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.
For attending students (attendance is required for corso di studi in giurisprudenza italiana e tedesca):
notes from the lectures
and P. Grossi, L'Europa del diritto, Roma-Bari, Laterza, 2007, pp. 3-255
Supplemental readings will be indicated during the course.
For not attending students:
P. Grossi, L'Europa del diritto, Roma-Bari, Laterza, 2007, pp. 3-255
e A. Cavanna, Storia del diritto moderno in Europa. Le fonti e il pensiero giuridico, Volume II, Milano, Giuffré, 2005, pp. 337-358; 395-589.
Learning Objectives
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.
Prerequisites
None
Teaching Methods
Lectures: 72 hours.
Type of Assessment
Final exam: oral.
Course program
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. To this end, after explaining the essential characters of the common law system, a mandatory starting point for every history of legal sources and culture in the modern age, the teaching will proceed through an examination of the relevant features of the French, Italian and German codification in the nineteenth and the twentieth century, to achieve an understanding of the fundamental aspects and the key problems of today’s legal reality.
Main topics to be treated:
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.