B026878 - HISTORY OF MEDIEVAL AND MODERN LAW

Italian

italian

The course is meant to explain the historical process that led to the current legal system, showing the developments of law in Europe in its genesis and different national and ‘transnational’ aspects.

The course intends to give a general overview of the historical development of european civil and criminal law. The course is divided into two parts.

Notes from the lectures

Supplemental readings will be indicated during the course.

Regular students:
a) notes taken from the lessons
and
b) P. Cappellini, Appunti per servire al Corso di Storia del Diritto della Scuola Allievi Marescialli dell'Arma dei Carabinieri, Torino, Giappichelli, 2018

Knowledge
Knowledge of the relationship between the temporal and the contextual dimension of the legal phenomenon: historicity as the natural dimension of law. The milestones of medieval legal experience. Approach to the modern legal experience. In particular through an analysis of the main bodies of rules, concepts, legal principles of the modern age.

Abilities
A) Ability to contextualise the normative data used to solve complex legal problems.
B) Ability to grasp the historical dimension of legal language.
C) Capacity for interdisciplinary integration.

Expected results
Sensitivity to the profiles not only of norms but of judicial law-making, and therefore to the specific interpretive activity of jurists. Possibility of valuing the historical element as an integral part of the genesis of law and of its effectiveness-oriented interpretation. An awareness of the relativity of the basic legal concepts of modernity, starting with their historical evolution. Being careful not to reduce the legal dimension to a merely state-based or norm-based perspective, but to grasp it in the perspective of the (temporal and spatial) plurality of legal systems.

Contents

The course intends to give a general overview of the historical development of european civil and criminal law. The course is divided into two parts.


Objectives

The course intends to illustrate and describe the historical development of legal culture and of european legal systems from the Middle Age to the XX century, providing a deep analysis of the main institutions and concepts.
Skills

Students are supposed to:

A) Contextualize the relevant legislation in order to solve specific legal matters;
B) Understand the legal language in an historical perspective;
C) Develop a multidisciplinary approach.

Abilities

The course intends to provide the fundaments of legal culture, emphasizing the role played by history both in law genesis and in (an effectiveness-oriented) legal interpretation.
Students, thanks to an historical approach, will gradually discover the relativity of modern legal concepts, as well as the complexity and vitality of legal systems both in a time and space perspective, thus avoiding the risk of consideri

None

Interested students may agree with the teacher to deepen specific topics of the special part on the history of criminal law

Lectures: 36 hours.

Compulsory lecture: 36 hours.

Interested students will be required to choose the subject of the final test in agreement with the supervisor.

Final exam: oral.

Type of assessment: oral examination. The oral examination will aim to verify, through a number of questions from general topics to more specific points: a) the knowledge of the concepts and ideas discussed during the course; b) the ability to process these concepts in an autonomous way; c) an awareness of historicity as necessary aspect of law and the knowledge of the historical and conceptual roots of legal institutions.

Introduction:
1) Cesare Beccaria and his Dei delitti e delle pene, the Riforma criminale of Pietro Leopoldo di Toscana, art. 575 of the Italian criminal code: between ancient and modern, cues for a comparison.
2) Origins of the concepts of Constitution, Statute, Code: some proposals for a lexical and semantic reconstruction.
3) Code and Consolidation: the views of Viora, Astuti, Tarello. Origins of the modern (nineteenth century?) idea of Code: the loi 30 Ventoux année XII (21/3/1804), in particular art. 7, also in the light of travaux préparatoires. Some proposals on the current notion and function of the Code.

On the common law system:
1) Justinian’s compilation. From Capua to Marturi: the progressive re-emergence of Roman law in the eve of legal renaissance.
2) The ‘rediscovery’ of Justinian’s compilation in the Middle Age: Irnerius and the renovatio librum legalium.
3) The glossators’ school. Glossators and Justinian’s text. The Corpus iuris civilis and the Corpus iuris canonici. The aequitas canonica.
4) The commentators’ school. Communis opinio, counselling activity, the major courts.

Towards modernity:
1) Legal humanism. Andrea Alciato and mos gallicus. François Hotman. Alberigo Gentili and the reply of mos italicus.
2) Modern natural law. Grotius. Hobbes. Locke. Pufendorf. Leibniz. Domat and Pothier.
3) The age of consolidation. Colbert and Daguessau. The Leggi e costituzioni di sua maestà. A ‘snapshot’ of the so-called ‘legal particularism’: the case of Tuscany in Pompeo Neri’s Discorso primo. The project of ‘code’ by the Tuscan jurist. The thought of Ludovico Antonio Muratori. The Codice di leggi e costituzioni per gli stati estensi.

The age of codes:
1) Legal Enlightenment.
2) The dawn of modern codification: the French revolution and droit intermédiaire.
3) The travaux préparatoires of Code Napoléon and Portalis’s Discours préliminaire. The Code Napoléon: its structure; the preliminary title; ownership, contract, inheritance, family.
4) A different approach to codification: the Austrian universal code of 1811 (ABGB).
5) The codes of former Italian states and national codification.
6) The German civil code.
7) The legal twentieth century.
8) Genesis and structure of the 1942 Italian civil code.

Introductory part
History as fundamental dimension of legal experience; the legal order in the age of globalization: a new european ius commune?; a pluralistic experience: the medieval legal tradition; features and crisis of the ius commune system in modern Europe (XVI-XVIII century): law as synonime of justice and order; the notion of interpretatio; the Second scholasticism movement and legal humanism; the protestant reform: individualism and modern state; law as synonime of statute law and expression of sovereign power; codifications in the ancién regime throughout the French revolution; the Enlightenment and the modern criminal law genesis: Cesare Beccaria and the “Leopoldina”; the relationship between law and revolution according to Santi Romano’s thought; the revolutionary legislation and the emergence of a proprietary anthropology; two different models of codification from the modern age: the Napoleonic Code and the Austrian ABGB and their application in Italy; the Exégèse as dominant legal doctrine and compulsory interpretation method in a state-centric perspective; reactions against codification in Europe: legal romanticism and Savigny’s school; the Italian codification: the 1865 civil law code and the 1889 criminal law code; the turning-point in the late XIX century italian legal doctrine: the influence of german Pandectist movement; an abandoned path: the legal socialism; towards the XX century: a new codification or a new law?; the German BGB (1900) and the Swiss Code (1907): from the legal formalism to the legal realism; the decline of the XIX century liberal model: the first world war as a no turning back point in the history of european law; the relationship between the italian legal doctrine, the fascism and 1942 Civil Code genesis.

Special part
The current year investigation will focus on the modern criminal law genesis , on the law in totalitarian systems, on the relationship between the italian legal doctrine, the fascism and 1930 Criminal Code Rocco; on the ‘new life’ of the Rocco Code following the Constitution (1948).