The online Italian Review of Legal History aims to facilitate the scientific debate among Italian and international scholars on Italian, European and world-wide themes concerning the juridical field from the early medieval centuries to the contemporary period.
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The Bombardment of San Juan 1898: A Legal Historical Analysis
On May 12, 1898 the first military engagement of the Spanish-American War in Puerto Rico took place with a naval battle between the United States Navy under the command of Admiral William T. Sampson and the capital city of San Juan. During the bombardment US ships destroyed military buildings and civilian infrastructure including a hospital, an orphanage, and a church, also resulting in 18 wounded and 5 civilian deaths. Even though it is suggested by the historiographic literature of the Spanish-American War (1898) that the bombardment of San Juan was an illegal act of war by the United States, there is a need for a legal-historical analysis to that effect, including all the available primary sources from published resources, and also, documentation found in historical archives, together with the international law of the period to comprehend this affirmation better. Henceforth, this critical analysis of the historical facts and the international law of the period can elucidate the bombardment of San Juan as a historical case in which the law of war often omits justice when bombing against civilians.
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Review: James Gordley, “The Eclipse of Classical Thought in China and in the West”, Cambridge 2022
Il libro che presentiamo è il frutto di un lungo lavoro compiuto da uno studioso ben noto e di alto profilo, autore di monografie ed opere di sintesi dedicate alla storia del diritto occidentale ed alla comparazione giuridica. Tre sono i fili principali di cui è intessuta la ricerca che porta il titolo sopra indicato: una storia del pensiero giuridico di ispirazione confuciana della Cina classica e moderna, un confronto con le vicende del pensiero giuridico occidentale nel quale si ravvisano inattesi parallelismi tra le due storie d’Oriente e d’Occidente, in terzo luogo una serie di riflessioni sull’auspicato ritorno a quella che l’autore definisce la concezione classica di entrambe le tradizioni.
Gender Equality and the Independence of the Legal Profession Between Historical and Contemporary Perspectives
A reflection is proposed on gender equality in connection with the principle of independence of the legal profession, through a historical analysis from the liberal era, through fascism, and into the republican period up to the present day. On the one hand, the exclusion of women from the legal profession in the 19th century can be partly attributed to the limited autonomy of bar associations. On the other hand, their admission after 1919 did not bring about gender equality, with significant repercussions on the entire category.
Discussions: On Parità di genere nelle professioni legali (Ferrara, March 22th, 2024)
Strategies of Massacres, Coup Strategies and Trial Strategies. Some Analyses on the Memory of the Piazza Della Loggia Massacre and the Subversive Strategies and Concealment of the Truth in Italian History in the Sixties and Seventies of the Past Century
Remembering the tragedy of Piazza della Loggia in Brescia according to the guidelines of the conference Stragi e strategie. Questioni di giustizia verità e memoria led to retrace the key episodes of ten years of Italian history: years devastated by the attempts to overthrow the principles of the democratic constitution. The strategies of the subversive right groups were carefully planned to instill terror and disorientation in citizens. From an ideological and political point of view, the elimination of the principle of the balance of powers was pursued with three attempted coups d’état aimed at establishing authoritarian governments. In addition to the determination to further weaken the judiciary and eliminate the «red judges», there were also ‘deviations’ to prevent or alter the investigations into those responsible, instigators and executors, of the massacre so that it was impossible to fully ascertain the judicial and historical truth. All these aspects can be traced in the «procedural tangle» that has still not allowed complete justice to be done, fifty years after the tragic 28 May 1974, five phases of investigation and thirteen trials.
Discussions: On Stragi e strategie: questioni di giustizia verità e memoria sulla strage di Brescia (Brescia, May 8th, 2024)
The Judge and the Historian. For a History of the Massacre in Piazza Della Loggia
This essay reconstructs the history of the trials held for the Piazza della Loggia massacre – 28 May 1974, eight dead and over a hundred injured – linked – like others between 1969 and 1980 – to the strategy of tension. At the time of the Cold War, for fear of communism in power also in Italy, the Services opposed political-military secrecy to the investigators, sidetracked the investigations, delayed by decades the conviction of those responsible, material perpetrators, supporters, instigators; many remained unpunished. In those years the judiciary and legal culture sensed a field of tension between the logic of the criminal trial, intended to ascertain the responsibility of the individual defendants, and the historical truth, even beyond the procedural ‘constraints’. The judge became ‘historian’; the ruling of 22 July 2015 of the Court of Assizes of Appeal of Milan considered the results of the same trial as “evidence” and placed the massacre in its «context». The search for the ‘why’ of the massacres led to the ‘who’, in the «historical-political context, but also in the judicial one»; on 20 June 2017 the Court of Cassation confirmed the trial strategy, making definitive the convictions of Carlo Maria Maggi – the undisputed ‘leader’ of Ordine Nuovo – and Maurizio Tramonte – a collaborator of the Services – at the time exponents of the «radical right of subversive origin».
Notes on “Stragi e strategie. Questioni di giustizia, verità e memoria” 8 May 2024, Brescia
These notes intend to illustrate the background of the conference commemorating the Piazza Loggia massacre in Brescia (28 May 1974), organized thanks to the synergy between the University, cultural institutions and the social fabric of the city, and held at the Department of Law. It was animated by two witnesses of that human and civil tragedy, and two important legal historians: massacres, subversion, terrorism, State and deviant apparatus, truth, justice and civil society are some of the themes which, valorizing memory through history, were addressed in the contributions to the conference, which have now been given a written form in this review.
The Dialectic of the Rome Statute: Oppositeness and Unity of the Complementarity and Corrective Function of the International Criminal Court
Under international law, it is each State’s obligation and responsibility to recognize the most serious crimes committed against the international community, as well as criminalize and conduct effective investigations and prosecution of them. The establishment of a permanent International Criminal Court, whose well-known complementarity principle is one of its central tenets, has finally emerged as a pillar in the fight against the impunity of international crimes. The article derives from various implementations a test for determining the characteristics and functions of the correction function of international law, thus presents the argument that the Rome Statute’s complementary role provides a corrective function.
Interferences of the Main Office of Control of Publications and Performances During Martial Law in Poland (1981-1983) in the Writing on the Rule of Law – Selected Examples
The aim of the article is to present processes and changes that took place in the Polish People’s Republic in the early 1980s in connection with the activities of the Independent and Self-Governing Trade Union „Solidarność”. In this context, it is necessary to show how the then state authorities understood the rule of law (socialist or popular perceived through the prism of the views of Marx, Engels and Lenin). Taking into account the one party rule in Poland at that time, this article will analyze literature in the field of law. It will investigate, first, the writings of Jerzy Bafia, who for many years had an influence on shaping the law in Poland, first as president of the Supreme Court (1972-1976) and then as Minister of Justice (1976-1981). Second, this article presents an analysis of historical sources located in the Archive of Modern Records in Warsaw in the group entitled the Main Office of Control of Press, Publications and Performances in Warsaw. State censorship bodies during martial law in Poland influenced the discussion on the rule of law by controlling the press. Through censorship, the authorities attempted to weed out undesirable perceptions of the political system in Poland. From these documents, a picture emerges of the strategy of institutional censorship regarding the political and legal situation in the years 1981-1983.
First Lady: Wilma Viscardini Donà, Eurolawyer
The paper aims at shedding some light on the life of Wilma Viscardini Donà, who was the first woman to be hired as adviser at the Legal Service of the European Commission, where she worked between the beginning of the Sixties and the beginning of the Seventies. The paper focuses on her time at the European Commission and the most important dossiers she worked on. Furthermore, it deals with her career as a lawyer litigating Community law cases.
“Particular and exceptional forms of legal production”. Giuseppe Codacci-Pisanelli (1913-1988) and the introduction of the decree-law in the italian Constitution
The essay analyzes the position of Giuseppe Codacci-Pisanelli (1913-1988), academic and constituent, on the issue of the introduction of the decree-law into the Constitution. The study offered focuses solely on the scientific story of Codacci-Pisanelli with respect to the theorization of necessity as a condition legitimizing the Government’s recourse to provisional measures with «the effect of ordinary law», then transfused into the assembly debate. The theory – attributable, in some ways, to the original and most significant expressions of the Italian school of public law founded by V.E. Orlando – does not suggest that necessity «can be interpreted as a source of law in itself»; however, it reveals one of those cases «in which particular and exceptional forms of juridical production must be admitted». Responding to the need to revive Codacci-Pisanelli’s juridical thought, the paper, at the end, relates the constitutional construction that was then determined in the Republican Constitution with the completed elaboration that brought to completion the drafting of art. 77 and the complex range of the phenomenon, both in the light of the requirements of the legislative procedure and of the relations between political-constitutional subjects.
The Great War in the Rocco Code: Legal, Argumentative and Ideological Paths of the Political Defeatism
This paper follows the crime of the politic defeatism from the first world war to the Fascism trough the 1926’ laws and the code processing. During the Great War in the October of 1917, one of the most difficult times for Italy, the Government introduced the crime of defeatism, next to the press censorship, a rule that was going to repress the freedom of expression of any citizen. The normative (D. Luog. n. 1561/1917, alias «decree Sacchi») suppressed not only news but also rumors about the war and politic propaganda against the war, especially the socialist one. The rule did not mention news and voices, but it used an indeterminate expression. Everybody, in the Parliament, in doctrine and jurisprudence, understood which were the goals to hit. Many citizens and politicians were convicted of defeatism. The Government was worried about the reaction of the citizens and of the soldiers in the face of war, difficulties and mournings. Also, it would not tolerate a public discussion about war. The crime of defeatism was part of the many measures that began to change the rule of law. Jurists and judges commented on the changes, with someone who assented to those. About limitations of freedom, repression of opinion crimes, control of public opinion, the judges had to balance freedom and national security, they often preferred the second one. The political opponents and the dissenting voices became enemies of the nation. After the war, returning to peacetime was exceedingly difficult. The discussion on the war did not finish and the Fascism used difficulties and frustration of Italians in its politics and for the rise to power. The Regime used the experience of the war, including violence, and the legislation in force during the war to eliminate freedom of expression. Two 1926’ laws, one on citizenship and the other of defense of the State, took up the letter and the spirit of the «decree Sacchi» for control of the propaganda against the Fascism by Italians abroad. Especially, in the law on the defense, which also reintroduced the death penalty, the voices were clearly sanctioned. After that, the repression of freedom of expression, exceptional during the war, became standard into the fascist legislation. The ideal was based on a special consideration of the war. Effectively, the Regime made the war one of the pivot points, giving it many meanings and active roles: the historical roots, the state-to-state relationships and the citizen-to-state one, the ideology of the penal code. The State rights were asserted against individuals, the political opponents began common criminals without political dignity, and the dissenting voices were repressed. The modern civilization was conceived as a continuous struggle between peoples of different countries, laws and rules to fight the enemies into and outside the borders were needed. This concept of civilization and of the State is clear in the crime of defeatism in the Fascist Penal Code. During the code processing the connection between war and Fascism, war and modern civilization, war and the duties of citizens, were constantly reaffirmed. In the project of the code, for the crime of defeatism the Minister of Justice Alfredo Rocco had maintained the sanction of news and voices, but he had extended the rule to all the citizens. He also had limited the application only «in wartime». The subjects called to participate in legislative processing identified the Great War as the root of the criminalization of the political opponents and the dissenting voices, they approved this heritage. Sometimes they suggested more severe punishment and a wider application, for instance in peacetime. The reasons why the Minister Rocco did not accept the proposed changes were not moderation: first, there were already a lot of tools to manage opposition and dissent (confinement, political police, Special Court for the Defense of the State) in peacetime; second, Rocco thought that the notion of wartime should be broad and not precisely defined. This rule, very authoritarian and indefinite, is still in force in our legal system.
The long life of the arbitration at the Trieste commodities exchange
Article 1 of Royal Decree No. 2325 of 1928 (Provisions for legislative unification in the territories annexed to the Kingdom) established that from July 1, 1929, the Italian codes of civil law, commercial law and civil procedure were to come into force in the territories of the former Austrian monarchy annexed by the Kingdom of Italy. However, Article 4 specified that «Until further notice, the rules governing the Trieste Commodities Exchange remained in force and the arbitration proceedings shall also be maintained», because the Italian government realized how much more convenient it was to preserve, rather than repeal, the special provisions on commercial arbitration at the Trieste Commodities Exchange. Consequently, with the approval of the ministerial decree of June 21, 1929, the new Procedural rules on arbitration at the Trieste Mercantile Exchange came into force. These new rules transposed into Italian law the old Austrian provisions contained in the 1912 Statute of the Trieste Commodities Exchange concerning the «arbitration judgements», so as to coordinate their wording with that of other Italian laws. The Hapsburg model thus adapted to the Italian reality proved to be particularly resilient, since it was not abandoned even with the entry into force of the new Code of Civil Procedure of 1942, let alone after the end of fascism and the birth of the Italian Republic.
The Jurisprudence of the Supremo Tribunal Federal in Brazil’s First Republican Decade and the States of Siege (1889-1898)
In Brazil’s first republican decade (1889-1899) several difficulties were associated with the birth of the Republic and the stabilization of this new form of government. The very construction of a new Judicial Power. The new Republican Judiciary had to face in the early years successive declarations of a state of siege calling on it to act and respond on the issue, since the Judiciary had the role of guardian of the Constitution and protector of individual rights, particularly the newly created Supreme Court. The Judiciary was therefore mobilized, through habeas corpus petitions, to take a position on the suspension of constitutional guarantees, the constitutionality of the state of siege and its effects. We have analyzed three important points: 1) how the Judiciary acted in relation to the other Powers of the State, particularly the Executive; 2) how it did or did not protect individual liberties during the period of exception; and 3) how the Judiciary exercised its role as guardian of the Constitution by curbing abuses of power. In analyzing this decade, we note the existence of a permanent underlying theme: the political and the legal, the conflict between what is political and what is legal, the difficulty of not mixing the issues and imposing limits on each. The new Judiciary thus sought to distance itself from politics and align itself with its role as guardian of the Constitution.
Between «Spartenza» e «Restanza»: The Great Migration Through Rights and Social Stigma
The terms «spartenza» and «restanza» not only define two complementary experiences linked to the migratory phenomenon, (departing and remaining), but highlight the common legal identity of the so-called «middle people», suspended between flight and seclusion, between lost rights and statuses and others not yet acquired, who perceive themselves in any case and everywhere «out of place»: a «legal minority» whose denunciation emerges from a substantial popular literature, the so called «spartenza songs» capable of eliciting responses from below and overcoming the stigma by recovering the lost identity.
Justice Holmes’s Response to Legal Formalism in Context: A View on the Cornerstone of a Realistic Approach to the Common Law
A realistic approach to common law is one of the most authoritative views on the role and potential of judges in law-making. American judge Oliver Wendell Holmes, Jr. was a mastermind of legal realism and held a very special position among his fellows. Conventionally, legal realism is considered a progressive and innovative movement of the late XIX and the first half of the XX centuries. However, as this study demonstrates in several respects, some of its proponents can be labelled conservatives who defended their view of the traditional approach of judge-made law. Realists inspired by Holmes countered the formalist trends within common law, which was initially and historically alien to them (e.g. Langdellism). The formalist methodology and its results were often reminiscent of the Reception of Roman Law, which ancient common law rejected. Not surprisingly, it was highly criticized as an imposition of artificially invented legal ideals on a particular society regardless of its real-life experience. Based on Holmes’s original writings and their credible interpretations, this survey aims to explore his anti-formalist approach within a broader context of its theoretical origins. It reveals the historical and legal roots of the ‘realism formalism’ antagonism in the common law, reflecting, as a result, the global contrast of two civilizational approaches to legal epistemology (common law v. civil law). Case-based conceptual legal thinking typical for common law is considered through the lens of Holmes’s findings on the process of gradual formation of legal principles. Realistic aspiration to ensure that law reflects the actual demands of the community is explained as a claim for real democracy as opposed to the formal one. A refreshing contextual view of Holmes’s teachings may unfold for a continental reader the possibility of treating the modern concept of deliberative democracy and models of constitutional interpretation, such as the living constitution or popular constitutionalism, from the perspective of a realistic approach.
Necessity as a Juridic Category: A Working Hypothesis, by Jacopo Menochio
In the Trivulziana Library in Milan, the treatise De necessitate, eiusque privilegiis et prerogativis, by Jacopo Menochio, is preserved in a single voluminous manuscript. The method chosen by Menochio can be better understood through comparison with other sixteenth-seventeenth century treatises that deal with themes of the same transversal and complex nature (poverty, illness and the like). Although the work is incomplete, the reading reveals itself of considerable interest both in the first part, more refined and meditated, dedicated to the theoretical introduction on the philosophical-juridical concept of necessity, as in the much more confused and fragmentary part, in which the author planned to analytically analyze the numerous privilegia, which in the field of law are connected to the different conceptions and situations of necessity. The very disorganized nature of the code gives it a particularly significant: in addition to providing a sample of the juridic knowledge of the professor from Pavia, dealing with a concept of multiple theoretical and practical facets, the text offers an interesting vision of the working method with which a treatise on such a complex theme is being constructed, and shows us the way in which an illustrious jurist of the late ius commune era masters the immense mass of sources and reference authorities to reach the solution of every possible concrete case.
Charters and Notaries in the Legislation of the Lombard Kingdom and in The Kingdom of Italy. Some Considerations on a Controversial Issue
How much notary history can help understanding charters and, vice versa, how much charters can help understanding notary history? This theme has been widely investigated by both legal historians and scholars specialized in the many disciplines aimed at focusing on charter’s history (such as e.g. social class history, charter’s history, paleography and diplomatic history). These lines of research have been analyzed the general topics or the specific territories and historical periods. In spite of the fragmentary documentations, light has been shed on charters and notary history across a large number of social and organizational diversity and across different historical epochs. Regarding the early medieval age, I believe that further indications could be deduced from the chronological order of the Lombard edicts and from the laws of Italic kingdom. These sources prescribed the rules to stipulate legal acts and specified the people responsible for their record and implementation. The examination of such sources also helps us to understand which concerns drove legislators in different historical epochs and which were their main aims: chiefly to guarantee charter legality and effectiveness, avoid as much as possible the arising of legal disputes among parties or facilitate the resolution of such disputes. Only in XIIth century, public trust in notary charters was established according to their status of public officers (as we call them nowadays), but this achievement was the unexpected and unforeseen result of a very slowly path. For centuries, legislators had to contrast the ‘perverse’ behavior of those who had asked the drafting of acts or contracts but changed their mind and did not want fulfill the legal commitments made. From this perspective we can analyze the rulers’ ‘double track’ and the basis of a centuries old path through the creation and standardization of the requirements of the legal acts and the related written documentation. As a legal historian I chose, so to say, to start again and retrace in a chronological perspective the edicts of the Lombard kingdom and the legislation of the kingdom of Italy. I did so by linking the rules according to which legal acts had to be recorded in the charters and the ones defining the activity and expertise of the charters writers. Taking into consideration the sequence of rules and their aims, it is possible to trace an itinerary between issues and contexts to find the recurrence of specific fields of tension among governors, charters recorders and their ‘clients’. Such tensions were produced, in the opinion of the legislators, by one of the major challenges of the ‘living law’, that is the general lack of good faith.
Against the Code Civil. Parental Authority and Conversion of Jewish Minors (1806-1813)
The purpose of this essay is to enhance the understanding of the post-civil code in the Kingdom of Italy, by focusing on the issue of Jewish minors being converted into invitis parentibus. This is a very ancient issue that compromised relations between Judaism and Christianity, which only formally followed Aquinas contrary indication. The Napoleonic Code Civil represents a stumbling block in the context of Napoleonic Italy. The case study of Judith and Esther Padovani (1811-1813) will appear paradigmatic to capture continuity and discontinuity in the attitude of the government, of the world of jurists and of society at every level.
For the Reconstruction of Post-War Italy: The Institutional Transition in the “Cronache Sociali” by Giuseppe Dossetti (1947 - 1951)
The paper focuses on the contribution of the editors of the journal “Cronache Sociali” to the identification of the personalist model as the basis of the new political and social order of republican Italy. Having noted that recent studies on the birth of republican institutions and on its architects are characterized by the prevalence attributed to the comparison between the experience data of the constituent period and that of today, the article considers the decisive references of the magazine’s founders to the thought of Jacques Maritain and that of Emmanuel Mounier. Evidence is then given to the existence of different personalist visions among the different political forces involved in the constituent phase of the Republic. This pluralism represents the fundamental and decisive element of the Constitution, thanks to which, until the 1990s, different models of civil society and political society have confronted each other, maintaining a reference, increasingly weak but persistent, to the personalist foundation. The subsequent period, up to today, is marked by the progressive affirmation of the individualist paradigm.
The Escape as Evidence: Between Presumption of Guilty and Natural Law
In legal history, escaping unjust imprisonment and torture has rarely been regarded as a clever way to save one’s life. Despite Matthew 10.23, Christians were not allowed to flee if their faith seemed weak because of it. In the Ius Commune, the escape was seen as an indication that almost seemed like an admission of guilt. Spanish lawyers tried to determine the monarch’s right over life and limb of the imprisoned person. Only later did teachings based on natural law emerge allowing to save oneself. This idea, however, has not yet been generally admitted
The Duty to Breastfeed. Mothering, Wet-Nursing and Abandoned Childhood in Ancient Regime Lombardy: First Historical-Legal Researches
The history of mothering and wet nursing is a topic of enormous importance, extremely broad and characterized by multiple perspectives. Over the past decades, numerous historical, demographic, sociological, and anthropological investigations have developed on this subject. The historical-legal aspect, so far less studied, nonetheless encompasses a series of profiles of great interest for better understanding the role of women within society and their ability to influence or not the legal aspects related to their status as mothers, the care, and education of children. In a historical period, such as the modern era, when newborns could not be artificially fed, wet nursing represented their only chance of survival, both within upper-class families, where the practice of sending children to wet nurses was very ancient, and in the equally dramatic and widespread case of child abandonment. The following pages will first frame the phenomenon of wet nursing through the centuries, tracing, starting from ancient times, the main voices of a vast medico-philosophical literature favorable to maternal breastfeeding and, conversely, critical and distrustful of the practice of entrusting the child to a wet nurse. From Quintilian to Soranus of Ephesus, from Pseudo-Plutarch to Aulus Gellius, all agreed on the importance of maternal care, starting with breastfeeding, for the establishment of a strong emotional bond between mother and child. In cases where it was necessary to resort to a wet nurse, the choice had to be made with great care, as a good wet nurse had to present precise physical and moral qualities. These requirements remained unchanged in the treatises of medieval and modern times until, between the seventeenth and eighteenth centuries, a new way of understanding relationships within the family began to develop in the thought of the intellectuals of the time, with significant repercussions also in the field of breastfeeding. For the first time, the criteria adopted for centuries in the search for a wet nurse were questioned by a series of scientific studies conducted on the causes of infant mortality, which considered maternal milk a resource against diseases and deaths in the first years of life. J.-J. Rousseau, in his famous pedagogical novel Émile, ou de l’éducation (1762), was a fervent supporter of maternal breastfeeding as the first and fundamental act intended to consolidate the bond between mother and child, a relationship in which the duties – according to the Genevan philosopher – were reciprocal. Despite this, wet nursing was deeply rooted in the ancien régime society. In the case of an aristocratic or mercantile family, the wife was destined to procreate as many children as possible – in a historical period when infant mortality was extremely high – hence, not breastfeeding the newborn was the preferable choice so that the woman would become fertile again shortly after childbirth. Breastfeeding was also considered a source of fatigue for the woman already exhausted by labor and delivery, and it was believed that breastfeeding had a negative effect on the woman’s beauty, causing her to wither prematurely. Moreover, breastfeeding represented an obstacle to the resumption of sexual relations between husband and wife, which was thought to spoil the mother’s milk. For all these reasons, in the middle and upper-class families, immediately after the birth of a child, it was necessary to find a wet nurse to whom the baby could be entrusted. But even more in the case of abandoned children, finding a wet nurse willing to provide her milk was crucial for the survival of the numerous abandoned babies. In Milan, the practice of assisting foundlings and pregnant women in difficulty has deep roots in the early Middle Ages, based on a charitable tradition deeply rooted in the territory, where a dense network of welfare institutions was enriched over the centuries thanks to private beneficence and represented for a long time a typical feature of the city’s identity. As early as 1456, the Ospedale Maggiore of Milan invested significant capital in the field of abandoned childhood, arranging for the presence of internal wet nurses, milk mothers tasked with breastfeeding and caring for abandoned children until they were found a place with external wet nurses who would care for them at least until weaning. The phenomenon of child abandonment, which expanded significantly at the end of the fifteenth century, soon made the number of internal wet nurses insufficient and pushed the Ospedale Maggiore to recruit external wet nurses, usually residing in the countryside, to whom a salary was paid. Despite the careful management of the Ospedale Maggiore, the numerical imbalance between wet nurses and infants increased in the following centuries, prompting the Hospital Chapter to increase the wet nurses’ salaries and periodically offer them extra monetary rewards. The enlightened absolutism of the Habsburgs also made its effects felt in the field of abandoned children and wet nursing: during the reign of Maria Theresa, Prince Kaunitz established a new, more comfortable headquarters for pregnant women, abandoned children, and the wet nurses of the Ospedale Maggiore, which in 1780 were moved from the cramped “Quarto delle balie” to the former monastery of Santa Caterina alla Ruota, suitably renovated to house the “family of the foundlings”. With the advent of Joseph II, the system of assistance to pregnant women and the abandoned children was radically reformed in accordance with his intent to rationalize the management of charity. In Milan, Joseph II dissolved the Hospital Chapter, appointed a royal administrator and a medical director. The foundling wheel, where children were abandoned, was closed, and the delivery of newborns became possible, even anonymously, only through an acceptance office where the parent had to present a “certificate of poverty” or pay an advance on the child’s maintenance expenses. According to the new regulation, only pregnant women presenting the “certificate of poverty” signed by their parish priest, whether from the city or other areas of the Duchy, would be admitted free of charge to Santa Caterina alla Ruota. Should they decide to abandon their child after birth, the mothers would remain in the hospice as internal wet nurses. Only women with the certificate of poverty would not pay the foundling’s tax, the contribution to be paid to the Santa Caterina hospice in case of abandoning an infant. In 1791, Leopold II reopened the foundling wheel, restoring the old rules for the admission of pregnant women and the foundlings. At the request of the Ambrosian Church, the Hospital Chapter was reconstituted, and the centralized dirigisme of the Josephine period was decidedly toned down. Free wet nursing was extended to all poor newborns, children of deceased women, “unable to breastfeed” or admitted to the Hospital without any longer requiring a guarantee for their retrieval. Santa Caterina alla Ruota thus transformed into a sort of “public establishment of free wet nursing”.
Struggling in the Shadows. A Legal History of Female Labor in Italy Between the Liberal Age and Fascism
Law and its history play a significant role in supporting the thesis concerning the unequal treatment experienced by women. The patriarchal conception of infirmitas sexus and the dichotomy between the ‘male breadwinner’ archetype and the ‘female caregiver’ role have profoundly shaped Western societies, regulating the spaces and societal roles allocated to women, including the realm of female labor. In recent times, there has been a noteworthy resurgence of interest in comprehending the legal condition and subjective status of female workers. This renewed attention can be attributed to the proliferation of historical-legal research on women’s employment, which has meticulously documented the legal mechanisms employed to regulate the socio-economic dynamics governing labor practices. In the context of understanding how law influenced the subjective status of female workers, it’s crucial to focus on the period from Italian national unification to the fascist dictatorship (mid-19th century to mid-20th century). To achieve this, the present study examines the intersection between normative, doctrinal, and jurisprudential aspects, tracing the main historical paths from the heyday (§ 2) through the crisis of the liberal era (§ 3), to the fascist totalitarianism (§ 4). The thesis to be asserted is that, despite the enduring stereotype of female marginalization, emerging operational patterns marked a significant shift in the legal structures of gender inequality, reflecting the interplay of new legal elements alongside changes in state organization and power dynamics. Between the mid-19th century and the early 20th century, a deliberate legal strategy resulted in the obscurity of female workers. Women of means found themselves in a state of ambiguity, receiving treatment oscillating between exclusion and protection policies. This was achieved through the implementation of distinctive subjective treatments, which were sanctioned by diminished legal rights. Conversely, impoverished female workers were denied significant legal standing, with market forces and industrialists assuming the authority to entirely dictate the terms of engagement. The adverse conditions faced by working-class women persisted despite the legislative interventions targeting female labor, such as the so-called Weaker Forces laws enacted between 1902 and 1909. These laws aimed to safeguard the reproductive health of female workers, revealing a pervasive disregard for the material realities of working conditions. This indifference is evidenced by official reports, widespread violations of regulations, and a judiciary that primarily focused on enforcing existing laws rather than addressing systemic issues. The mid 1910s-mid1920s transition from a liberal state to dictatorship was characterized by the subjugation of female labor to the imperatives of maintaining public order and bolstering national production. Amidst the political upheaval at the turn of the century, public interests were invoked to manage crises, such as widespread strikes, leading to an expansion of the executive power through mechanisms of delegated decree authority. Despite women making inroads into traditionally male-dominated sectors like public administration and education, the enactment of executive decrees disregarded the rule of democracy. This served to justify the suspension of regulations protecting women such as the prohibition of night work, minimum hiring standards, and maximum shift durations in the name of collective interests. The curtailment of female workers’ rights through legally binding measures for exceptional circumstances escalated during World War I. Emergency decrees offered women temporary employment opportunities, which abruptly ceased with the conclusion of hostilities, resulting in mass layoffs to accommodate returning male workers. Judicial authorities also echoed the notion that female labor’s public nature should prioritize the collective interest in maintaining production efficiency, often at the expense of safeguarding female workers’ rights. Fascism, finally, drew on the burst of public law in previous years to integrate individuals into a broader entity—the State—wherein the family served as the original nucleus and a vital instrument for demographic expansion. Women bore the brunt of this organic conception of the social order, being relegated to the singular role of motherhood. This ideological stance reveals the core principles guiding legislation on female labor during the Fascist era: the restriction of women’s involvement in non-domestic labor spheres, except in the cases where their engagement outside the home was necessary. The regime’s endeavor to convert employed women into homemakers became evident through the reforms of 1934, which rendered women’s labor less attractive to employers and favored the hiring of men. This strategy aimed to reconcile the imperatives of a crisisprone labor market and economy with the regime’s demographic and ideological goals. The judiciary further affirmed the hostility toward female labor, providing differential treatment on whether women chose to return to domestic roles or pursued employment and career advancement. Despite embracing a new framework, fascism intercepted the trajectory set forth by liberal and late-liberal ages, i.e., the choice of an obscure legal status, preferably concentrated within the domestic walls to be reserved for the female worker. Female workers found themselves subjected to treatment oscillating between normative ‘aphasia’ and the application of exceptional regulations, all in pursuit of public and collective interests. The absence of laws and the reluctance to enforce existing ones, along with conservative judicial practices and directives, illustrate that the disjunction between theoretical principles and practical realities did not constitute a contradiction. Instead, it clearly depicted the status of female labor amidst the transition from the liberal age to fascism. With the onset of the republican era, the paradigms of female invisibility and concealment gave way to a legal framework characterized by the prioritization of individual rights. This shift marked a newfound female visibility acknowledged by the law, particularly within the realm of employment. Even today, however, persisting gender disparities and unfavorable working conditions underscore the substantial challenges that women, particularly working mothers, continue to face in balancing work and family responsibilities. It is not the role of legal history to offer solutions. Nevertheless, the historical analysis of legal phenomena can provide gender studies with a reflective lens to contextualize present-day issues surrounding female labor. By tracing the connections and evaluating the operational strategies experimented to perpetuate unequal treatment, this approach helps frame contemporary challenges within a broader historical continuum. Among the legal mechanisms devised to perpetuate gender inequality in the labor sphere, the period spanning from the liberal age to fascism stands out as a particularly fertile. It exhibited a remarkable capacity to innovate and adapt, offering novel solutions to emergent circumstances.
Notes about the Early European thought About China and Chinese Civilization
These pages aim to stress how pre-Enlightenment and Enlightenment thought dedicated attention to Chinese civilization, highlighting its affinities but also the differences with different aspects of Western European civilization. Leibniz played a primary role in this, and the remarks of Bayle, Wolff, Voltaire and Montesquieu faced the same issue with different approaches, more or less positive toward the Chinese civilization, as described by the Jesuits since Matteo Ricci and other missionaries having lived in China for years
Private Property and the Right of Prize in Maritime Warfare. An Italian Contribution to the Legal Debate of the 19th and 20th Centuries
With the rise of industrial and financial capitalism and the expansion of international trade thanks to technical progress during the late 19th and early 20th centuries, the protection of private property in maritime warfare was called into question on economic, legal and political grounds. Western jurists did not shy away from the debate, which took place in institutions - notably the Institut de droit international - and in university teaching. Through studies, writings and active political participation, many of them argued about the freedom of trade and the protection of private property; they tried to point out ways to abolish or at least better regulate the right to prize at sea; to supervise the control of maritime trade; to regulate war smuggling. The wishes were rarely translated into concrete results and clashed with established customs and practices. The essay focuses on the informed, pragmatic and disillusioned narrative of Tullio Giordana (1877-1950), a lawyer by training and a journalist and publicist by profession.
The Constitution Super Specula(m) of Honorius III,Text and Context
The constitution Super speculam, promulgated in 1219 by Pope Honorius III, is a very important text in the history of university teaching. Taken in application of the Fourth Lateran Council (1215), it primarily concerns the teaching of theology, of which the University of Paris is the centre, but also law. Wishing to promote the teaching of theology, Honorius III renewed the old prohibitions on regular clerics studying the law and extended them to many categories of secular clerics. To this important general context must be added a more specifically Parisian one. The criticism that theologians had long levelled at jurists, who were accused of attracting more and more students, was intensifying. The conflicts that developed between the masters and the chancellor from 1210 onwards, particularly the one that pitted them against Philip the Chancellor in spring 1219, fostered this antagonism between jurists and theologians. Influenced by the theologians, Honorius III banned the teaching of Roman law in Paris and the surrounding areas, at the end of Super speculam.
A consilium of Onofrio Bartolini da Perugia on the mulier alibi nupta
The study focuses on a legal opinion (consilium) authored by the Perugian jurist Onofrio Bartolini, addressing a dispute over taxation between Castiglione and Arezzo during the 1370s. The crux of the matter revolved around a woman from Castiglione who married a citizen of Arezzo but retained ownership of immovable property in her hometown. Castiglione contended that the property fell under its direct tax (libra), while Arezzo argued that upon marriage, the wife ceased to be a citizen of Castiglione and became a citizen of Arezzo, thereby subjecting her property to Arezzo’s libra. Bartolini, drawing upon Bartolo’s principles regarding the citizenship of the mulier alibi nupta, concluded that the jurisdiction to tax lay with Castiglione, where the wife retained her citizenship.
The Bingo Game. Corresponding Complicity: A Late 19th Century Penal Controversy
The essay reconstructs the doctrinal controversy relating to a rule of the Zanardelli Code (art. 378) which regulates a particular form of criminal participation: the “complicità corrispettiva” (corresponding complicity). Apparently classifiable as yet another episode of the scientific dispute that has divided criminal lawyers with an orientation of protection of civil rights (inspirators of the code) and the exponents of the new social-defense-oriented positivistic approach to criminal law, the case presents some aspects of originality: on the one hand, in fact, even some jurists directly involved in the codification work share the perplexities surrounding the rule; on the other hand, the criticisms addressed by a young exponent of penal positivism, Scipio Sighele, are not formulated according to the precepts of his own scientific field, but are inspired by the same principles of guarantee proclaimed by the legislator.Despite this singular intersection, the “useless and unjust” art. 378 will ultimately remain in the legal system, but will give rise to many interpretative difficulties, which will engage the jurists throughout the life of the code
When Women Wrote the Constitution. The Second Paragraph of the Art. 29 Between the Principle of Equality and the Indissolubility of Marriage
In 1946, Italian women voted for the first time and participated in electing the members of the Constituent Assembly. All the 21 elected women made a decisive contribution to drafting the Italian Fundamental Charter. This essay investigates the birth of the second paragraph of Article 29, which ruled the principle of equality between spouses, putting an end to centuries of asymmetries. Nilde Iotti, Angela Guidi Cingolani, Maria Maddalena Rossi, and Nadia Gallico Spano were among the protagonists who faced both doubts and the defence of the status quo, i.e. a hierarchically organised family with a husband at the head. Article 29 was not effectively implemented until the 1975 reform of family law, but a significant fragment of Italian history was written thanks to those women, who fought together for the improvement of women’s conditions despite their political and ideological differences.
The Betrayed Age. Violated Adolescence and Criminal Justice in 19th and 20th Centuries
In this essay, the connection between law and morality in its most pervasive dimension, namely the sexual one, is addressed through the lenses of criminal justice and crimes against the sexual sphere of the person. The central character of the analysis is the ‘typical victim’, that is the ‘teenager’, who brings together multiple elements of fragility, linked to a critical and unknown age (adolescence) and to gender, largely fueled by stereotypes and prejudices that jurisprudence between the nineteenth and twentieth centuries reveals. In particular, age proves to be a very useful analytical device: it allows us to question the sources by introducing a peculiar temporal regime which, anchored to the time of the person, differently interacts (and reacts) with the times of history, including legal history.
«Iste Casus est Fortis et Durus». Malicious Intent and Fault in a Consilium de Tortura by Egidiolo Cavitelli († 1419)
An unpublished consilium on the subject of torture by the Cremonese jurist Egidiolo Cavitelli († 1419) allows us to focus on the timing and content of the debate that developed in the legal doctrine of ius commune regarding the responsibility of the judge in the event of the death of the inquisitus subjected to torture ad eruendam veritatem. The subject is dealt with on several occasions by leading jurists , among whom the names of Guido da Suzzara, Iacopo d’Arena, Alberto Gandino, Cino da Pistoia, Bartolo da Sassoferrato, Alberico da Rosciate and Baldo degli Ubaldi stand out. Central to this debate is the distinction between cases in which the death of the tortured person is attributable to the fault of the investigator (including culpa lata) and those in which the event is of a malicious nature. For the majority of interpreters, only in the latter case must the perpetrator be punished with the edictual penalty, i.e. the death penalty provided for by the Lex Cornelia de sicariis. When, on the other hand, the responsibility is of a culpable nature, while Guido da Suzzara favours a strict solution, most interpreters believe that the judge responsible for the death of the tortured person must be punished with a poena extraordinaria entrusted to the arbitrium iudicis. Alongside the perception of malicious intent as qualitas delicti, relevant in the present debate appears to be the emergence of the sort of circular process that, in ius commune criminal thought, links the subjective elements of the crime to the assessment of the seriousness of the offense and the commensuration of punishment (corporal or otherwise). A further element that characterises Egidiolo Cavitelli’s consilium is represented by the Cremona jurist’s recourse to the principle according to which the performance of an officium constitutes a velamentum criminis, i.e. an element of attenuation or tout-court elimination of the agent’s criminal liability when he is the holder of a public officium. Relatively widespread in the doctrine of the Low Middle Ages, the principle was to be the subject of decisive criticism from the early 16th century onwards, driven by the new humanistic sensibilities.