the XVIII Century; the French codification and administrative order estblished by Napoleon and largely adopted in Italy in the XIX Century. Grafts and osmosis are constant features of the european legal history.

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  1. GIGLIOLA DI RENZO VILLATA
    From ‘Forbidden’ Conjugal Love to Infidelity. Adultery in Italian Summae Sonfessorum (14th-16th Century)

Abstract

In Italy, as in most of the civilized world, adultery is no longer considered criminally relevant behavior. Its decriminalization had long been a goal, and although that goal has largely been achieved, civil law continues to provide for it today. Yet in the age when adultery was punishable by canon and civil law – which included it as a criminal act – both morality and religion played leading roles in mutually influencing legal norms. Specifically, this article shall examine the stance on adultery expressed in the Summae confessorum published in the Italian area between the fourteenth and sixteenth centuries.

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  1. ALESSANDRA BASSANI
    Reflections on Fifteenth-Century Treatises: The Tractatus de Testibus by Nello da San Gimignano and Alberico Maletta

Abstract

The essay deepen the study of fifteenth-century tractatus de testibus, started with Tindaro Alfani (RSDI 2007 but 2008), by comparing the works by Nello from San Gimignano and Alberico Maletta. Analogies and differences between the texts’ frame and the doctrinal contents are analyzed. The article is part of a research which aims to demonstrate the role as laboratory of the fifteenth-century tractatus as to the sixteenth century results: the fiftheenth-century jurists tested new languages and frames which made possible the synthesis of the contents of the Commentaria.

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  1. RAFFAELLA BIANCHI RIVA
    The Duty to the Truth: Defense Techniques and Legal Ethics in the Middle Ages and Early Modern Pperiod

Abstract

During Middle and Early Modern Ages, the lawyer’s duty to the truth was stated within a wider debate about defense techniques, in which two different concepts of the role of the lawyer as acting as a participant in the administration of justice were discussed. The prohibition to give false or misleading information to the court was certain. The matter all concentrated on the limits of legal argumentation, balancing out the protection of his own client’s interests, with particular regards to the respect of professional secrecy, and the cooperation with the judge in the pursuit of the truth.

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  1. MARZIA LUCCHESI
    Jurists (and) Senators in the Gonzaga Family’s Casale

Abstract

This essay illustrates the varied relationship between the city of Casale and the University of Pavia as the main center for law studies of the Monferrato élites in the 14th and 15th centuries. As these scholars return to their homeland after studying in Pavia, the skills and the education obtained at the University allow them to aspire to the highest political and institutional positions of the State, as Senators and Presidents of the “Senatus Montisferrati”.

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  1. ANDREA MASSIRONI
    The Devil’s Advocate. Defence and Defending Counsel in the 18th Century Austrian Criminal Procedure

Abstract

The provisions of the Constitutio Criminalis Carolina on the intervention of the defending counsel in the trial seemed to be less strict than other contemporary European criminal rules. Since the 16th century the criminal law scholars from the German area read them on the one hand connoting the lawyer with increasing precision as an expert in law, on the other one limiting his leeway in order to not hinder the rapidity and effectiveness of the inquisitio. This perspective influenced the choices of the Austrian legislators, which were even toughened from the 18th century onwards in the work of legislative unification by Maria Theresia and in the following codes.

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  1. LOREDANA GARLATI
    The Flogging Machine. Romagnosi in Search of the Perfect Punishment

Abstract

In 1806 Luosi submitted its draft penal code to Romagnosi, which wrote a new draft code, the Progetto sostituito, and wrote the Motivi. In this essay I’ll examine an instrument ingenious and terrible, the flogging machine, and the philosophy of punishment that prevailed in the first decade of the nineteenth century in Italy. In that period the achievements of the Enlightenment mingled with emerging repressive maneuvers.

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  1. SARA PARINI
    An ‘Old’ Us and a ‘New’ Them. Introduzione enciclopedica allo studio del diritto by G.D. Romagnosi

Abstract

Gian Domenico Romagnosi’s contribution to the restructuring of legal studies in Italy – a reform unfurled through plans and bills, namely the Piano di istruzione legale (Legal Education Plan) and Progetto di Regolamento degli Studi Legali (Project for the Regulation of Legal Studies) and, from a legislative point of view, through the formation of the Regolamento per gli studi Pratici Legali (Regulations for Practical Legal Studies), as well as the creation of three Postgraduate Schools – culminating in the drafting of an unpublished textbook entitled Introduzione enciclopedica allo studio del diritto. his work still strove to collect and explain knowledge: as such, it was a sort of manifestation of the goals he had alluded to ten years earlier in Studio preparatorio alla Facoltà Politico Legale. His Introduzione was meant to be just that: ‘introductory tool’ that could embrace the whole of legal knowledge, so that the elderly Professor could take stock of his educational ambitions and disseminate the epistemological views that he identified with in the new institutional climate. Romagnosi came to this subject matter late in life, having left behind the various forms of individualistic radicalism that had typified the revolutionary era and his encyclopedia seems to be an appropriate way to summarize his life’s work.

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  1. STEFANO SOLIMANO
    “The Permanent Exception”. A Reflection on the Constitutive Character of the Napoleonic Penal Code

Abstract

This paper aims to show how the Napoleonic strategy in criminalibus did not end with the severe penal code of 1810. Along with it, according to Napoleon’s plan from the beginning, there are two other levels of repression, apparently more hidden. Firstly, we allude to the special courts established in 1801 to cope with the spread of banditry, which would later become laid out in the same fabric of the code of penal procedure. A further level of repression would officially emerge only in 1810 with the institutionalization of detention in State prisons. We are dealing with instruments designed to increase the already strong punitive action, levels of repression destined pour cause to dissolve the system of sealed warrants in the penal code and court. It is the author’s opinion that the code of the Napoleonic repressive ordinance, in fact, should be taken in its entirety.

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  1. PAOLO RONDINI
    Aims and Principles of the Criminal Frial: From Franz von Zeiller’s Zweck und Principien to Friedrich von Savigny’s Prinzipienfragen

Abstract

A comparative analysis of Zeiller’s Zweck und Principien and of Savigny’s Prinzipienfragen provides useful information for shedding new light on the animated debates and attempts to reform in a liberal way the regulations of the deutscher gemeinrechtlicher Strafprozeß followed in most Mitteleuropean countries during the first half of the nineteenth century. The growing awareness that adjective law should both protect human rights and promote personal freedoms led in fact many important German jurists to declare for a radical reform of the inquisitorial system and of the traditional forms of carrying out criminal trials.

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  1. FILIPPO ROSSI
    When Private Vice Meets Public Virtue: The End of Count Giuseppe Brebbia’s Career as a Public Official

Abstract

Milano, 1827. The criminal proceeding against Count Giuseppe Brebbia, a Lombardo-Venetian’ senior official accused of misfeasance, is of considerable significance to investigate the interlinkage between social classes and administration assessment in the first years of Austrian restoration in Italy. At that time, undeniable signs of Adelstand’s difficulties in handling public affair occurred, mainly at local level. The questions of how and why an impersonal administration rose can be answered only taking a closer look at this trial, around which many social and political interests clustered around.

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  1. VALERIA BELLONI
    Vis unita fortior (1842). Francesco Restelli and the Debate over Companies in Lombardy

Abstract

In Lombardy during the Restoration era the legal science tends to concentrate on the codes’ content and to be influenced by the French one. This inclination is even stronger in the field of commercial law as the Austrians had decided not to abrogate the Code de commerce in the Kingdom of Lombardy-Venetia. Against this background, it is remarkable that in 1842 the Istituto Lombardo chooses a theme for its “premio scientifico biennale” that spurs the competitors to deal with company law with a critical approach. Among the submitted entries, Francesco Restelli’s one is the most interesting: he drew up a veritable alternative to title III, book I of the Commercial Code.

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  1. CHIARA VALSECCHI
    “The Determination of Paternity Must be Admissible”. Post-Unification Civil Law Theory and Practice and the Family Law Reforms. Transitory Law Issues

Abstract

The rule set in the Italian civil code of 1865 forbidding investigation about paternity out of wedlock was deeply innovative in comparison with judiciary practices in the Middle and Modern ages, as well as in comparison with early-XIX-century, pre-Unity legislation on the matter. The rule raised therefore a wide debate in doctrine, with a strongly engaged field of civil lawyers demanding a reform of the code; however, it was also the occasion of a florid casuistry, with special regard the solution of problems in the application of transitory rules. The situation in the territories formerly belonging to the Lombardo-Veneto was particularly complex, given thay they had been subjected to the quite different rules provided by the Austrian ABGB.

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  1. FEDERICA PALETTI
    The Board of Probiviri in Special Jurisdiction and as Conciliation Body in Parliamentary Acts (1883-1893)

Abstract

Between 1883 and 1893, seven Bills aimed at the establishment of the board of probiviri for industry followed one another in the Parliament. In the intention of the Italian legislator, this law was to become part of the wider framework of the “social legislation,” as a means of pacification of conflicts between workers and employers. An examination of the parliamentary works makes resistance and doubts about the to-be-constituted boards come to light, mainly catalysed around the need to avoid the creation of a special judiciary, which went to create a vulnus in the principle of unity in the jurisdiction, so strongly desired and defended by the unitary legislator. The office and commission files, reports and discussions in the chamber return a vivid and polyhedral framework of the various positions taken up during the years. Opposing the side of those who bluntly against the institute, for fear that a special judge would be appointed, were the positions of those who wanted to see a mere conciliatory jurisdiction, as well as those who, of a more radical opinion, solicited a judiciary with technical competence and equity which went to fill the gap represented by the absence of a legislation regulating labour. The final draft of the law would produce a hybrid authority, with mixed judging and conciliating functions, rising questions, from its early applications, about the nature of the authority, the powers granted thereto, the rite to be followed; questions, of which a careful and shrewd doctrine would become an interpreter.

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  1. ANNAMARIA MONTI
    Corporations and the Legal Doctrine thereon in the Beginning of the Italian 20th Century, between National Reality and Foreign Suggestions. Avenues of Research

Abstract

The studies of the Belle Époque on matters of company law reached, in Italy, a very high technical and cultural level, despite the tardiness in the capitalistic and industrial development and undoubtedly deserve in-depth investigation. In fact, they benefitted from a time, so to speak, both from the general climate of renewal of legal studies in a liberal State grappling with the many social and financial problems of economic development, and from the special circumstances of those years, marked by the widest circulation of people, ideas and capital beyond the national state borders.

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  1. ELISABETTA FUSAR POLI,
    «Il manque un anneau a la chaine»: The Brave Experiment of the ‘Scientific Property’

Abstract

Between the Twenties and Thirties of the Twentieth Century, the theme of ‘scientific property’ reaches its peak of interest among the European legal science. It is the most visible part of a short path winding between the last two decades of the Nineteenth Century and the first decade of the twentieth century, a path full of intersections with crucial issues of contemporary legal history. The main characters of this story are the new forms of intellectual activity that contribute in a sensational way to delineate the physiognomy of modernity, marked by the increasingly impetuous trait of the scientific and technological development. From the first attentions addressed to the rights of savants on their œuvres ou découvertes scientifiques (with the project of an international convention drafted by Francesco Ruffini for the League of Nations) until the dissolution of the interest in this issue, mainly juxtapositions – between social and economic forces, but also among the different conceptions of ‘law’ – and theoretical contrasts, as well as political ones, stand out inside national and European scientific discourse. This is a conflict that, on the one hand, has inevitably precluded the ‘scientific property’ the outlet to the ius positum, while on the other hand, it has made it a sort of valuable experimental laboratory for the jurist.

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