The aim of the course is to provide a critical overview of legal history in Italy and Europe between the Middle Ages and the Contemporary Age, with particular reference to the issues of justice and the protection of fundamental rights.
The main educational goals are:
1) To make students aware of the complexity of legal phenomena, which cannot be isolated from the social, political and economic context.
2) To verify the assumption according to which law is a product of history.
3) To invite students to problematize the study of legal disciplines.
4) To invite students to analyze the difficult balance between security and individual (and collective) rights over the centuries in different geographical and cultural contexts.
The main educational goals are:
1) To make students aware of the complexity of legal phenomena, which cannot be isolated from the social, political and economic context.
2) To verify the assumption according to which law is a product of history.
3) To invite students to problematize the study of legal disciplines.
4) To invite students to analyze the difficult balance between security and individual (and collective) rights over the centuries in different geographical and cultural contexts.
scheda docente
materiale didattico
The analytical outlines of the lectures will be retracing through a diachronic perspective the evolution of the law system both in a theoretical and a pragmatic order. This analysis will concern juridic, judicial and normative systems as well as the political-institutional arrangements, taking into consideration the multiple declinations who come through since ancient times in a nonlinear hermeneutic process and the real and diverse empirical-factual experiences on which the Western law is founded. Such analysis will focus on the main events that shaped the existence of people, societies and economic assets, as well as on the moral, philosophic and cultural views that characterize the time between the Early Middle Ages and the threshold of the 20th Century. Such mindset, which has the power to show the sovereign (in a broad sense of the term) and, to a lesser degree, the communities’ exigency to preserve the fundamental premises to the collective existence, will be exhibited in accordance with the peculiarities, specific registers and flexibility that characterize the “Dialectics of Sources”. The course will mainly take into consideration the links that caused a seeming fracture, the pivotal articulations that marked a paradigmatic change, determined by a slow and gradual ripening of a juridical culture whose survival, albeit overshadowed, lingered in the following centuries. A specific discussion will be dedicated to the historical continuity of the speculative doctrine, to the theoretical and practical foundations much prematurely elaborated by the ordines iudiciarii, to the technical profiles and to the juridical methodology that leans into an abstraction of the concrete instance. It is undebatable that the hiatus that took place at the turn of the 16th Century defined a substantial change in political assets. At the rise of Modern Ages, even tough still distinguished by the permanence of the ius commune and by the plurality of the juridical sources aiming for the conservation of the institutions, the technical lexicon and the systemic method handed down by tradition, the universalisms which had permeated the medieval mindset started to gradually crumble. Since the blooming of the humanistic culture, responsible for the rethinking of the “moral” disciplines and a renewed physiological science, an original cultural direction started to take place. The gradual conversion of the intellectual ambience changed the views on both the human being and the world, although in a variety of ways, in the whole Western world, affecting almost every aspect of civil life: politics, economy, juridical system, government structures and social life. The humanistic ferments permeated in a complex weave the spiritual consciousness of a community scarred by strong religious troubles generated by Protestantism and Counterreformation. In the meantime, the strengthening of the centralized authority of the Monarchy and the Regional States changed the institutional structures and the social groups’ ancient perception of politics. In a juridical perspective, the turnaround concerned the sources of law, the juridical system, the gradual nationalization of juridical sciences, the doctrine’s reflection and the justice administration. The progressive process of the State centralization manifests itself in the emanation of its own legislation that gradually erodes the edges of ius commune starting a process of nationalization of the law. The sovereign legislation comes to regulate every juridical field, although affecting the privatistic relations to a lesser degree, by using the national languages in the writing of the rules of law, coming to deliberately lessen the hegemony of the Latin language, no more perceived as universal linguistic formula. In a synoptic perspective the course will analyse the doctrinal speculations converging on the theological and philosophical debates regarding the ius gentium’s foundation and on the political and juridical discussion which constitute the prodromes of modern international law features and the basic postulates of human rights. Secondly, the course will address the legislations’ unification tendencies and the correspondent illuministic theoretical postulates. The French revolution fixes the codification instances in the “droit intermédiaire” which, despite the numerous and significant declaration of principle contained in the 1789 Constitution and in the following ones (dated 1793 and 1795), didn’t reach the promulgation of an civil unitary normative corpus. It is only with the advent of Napoleone Bonaparte, crowned Emperor of the French in 1804, France will start producing Codes, first of which the Code civil des Français, that made use of the prior project redacted by Jean-Jacques Régis de Cambacéres. Over the course of seven years France emitted the Codes, meant as the juridic category formulated by the nineteenth-century jurists of a unitary law corpus organized in a single normative text which excluded any eterointegrability. The lectures will be taking into consideration the constitutional assets and modern constitutionalism in a comparative analysis whose point of origin will be the examination of the English legal system and, sequentially, the French and American Constitutions. A specific treatise will be carried out on the analysis of the “liberal” matrix civil codification and on the principles qualifying the bourgeois law aimed at the celebration of an individualistic dimension that finds its own founding canons protected and fostered in civil Codes suitable to consolidate the preexisting social constructs: private property, privates’ right to auto determination and production of capital. In a synoptic perspective the course will consider the germination and ripening of a civilistic juridical science with its variable declinations which inform French, Italian and German speculations regarding doctrinal and legislative issues of European civilistics. To assure exhaustiveness, the course will also analyse the prodromes and the later discussions which took, after a long and troublesome iter, to the promulgation of the Codice di procedura penale dell’Italia unita, emitted by R. D. on the 26 of November 1865, replaced by a reformed Codice in 1913, and of the Codice penale Zanardelli emitted in 1889. In the meantime, it will be necessary to illustrate the Italian penological Schools and their ideological matrixes. Finally, the course will end up in a series of lectures aimed to illustrate the technical-juridical directions and the ideological context that birthed the 1930 Codice di diritto penale, redacted by Alfredo Rocco and promulgated on the 1st of July 1931 and the Code of Criminal Procedure emanated the same year. A rightful mention will be reserved to the fascist penal system and to the Leggi Fascistissime emanated between 1925 and 1926.
Programma
Course programThe analytical outlines of the lectures will be retracing through a diachronic perspective the evolution of the law system both in a theoretical and a pragmatic order. This analysis will concern juridic, judicial and normative systems as well as the political-institutional arrangements, taking into consideration the multiple declinations who come through since ancient times in a nonlinear hermeneutic process and the real and diverse empirical-factual experiences on which the Western law is founded. Such analysis will focus on the main events that shaped the existence of people, societies and economic assets, as well as on the moral, philosophic and cultural views that characterize the time between the Early Middle Ages and the threshold of the 20th Century. Such mindset, which has the power to show the sovereign (in a broad sense of the term) and, to a lesser degree, the communities’ exigency to preserve the fundamental premises to the collective existence, will be exhibited in accordance with the peculiarities, specific registers and flexibility that characterize the “Dialectics of Sources”. The course will mainly take into consideration the links that caused a seeming fracture, the pivotal articulations that marked a paradigmatic change, determined by a slow and gradual ripening of a juridical culture whose survival, albeit overshadowed, lingered in the following centuries. A specific discussion will be dedicated to the historical continuity of the speculative doctrine, to the theoretical and practical foundations much prematurely elaborated by the ordines iudiciarii, to the technical profiles and to the juridical methodology that leans into an abstraction of the concrete instance. It is undebatable that the hiatus that took place at the turn of the 16th Century defined a substantial change in political assets. At the rise of Modern Ages, even tough still distinguished by the permanence of the ius commune and by the plurality of the juridical sources aiming for the conservation of the institutions, the technical lexicon and the systemic method handed down by tradition, the universalisms which had permeated the medieval mindset started to gradually crumble. Since the blooming of the humanistic culture, responsible for the rethinking of the “moral” disciplines and a renewed physiological science, an original cultural direction started to take place. The gradual conversion of the intellectual ambience changed the views on both the human being and the world, although in a variety of ways, in the whole Western world, affecting almost every aspect of civil life: politics, economy, juridical system, government structures and social life. The humanistic ferments permeated in a complex weave the spiritual consciousness of a community scarred by strong religious troubles generated by Protestantism and Counterreformation. In the meantime, the strengthening of the centralized authority of the Monarchy and the Regional States changed the institutional structures and the social groups’ ancient perception of politics. In a juridical perspective, the turnaround concerned the sources of law, the juridical system, the gradual nationalization of juridical sciences, the doctrine’s reflection and the justice administration. The progressive process of the State centralization manifests itself in the emanation of its own legislation that gradually erodes the edges of ius commune starting a process of nationalization of the law. The sovereign legislation comes to regulate every juridical field, although affecting the privatistic relations to a lesser degree, by using the national languages in the writing of the rules of law, coming to deliberately lessen the hegemony of the Latin language, no more perceived as universal linguistic formula. In a synoptic perspective the course will analyse the doctrinal speculations converging on the theological and philosophical debates regarding the ius gentium’s foundation and on the political and juridical discussion which constitute the prodromes of modern international law features and the basic postulates of human rights. Secondly, the course will address the legislations’ unification tendencies and the correspondent illuministic theoretical postulates. The French revolution fixes the codification instances in the “droit intermédiaire” which, despite the numerous and significant declaration of principle contained in the 1789 Constitution and in the following ones (dated 1793 and 1795), didn’t reach the promulgation of an civil unitary normative corpus. It is only with the advent of Napoleone Bonaparte, crowned Emperor of the French in 1804, France will start producing Codes, first of which the Code civil des Français, that made use of the prior project redacted by Jean-Jacques Régis de Cambacéres. Over the course of seven years France emitted the Codes, meant as the juridic category formulated by the nineteenth-century jurists of a unitary law corpus organized in a single normative text which excluded any eterointegrability. The lectures will be taking into consideration the constitutional assets and modern constitutionalism in a comparative analysis whose point of origin will be the examination of the English legal system and, sequentially, the French and American Constitutions. A specific treatise will be carried out on the analysis of the “liberal” matrix civil codification and on the principles qualifying the bourgeois law aimed at the celebration of an individualistic dimension that finds its own founding canons protected and fostered in civil Codes suitable to consolidate the preexisting social constructs: private property, privates’ right to auto determination and production of capital. In a synoptic perspective the course will consider the germination and ripening of a civilistic juridical science with its variable declinations which inform French, Italian and German speculations regarding doctrinal and legislative issues of European civilistics. To assure exhaustiveness, the course will also analyse the prodromes and the later discussions which took, after a long and troublesome iter, to the promulgation of the Codice di procedura penale dell’Italia unita, emitted by R. D. on the 26 of November 1865, replaced by a reformed Codice in 1913, and of the Codice penale Zanardelli emitted in 1889. In the meantime, it will be necessary to illustrate the Italian penological Schools and their ideological matrixes. Finally, the course will end up in a series of lectures aimed to illustrate the technical-juridical directions and the ideological context that birthed the 1930 Codice di diritto penale, redacted by Alfredo Rocco and promulgated on the 1st of July 1931 and the Code of Criminal Procedure emanated the same year. A rightful mention will be reserved to the fascist penal system and to the Leggi Fascistissime emanated between 1925 and 1926.
Testi Adottati
Tempi del diritto. Età medievale, moderna, contemporanea", 3 ed., Torino, Giappichelli, 2022 (Chapter IX excluded)Modalità Frequenza
Highly recommended frequency.Modalità Valutazione
The assessment will consist of an oral examination. Students are required to demonstrate in-depth critical thinking and a solid understanding of the topics covered, as well as strong argumentative logic and mastery of historical-juridical lexicon