Articles (peer-reviewed)
- ANDREA PENNINI
Propaganda, Utopia and Identity. The duke of Sully’s European Gran Dessin
Abstract
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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- CATERINA BONZO
Tommaso Maurizio Richeri between local and European law
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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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- GIAN SAVINO PENE VIDARI
Federigo Sclopis, from Turin to Europe
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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.
Abstract
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- ANTONINO DE FRANCESCO
The First Europe. Some Notes on the Myth of the Autochtony of Mediterranean Peoples: Antiquity, History and Nationalism
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- MARIO RIBERI
Nice and Savoy Deputees in Subalpine Parliament: The ‘petites patries’ between European Public Law and Principle of Nationality
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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.
Abstract
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- IDA FERRERO
«La peine a commencé, dès lors, à devenir la pénitence»: Tancredi Canonico European Criminal Lawyer
Abstract
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.
Abstract
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- LUIGI NUZZO
Rethinking Eurocentrism. European Legal Legacy and Western Colonialism
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- 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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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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- GIOVANNI FINAZZI
National identities and European Identity from the Point of View Roman Law and Juridical Tradition
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- MARIA ELISA D’AMICO
Constitutional Secularism and Religious Fundamentalism in Italy and Europe: Considerations Stemming from Judicial Decisions
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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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- MARIA ELISA D’AMICO
European Judicial Framework and the Complex Protection of Fundamental Rights
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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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- ANTONIO PADOA SCHIOPPA
Europe: the uncompleted cathedral
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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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- ETTORE DEZZA
The Grand Duke, the Philosophers and the Iroquois Code. The ‘contumax pro confesso habetur’ Principle and the Reform of Leopold II
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- MASSIMO PARODI
Federalism and Philosoplhy in Mario Dal Pra
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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.
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Lectures
- IAN WOOD
Burgundian law-making, 451-534
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- 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.
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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.
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- GABRIELE SCOTTI
Dimensions of Italian emigration between 1880 and 1930
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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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