RICERCA ITALIANA     

Continuity and change in early modern legal systems (fifteenth to eighteenth centuries)

Università degli Studi di Genova

Abstract

The project will focus on the problem of ‘continuity' and ‘change' in legal experience between the fifteenth and eighteenth centuries, the conviction being that this is a fruitful approach to themes of essential importance for the history of law.
Changes in the European legal and political institutions during the centuries in question produced literature and legislative sources still in part to be studied. The reconstruction proposed by the historiography on this period is not entirely satisfactory or it is incomplete.
Indeed, a number of important issues have not yet been resolved, viz.:
- the periodization of the phenomena examined;
- identification of the effects of "new" theories, with reference to late-medieval legal culture (that known as "traditional");
- the actual practices of administrations, both those of the state (above all judicial) and the Church, and the relationships between them.
The subordination of the ‘law' to the ‘prince' (in part accomplished, in part only proclaimed) recast the relationships among iura propria, ius commune and the interpretatio of jurists, giving rise to normative solutions and theoretical works different from those of the past.
A first strand of analysis comprising legal history, institutional history and history of legal-political thought (which are necessarily interconnected) will examine the notion of sovereignty during the period in question and the way in which it was shaped by >>>

Principal Investigator

Rodolfo SAVELLI Università degli Studi di GENOVA

Research Objectives

The research unit intends to augment knowledge on a topic which, although of fundamental importance for legal historiography, has to date been mainly addressed by methodological studies and only partly examined in its concrete aspects. The traditional view is that the period between the fifteenth and eighteenth centuries was the age of the "crisis of the common law" – or of "particular common law" – in which "state law" was "the sole normative source in that it emanated from the prince" [Calasso].
The intention of the research unit is to examine individual aspects and issues that pertain chronologically to what is conventionally known as the modern age, in order to determine to what extent and how these changes took place.
The choice itself of the two terms in the research project's title (‘continuity' and ‘change') indicates the coordinates whereby certain assumptions can be verified. Legal history in the modern age cannot be treated as merely that of an extremely protracted and teleologically predetermined transition, whose point of departure was the late-medieval order (typified by ‘ius commune') and whose point of arrival was the new eighteenth- and nineteenth-century order dominated by codes and constitutions. The intention is accordingly to conduct sectoral research on interrelated themes in order to highlight distinctive features of legal experience between the fifteenth and eighteenth centuries. The focus will be both on ‘continuities' with respect to >>>

Timescale

24 months

National and international background

The traditional category of the ‘late common law' is today somewhat hackneyed from a historiographical point of view. It denotes both a period (between the mid-fifteenth and mid-eighteenth centuries) and a method (with an undoubtedly earlier origin). Flanking the latter, apparently without communicating with it, were a series of other ‘schools' largely unrelated to concrete practice, and other movements of thought (legal humanism, Spanish scholasticism, the Dutch school, etc.).
By why of extreme generalization, one may say that this attitude has provoked a certain indifference towards a long phase of Italian legal history, apparently bound to tradition, when centuries passed before the first signs of the ‘new' became apparent in the second half of the eighteenth century. This partial indifference has also been due to the crisis of the Italian states during the period in question (the age of ‘foreign' dominations and Spanish hegemony) with respect to the coeval formation of the European nation-states.
A discussed essay by Osler has criticized the ‘teleological' account of a progressive development of European legal culture through successive stages from the school of commentators to German legal science of the nineteenth century. Osler's short article (its polemics aside) has highlighted some important issues in modern legal historiography: the problem of periodization and of continuity/discontinuity between the late Middle Ages and the sixteenth-to-eighteenth >>>