RICERCA ITALIANA     

Magistracy and politics in the modern and contemporary State. Origins and historical developments of the conflicts between political and jurisdictional powers.

Università degli Studi di Roma "La Sapienza"

Abstract

The research concerns the development of the relationship between judiciary and political power during different periods and places. The latter had been chosen according to their importance (they are significant of the different ways in which that relationship was realized during modern and contemporary age) but also to the research’s status ( the sources’ availability, the topicality of the several historiographical problems). The first part of the project deals with the relationship jurisdiction/politics in the period when that theme emerged with more evidence (XVIII century) and in the country (France) where all the theoretical and practical implications emerged more clearly. To understand this decisive turning point, both theoretical and institutional, of the modern State, the research proposes different keys. The first concerns the robins’ constitutionalism (a “jurisdictional constitutionalism”). The second concerns the ideology and practical experience of a Ancient Regime standard jurist in his relationship with the king, as represented in some figures of magistrates. The conflict between the two major public powers: on one hand the judiciary, whose top in France was the supreme court of the “Parlement”; on the other hand the political power which was divided into the two branches of the legislative power and the executive power: in the Ancient Regime, both of them were embodied in the figure of the king and his “conseils privés”.
This first part (which concerns the modern age between XVI and XVIII centuries) is completed by two research on Sardinia in modern age. The first concerns the prosopography of magistrates of the supreme tribunals (Reale Governazione del Capo di Sassari e di Logudoro; Reale Udienza) from 1515 to 1700. The aim is to explain the formation of the gowned, their cursus honorum, the relationship with the political power. An inventory of the upper magistrates will be realized, and will be accompanied by a careful study of the judiciary structure of the Reale Udienza of the Reign of Sardinia and four biographical essays on important magistrates. The second one concerns the magistrates in the Sardinian Parliaments of XVII century, when a request emerged from the Stamenti concerning the “privativa”, that means the monopoly of natives on civil and ecclesiastical offices. The aim is to highlight the crucial point of the conflict among the ecclesiastic, baronial and municipal jurisdictions and the viceroyal court and administration. This aspect will be studied also for the following period during the Restoration.
The second part of the research is concentrated on the contemporary Italy. The central idea is the study of the careers and experiences of the high magistracy from 1861 to 1970.
Resuming the census which had been started, but not completed, by Pietro Saraceno the project want to realize a data-base and then to publish a biographical dictionary of the high magistrates, following the example of the dictionary concerning the magistrates of the Consiglio di Stato which is already under construction. From this core will depart four lines of studies: the first aims to test the presence of magistrates in the Italian Parliament during the liberal age (their biographies, their involvement in parliamentary activities, their incidence on decisional process); the second one will direct his attention on the presence of magistrates in ministerial staffs and in other assignments; the third one will clarify the participation of magistrates to the trials of anti-fascist purges in 1944-48, both as judges and as defendants; the fourth one will reconstruct the history of the “Consiglio superiore della magistratura”.
The program, which has been submitted to the Consiglio superiore della magistratura, received its sponsorship. <<<

Principal Investigator

Guido Salvatore Melis Università degli Studi di ROMA "La Sapienza"

Research Objectives

a) For the first section:

1. publishing a study about the ideology of robins in the Lumieres France, which will continue and complete precedent research by prof. Francesco Di Donato, centred on the age of the reform carried out by the chancellor and minister of Justice Maupeou;
2. applying that methodological system to a new research concerning the crucial event (which is still waiting a convincing explanation) regarding the new convocation of parliaments in 1774, after their suppression thanks to Turgot, who (following the physiocratic ideas) had political and ideological positions which were opposite to those of parliaments’ members;
3. realizing and publishing, on the basis of the huge archival documentation still unexplored and of the printed sources, a prosopographical picture of magistrates who acted during the Reign of Sardinia from 1551 to 1770. This work will be based on the drawing up of files for each magistrate with the main professional, biographical, cultural, career data and the information on the sources;
4. reconstructing the judiciary structure of the “Reale Udienza del Regno di Sardegna e Reale Governazione del Capo di Sassari e di Logudoro” and analyzing the tribunals’ decisiones to understand the formation of a common law with regional feature; the biographies of some relevant magistrates will be prepared;
5. publishing studies which, being connected to the critical edition of the acts and debates of the parliaments of 1624 and 1653-57 (as a part of the “Acta Curiarum Regni Sardiniae” series sponsored by the Consiglio regionale della Sardegna), will focus the crucial theme of the political and jurisdictional contrasts between the Stamenti (constitutional branches each in representation of one particular order of society) on viceroyal government: the aim is to verify the participation of the magistrates who belonged to these representative assemblies with regard to the relationship with the central power.

b) For the second section:

1. resuming and completing the database set up by prof. Pietro Saraceno concerning the careers of Italian magistrates after the Unification up to 1970: the aim is the creation of an inventory of all personal files which will be integrated with other sources (and then put it on line);
2. drawing up a biographical dictionary of the Italian upper magistracy from 1861 to 1970 (following the model of that on the “consiglieri di Stato”);
3. publishing specific essays on the participation of Italian magistrates, both as a group and as single leading figures, to the parliamentary life and in particular their contribution to the legislative process regarding the most relevant bills. The aim is to obtain a map of all the legislative products during the liberal age (1861-1915), studying the laws’ production times and in particular the role of the magistrates who were member of parliament;
4.drawing up a chronology of the organizing provisions of the Minister of Justice and the judiciary orders from 1861 to 1960; reconstructing, for the same period, a inventory of the biographies of those magistrates who held important offices in the central administration (ministerial staffs, commissions, legislative boards, etc.);
5.publishing a biographical study on the magistrates’ purges after the fall of fascism, with the intention of establishing, through the data of the purges and the analysis of the magistrates’ role both as persons to be removed and as those who removed, the continuity in magistrates’ careers between fascism and the post-war period;
6.promoting a series of studies which, starting from the experience of the forthcoming Dizionario biografico dei consiglieri di Stato italiani 1861-1948, could develop investigations on the history of this important institution, investigating some aspects like: a) provenance, social and professional origins of the administrative magistrates b) their scientific activity, with the drawing up of individual bibliographies and a comprehensive database; c) their participation to government assignments, especially in the ministry’s staff; d) their involvement in politics (for example through a parliamentary experience), etc..;
7.publishing one or several studies on the institutional history of the “Consiglio superiore della magistratura” (origins, composition, functioning, relationship with other organisms, administrative staff, form and style in its activity etc.). <<<

Timescale

24 months

National and international background

The relationship between magistracy and political power since several years has been at the centre of the historiographical debate from different points of view.
As regards the first part of the project, concerning the modern age and in particular the Ancient Regime, can be briefly recalled the studies on the supreme tribunals and the magistracy in modern Italy, since Gino Gorla’s pioneeristic studies, the works of Cozzi, Ascheri, Petronio, Birocchi, Massetto and – as a synthesis of the whole trend – the volume “Grandi tribunali e Rote nell’Italia di Antico Regime” edited by Sbriccoli and Bettoni in 1993. Less attention has been reserved to the structure of supreme tribunals and to the recruitment and the training of magistrates, but excellent studies are available on the different regional cases (Visconti, Petronio, Chabod, Giarrizzo and the more recent Massetto, Zorzoli, Genta, Ajello, Galasso, Cernigliaro, Rovito, Di Donato, Miletti, Romano, Sciuti Russi, Novarese, Anatra, Mattone).
The recent historiography has looked at the works of Spanish historians on the Audiencias and the letrados with particular interest. And this project looks at this direction (with particular attention to the prosopografic element), without omitting the role of the gowned in the Ancient Règime representative assemblies. In this field the research can rely on the philological works which has reconstructed the activity of the Sardinian Parliaments, thank to the series “Acta curiarum Regni Sardiniae”. The sources which has been identified for this research, most of all archival, are often unexplored: they consists in serial documentation, which the research will revise with collective criteria to trace a general biography of the gowned and to find the relationship between them and the political power.
An essential background of this project is represented by the vast knowledge and studies which has been developed in France in the last decades regarding the “noblesse d’Etat” (Bourdieu), the magistracy in connection with the “Parlements” (the robins, who has been studied by Di Donato), the political and corporative strategies of the magistracy in the Ancient Régime (Bluche e Félix).
The analysis of the robins' ideology means to study their 'forma mentis', the anthropological, psychological and cultural background; it means as Weber could say the Weltanschaung of the robins; it means analyzes deeply the most important structures of the social organizations which Roland Mousnier described as a huge civilisation process hinged on the State developing (civilisation étatique). Also in this case the sources will be mainly the archival ones (but will not be omitted the literary ones or other printed sources).
As regards the second part of the project, the studies of Pietro Saraceno on the Italian magistracy after the Unification constitute the starting point. The project intends to resume and complete the Saraceno’s database, using the same methodology for taking and classifying the data from the magistrates’ personal files which has been set up by the scholar who prematurely died some years ago. The project is indeed supported also by some relevant historiographic trends: first of all the studies concerning the “Consiglio di Stato”, especially the most recent ones which will culminate with the forthcoming “Dizionario biografico dei consiglieri di Stato italiani 1861-1948”; other works on magistracy, more or less recent (Battaglia, D’Addio, Neppi Modona, Tranfaglia, Piccardi, Aquarone, Jocteau, Venturini, Guarnieri, Carbone, Abbamonte and Meccarelli); the research on single leading figures of the magistracy, on the judicial order, on the relationship between magistracy and politics before and after fascism (Genovese and others). Important, even though less pertinent, is the background of research which, especially in the last years, aimed at publishing biographical dictionary, inventories, systematic indexing on personal basis (it could be said that Italian historiography, which was lacking in this kind of instruments in the past, can now count on solid basis). The “Archivio centrale dello Stato”, with its huge deposit of personal files, constitute the heart of the research; which then will continue through the indexing of ministerial bulletins and yearbooks, of the “Calendari generali del regno”, of the professional press; the exam of parliamentary papers; the careful analysis of the open competitions’ documentation, studying the personal biographies of magistrates, analyzing by sample their most significant decisions (starting with those which had been published in law reviews).
In this second part of the project will be developed different courses. As regards the studies on magistrates in Parliament, even though not numerous, they can count on a promising period of the parliamentary historiography (the volume which has been edited by Luciano Violante within the series “Storia d’Italia-Einaudi”, is a good example) and on some works on specific categories: the senators who came from the bureaucracy or those who came from the armed forces, for example, has been studied with profit (Melis, Meniconi, Soddu), as, more in general, the presence in the parliamentary life of members who were professionally linked to the State (Melis). Furthermore the research on magistrates who belonged to the ministerial staff or received another ministerial assignment can now count on general studies on the ministerial organization (Melis, Tosatti, Giannetto, Giuva, Pellegrini and others), on the rich knowledge on the administrative history (Melis) and on a series of inventories and sources’ catalogues which make the researchers’ work easier.
Also the subject of the purges can count on a series of recent studies: those due to the initiatives of Elena Aga Rossi (Melis, Giannetto, Tosatti, Dell’Era, Felisini, the same Aga Rossi); those produced in the occasion of conferences (Gallerano and others; Iuso and others); those with a general character, published by foreign scholars (Woller, Roy Palmer) and the italian Canosa. The Senato della Repubblica, publishing the series on the “senatori fascisti”, with data from its Archive, has offered a solid basis of data to whose exploitation the Cardia’s volume on the purges in Senate contributes.
At last, with regard to the “Consiglio superiore della magistratura”, a absolutely new subject (at least under the historiographical point of view), the project can count on the collaboration of the same Council, which honoured the project with its sponsorship. <<<