Dear all,
next week Prof. Conte will talk about the interactions between Law and History. There will be only two talks, as Friday is the 1st of May. He suggested the following reading, that I will send you as soon as possible.
James Q. Whitman, "Bring back the Glory!", in "Rechtsgeschichte", 4 (2004), pp. 74-81.
next week Prof. Conte will talk about the interactions between Law and History. There will be only two talks, as Friday is the 1st of May. He suggested the following reading, that I will send you as soon as possible.
James Q. Whitman, "Bring back the Glory!", in "Rechtsgeschichte", 4 (2004), pp. 74-81.
Mathias Reimann, "Nineteenth German Legal Science", in "Boston College Law Review", 31.4 (1990), pp. 842-897, especially par. II and III.
http://www.giur.uniroma3.it/themes/GiurBlue/docenti/conte/conte.htm
http://www.giur.uniroma3.it/themes/GiurBlue/docenti/conte/conte.htm
57 commenti:
Good evening!
I was reading James Q. Whitman's article and I didn't understand what he means in the very last part of it.I post it in here...I hope someone will explain me the meaning.
"After all, if we work hard enough, we are sure we can be right
about the facts. If we get the evidence right,
nobody will ever have the pleasure of proving us wrong. But to claim to find the meaning of history is of course always something false…"
Thank you!
Hello!!
I try to respond.
I see you, it is hard to understand this, because the last sentence is ambigous.
By the way, I think history is the best way to understand the present, in which law is also included. Marx was a historian lawyer, like we saw in the article, where there is the claim known of the fact that working hard means also working well for the author: if somebody works well, nobody can tell you that we are wrong, if their work is worse than our. So this is a settled argument, among the centuries of history: so history is made by the people and their facts.
But history can be understood only by the same history, and if somebody tries to find a meaning of it, it's not true many times, because facts of history can repeat, but are all different and various.
Hope we understood this (I am not sure of giving you the correct answer, but I have tried)..
See you
A.Festucci
good morning!
in this week we're talking about the relationship between the law and the history, I think that the law can't leaves aside history.
The law binds itsself at history because the law is "daughter its time", it lives of air that to breathe.
The law is its time, it's its people and its places...the history is a teacher that unfortunately, not every is listened.
Anyone time can to be regarded dark because in it there are been, anyhow, many events and situations by to know for to learn, there are been characters or important developments...nothing can to be disregarded....nothing..if we forget this we commit a big mistake.
Valentina Carafa
Hey Alessandro thank you!
Yes,I was thinking about that and after today lesson I understand that an historian can be influenced by his own ideas.That's why when he works on the facts it's easier for him to say something right...but when he tries to find the meaning of it he uses his partial point of view.He looks at history through his ideas or ideals...and so "to claim to find the meaning of history is of course always something false"...
see you tomorrow!!
Hi!
Is evident that are same links between law and history…
I’m agree with the theory of Puchta who said that the law is the consequence of the society, and that it can be deduct to general element, in this case by culture.
The influence that society exercise on law is evident, for example, in natural obligations. Especially in “gamble and stake” art. 1933 ss. c/c. What we now mean for gamble is different about what thought our legislator. In the middle age was prohibit play with nuts for ruinous winnings or loss...and if played a woman too, this play was condemn. Now, there isn’t this king of condemn. The concept of gamble is change. Now, we say illegal play but we intend other play.
This is the same for “buon costume”.
I remember that my grandfather told me, that when he was young, woman mustn’t wear two-piece swimsuit..they were fine by police.
But I think that we must pay attention to not confuse history and moral…say that the law is influence by the political or cultural situation in a country is different to links law to our personal interpretation of society. So, in this way is correct the interpretation of Von Jhering who said “Si può definire la legge come l'unione di chi comprende e vede lontano contro chi vede solo ciò che ha vicino. I primi devono costringere i secondi a compiere ciò che è nel loro interesse. Ma non è nell'interesse dei miopi, per farli felici contro la loro volontà, bensì nell'interesse della comunità” (law is link between someone who see far and someone who see only nearby. The beginning must convince the other to make their interests. But this interests are of all society.) read in “lo scopo del diritto, 1883” .
See you tomorrow!
Daniela D’Annibale
Good night!
Today we have talked about the interaction between Law and History with Prof. Conte and I have founded this argument very interesting: of course history is very important for legal thinking because it justifies law and because it makes law (history not only as continuity but also as fracture for a return to glorious past!).
The question that most excites me has been the distinction between Story and History and the comparison of these two words.
As James Q. Whitman says in the essay "Bring back the Glory!", story is what happen, the “cronaca” for Benedetto Croce; History instead is the meaning of it. This distinction take us to another differentiation between Philological history that looks at facts and Philosophical history that looks at the meaning of these.
In class we have made the example of the last anniversary of the 25th April, one of the date of the story which has changed Italian law: this day stimulates the enacted of the Constitution of the Italian Republic by the Constituent Assembly on 22 December 1947. In 1945 in fact the Nazi occupation army left northern Italy after a general partisan insurrection by the Italian resistance movement. This day is taken as symbol of the Liberation of Italy. These are the facts, the story.
But what about the history? Or better, the histories?
We hear every 25th April the dispute about ”Republichini”, in order to their conduct during those year, and in order to a comparison with the partisans.
There are two “histories”:
-The supporters of the first have suggested a bill that would make equal the sacrifice of partisan and repubblichini;
-Who support the second instead says that is correct to talk about piety for both but is not correct to talk also about respect for all of them who died in that period, but only for Partisans.
This is an example which demonstrates that even if the story is known, there are a lot of meanings regarding the same fact, more than a history!
We have alluded, during the lecture, also to the negation of Holocaust: these examples are part of a phenomenon called historical revisionism (expression more accurate than our “storical” instead of “historical” revisionismo): the reinterpretation of orthodox views based on evidence, motivations surronding an historical event. This reinterpretation may be influenced by nationalism, culture and ideology that can sometimes distort the truth, the story...
See you soon,
Pierluigi Oddone
Hi everybody!
I would like to say few words on some of the topics we discuss during the lesson today:
- Fact and meaning. Philological and Philosophical histories
I found the articol of Prof. Whitman very interesting. I would like to stress the part where it's mentioned Benedetto Croce and the difference between storia and cronaca, the first the meaning, the second the facts.
I think is very important also for the lawyer to look at the history to understand better the context and to predict what could happen before. It's important to read critically the sources too, because as the common place said, history is made by the winners.
About this topic I would like to cite Giambattista Vico and Friedrich Nietzsche: both of them thouth that history was a a sort of circle, where periods repeat over and over.
This vision of history was so different between the Christian's one, that was linear and finalistic, from the creation to the doomsday.
Giambattista Vico (a philosopher but also a philologist) said that history should be read by analysing ancient people's languages and idioms (even the laws).
Philology and philosophy help us to look at the history not as a caotic following of facts but as "storia ideal eterna".
Friedrich Nietzsche is the philosopher of "eterno ritorno". He talked about it in many of his writingd, but above all in Also sprach Zarathustra (Così parlo Zarathustra), where Nietzsche's vision of history is symbolized by a snake that is bitten by a young herdsman.
That represents ubermensch's power to accept and dominate the circularity of history.
Anyway I agree with these theories. I think also lawyers or the legislator could look at some main events of the past, that symbolize changing and maybe the could find some principles to apply in similar cases that happened after.
For example, I'm thinking about Wall street's fall in 1929, a very similar situation to the economic crisis of our days!
Good night!
Andrea Marangoni
P.S. Sorry for my bad english, but these are very difficult topics to discuss in a foreign language.
Reading Whitman, I totally agree with his perception on “human dignity” as a contemporary European commitment which invokes the natural law discourses of the 17th and 18th centuries. For example the Universal Declaration of Human Rights in 1948 can be interpreted as the “renaissance” of natural law.
Further I found a more detailed definition of natural law that would complement the Reimann Article in the Internet Encyclopedia of Philosophy http://www.iep.utm.edu (a professionally peer-reviewed encyclopedia).
An equally important date in post-war European history for me would be the Rome-Statute establishing the International Criminal Court on July 17th in 1998 which entered into force on July 1st in 2002.
Caroline Westphal
Hello!!
Starting from the analysis of J. Whitman's text, today Prof. Conte let us thinking of the different ways history has influenced law during the years. In my opinion, one of the aspects that requires particular attention is the "Historical evil",represented by the tale of Lucretia, that shows us how the law can be the the result of a bad historical happening. Whitmnan took the example of Nazism, followed by the necessity of reaffirming the principle of human dignity as a "moral obligation". I think that here it is the point'cause: do we need affirming amd writing these principles only when there is a violation of them? And also: if "the force of law rests on moral obligation, created by terrible crimes", does law have any preventive power or do we have to consider law just a remedy (as demonstrated by the current use of "decretazione d'urgenza")?
Thank you!
See you tomorrow!
I'm sorry...when I posted my comment I didn't notice some typing mistakes (the the; no space between point and 'cause; "amd" instead of and. Forgive me! Good night!
Alessandra
Good night to everybody
I would like to share a consideration of mine about what we said today during the lesson. There was a discussion infact on the nature of human rights. Are they really natural and for this reason they can be universally imposed by a court? What about thier imputation and prescription? The objections made on this topics aren't totally groundless. There is the risk infact human rights can be relativized and used only to shield a vengeance. My reasoning probably is very influenced by the italian penal system but it helped me in order to exceed any doubt about the questions I cited.
Considering the human rights as a natural right (using more or less any conception of human right, I think) we can surely say that they are valid always, in each time and in each land. But what about people didn't consider them in this way? And we talk about who had been educated with the certainty that some of this rights are absolutely not natural but, on the contrary, that their opposite is the real natural right! They can not be considered guilty!! We lack the guilt here, there isn't the subjective element (using the doctrinal categorie of the italian penal code).
But, on the other hand, this people could be considered in some way dangerous because with their behavior they can offend a very important right, a human right! They have already offended it being sure their acting was absolutely corrected, in some case a duty. For this reason it could be applied a safeguards measure till they are dangerous (and thinking about the violations we analyzed during the lesson it could take a lot of time if we want to be sure..). In this way probably it's justified also a life imprisonment but, in my opinion, not a sentence to death. Infact they could theoretically reform their opinion and, for this reason, killing them should cancel the bases of all the theoretical construction.
Obviously we don't have this problem if they acted with also a remote knowledge of being wrong.
See you tomorrow.
Francesco Mambrini
Hi!
During this lesson one question is step out: is philology neutral?
The philologer study the text for rebuilt their original contour for reach an correct interpretation. For arrive at this conclusion, philologers study the historical evolution that is link at the text…so they must do choose during interpretation, that are link to the interests or utility that the content of the text in relationship to the contest.
For a correct interpretation, is necessary know intentions of the author. So, knowledge of history and language of the author, is the first element that a philologer must use. Is clear that know the situation that in those historical period the author lived, is essential for philology, too.
See you soon!
Daniela D’Annibale
Hello!
After summarizing the main aspects and differences between Romanists and Germanists, today Prof. Conte concluded his lectures talking about Grand Theory, mentioned in J. Whitman's text. One of the Grand Theories of the 19th century is the evolution from "status" to "contract", that gives importance to the will of people, instead of their personal status. This was an important movement because of the chance it gave to people to change their situations, trying to manage with their own goods and rights.
Considering the importance of the great intellectual programs of the nineteenth century, one of our duties for the future is to re-build a new legal history, pursuing great ambitions and keeping in mind that "Law and" is something that connects law to the real world (and this course made us aware of this!).
Thank you,
have a nice week-end!
Alessandra Simeoni
Hi everybody,
This week we analyzed the relationship between Law and History.
We saw the importance of legal history in XIX century, in particular the German historical school and her founder, Savigny.
He wanted to build a new system using the Roman law, and he interpreted the Roman system to adapt it to the German society .
He created a new German law system, because he joined the Germanic law( a typical institute of this system is the feud) with Roman law.
Savigny changed the university structure: need a teacher which know the history and he must be a specialist. Besides he invented the figure of assistant, that is typical of German university system.(formally, this figure there isn’t in our system).
Besides we told about Whitman’s article, in which he analyzes the importance of history and he gives a philological vision, in fact he tries to interprets the history.
The difference between philologist and philosopher is that, the first not accepts what the text says and he wants to seek the meaning of history, according to him the fact is very important. The philologist changes the text for reconstruct something, as an archaeologist that, through a stone, dates back to old building. In particular Whitman uses the history to give a meaning to criminal procedure, he wonders why the punishment in USA is tougher than in Europe.
Lastly we told about the difference between history and story (histories): history is meaning of what happened; while story is just what happened.
An example of history is 25 April, that opened the way for our Constitution and an another example, the was done in classroom is the crime against humanity.
In this regard, as usual, we told about the Jews persecution, but I think that it isn’t the only and worst crime against humanity. Everybody forget that it wasn’t the only genocide, indeed there was the extermination of the Kosovars. This is another important example, that we must not forget.
see you soon...
Vanessa Malizia
Hi everybody!
As student of Law, I share fully Prof. Conte’s reasoning about the importance of a correct historical knowledge in jurist’s formation process.
Really, we have two forms of historical knowledge absolutely necessary for a lawyer: a very deep knowledge about historical context in which Law’s evolution represent the result of a political and social situation in a particular time; and knowledge about history of autonomous “thought” of the Law (Law understood as an abstract, philosophical and speculative human science with concrete applications).
In particular, about the second form of historical knowledge indispensable for a lawyer, it’s clear that, if I don’t know the evolution of Law’s general theory and provenience of principal juridical ideas, I can’t to use any conceptual instrument for an interdisciplinary analysis and for a legal system’s comparing.
For example, in a European juridical integration’s point of view, an Italian lawyer has to know that the art. 1140 of our Civil Code about possession put forward by Von Jhering and that really also in the French Code Civil there is a possession’s idea restricted to “res corporales”: clearly, I have to know it because we really live in a global legal World now (especially here in Europe).
In the actual prospect of a gradual unification of European civil law, I think that for a French jurist is important to remember, for example, that Domat and Pothier put forward a subjectivist idea of obligation’s cause acknowledged then in French Code Civil, as for an Italian lawyer is important to know that our objectivistic idea of obligation’s cause became from German pandectist experience; as Italian student of Law I have to know, for example, that our particular idea of contractual cause as economical and social function of contract became from translation worked by Vittorio Scialoja of the german word “zweck” used by Savigny (and then used in BGB) with the Italian “funzione”. Clearly, there are more other significant examples…
An historical-speculative knowledge is important now, because it’s clear that we live in a context of fast juridical globalization (Prof. Mannino call him “transnazionalità del fenomeno giuridico”).
I think that is very interesting, about it, the birth of ARISTEC, an association for historical and comparative studies that since 1990 has a meeting every two years: the historical-romanist and comparative approach is an old juridical-academic tradition in Continental Europe (especially here in Italy, in French, in Germany and in Spain) and I think that it’s incredible that in Anglo-Saxon countries this important approach for jurist’s technical formation is “discovered” only now!
Have a nice weekend!!!
P.S. for Vanessa:
Naturally the Jews persecution wasn’t the only genocide (for example, there was also the terrible Armenian genocide in Turkey), but certainly it was the worst crime against humanity for scientific planning and criminal methods adopted, for extension of interested area (all the Europe except UK, Swiss, Spain and Portugal) and for the very enormous number of deaths: 6.000.000 of victims!!!
In Kosovo, the aim of ethnic persecutions was swift expulsion of Albanese people from that region, not its total extinction. However it’s terrible, but clearly it’s not comparable with the Shoah…
See you
Valerio Marinelli
Hello!
In the lessons of Prof. Conte about the relationship between law and history we treated some interesting and curious topics for me,and I want to report in the blog.
First of all, once clarified that the story is the best way to understand the present, one is asked what is the difference between history and story? the history concerns the events of past\ what happened in the past; the story is a description of the subjective events that may not reflect reality.
We have also dealt the difference between philosophy and philology and their importance in the law; philology deals the reconstruction of ancient texts and also legal, philology is not neutral for the law because with only one word can change the sense of a concept, for example, " iudicem dat potestas publica ut imperator" and "iudicem dat potestas publica aut imperator." While the philosophy deals with problems that seem abstract and regard the man, as the moral and politics and influence the law because the philosophers give their interpretation of texts.
We talked, then, abaut role of nature with regard to law; in France in 1970 the rule based on nature (the nature was more important than statement of human rights), is important for law bacause is the basic to construct law.
The nature is a legal institution, is a fiction in law, the consideration of nature changes with time and influence the legal judgement.
Another important topic that we discussed was the importance of Savigny and Pandettistica; Savigny was a German lawyer who see the law as a product of nature, feeling and belief of each people. He founded the Pandettistica: legal school of the XIX century that through the study of Roman law tended to build a complete system of law. School stems from the notion of legal transaction as a manifestation of will and the figure of assistant(chosen by teacher).
The lessons were very interesting!
See you next week
Giorgia Ciucci
Sorry for the mistakes, it's late and only now that I read well I have noticed. In the last concept I wanted to say that "from pandettistica school stems.......etc..
Good night
Giorgia Ciucci
Hi everybody!
Today we talked about historical fracture and historical continuity, expecially in pandettistic movement.
Pandettistica made historical fracture with roman law but was in continuity with it too. It was inside and outside the Roman legal tradition at the same time:
Inside because Pandettistica look at Roman law, signally with Corpus Iuris Civilis as a perfect legal world, and at the roman jourist as mathematician of law.
Outside because Pandettistica made a fracture with Roman law, as it was interpretated during medieval age.
German jourists used casistic methods to depure german legal tradition from the contraddictions inside it.
They chose this method because they refused the ideological field of french revolution that took to Code Napoleon.
So history (the meaning, not the facts)helps us to understand the ideological context of the birth of BGB (that also influence Italian code of 1942).
Bgb is for sure a consevative, traditional,bourgeois code, free from any social instance.
Casistic method brought to a very close system, whose only relief valve were "Generalklausen" as "gute sitten" (buoni costumi), put into the code by the socialist pressure in the parliament.
This is very interesting, because this clauses permitted BGB to survive empire, Weimer republic, nazi time, 2 world war etc (for eample they allowed juges during the economic crisis in 1930's to subvert nominalistic priciple helping creditors)and then from BGB pass into italian civil code.
This clauses, as someone said before in the blog, have different meaning in different historical time.
So historical approach to law is very important for the lawyer to understand different meanings and interpretation of law.
Good Night!
Andrea Marangoni
Hello everybody!
This week at lesson with Professor Conte we have faced very interesting and fascinating topics. We talk about a very important relationship between Law and a special field of humanity which is the History.
The professor Conte said that the real big relationship that we have between law and human knowledge is with history.
History in a certain sense is nothing else than a legal institution. For instance, Domat, a great legal historian but also a lawyer, wrote a very brilliant article about the Nature entitled:” La nature comme institution juridique”. The nature is a legal fiction. Can we say the same about history in order to justify herself.
James Q. Whitman, which is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School in USA, wrote an article about the sense of legal history. He says two main things: the importance of history legal thinking in 19th century and the difference between history and histories, the difference between what happen and the meaning of what happen. History is an exercise which try to find a meaning of what happen in the past.
In fact, for instance, philosophers like Croce and Heidegger distinguished between what is “history” and what is merely “the past”: between storia and cronaca. The said that “the past is full of the rubble of things that happened to happen. History, instead in the fullest sense, is more than that: is the past infused with meaning for later generations”.
Whitman talks about histories that is a particular happening which changed the basis of society and founded a new legal order. Law is full of different histories and an example of this is the French Revolution in 1789.
In the article Whitman says also that the interpretation of thirteen years of Nazi time is a kind of history which found new values in the sense of opposition of this value that are considered completely evil.
Moreover we have used the history in law for two main reasons: to justify continuity (this is a very conservative idea because refer to customs) but is more interesting maybe the use of history to justify the fractures in legal system: is the case of classic law.
The our modern law is based on a strange use of antiquity really as a legal institution. For instance the ancient Roman Law used antiquity as an institution in order to found a new order for society. One example of this, is Pisa that is the third city in Europe that wrote a Statute. This is a big innovation of law that is based on the history.
We also talked about Savigny, the great jurist who lived between the end of the eighteenth century and the first half of the nineteenth century, which is passionately devoted to the study of the roman legal system and was the greatest exponent of the Historical School of law and a strong supporter of science of the law historically oriented.
Savigny opposed to the Enlightenment view that concerned an immutable natural law and universal inferred by reason. He argues instead that the right born, grows and evolves with the evolution of the people and that the past of a society is important for understanding the present and the future.
His thought influenced the major doctrinal, that determined the evolution (in Germany but also in all Europe) of the science of Roman law during the nineteenth century.
See you next week!
D'Antona V.
Hi everybody!
This week we have listened to very interesting topics exposed by prof. Conte. I think that "law and history" represents a very strong link, even higly topical. I agree only in part with James Whitman. In his article, he talks about the historic legals who have worked in the past, like Marx and Weber, but he also says that in our time "law and history" is not important like in 19th century. Well, i do not agree with this last sentence. As a law student, in an italian law faculty, I have to say that we have studied a lot of topics involving history, like History of private roman law, Roman law and History of medieval and modern law. So, our formation as jurists is strongly connected with history.
This is very important, according to Withman, when he says that a modern historian must recover the very meanings of an "history" (or, if you prefer, an historical fact). History represents the foundations of our law. A well-fitting example, that we have said during the first lesson, is the 25th april: if we dont' know the history of the Liberation, we'll never completely understand the values exalted by our Constiution, and their importance.
In conclusion, about this point, I would like to quote prof. Conte: a very useful historian is the one who tries to give an interpretaion, or a meaning, to a fact, even if he can be wrong.
Another interesting topic is about the role of nature in law. Well, I am skeptical about the presence of nature in law, or about the benefit of this presence. When we was talking about this topic, in the first lesson, there has been a very long debate with two different ideas fighting each other. It has been a confusional moment. Well, I think that this has been a tipical "nature-in-law" moment: the interpretation of nature is very subjective. Like prof. Conte says, it changes from time to time, but i think that it also changes from person to person. And this is what happened during the lesson. Using too much the nature about law, we can obtain only confusion, while the law must be as certain as possible.
About Savigny and his school, i like very much the concept of continuity and fracture. I think that the first to have a fracture was Puchta, who left the Roman law to study the system and to say that the system itself is capable of generating new law. This is a very importan moment, because it is the first step of the big revolution of 1900 in Germany, i.e. the BGB, the very big fracture with the past.
That's all! See you next week!
Andrea Severini
About Valerio Marinelli's answer to Vanessa Malizia's topic, I would like to say something. I think that a classification of genocides by number of victims or by geographical extension is very useless. I also think that every genocide is an horrible happening. So I don't agree with who says that the genocides are not comparable with each other.
On the other hand, this is a very difficult topic, because it is about an importan and emotional crime, that has a lot of partecipation in Europe.
So I don't classify genocides, I think that this is not a useful operation.
Andrea Severini
Yes, I agree with Andrea Severini: wheter or not with guns, or with stones, a crime against humanity, which's condamned by the International Criminal Tribunal (ICT), founded in Roma (Statute of Rome) in 2000, is always the same: genocide, reprisal, ethinc cleansing, estimates of the main victims of dictatorships in the world, "democide (democidio)", and so on.
Here is the link of this Statute: http://www.studiperlapace.it/view_news_html?news_id=romastatso
With this I am convinced it is juridically the same everywhere: of course, the way it is done is not the same, but the massacre of the Foibe, the Jew jenocides and discriminations, the killing in the Ghetto of Prague and Berlin and everywhere, the extermination of human beings in concentration camps, the enslavement, the slave to reduce a population under a regime of dictatorship, the hatred against a "race", whatever it may be, the summary trials, as are different from each other, are atrocities that stem from fear of the other, fear of confrontation with the positions is equal to our own hatred of neighbor.
And it should be the same for a genocide.
In law, the term crime against humanity defines criminal actions involving violence and abuse against people or part of peoples, or that are perceived by their ability to raise general disapproval, as occurred in damage of all humanity. So even if the way each crime is committed, is always the same.
Crimes against humanity are generally distinguished from war crimes and even genocide, not all jurisdictions provide direct figures of crimes against humanity, while some provide the indirect recettizia in the form of international treaties.
The case (or, more properly, the subject) was conceived in doctrine since the Second World War, with the spread of issues related to human rights, together with the formation of a common conscience of the international community a "natural", congener, conceptions of around a common fee and applicable to virtually all components of all social groupings. It claimed, in practice, the existence of a right "congenital" (school to be considered as a set of mandatory rules, statuenti power and limitations of personal choice) for his kind to all people, regardless of socio-cultural diversity of locally reference. Certain crimes, representing a source of disapproval "instinctive" at all latitudes, were then considered to be merged into a new category of case, which assumes that any state or social grouping of any continent or printing ethics (or religion) or culture, would require the sanction.
It was debated whether the element of crime of certain acts, the specific cause of their criminality prediction of a second species, should primarily be the general moral repulsion caused or the specific scope of the acts (eg, genocide, which according to some but not all, falls into this category, was considered by some - for those purposes - as a crime of massacre aggravated by premeditation, continuation and recurrence, as well as reasons abbietti, then a sort of super-case of gravity outside the ordinary codicistiche forecasts for the size and proportions of the damage caused).
Moreover, it was a long discussion about the effective recognition of humanity, for the whole human race, a direct role of the taxable offense (victim). In practice, it was discussed on the translatability of the title (crimes against humanity - born probably in order to distinguish it from other crimes against the person or against property and crimes contravvenzionali) in a real costituibilità procedural part of such a civil prelusiva to a no less thorny question about the possible development of representation (who would have title to start legal proceedings in the name of humanity?). Scientifically observing, there is, indeed, international unanimity on any of the matters under discussion, while there are significant clusters of consensus on certain settings that perhaps, at least in the Western world, are the best known.
It should be noted that all the discussions, arguments and discettazioni on the subject, in the absence of an actually existing international law of universal acceptance, are almost inevitably subject to filter subjective interpretation of the ethics policy on which you would like to affect. In practice, and this is not the exception of a few against, the diversity of moral views would not be a specific definition of the case that enjoy universal consensus and, indeed, an application capable of collecting as universal and harmonious consensus , running the risk instead of delegating to combinations of political institutions, which by their nature, variable in space as in time, before a fund that could result in extemporaneous discretion. The doubt, simplifying, it is criminal that this figure could be implemented without political opportunism reliable degree of universality and that the judicial process can be used instrumentally for political purposes to impose a formal seal on the case to situations already definitesi in fact by other means.
In practice, the crimes against humanity have been prosecuted so far in terms of legal responsibility and moral mainly heads of state or dictators or groups of powers, supremacy of policy holders even factual.
Throughout history many people have been accused, legally or politically, of these crimes considered the most serious and horrendous attacks by man. In the last century, this accusation was made against the hierarchs of the Nazis, Stalin, Mao Zedong, the former Yugoslav president Slobodan Milosevic, the deposed Iraqi rais Saddam Hussein and other heads of state, often at the head of a military dictatorship, neo-Nazi, fascist , theocratic or communist. Lacking, as mentioned, an international law of universal (and previous) application, interested parties often have the opposite defect of jurisdiction of the courts that have considered.
The accusation of crime against humanity includes cases prosecuted for genocide, the so-called ethnic cleansing, mass extermination, deportation.
Crimes against humanity are an object of the proceedings of the International Criminal Court is based in The Hague and which operates in the time allowed by the Rome Statute, this court does not substitute for statutory limit, the ordinary jurisdiction, just looking out for it, therefore some observers has been objected that the risk of injury to a procedural guarantee to the current majority of jurisdictions and for which an offender can not be tried twice for the same crime (Quote: Wikipedia)
Alessandro Festucci
Hi,
I want to say sorry, there is some mistake: there is no ICT, but correctly, the ICC (International Criminal Court)
A. Festucci
Hi!
About crime against humanity…
I agree with Alessandro and Andrea. Is impossible class the level of importance when we speak about this argument…and I agree with the legal consideration about crime against humanity, too. The importance of this crimes is evident when international right divided crime against humanity and Genocide: for the particularity and atrocity that it represent, it must have specify category.
But I think that the idea of Vanessa is sharable, in part. If we consider Jewish persecution all of us know this part of European History. This is the most “popular” crime that give us the second world war. That is…this history is popular because was the first time that word know what wickedness and madness can make. The difference between Kosovo or Prague is only the “clamor” that this event generates. I think that is for political reasons that we know the other situation less than Jewish persecution….I think about the Foibe, for example. All word discover them only few years ago. They haven’t arouse great interest like Jewish, probably because for men this situation is became “common”…”thinks that happen”…because nobody give the same importance at all other fact, except operator on international legal system.
The problem isn’t what is more important than what..the one is why one event is well-know than situations that have the same characteristic, in law point of view.
Daniela D’Annibale
Yes, I agree..
and there is also an objection upon the international criminal law: is it possible to go out from a national criminal law, laying down different principles from each nation?
The answer to this question is debated.. some professors, also in our law department, arise this question, objecting that it is not possible to say that there is a trasnational criminal law..
But as we saw in class, and debated, it is possible: there is an ACTUAL natural law; the natural law of no killing people, or reducing in slavery, and so on..
according to this, there are shared and common principles in our planet, that have to be respected...
I agree with the idea and the reality of an international tribunal, judging what kind of crime against the humanity all the individuals had committed... Because as I told: genocide, represal, reduction to slavery and so ahead, are settled atrocities that don't have to repeat, looking at how much disperation brought among the people of all lands.
As conclusion: I agree with the fact history is a form of interpretation of the stories and the facts. Facts like crimes against the humanity don't have to repeat, wheter or not hidden,like Foibe, or famous, like the Jew genocide..
Some of them, like Foibe, had been repeated like from the Jew one; each of which, is totally different as modality from the others. But we are always talking about genocides, laid down by the Statute of Roma as CRIME AGAINST THE HUMANITY, repeated among the years as the same conventional term.
It is also true that many facts stories, unlike this one are different, so it hard a classification to the others (take an example of the huge differences of each kinships among the centuries).. so there could be some interactions between a kingship and a democratic regime.
In this way it is impossible to interpret history, which is iself a way to understand various stories.
But history is the best way to understand the present and its legal systems, because it helps t understand how the stories, its facts, and the people are.
So if you need to understand the international criminal law, or our constitution, as told Calamandrei "If you want to go on pilgrimage to the place where was born our constitution, go where the mountains fell in the partisans, in prisons where they were imprisoned in camps where they were hanged. Wherever an Italian died to redeem the freedom and dignity, go there, or young, with the thought, because ther is born our Constitution".
And the same discussion is for genocide: if you want to understand the universal meaning of it, we have to make an historical flash back, in order to remember that has no importance how people was killed.. What is important is that was taken away their right to life.
See you
Alessandro Festucci
Hello!!
..I think that for to stress the importance of the relationship between law and history is useful to refer to the thought of Savigny, the greatest exponent of the Historical School of law.
He argues instead that the right born, grows and evolves with the evolution of the people and that the past of a society is important for understand the present and the future.
I agree with this concept and I think that historical knowledge is important for the formation of a lawyer!
See you..
Giorgia Ciucci
These are the terms of discussion: Vanessa wrote “as usual, we told about the Jews persecution, but I think that it isn’t the only and worst crime against humanity. Everybody forget that it wasn’t the only genocide, indeed there was the extermination of the Kosovars. This is another important example, that we must not forget”.
I’ve answered:” Naturally the Jews persecution wasn’t the only genocide (for example, there was also the terrible Armenian genocide in Turkey), but certainly it was the worst crime against humanity for scientific planning and criminal methods adopted, for extension of interested area (all the Europe except UK, Swiss, Spain and Portugal) and for the very enormous number of deaths: 6.000.000 of victims!!!
In Kosovo, the aim of ethnic persecutions was swift expulsion of Albanese people from that region, not its total extinction. However it’s terrible, but clearly it’s not comparable with the Shoah…”.
As you can see, I wasn’t comparing terrible phenomenon as genocides by the number of victims or by geographical extension (as someone erroneously wrote).
Generally, the aim of a genocide is to terrorize a population and force it to escape or to be slave.
Instead, the thing that makes the Shoah different from all other genocide is an aberrant aim to TOTALLY exterminate ALL Jews.
I find it very dangerous when someone said that Shoah is only “the most popular crime that give us the Second World War” or that the difference is “only the clamour that this event generates”.
I rebel against anyone who undervalues Shoah and I really hope I’ve misunderstood your assertions, otherwise I don’t know really how to say…
That’s all.
See you
Valerio Marinelli
It's not undervaluating the Shoah, as you are saying. This is only to avoid that someone forgets other genocides. Well, if you write the number of deaths and the geographical extension of the Jews genocide, it's clearly obvious that you are saying that, for its dimension, the Shoah is the worst genocide in the history, comparing it with the others. I think that I can speek even for my mates when I say that we are not underestimating the Shoah! We are only saying that every genocide must be known from the people and condamned by the public opinion, without pointing out the number of victims or the geographical extension.
Andrea Severini
Nobody questions what you say, because if that were the case, then I am wrong I have not understood the meaning of your message.
However, the international community rejects the genocide, and does so with a specific act: the law.
I am convinced that the Shoah was the most terrible, so if you say that as terrible are the other large, historically the genocide of the Jews was the worst, no one argues that.
Going beyond means not forget the facts so horrendous, as you say, doing seminars, conferences, debates like this, or at least reflecting on the value of freedom and democracy, and the design of repression and extermination of a people made by the Nazi - fascism ..
All this, as in this period, unfortunately, people seem to forget, was summed up, after years of bloodshed, war, torture and blood, from an international law that would punish such crimes.
But this rule is very young and has yet to be implemented and refined.
But precisely because there were innocent victims, and because history is repeating itself, to avoid this, they made more suitable.
No one disputes what you say, because it is clear that the genocide of the Jews was the bloodiest.
But it is also true that to prevent that from occurring again in the future, the ICC aims to punish a crime that belongs to the category of genocide, of which as you sustain exactly, the Jew genocide is the parent of this category of crimes.
Ciao!!
Answering to Valerio Marinelli, I would like to say that nobody undervalues Shoah, but should not be overestimated relative to others genocides. The number of the victims doesn't matter, because even one human life killed unfairly represents a huge crime. The fact that in the public opinion there is more partecipation to this tragedy doesn't mean that this is more important than others. Besides, Kosovo one was only an example, among them we can mention our fellows died in the tragedy of the "Foibe", too often forgotten.
Bye!
Vanessa Malizia
Dear all,
I’m agree with Vanessa when she tells that every human life have the same value and that there isn’t one genocide better than another one, but shoah is the main genocide, is the symbol of genocides, and not just for the number of victims, but for the historical mean, was the symbol of the worst “story” of the XX century.
Of course I know that there were other genocides in the world, and every victim suffered in the same way, every victim was one human life, from shoah to foibe!!
The problem is that there is a instrumental use of the history, as we spoken during the lesson there is a philological study and a philosophic study, the first one is influenced by the second one and this is the problem!!
Everybody is agree to tell that history is the best teacher, but too often we forget(or better we want to forget) to learn from her.
In Italy for too much time nobody spoken about foibe, why?? This is one example of political influence in the historical reality, but now we can understand that there isn’t difference between foibe or shoah victms.
For to do another example by our political life, you are enough to think about the last proposal of law to equalize “partisan” to “repubblichini”, well from the human point of view of course we have to admit such equalization, but the history teaches us that the partisan have fought for defending those that today are constitutional values of democracy and liberty, instead the repubblichini fought for values that today we cannot be approved because against the civil life founded upon values of democracy, liberty and equality.
Hi there!Antonio, can you sign your comment? There are 2 Antonios in the course!
Hello, what you say is totally correct, I agree with all of you, but it seem nobody is agree each other..We try to bring order in this matter.
None of us in the blog is wrong or right. Vanessa, Antonio, and anyone who speaks of the Shoah as the most savage crime in the history of the genocide, they certainly are right because the facts are clear evidence of such atrocities.
6,000,000 dead, and a planned extermination behind a nation, what is more we can say is diabolical.
But the problem is to no longer repeat similar crimes. Then it has been tried to describe a general category that classifies specific legal genocide as "a denial of the right to life of human groups, racial groups, religious, political or other, which have been destroyed in whole or in part" (UN Resolution 96 ).
And here the problem of this definition is resolved, no matter if the genocide concerns 1,000 people or 100,000,000 people, or is committed with guns, bombs, stones or other things.
I agree that the genocide of the Jews is the most savage and has been punished, but it has not to be repeated.
To avoid a repetition of other similar crimes, the international community has imposed severe penalties for those who committed these barbaric.
So there is a law which classifies the genocide, in order to fully rspect the memory of the "stories", by the history..
A. Festucci
HI!
I think that the connection between law and history is very important because law changes with places and times.
This mean that every society in this world has different needs that have to be satisfied by law. That's not all: people have different values, customs, religion ecc... so it's easy to understand why there are so many differences in legal systems.
Law changes also with time. I think it's easy to understand this: just few years ago nobody needed to regulate the e-commerce!
See you!!!
V. Russotto
Good morning!
I would like to say few words about the big debate on jews genocide.
It's a fact that there's a sort of missinformation on what happen in the rest of the world.
There are about 30 wars or conflict in the world and on mass media you can hear maybe just about 5 of them.
It's a fact that sometimes "civilized world" turned its back on closed its eyes to the suffering of thousands people.
For example, I'd like to mention The Rwandan Genocide that was the 1994 mass killing of hundreds of thousands of Rwanda's Tutsis and Hutu political moderates by Hutus under the Hutu Power ideology. Over the course of approximately 100 days, at least 500,000 people were killed. Most estimates indicate a death toll between 800,000 and 1,000,000,which could be as high as 20% of the total Rwanda population.
On January 1994 althought Lieutenant General Roméo Dallaire (UN Force Commander in Rwanda) sent a military advisory, even ONU did nothing because was too risky. Only recently we knew well about the very exstension of this genocide, just when was shot a movie (Hotel Rwanda) about that.
Anyway shoah was the worst crime agaist humanity ever. That's for sure.
I think that shoah isn't combarable with other genocide because was something totallt different, something that mankind haven't seen before.
The number of victims, the geographical extension, the "scientific" plan of extermination etc...you have to esteem that.
Shoah is also historically important for actual mid-est international situation.
Just talking in legal terms, as A. Festucci said, is cronaca, and not storia, instead.
Anyway I agree with Andrea Severini, it's a very difficul topic!
Bye!
Andrea Marangoni
good morning!!!
in this my comment I want to connect two different subjects: the lesson about similitude and metaphore in the law and the history in the law.
I thinked at history as "eternal return", it happens, it goes but it returns...always.
We can talk that it's a boomerang, you throw its but it cones back.
For example, the wars in the our world are been numerous and very destructive but today there are again. The deads, the destructiones of the cityes, of populations, of hearts and solus didn't stop the men.
Otherwhise about law, yesterday but today, too, we look at Roman law. The time is changed, the men are different but we are united with the past. In many and different periods the laeyers and the historians seeked and than...they found in the Roman past the answers.
The history is a wheel that goes around, it rolls around the our life for than to return and..to leave again...
Valentina Carafa
Hi,
It's true, every human life has the same value and there isn’t a genocide better than another one, because a genocide is in absolute the worst crime versus the humanity... Be practical in front of this matter is almost impossible but I will try: Shoah (better name than Holocaust for his meaning: donation to God for Jews) is the main, the symbol of genocide, not only for his historical meaning in the XX Century and for his historical consequences but also for the number of victims: 6.000.000! 6.000.000 of death and for what then? For a crazy ideology!
It's true, is not just to compare genocides in order to number of victims, because is not correct to give a value to a human life as instead Hitler made. Not only planning and performing the Shoah, but also, for example, in Fosse Ardeatine massacre, when he decided that for each German victim of the “Via Rassella” attack by partisans, ten Italian prisoners had to die (at the beginning Hitler said 50!) in a reprisal act.
Some years ago I went to visit Auschwitz 2 Birkenau lager; I think that everybody should go there once, to understand (as it happened to me) the importance of values that now we consider given, like human dignity and respect…with the hope that memory of what happened would prevent the repetition of these tragedies...
Pierluigi Oddone
Dr. Gialdroni,
I'm sorry but I forgot to sing my last comment, anyway I'm Contartese Antonio.
Thank you.
Contartese Antonio
Hi,
Between the genocide made by the United States of the war world we want to mention only the two seem more significant: the extermination of native American (the Indians) and the massacre of the Filipinian people. Us, however, the war of secession although according to historians, was the bloodiest civil war in human history. Is a case?
The British arrived in Jamestown in 1607. From 1610 began extermination of native Americans that continued until 1890, year in which the 70th "cavalleggeri" of the American army massacred the Lakotas, South Dakota population.
Thirsty gold, Silver (c) fur, the warlike cow-boys on horseback, armed with rifles, had easy against people peaceful which were armed only arcs and arrows, and knew the gunpowder, money and the private property. I would like to return here a song that describes very well the long ordeal with the natives having come into contact with the European conquerors through:
"After the historic landing of 1492, for years, Europe, torn apart by bloody wars of religion, not you showed very interested to the new continent." Subsequently the covetousness of possession, the myth of the gold, the interest towards new lands, the passion for fine fur, the missionary imperative of "put the new continent below the protection of God" and the charm of the adventure, represented a deadly cocktail destructive. Soon the collection of these items are translated in atrocities and obscenity of each type. a mixture explosive that made gradually always more manifest the worst provisions of the human.
That mixture of adventure and greedy served by engine and West towards prompted the major ships.
The fate of the native Americans and their ancient cultures (and probably of the world) was marked: alleged " civilization" European, boriosa and despotic, had it ruled the epilogue ".
But how could happen? And what really happened? From where such ferocity is grown? Who are the responsibilities? You could avoid extermination? Reduce the suffering? The large mass of western film describes the reality of the situation or it misinterpret? We can think of a historical truth? If Yes, what is?
Diving us now in this undertaking, we try together analysis...
It is only the beginning of 1600 shown signs of a genuine assault.
The market of fur that arrived from the continent just discovered soon, feed and disproportionately, the vanity of Europeans, and did so dramatically increase the request for these high-quality merchandise.
The clever adventurers landed in the new world, began to trade with the "indigenous place" objects very value with fine leather Otter, and their poor clothes for the dustbin with beautiful leather of Beaver laboriously procurate by the Indians.
America becomes the great warehouse fur for Europe. Indians the task of filling it.
Europeans also did known soon to the wild the intoxicating spirit - used to stun them before of the negotiations - as well as other magical things with which they sought to deceive the natïve inhabitants of the place. Lavished merchants of the old continent did these tricks valuable allies.
The trap illusions of the beneficial confused barter soon some among the Indians without policy. Different communities, which never would have thought of face, a similar situation, you impreparate found on the need to fight against this fallacious enemy. The new enemy "kidnapped the mind" of the stupid and arrived at times up to be stronger sacred respect for the very venerated mother of all things: mother nature. A sacred respect, focal point of Indian culture that every Indian had well rooted inside if, at least until that ominous meeting with the white man.
Mother nature, her blessed fruit, mother nature, loving dispenser of each asset, mother nature, mother of all the animals, of which hunt and kill for real need, towards fair and without unnecessary waste.
The misleading network woven from the white came to disorientate, even if only temporarily, the unaware, Redskins that came to say: "the Beaver ago things for good: knows the pans, the accepted, the lesine, the blades...".
This new and naive, slogan coined by native today well makes the idea of "advantages" initially from the fur; trade benefits fatal but decided to condemn the death of all local cultures.
The Indians could not imagine that, by adopting the thinking of Europeans, would set in motion the gear intended shortly to batter them without any pity.
The uron, the Iroquoian and the Indians of North-western coasts tried to deal with the disorientation linked to this new "trading mania" rules dictated and admitted trade with the whites (provided that sober and measured) and the enrichment of some components of society. The profit resulting from trade, however, should not generate inequalities, its mark kind differences with the other members of the community; therefore remained determined mind into the principle of redistribution, that fact should be further strengthened and developed with new criteria.
But Europe, which was in tip, imposed without delay the introduction of new trading systems. Virtuous habits "social-economic" ancestral for Indian communities so to be gradually destroyed. The subsequent introduction of new and targeted mercanzie changed completely how Indian living and scored definitively the fall. Hunting, trade and the changed cultural distortion radically the way of life and feeding of tribes that came so completely dependent on Europeans cunning.
The same way the enrichment of one against another and inequalities between men, also the property was a principle that escaped completely to the native, that failed to understand how you could claim to buy things ever that belonged to all as trees, rivers, meadows, beaches or lakes... but the problem not annoied to white, because almost never spoke of "buy": for him the new lands, were abandoned and not exploited and the same Bible said God had led in those places. The illusion of beneficial new relationship with the white but ceded, soon the step to the real objectives of the invader, the new arrived obvious became their true intentions and began as ill-treatment, the Savages were treated as slaves, they abused of their women, the negotiations were more respected. So the poor unfortunate, terrified and doubting, to escape the presence of whites, is retired in internal forests.
To the initial generosity of the natives, therefore, the white people elected of God, which was entrusted with "divine mission", responded with greed and abuse of any kind, and not you did any concern since the indigenous people were considered "cruel, wild, barbarians and children of Satan".
The decimation of native populations was not only with more advanced weapons but also with the export of Western diseases for which the white conquerors were vaccinated.
For a period of the army American did even massacre of the Great Plains to remove the Indians their main source of livelihood and induce them to the yield and hunger bisons.
The genocide of the Indian was accompanied by the trafficking of slaves were forced to work in the land where first lived the natives. A macabre geography of extermination and the supported slavery emerging Western industry. From the ports of England were vessels that extracted and seized Blacks from Africa to reduce them into slavery in the American plantations.
From there ships, full of cotton, setted sail again the ocean to supply the homeland of the precious raw material, with which you textile artefacts produce cheap market which, exported in the far East, restricted the Bengal, the region more rich and developed in India, more black hunger to the present Bangladesh.
In 1860 there were in the slave still 4 million United States. Slaves were dying only in slavery, but also of slavery. 2 million died of hardship or ill-treatment, during their transfer or during their incarceration.
Michele Viti
Hi everibody!
A small relfection about the meaning and importance of history.
We said las week that history is one of the most important ways to understand the meaning of our present and our future. I was thinking about how a lawyer needs case's history to make his "customer" victorious. What I mean is that using similar cases of the past the lawyer can analyze how people has been judged and, therefore, how his "customer" will probably judeged. That could be very important to build his way to go on during the trial. That's especially true if we think about the Comon law system.
Generally speaking the culture of a jurist must be built on history as well because history gives a complete picture of what a law is, why it has been created, how it has been interpreteted during the years; its evolution, reformation and growth during the years. Of course this kind of studies are necessary to understand the complete system of laws and not the single law in its own meaning.
Taht's why to be exactly understood the system has to be considered entirely watching at the historicla contes as well; law doesn't exist if we don't put it in connection with other fields.
Andrea Petroni
I found Prof. Conte‘s lessons very interesting. The relationship between history and law is very important and it is so true that in law faculties there are (as we well know) many texts that analyze law from a historical point of view. Law is primarily a sociological business, so the lawyer cannot leaves aside the historical and philosophical background that inspired it. As we read in James Withman’s paper this historical approach was essential to the law in nineteenth century, but it gradually lost with the evolution of law and the imposition of a method of studying law inspired to an economic analysis (as evidenced by the increasing importance in more recent times of the “law and economy" branch). In this context, however, may be inserted the distinction (as prof. Conte said in his lessons) between "Fact and Meaning" and between "Philological and Philosophical histories. I think that most important for the study of law is not the analysis of the fact (Philological histories), but lawyer has to study the historical event in its Philosophical meaning: a very broad meaning also capable to include the study of its economic meaning. In this sense, the figure of the historical lawyer becomes a key figure to understand the true meaning of the law. This interpretation also makes it possible to reject the strand that consider the lawyer only like a technical, who must read and study law “aseptically”: the reality role of a lawyer is much more important because he retains the historical and philosophical background required to access the deep legislative wording meaning.
Enrico Veri
hello everybody
about law&history I found a wonderful essai written by Kant whitch is called (I've got the french book, so french title, sorry) "Vers la paix perpetuelle. -Projet philosophique" : Towards perpetual peace- filosofical project. Kant describes how nature can influence mankind, and compares the men, witch are trees fold by the heavy wind, and tha the law is the natural force that helps the trees to stand upright.. Here's the sens of the supreme force of Nature : as we are weak, and our nature is to be folden because as trees we are heavy and unperfect, the law, Natur's law, just helps us to upright ourselves and work for a perpetual peace, because menkind itself could not resolve problems and wars by itself, so Nature has a spreme role in our lives.
About history the developing of human kind troughout History makes the institution of Law necessary. Kants speaks about the "jugement Historique" (historical Judgement)where he claims that History is the field where the counciliation between reason's demand and Nature's necessitieshas to operate in a progressive way ; Kant's got a double project : in one hand to demonstrate that the human nature (and so the natural fondness to war) does not make the institution of peace impossible, and on the other it encourages it. The author thinks that we can consider that History is orientated by providence if it points out " the deep wisdom of a superior cause towards the final purpose of the human kind", but it remains impossible to know exactly the sense of the divine will. Finally, Kant explains that in every case,we are in front of a subjective judgement ABOUT History, not -as Hegel says- in front of a subjective judgement OF the History that would take the place of the subjective will of Human kind. He affirms that the History of men is the History of wars and he demonstrates - in his opinion- yhat paradoxally it is trought out the war that peace finds it's way to realization.
I found this analyze particularly interessant and very filosofic...! A kind of filosofic way to demonstrate that History & Law are so near between them.
see you!
During professor Conte’s week we talked about historical fracture and historical continuity.
It’s been analyzed whitman’s thinking and writing concernining history as a tool to give reasons and explanation of how a legal system works, in particular the American one and its punishment procedures always much harder and cruel than the European one. This is the key to undestand the functionality of history: solving questions looking back at the past and proposing theories. This shows how history is still living today and influences our lives . Whitman ran the risk to be wrong with his theories and was considered too philological and far from evidence , the real target of jurists of the period before the second world war.
Talking about history it was impossible to skip Savigny and his main work .
He built a legal system with roman law because of its deep private law rationality useful to introduce a new economic capitalist system. Savigny obtained by the roman private law system the unification of subjects and objects and made a big revolution not writing a new code but changing the rules modeling them on the past and not from forward.
Continuity and fracture in the german school have their bases in the strength of german institution, perfect example could be the idea of enterprise,a concept really close to corporation characterized by relationship not only economical but emotionial too . Here is the best, the ability to go toward a capitalistic target and , at the same time, saving german tradition as a drop of social oil necessary to avoid hard social tensions between classes.
The importance of savigny’s work is the changement he made starting from the lower point,the university. He was sure that this could be possible by training an high pofile lawyer class educated teaching law with legal history.
Other interesting points of professor Conte’s speaking are the evolutionism of law,something near to Darwin concept and grand theories about system evolving from relationship based on status to a system with relationship based on contract. People is obliged versus a person not in force of a special status(vassal,wife) but in force of will with free contracts
Hi everybody,
This week, in class we talked about the relationship between law and history; especially, in the first lesson we started from the concept of history as a legal institution and we discussed why history should be seen as a legal institution. This link is very strong: usually after an historical event there is a social development; social order is changed by happenings. A bad fact can generate a good value foundation too. In this sense facts and meanings are important for society! I totally agree with prof. Conte when he says: if a historian knows the story but not the histories he is a good historian but not intellectually useful for society. Both of them are necessaries. According to me, an important historical juridical moment for human society was the “Universal Declaration of Human Rights ” proclaimed in 1948 by the United Nations General Assembly in response to atrocities of World War II; It is an important step to safeguard the human dignity after a dark page of history, but as I said before, a bad fact can generate a good foundation value! This declaration is also important for its structure, it consists of a long inviolable rights's list, which was born as consequence of all the violations committed during the war. This Declaration isn't the only and the first one, ( we can think to Bill of rights and Declaration of the rights of man and of the citizens), but it is particularly important for the reaffirmation of faith to rights and because all member states promoted this values.
See you soon,
Silvia Faranca
Hi everybody!
I want to begin my comment making a link to the last module:
“a lawyer without history or literature is a mechanic, a mere working mason…”
We analysed this sentence with Prof. Watt but with Prof.Conte we considered the importance of history for a lawyer. I’ll try to explain.
Through history a lawyer should construct a system; history becomes central in law when you try to give it a meaning.
We mentioned during the lessons important facts that changed legal systems: French revolution, American declaration of indipendence , the fascism in Italy, the terrible event of jews extermination during the second world war. Continually we are present to facts that create rules: the important thing is to find a meaning in what happens, also making mistakes.
If we consider the changes in our codes we can notice that also the values of the society are continuously different . I don’ t know what is the right temperament to follow, if be conservative and defend always the identity of a nation or use history to justify a fracture!I think only that we need of history to built better legal systems day after day!
See you soon
Giorgia Melia
Hi everybody!
We have different ways to write about “law and history”; its a very large and difficult issue. I'm like the aspect that we underlined Thursday. Pandettistic is the most important branch of German legal science, but also – for my impression – the most criticized for his rigorousness and his inability to solve all the problems by the law. “Pandektenwissenschaft” 's weakness was represented by the idea of law as a “mathematic system”, with an organic and systematic coherence; an order of rules gap-less and self-reproductive. So like math and geometry. With some given principles, German legal scholars thought to create new rules. These rules could be deduced from these given principles, like in geometry the square or the triangle is deduced from the line, the point, and other geometric elements. The product of this method was a pyramid of concepts in which all parts were interconnected. This abstract approach crashed with the reality, because the precision, systematic coherence and the logical consistency wasn't able to solve new social problems like needs of industrial society. So this point was important to show the flaws of Pandettistic; and was an incentive for the development of the Jhering's theories of “Interessenjurisprudenz” represented by his famous saying: “ Das Leben ist nicht der Begriffe, sondern die Begriffe sind des Lebens wegen da” (The life is not for theories, but the theories are for the life).
Today Pandettistic is useful for his method and for is approach able to emphasize the stratigraphic analysis of law, from the Roman law to the actual law. We have different subject in our university courses, like “Fondamenti di diritto europeo”, as new proposals of Padettistic; in fact these courses represent the “Neo-Pandettistica” or “Pandettistica di ritorno”.
When we spoke about “history and histories”, and about continuity and fractures, I remind the different points of view and different “philosophies” of pandettistic linked to these subject.
For example we have quoted Mommsen's “Römisches Staatsrecht” and its idea of Constitution as an example of “continuity”. Mommsen was surely influenced by Gerber's Grundzüge, and his idea of Roman Constitution was a steady and immutable order of rules, independent to the politic decisions and that doesn't change through the Roman History. So a “completely juridized entity”; an idea far from the positivist constitution represented as a compromise between parties or as the Machiavelli's “coniuratio” between brothers against the “paternalistic constitution” given by the King.
Mommsen justified the different “fractures” of roman history: the different forms of the Roman State's organization like monarchy, republic, “Principato Augusteo”, weren't changes of the constitution – like “soluzione di continuità”. These different forms were different external changes of the same thing: the Constitution and the State, like a “stone” that traveled through the Rome's history, taking on different external forms during an “organic progress”.
Mommsen's theory reflected the needs of Liberal State in Germany of nineteenth century. A politic of law against the revolution, impermeable to the social needs and without the collaboration of new social classes. So an authoritarian State linked to the idea of Constitution and State as a “moral organism”, built by the history and the nature, independent to the individual and particular wills.
This is an example of history's continuity and a reflection of Pandettistic in Public Law, despite its could be an artificial creation that represents a reassuring precedent for the Liberal German State.
Good night!
Giuseppe Cacciotti
Hi everybody,
during the two lectures with the professor Conte we analyzed the relationship between history and law. The interesting article of Whitman gave us a start point to analyze the difference between story and history and the loss of centrality, in the modern times, of the right history, where the lawyer are becoming always more similar to a normal technician of the right.
In the second lecture we studied Savigny and the historical school that he founded, where the relationship between history and law is really strong. He underlines how the law is the product of history and culture. The real law for him is the consuetudinary one. That evolves and is handed in usages and customs. Those who bear everything are the commons and the lawyer.
This basic idea of the historic school was born in the famous controversy between Savigny and Thibaut about the possibility of a private and unique codification for Germany. Savigny was in opposition with this idea. He thought it was premature to depends upon the crystalization of the law by the adoption of the Codes. It was necessary a study and an elaboration of the existent rules. He considered the institutes create by the Romans as an immutable and a perfect Institutes able to be used like a current law. Thus he drew the ancient Roman law how it was in Justinian forms . The Pandettistica , which has, like objective, the systematic and dogmatic elaboration of the juridic material, has been developed from this formulation.
Riccardo Varano
Hi everybody,
During Prof. Conte’s lessons we have also studied the relationship between history and law with special reference to the “scuola storica del diritto”. I believe this is the highest expression of law and history relationship. If I correctly remember, this strand considers law by a historical point of view: law is a social phenomenon, which changes with society and with change of the social causes that warrant it. These considerations suggests that the study of law can not leave aside study of the historical background and that the law is a reality in constant change. This concept is the peculiarity of the “giustoricismo”. It can be compared to “giuspositivismo” or “giusnaturalismo”: “giuspositivismo” think that law is “jus positum”, it is that was said by the Power ; it is abstract (in the sense that apart from social reality) and property (does not fit to the needs of associates, but is often immobilized in special codes and collections). “Giusnaturalismo” think there is a natural right, which existed since man exist, also this kind of law is unchangeable. In this context is the thought of Savigny: law is not immutable, it is an expression of man, used to meet the demands of social life, which change over time, then the law must necessarily follow these changes and fit to them . So I think that what really matters is that the law is not abstract and free, but reflects the society in which it is inserted. In this sense, the history plays a key role in the study of law. You can not study law if you don’t consider the historical background in which it is inserted.
Enrico Veri
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