Review

Reviewed Work(s): Stato e cultura giuridica in Italia dall'Unita alla Republica by Aldo
Schiavone
Review by: Ilse Staff
Source: The Journal of Modern History, Vol. 65, No. 2 (Jun., 1993), pp. 415-418
Published by: The University of Chicago Press
Stable URL: https://www.jstor.org/stable/2124469
Accessed: 28-04-2019 16:58 UTC

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 Book Reviews 415

between the army and the city. Nine cities are examined from the particular viewpoint
of urban history, and another fifteen cities are discussed singly.
The fourth section of this work, which begins the second volume, seems dedicated
to unearthing new information and new documentary materials, in contrast to the
preceding section, which concentrates on a few "hot" topics that have already
received scholarly attention. An enlightening introduction by Italo Insolera points out
problems common to this vast body of material and some conclusions that might be
drawn from it. He notes that the geography of military installations in the Italian cities
under discussion was definitively established, in the form that still pertains, during the
few years following Italy's unification (roughly from 1861 to 1867). He also observes
that when the new unified, liberal, and lay state took over for army use preexistent
buildings formerly used for religious purposes, it replaced centers that had been a vital
part of city life with others that had precise but totally different functions that involved
far less interaction with the neighborhood and the social environment in which they
were placed.
The last section, on problems related to military expenditures, is coordinated by
Franco Benelli and groups essays that attempt to analyze the complex relationship
between military expenditures and the domestic market. They define the vast network
of products and services acquired by military administrations in relation to the
distribution of expenditures throughout the nation and discuss their effects on the
development of certain sectors and on the siting of industries.
It must be said that as a whole these volumes represent an important stage in Italian
historiography on the specific topic of the army. Two observations seem in order here.
The first regards the periodization given in the title (from Italian unification to the
1930s), which does not correspond to the more compact (and perhaps more justified)
choice of most of the studies, which stop at the end of the liberal regime and at the
threshold of fascism. The second is that the role of the army in Italy, its integration into
the city, and its way of thinking are studied above all in relation to the officers' corps,
including at most the noncommissioned officers. Common soldiers and their lives
appear only indirectly, filtered through the undeniably distorting viewpoint of the
commanders and the governing classes who attempted to control the masses under
arms and, through them, the civilian masses. This topic, however, is ample and
complex enough to merit a separate study.

LUIGI ToMASSINI
Universitai di Firenze

Stato e cultura giuridica in Italia dall'Unita alla Repubblica. Edited by

Aldo Schiavone.
Rome and Bari: Laterza, 1990.

The development of Italy in the nineteenth and twentieth centuries is marked by two
particular features: first, by the manner in which the Italian state came into being, and
second, by the existence of a fascist totalitarian state from 1922 until its destruction by
the Allies in 1943. The Italian regime was not founded upon any revolutionary action
nor upon a "Constituente" but arose in the course of the Risorgimento. The unification
of the Kingdom of Italy began in the Piedmont, Sardinia, and Liguria, territories in
which the "Statuto Albertino" of March 4, 1848, remained in force. In 1861 King
Vittorio Emanuele II was named King of Italy. The remaining Italian territories were

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416 Book Reviews

incorporated into the Kingdom of Italy, some before 1861, some afterward. In order
to understand the content and significance of the work under review, one must be aware
of this historical development, as well as of the fact that formally, despite some
occasional changes caused by the founding of political parties, the "Statuto Al-
bertino" remained the constitution of Italy until the adoption of the constitution of the
democratic Republic of Italy on January 1, 1948.
This work, edited and introduced by Aldo Schiavone, consists of six essays:
Maurizio Fioravanti, "Costituzione, amministrazione e trasformazioni dello Stato"
(Constitution, administration, and the transformations of the state); Pietro Costa, "La
giuspubblicistica dell'Italia unita: I1 paradigma disciplinare" (The public law of united
Italy as governing paradigm); Mario Sbriccoli, "La penalistica civile: Teorie e
ideologie del diritto penale nell'Italia unita" (The criminal law: theory and ideology of
criminal law in united Italy); Cesare Salvi, "La giusprivatistica fra codice e scienza"
(Civil law between codex and science); Aldo Schiavone, "Un'identita perduta: La
parabola del diritto romano in Italia" (A lost identity: the parable of Roman law in
Italy); and Luisa Mangoni, "Giustizia e politica: I1 diritto come supplenza" (Justice
and politics: law as surrogate). The individual essays complement one another so that
the reader obtains a clear outline, from a juristic perspective, of how the liberal Italy
of the nineteenth century developed into the democratic republic of the twentieth.
What emerges clearly is how law and legal doctrine were invoked in order to
supplement political activity and even, in many instances, to replace it. Equally
evident is how difficult a path it was for the development of the law, which had to
respond to the fact that mass society needed governing and controlling mechanisms
other than those that were familiar in the liberal theory of the state.
In his essay, Fioravanti depicts in precise steps the development of political and legal
thought in Italy in the nineteenth century and under fascism. The emergence of the
social question and the articulation of new social needs at the turn of the century made
it impossible to continue to envision the state monistically, as a juridical "person," in
the terms of the civil law model-a view represented above all in Italy by Vittorio
Emanuele Orlando. But Fioravanti shows that no attempt was made at the constitu-
tional level to resolve the problem posed by the undeniable fact of a plurality of
interests; instead, the administrative levels took it upon themselves to satisfy social
needs in a manner that would not endanger the unity of the state. Thus it was not the
idea of popular sovereignty but, rather, the sovereignty of the administrative state that
governed the doctrine of the state in Italy at the beginning of the twentieth century.
This is reflected, albeit with different accents, in the works of Santi Romano and
Oreste Ranelletti. What emerged was a body of administrative law that came to eclipse
civil-law institutions; along with the bureaucracy, it helped (for a time, at least) to
resolve the social question without the continuity of governmental and national unity
being called into question. Fascism put forward an alternative to the juridical concept
of an administrative state: political leadership, as well as a monopoly on power to
implement political goals, should be vested in an authoritarian regime (Sergio
Panunzio, Alfredo Rocco, Carlo Costamagna). What is fascinating in Fioravanti's
essay is how, within the fascist totalitarian system, and despite legislation supporting
the fascist concentration of powers, a constitutional doctrine nevertheless emerged
with elements that later were to form the basis of the constitution adopted on
January 1, 1948, by the democratic republic. It was Costantino Mortati who
recognized clearly in the 1930s that the economic and social situation had changed so
much that it could only be controlled by deliberate political intervention. In this
respect, it was the fascist doctrine with its emphasis on the need for firm political

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 Book Reviews 417

leadership by the governing regime that seemed to him to set the appropriate accent.
But Mortati put forward a constitutional program different from the one propounded
by fascist political theorists. His central theme was the relationship between the formal
and the material constitution. In 1940, in his work La costituzione in senso materiale
(Milan, 1940), his point of departure was antagonistic societal interests; he assigned
to a Unity party the role of uniting the various interests that exist at any particular
moment of history and translating them into political decisions. Subsequently, in 1941,
he elaborated the outlines of a multiparty system directly opposed to fascist theory, one
that was to pave the way for a democratic, constitutional state.
Fioravanti's essay finds its direct complement and confirmation in Costa's contri-
bution. Costa, too, underscores the growth of social conflict around the turn of the
century. His essay contends that the plurality of social interests had already become a
theme for political doctrine at the turn of the century (e.g., in Santi Romano's doctrine
of institutions) but that the focus of Italian political theory was the state and not society
in its social structure. Costa demonstrates that the state also remained the focus for
fascist political theory, although the fundamental -social-economic changes of the
1920s and 1930s led to a degree of political action on the part of the fascist regime that
burst the bonds of the traditional understanding of the state. The fact that during the
fascist period a constitutional doctrine developed that recognized the essential relation
between the material and the formal constitution, a recognition vital to the stability of
a political order (Mortati), is viewed by Costa as proof that constitutional develop-
ments, and even ruptures in traditional constitutional doctrines, need not always be
accomplished through a propounding of norms. The process of legal development is
socially and politically conditioned and may overtake prevailing norms. Costa's essay
shows convincingly that, in fact, public law in Italy in the second half of the nineteenth
century did overtake prevailing norms in this fashion.
The essays by Sbriccoli, Salvi, and Schiavone examine the development of law in
Italy from unification until the founding of the democratic republic in the diverse areas
of criminal law, civil law, and Roman law. Sbriccoli examines the dilemmas and
proposed solutions in the field of criminal law, where in the second half of the
nineteenth century the idea of protecting social peace and order predominated. Around
the turn of the century, social factors became increasingly relevant in Italian criminal
law: on the one hand, the delinquent as a person came to the forefront (Cesare
Lombroso) and the question of the free will of the delinquent was posed as a problem
(Enrico Ferri); on the other hand, attention was directed to social and economic
structures and their role in conditioning delinquency (Filippo Thrati). Sbriccoli shows
the increasingly repressive character of the criminal law under fascism and observes,
with obvious resignation, that only on October 25, 1989 -fifty years after the
overthrow of the fascist regime-did Italy succeed in introducing new rules for
criminal procedure. In his essay on the development of the civil law, Salvi points out
the enormous gulf between the liberal view of law and the demands of a legal system
adequate for a mass society characterized by rapid economic change and an increasing
concentration of capital. The Italian civil code of 1865 was reformed during the fascist
years; after a short period of discussion the new code took effect in 1942. The new
code was supposed to transform the individualistically oriented civil law of the
nineteenth century; it envisioned a civil order open to the intervention and control of
the state. Civil law was to become the framework for a regulated economy (economia
regolata)-a goal that was in fact attained, as Salvi demonstrates. One aspect in
particular of Salvi's work is of extraordinary interest: his review of the question as to
whether the new Italian civil code of 1942 was shaped primarily by fascism or whether

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418 Book Reviews

it was the product of the economic, technical, and social developments of the first half
of the century irrespective of fascist ideology. To the extent it is the latter, one can
show a relatively unbroken continuity in the significance of the institutions of the civil
law up through the postfascist period. Salvi himself argues that the innovative elements
present in the civil code of 1942, quite independent of all fascist tendencies, have been
largely underestimated. They have not been promoted and developed, though this
would have been of critical importance for the formation of the relation between state
and society. In regard to Roman law, Schiavone demonstrates that precisely those
developments sketched by Salvi in the area of private law-which were, and are,
reactions to the "system of social needs" and the movements toward economic
concentration-have fundamentally transformed the meaning of Roman law in Italy.
For the Italian unification movement in the nineteenth century, as well as for the
creation of a national identity, Roman law played a decisive role. But it lost this role
after the emergence of the socioeconomic changes of the 1920s, and particularly with
the collectivization of legal relationships, something that could not be accommodated
within Roman law.
The volume concludes with a chapter by Luisa Mangoni, in which the social and
legal developments in the period from the unification of Italy to the creation of the
democratic republic are clearly portrayed. In part, these developments paralleled one
another; to a great extent, however, they ran their own independent courses. Mangoni
correctly observes that during this period judicial decisions were reached by political
means, but there was also a resort to law for political purposes, namely, as a substitute
where political activity was wanting. There are two points that seem to me to be
particularly worthy of note in Mangoni's presentation. First, her essay confirms the
conclusions she reached earlier in another connection ("Cultura giuridica e fascismo,"
in Cultura e societai negli anni del fascismo [Milan, 1987]): that fascist domination
fundamentally transformed Italy in the 1920s in all domains, social as well as political,
and that these changes were intimately connected with the existence of the fascist
system. Second, on a matter of current importance, Mangoni addresses the current
constitutional-legal and constitutional-political situation in Italy, in which there is no
correspondence between the material constitution and the formal constitution and in
which a kind of creeping delegitimization of the constitution and destabilization of the
system are occurring. Mangoni came to this conclusion in 1990; curxeatiy (99tN tht
situation is politically even more precarious. The decay characteristic of Italy's material
constitution is evident in the vehement discussions of constitutional reform that have
taken place there. In understanding this contemporary discussion of the political for-
mation of Italy, and for preserving the hope that (European?) law can again have a
stabilizing function, one that will reconcile the material and the formal constitution in
Italy, this historically extensive, carefully edited work can be a valuable aid.

ILSE STAFF
Johann Wolfgang Goethe-Universitat

Zwischen Preussen und Deutschland: Friedrich Wilhelm IV: Eine Biographie.

By Walter Bussmann.
Berlin: Siedler Verlag, 1990. Pp. 480. DM 58.

For nearly all the prominent politicians and rulers of the nineteenth century there are
serviceable, if sometimes outdated, biographies. Up until now, however, there has
been none for Friedrich Wilhelm IV. His reign, during which Germany seemed for the

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