2017 n. 2 – Index

Articles

  1. CLAUDIA STORTI
    Justice, Peace and Political Dissent from the Early Middle Ages to the Communal Period

Abstract

The ‘institutional’ affairs that unfolded between the early and late Middle Ages can be (and have been) reconstructed in varying degrees of detail through diplomas, documents and chronicles. Regarding Italy, there is also another source that up to now has been rather ignored, and which might offer some insight into the more strictly legal aspects of these events. Specifically, I am referring to eleventh-century Italian jurisprudence on political crimes. Indeed, legal stances on the repression of dissent, on the justification of resistance to authority and on making peace between ‘private’ parties can be found in the Expositio to the Liber Papiensis, in the legal formulary and in some glosses appearing in manuscripts which were still in use in the 1130s.
These sources shed light on the expression and organization of political struggle in the Kingdom of Italy – be it through rebellion, protest or association – and on how that was perceived by the legitimate authorities. By studying them, it is possible to analyze how the concept of justice and institutions evolved from the early Middle Ages to the communal period.

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  1. GIOVANNI CHIODI
    Ad praesumptionem or ad plenam fidem? The Probative Value of the Accomplice’s Testimony in Medieval Canon Law

Abstract

In Romano-canonical procedure, confessed criminals could not be examined on their accomplices, except for enormous crimes. In these cases, however, twelfth- and thirteenth-century canonists disagreed about the probative value of these statements. According to some jurists they could be deemed as a full proof, while others held that they only counted as a presumption. Nevertheless, from the thirteenth century the doctrine reached a consensus that the statements of the defendants had to be further corroborated in order to have effect. These principles were also confirmed in the inquisitorial procedure against heresy. This essay, providing a survey of the manuscripts, reconstructs the stages of the debate on this topic, distinguishing among the contribution of the Anglo-Norman, Parisian and Bolognese schools.

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  1. EMANUELA FUGAZZA
    Pavia, 1249. Publica Fama and Culpa in the Trial Against the Prison Warders

Abstract

The essay regards the study of a verdict in Pavia dating back to 1249. The trial took place in a crucial period of the history of criminal law and criminal procedure and testifies of some changes taking place in the years around the mid-13th century which invest, on the one hand, the themes of imputability and the subjective elements of the crime and, on the other hand, strictly procedural aspects.

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  1. ALAN SANDONÀ
    Rural Statutes of the Upper Vicenza and Rural Charters of Trentino: Notes on the Legal Experience of Rural Border Communities

Abstract

The examination of the statutes of some villages which straddle a border – that between Veneto and Trentino – who became early frontier constitutes an opportunity for a reflection on the legal experience of the pre-Alpine communities between Middle Ages and the modern age.
Based on the comparison of these “charters”, result of elementary autonomy of “villas” which at those attributed a strong identity value, the paper aims to investigate whether the existence of imposed (and disputed) territorial boundaries by central governments and institutions have or less had effect on the proper law of the local communities.

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  1. ROBERTO ISOTTON
    «Per fas et nefas». Short Historical Notes on the Pactum de Quota Litis

Abstract

The recent attempts to remove from Italian law the ban of the contingency fee agreement between client and lawyer, culminated, after a few years, with the return to the previously abolished prohibition. This prompted a brief reflection on the reasons and scope of the ban in question, under the particular perspective of legal history, in order to better clarify what are the actual interests involved and what the possible solutions.

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  1. ALBERTO CARRERA
    From Religious Tolerance to «Libertà del Pensare». The Thought of the Jansenist Abbot Pietro Tamburini (1737-1827), Professor at the University of Pavia

Abstract

The paper seeks to outline the thought on the theme of tolerance by the Jansenist Abbot Pietro Tamburini, Natural Law Professor at the legal faculty of the University of Pavia. From the study of his works, it emerges a bifocal jurisdictionalist and natural-law reading.
In this dual perspective, it’s analyzed the concept of ecclesiastical and civil tolerance in religious matters, with particular attention to the issue of sovereignty and the right to punish and then bring the issue to the relationship between personal property, freedom of thought and exercise of intellectual faculties.

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  1. ALDO ANDREA CASSI
    Giuseppe Zanardelli and the Reformation of the Legal System (1890). Guide to an Archive Investigation. The “Embarrassing Issue” of Courts’ Abolition

Abstract

The essay means to reconstruct the dynamics, and the main themes below, of a technically complex and politically very delicate phase of the 1890’s judicial reform taken up by the statesman and jurist Giuseppe Zanardelli: the section dedicated to the “Modification of the judicial district and improvement of the judiciary salaries” (law 30 March 1890 n. 6702).
The reconstruction is based on archive documentation, largely unpublished: not only official documents, but also personal notes, memories, letters, note books, which recorded aspirations, moods, utopic feelings, compromises nourished by historical characters who participated in the reformation movement. Their analysis, besides allowing an adequate technical comprehension of the judicature’s genesis in the unified Italy and of the able and pragmatic role played by Zanardelli, could also be the opportunity to launch the gaze through a cut-out of the building that was growing. The unitary state for which the judiciary was inevitably not only one of its powers, but often also the “first line” contact between citizens and State.

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  1. CRISTINA DANUSSO
    The Orphan Crisis of World War One and the Italian Judiciary

Abstract

The formidably complex problem of World War I orphans can be studied from different points of view, ranging from moral, family and social aspects to those of a legal, economic, political or financial nature. In this short essay, only some of these facets are considered. Among the measures taken by the Italian authorities – first by the government as a matter of urgency, and later by the parliament – attention is focused on the role of the judiciary and especially on the giudice delle tutele, or guardianship judge. He performed delicate tasks of voluntary jurisdiction and supervised the actions of the pretori (local magistrates). He also contributed to various administrative activities, as he was a member of the Provincial Committee in charge of providing assistance to war orphans. He acted as a coordinator on several fronts, and in particular, he had to find the right balance between the actions of the State and those of the family. Indeed, he had to ensure – in keeping with the intention of legislators – that the State did not interfere with and replace families, but simply stepped in to support them when necessary.

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  1. ALBERTO SCIUMÈ
    Croce and the Italian Law Culture in the 1920s

Abstract

The Twenties of the past century is a period of strong debate on the part of Benedetto Croce either with the politics of fascism (from which he gradually took the distance up to an open disapproval and to the undersigning of the anti-fascist intellectuals Declaration), or with legal science and with its demand to offer an autonomous perspective of knowledge. This second field of intervention is particularly characterized by the controversy with the doctrine of natural law of the philosopher Giorgio Del Vecchio and with the one of the Romanist Pietro Bonfante. In this second one particularly, the vision of the Law under Benedetto Croce point of view, i.e. the objection to the same autonomy of the legal speech, raised up in all its intensity. The distance from the politics of fascism and from the attacks brought to the legal science allowed Benedetto Croce to develop a deep and significant thought on some very general and basic topics, as the one on the origin of freedom, in the contrast between its individual and institutional dimension. Different effects we can find in the comparison between the historicism of Benedetto Croce and the tendencies of the jurists of the third decade of the twentieth century. A first, not secondary (and presumably unwilled) result of the position assumed by Croce toward the legal science was paradoxically to encourage the assumption, within the second, of a neo idealism interpretation of the law. In the attempt to affirm the supremacy of neo idealism philosophy, a sort of incorporation of the latter in the method used by the jurists in the formulation of their science took place. A second field where such comparison took place was for sure the issue about the qualification of the Law, a dogmatic ground where the progressive evolution of the relationship between individual and social moment of the Italian legal experience, in the direction of the definition in a totalitarian way of the behavior rules designed for founding the parameters of the activity of individuals, took place.

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Lectures

  1. RAFFAELLA BIANCHI RIVA
    Search for Truth and Defend the Client: Can a Lawyer Do Both?

Abstract

A deontological model of legal ethics took shape over the course of the Middle Ages and early modern period, thanks to contributions from both jurisprudence and moral theology. With bans on defending unjust causes and resorting to unjust means to defend a cause, the defense lawyer became part of a legal process that sought to ascertain the truth – a key contributor to the administration of justice. However, jurists and theologians made some compromises when it came to these rules, affirming that a lawyer also had a duty to defend his client to the fullest.

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