This course will examine the comparative history of justice in the modern and contemporary period.
Course Content - Part B
main topics
- the individualistic idea of juridical order: codes anche constitutions in the XIX century
- the XX century and the crisis of the individualistic idea of juridical order: dictatures and democracies
For students regularly attending classes:
- class notes and materials indicated by the professor during the course.
For non-attending students:
B. Sordi, Diritto pubblico e diritto privato. Una genealogia storica, Bologna, Il Mulino, 2020, pp. 248.
C. Guarnieri – P. Pederzoli, Il sistema giudiziario. L'espansione del potere giudiziario nelle democrazie contemporanee, Bologna, Il Mulino, 2017, pp. 11-229.
For students regularly attending classes:
- class notes and materials indicated by the professor during the course (for students willing to take the 12 credits exam additional materials will be agreed);
- M. Fioravanti, art. 2, Roma, Carocci, 2017, or alternatively, M. Dogliani – C. Giorgi, art. 3, Roma, Carocci, 2017.
The professor uses the Moodle platform to upload materials and for the so called “movie project”.
For students who sign up for the movie project the exam will be based on class notes only (for more information about the “movie project”, see the section Teaching methods below).
Students who do not attend classes should prepare for the exam using the following materials:
For the 12 credits exam
- P. Grossi, Scienza giuridica italiana – Un profilo storico 1860-1950, Milano, Giuffrè, 2000, and
- one of the following two books: P. Grossi, La cultura del civilista italiano, Milano, Giuffrè, 2002 or P. Grossi, Introduzione al Novecento giuridico, Roma-Bari, Laterza, 2012.
For the 6 credits exam
- P. Grossi, Scienza giuridica italiana – Un profilo storico 1860-1950, Milano, Giuffrè, 2000, except the last chapter.
Learning Objectives - Part A
Learning outcomes
Students will be able to understand the overarching themes of the modern and contemporary history of justice and jurisdiction, to learn the organization of the judicial system in Europe and to better interpret the judge/law relationship by analyzing the rulings of the courts.
Capabilities
Historicizing normative data.
Pointing out historical origins of juridical language.
Dealing with interdisciplinary character of juridical issues
Skills
Sensibility to interpretative nature of jurist's activity. Relativity of juridical concepts and consciuosness of their historical roots.
Learning Objectives - Part B
As the course is addressed to third year students, i.e. students who have acquired competences in the main areas of law, it intends first of all to refine their capacity to contextualize in time the topics dealt with during the course.
In particular, the choice to consider simultaneously public and private law aspects as well as theoretical and normative institutional aspects should develop the students’ ability to relativize the present too, seeing it as the expression of a historical season, that is equally in constant motion and whose known features, therefore, cannot be immobilized. From this point of view, the perception of history (and of the present itself) as a ceaseless movement aims at fostering an overall reflection in the students on the many aspects of law (normative, jurisprudential, practical etc.) and on the set of sources that produce the regulatory fabric of the different historical experiences. In this way, the reflection on history intends to develop a capacity to see critically the past and the present, but also to stimulate an overall vision of law and to encourage, through this, intuitions and reflections on the future of legal systems, consistently with the aims of a Course that wants to train lawyers who are not only able to read the law, but also to contribute to its design.
Prerequisites - Part A
"Constitutional law I" and "Civil law I" shall be already taken. Although it is highly recommended to have taken also "History of medieval and modern law" (first year), students who have not taken that exam will be allowed to take this exam.
Prerequisites - Part B
"Constitutional law I" and "Civil law I" shall be already taken. Although it is highly recommended to have taken also “History of medieval and modern law” (first year), students who have not taken that exam will be allowed to take this exam.
Teaching Methods - Part A
The course will take place in the form of lectures and seminar activities for a total of 48 hours, with a focus on the most relevant european historical sources. The related documents will be distributed during the lectures.
Teaching Methods - Part B
Classes are taught mainly through lectures. Sources and materials that are essential to complement the knowledge transmitted in class are uploaded on the Moodle platform.
Since this academic year, students will be offered the possibility to participate, on a voluntary basis, in a “movie project”. In particular, the teacher will select four movies related with the subject of the course. Groups of about 30 students will be formed and each group will be assigned one of the movies. Each group will be divided into three subgroups: the first will be asked to support one of the thesis emerging from the movie; the second one will be asked to support the opposite thesis; the third one will be asked to evaluate the quality of the arguments put forward by the students of the other two groups. These groups will be set up and managed as forums in the Moodle platform, in order to give the students a shared area of debate and discussion. Each student may debate and see only the forum of the group she belongs to. Each group is required to deliver a final report.
This project intends to foster a critical reflection on the themes presented to the students by the production of the corresponding arguments, to promote group working, and to get the students accustomed to managing a constructive forum dialogue, which respects different opinions and is capable of avoiding the use of offensive tones.
The movies selected this year are:
- 'The reader' (Usa/Germania 2008) e 'Music box' (1989): si tratta di film che affrontano il problema del totalitarismo sia sotto il profilo dei limiti dell'obbedienza, sia sotto il profilo della memoria che di esso si può/deve avere;
- 'Due giorni e una notte' (Belgio, 2014) e 'Sette minuti' (Italia 2016): si tratta di film legati al tema del lavoro.
For those who are willing to take part in the “movie project” there will be a seminar of around three hours devoted to watching and discussing the movie. In addition, students will have to spend some time in the discussion in the forum created in the Moodle Platform in order to contribute to the drafting of the final group report.
Further information - Part B
Students willing to attend the course should enrol in a specific list that will be circulated in class.
The enrolment in the Moodle platform is necessary in order to receive information and materials during the course as well as to participate in the “movie project”.
Attendance will be checked by roll call.
A maximum of 3 unexcused absences will be allowed.
Type of Assessment - Part A
The examination will have place in oral form. A first question will be of general matter, regarding the modern history of justice. The following questions will have a more specifical target, particularly about the works and historical sources and texts discussed during the lessons.
The evaluation will be measured on the student's ability to situate in a historical perspective the issue and his or her critical comprehension of the historical sources.
Type of Assessment - Part B
Oral examination usually consisting of three or four question. The first question in general deals with a general topic, in order to test the capacity of the student not only to adequately place a subject over time, but also to frame a wide-ranging phenomenon. The other questions usually are more specific, in order to test the capacity of the student to describe in detail more circumscribed information and concepts, together with the aptitude to connect specific subjects with broader themes. The evaluation is based on the capacity to frame and conceptualize correctly the different issues, with particular attention to the quality of language, both from a technical point of view and as far as its maturity and richness are concerned.
Course program - Part A
The main topics covered in class will be the following:
- Images of justice (an introduction to the course); - Legislative law and jurisprudential law (an overview); - From eighteenth-century reformism to the Code: - Organization of the judiciary and division of powers in revolutionary France; - Civil Code and Revolution; - The Courts of Cassation in united Italy (1865-1923); - Judicial equity and the legal system; - Ordinary jurisdiction and administrative justice; - Contractual justice; - Legislative law, jurisprudential law and representations of injustice (the question of the prohibition of paternity research); The origins of labour jurisdiction; - Civil liability and accidents at work in liberal Italy; - Social laws between public and private law; - Justice and totalitarianism between the two wars; - The Nuremberg trial; - Justice in Republican Italy; - Law and justice: the problem of the abuse of law; - Judiciary and politics.
Course program - Part B
The course intends to analyse the connections between public and private law images, focusing both on the so-called liberal individualistic model and on its progressive erosion. To this end, a long period of time will be reconstructed, from Legal Humanism to contemporaneity, through some salient steps. In order to explore such a long chronological age, basically two perspectives are adopted: the different ways to thematise the right to property and the diverse modes to reconstruct the relationship between rule and interpreter.
The course is divided into three main parts.
I) THE BUILDING OF THE INDIVIDUALISTIC MODEL
- The relationship between the Middle Ages and the modern era: the anthropological, religious, political, and legal liberation. The word “liberation”, effectively used by Paolo Grossi, intends to convey the way modernity perceives itself, precisely as a moment of liberation, when the mediaeval mentality is radically overcome. The analysis of the nascent modernity is useful to bring the students into contact with the complexity of transition periods and with the compresence of new elements and elements that, instead, refer to the more traditional images of the legal and political system. In the analysis of these “liberations” a particular emphasis is placed on Weber’s interpretation of the Reformation, seen as the origin of that unfinished process that has brought Western societies to consider wealth and success as values, also ethically positive values. Likewise, emphasis is placed on Bodin’s work in order to highlight the elements of modernity in his discourse as well as the elements that connect him to the mediaeval legal and political imagination.
- The doctrines of Natural Law are examined in order to expose the students to the first full-fledged theoretical formulation of an individualistic model, founded on the simultaneous centrality of the individual and the state. After examining the main features of this philosophical movement, particular attention will be devoted to the study of the theories of Thomas Hobbes and John Locke.
- The Enlightenment is examined as a cultural phenomenon that largely uses the ideas developed by natural law doctrines, trying to transform them into tools to criticize the existing systems and in a powerful leverage to transform them, mainly through the idea of reform and reformability of systems. Particular attention is devoted to Beccaria: his positions concerning death penalty and the relationship between the judge and the law are examined.
- The American and French Revolutions are analysed in their main traits in order to show how a set of apparently wholly “theoretical” concepts (the state of nature, the social contract, resistance, etc.) in fact found a fertile ground for reception both in the lexicon of revolutionary processes and in subsequent official documents and provisions. For the American Revolution, the Declaration of Independence and the principal features of the federal Constitution on 1787 will be analysed, with the aim of bringing the students into contact with a constitutional model that, unlike the Continental European models, tends to fear the power of the legislature and to trust the power of judges. Also the birth of judicial review of legislation is explained in the light of this feature. For the French Revolution, special attention is devoted mainly to the Declaration of the Rights of Man and of the Citizen of August 1789 to bring the students into contact with another idea of revolution and modernity. Particular emphasis is placed on the so-called legicentrism that characterizes the revolution and that will be a salient feature of all Continental European legal systems during the XIX century, together with the ‘ancillary’ role that judges and jurists were thought to have.
- The codification. First, we will try to identify the general features of codification, that is to say the features that enable us to consider codification as a turning point in European legal history. Second, we will turn to the analysis of the differences among some codification experiences, just to confirm that the law, also when it draws inspiration from the same ideal and organizational model, tends to adhere to the peculiarities of the diverse legal contexts. Adopting this perspective, we will study the French civil code, the ABGB and the Italian civil code of 1865.
- The German area, the Historical School, and the Pandectists School. The study of the German area opens with the Thibaut-Savigny controversy in order to bring the student into contact with the different ways to consider the code. It then moves to the evolution of Savigny’s thought (from Beruf to System) and reaches the Pandectist School. In this regard, particular attention is devoted to the role and the work of the jurist (the building up of a system, the pyramid of concepts) and to the conception of property as an elastic right.
- The BGB is the last code that is analysed. We will examine the influence of the Pandectist School in its drafting, along with the presence of provisions (the so-called “drops of social oil”) that can be ascribed to other cultural lines.
- The Public Law School completes the part regarding the building of the individualistic model with the perspective of the dogmatic framing of state sovereignty. After a quick reference to the figure of Carl von Gerber, the attention focuses on Vittorio Emanuele Orlando and to some central points of his thinking (refusal of contractualism, theory of state self-limitation, theory of the state as a legal person, theory of representation).
II) THE FIRST CHALLENGES TO/DIFFICULTIES OF THE INDIVIDUALISTIC MODEL
Three main sources showing the first challenges to / difficulties of the individualistic model will be examined: a) the debate about collective property (Maine, De Laveleye, Zucconi); b) the so called “social shortcomings” of civil law, namely, the employment relationship and social legislation; c) the evolutionary interpretation and the re-evaluation of the role of the jurist.
III) THE CRISIS OF THE INDIVIDUALISTIC MODEL
“Crisis” is the key word that is used to approach the XIX century, that is the century that marks the opening of a new season in the conception of the relationship between state and society and of the relationships within society. The analysis of the new century is introduced by the recourse to two specular images of the crisis circulating in the legal discourse at the beginning of the XX century: “too much society in the state” and “too much state in the society”. These images alludes respectively to the new face of mass society, which is an organized and conflictual society pushing the state, undermining its sovereign solitude; and, at the same time, to the increasing state intervention in private economic relationships, an intervention that started under the pressure of war needs but was not destined to end with the end of the war. If, then, the XIX century had imagined the system as the product of a harmonious interaction between public and private, society and state, basically without reciprocal interferences, the great challenge of the XX century is rethinking the system by establishing a relationship between these spheres, imagining different ways for them to interact.
On the basis of these premises, the two main political and legal answers will be examined:
a) the totalitarian response: in particular, the features of a power with a totalitarian vocation will be explored (the centrality of intermediate organisations and the mechanisms of social control; the expansion of the state social politics, the prominence of propaganda, the role imagined for rights and individual and social autonomy);
b) the democratic response: in particular the text of the Albertine Statute will be compared with the text of the republican Constitution in order to understand how the democratic XX century constitutions differ from the XIX century constitutions. The points of discontinuity between the Constitution and the vision of the legal and political system of the previous Fascist experience will be highlighted. More in detail, articles 2 and 3 of the Constitution will be analysed because of their centrality in order to understand the overall constitutional project. Finally, the issues of the implementation of the Constitution and of its life in the decades of Republican history will be studied.