The Austrian code is indeed widely credited to be as "liberal" as the French4, but "French culture" was much widespread than Austrian among the ruling elites and the choice was in fact imposed by the "winning state" over other Italians. In the same way it was adopted also a French-like Code of commerce, and the Criminal code was tailored on French liberal conceptions. Thus cultural feelings palyed an important role in the choice: Italy had to become a "Latin sister" of France in Southern Europe.
The adoption of a revised French code purported also the borrowing of French legal methods, and organization of courts5. The method of italian lawyers was styled after the prevailing French "exegetic" school 6. The court system was arranged around the French pattern of the Cour de Cassation, but because of the recent achivement of national unity were created five Supreme Courts at Turin, Florence, Naples, Palermo and Rome. A unique Supreme Court was created only in 1923 (Act 601-1923) after the taking of power of the fascist regime.
Because of the lacking of a unified case law, legal education played the major role and it was heavily based on the works and translations of French authors. We can measure the impact factor of French legal culture by the translations of French law books. The Merlin's Commentaries on the the French code were translated in Naples (1824-28), and even in Venice (1834-44), notwithstanding the fact that that land was still ruled by the Austrian code. Also the major Textbooks received an italian version: Duranton in 1852-54; Zachariae in 1862; Aubry & Rau in 1841-49.
The last french work was the multi-volumes massive work of Baudry-Lacantinerie, translated in 1900. The end of the century marked a final stop in the process of translation, and also, as we shall see, in the impact of French culture on Italy. In the new century the works of Planiol, Josserand, Gi?? ny and so on have been studied but never translated. Thus as we can see the Constitution, the Codes, the courts, the legal education, and public administration were all created on a French template, but the most influential formant was undoubtely French doctrine.
French case law has been borrowed only through the citations of the professors in their books7; there was no direct knowledge, neither real interest for French decisions. Italian books were referring the thought of the French professors, not the content of French decisions. As an example we can take a widespread law book of the time, the Emilio Pacifici-Mazzoni's work on Wills: in the first 50 pages of the volume Demolombe is cited 68 times, followed shortly by Marcadi?? , Aubry & Rau, and Toullier, whereas there is just one citation of a French case.
That's quite interesting because the role of the case law, and in particular the role of the Cour de Cassation, has been overwhelming in France. Indeed the Italian judicial style in writing opinions remained shaped after that of the Courts of the old jus commune (mainly the courts of Florence and Rome), and was not influenced by the concise way of French judges to write opinions of just one sentence8. From this standpoint there was a split up between the "culture of judges" and the "culture of professors". The literaly style of the formers preserved a national pattern, whereas the style of the latters introduced French exegetics.
Thus we can see that Italian legal culture borrowed the French legislation, and the french doctrine, much more then the case law. Borrowing is a selective activity, and it should be quite misleading to say that the "French model" has been transplanted into Italy, because the transplanted model happened to become quite different from the original. Once again it is the theory of formants, I think, that can help us in understanding that "models" are made up of different traits, and that in the borrowing process original traits can be mixed up, and even twisted around, to produce a different model.
In fact there was a reversal of background and foreground in transplanting the French model into Italy, since the role of the courts was certainly put behind that of doctrine, opposite to the original French version of powere relations between these formants. In the next section we can see how this increased role of intellectuals geve birth to a major shift from the French towars the German "style" of legal thought within the legal profession. The "Coming of the Germans" In the previous section we have seen how the French model has been received in Italy with an emphasis on the role of intellectuals.
Now we can see that after National unity in 1870 Italian universities were reorganized 9 on new standards, and in particular the law schools were entrusted to a "first generation" of professional legal scholars10. From the very beginning the best developped department within the new legal academia has been that of Roman law. All the leading figures of this first generation of scholars have been professional Romanists. It is quite evident that they were interested in theory and in Roman law, and that they could find both in Germany. In few decades Italy became one of the provinces where German studies exercised their strong influence11.
The shift away from the French legal culture was widespread, and started just because of the felt prestige of German academic studies in the field of Roman law12. Italian professors began to borrow the German "theoretical" approach to law, which had a strong impact in the law schools, in comparison with the now discredited French method, and the new lawyers and judges began to be educated in the new German mood. Thus the "style" of the legal discourse changed dramatically, and a new legal jargon was tailored after German templates13.
As I said the "professionalization" of the academia was a major factor in the shift; the leading figure in this process has been Vittorio Scialoja (1856-1933). He was a great mentor, with a lot of disciples in all academic fields: Bonfante e Segri?? in Roman law, Filippo Vassalli and De Ruggiero in Private law, and Chiovenda in Civil procedure. He was also one of the most activist borrowers from Germany, together with Filippo Serafini (1831-1897) Fadda (1853-1931) and Bensa (1858-1928). Professional academics found indeed in German doctrines an exellent fuel for their legitimation within the schools, and even within the legal process.
Once again we can trace the translations of German works to measure out their impact. At the mid of the century Serafini and Colgiolo translated the immense Gluck's Pandects. Vittorio Scialoja in 1886 published a version of Savigny's "System", Fadda and Bensa translated Windscheid's work in 1903-1905, which was reprinted in the thirties. All the major Italian jurists of the time adopted the German approach: Nicola and Leonardo Coviello; Francesco Ferrara sr. , Giuseppe Messina, Ettore de Ruggiero, Vittorio Polacco, Giovanni Pacchioni.
In order to contrast the old French mood to the newer German style it is quite useful to cite a biographical narrative by one of the leading authors of the thirties: Giovanni Pacchioni14: "[I] remember the teachings of my two main professors: Piero Cogliolo and Pasquale Melucci. The latter, since he was a disciple of Pacifici Mazzoni, followed the French style, and that of Laurent in particular. The former having been a student of Filippo Serafini followed the methods and theories of Savigny, and of the other great German scholars as Windscheid, Brinz, Becker et al. The two way of teachings were strikingly opposite.
Melucci was giving classes on the basis of an article of the code. He used to construe the meaning of it, and with an exercise of logic tried to derive all the possible consequences; and when these were hard, his usual memento to the young students was : dura lex , sed lex. On the contrary Cogliolo gave lectures starting from old Roman law, reconstructing the historical evolution of legal conceptions through the ages up to the present Code, discussing solutions on the basis of analytical, as well as sociological doctrines. Even if I was very young I could easily perceive that the German approach was quite superior.
An approach that thanks to Filippo Serafini and Vittorio Scialoja has become prevailing. I could never suffer the dura lex sed lex. " I think that this narrative captures the felt difference between "passive interpretivism" and "active theory" that was a key factor of the German success in Italy. The new German approach placed indeed the "intellectuals" in a new context within the legal process. The "intellectuals", the law school professors, more than the judges , had to lead the process, because theory was the realm of intellectuals, and law was essentially conceived as theory.
The role of courts would have just become that of "applying" professors' theories to particular cases. Law had to be conceived not as a bundle of rules, but of conceptions. Rules were to be derived from the latters, which were to be refined by professors. Besides it was quite evident that statutory provisions could just have the meaning and scope allowed them by academics. In the beginning the prestige of professors induced lawyers and judges to accept their role and to imitate their way of writing.
The "theoretical" mood of the legal discourse became a dominant paradigm even among practitioners. It is also quite clear that this strategy of dominance succeded because of the lack of one Supreme Court, and because of a weak organization of the bar. The shift away from French culture became so prevailing that when in the twenties Italian and French government decided to adopt a common code of Contracts, the project aborted because of the opposition of academic elites against a project based on "outdated" French patterns15. The twenties represented the height of the German prestige in Italy.
In the thirties a new generation sat on the chairs, starting to challenge from within the German paradigm. Two leading authors, Fr. Ferrara sr. , and G. Messina, fueled a new wave: the "critique" of the prevailing German paradigm by way of the same German formalism. Salvatore Pugliatti and Mario Allara became the major representatives of this approach. In their views "intellectual honesty" requires almost always to rethink law globally producing new theories, giving up received truths and categories to build new systems and even a new vocabulary when needed.
They culvitated "mere brillance"16 as the proper academic standard and as the proper approach to law. Their unintended impact was that each professor engaged in developing new theories, with new concepts, new categories, and a new vocabulary. The "common enterprise" of the German pandectists became an individualistic effort to propose the "best" and personal system of the law. Since this happened when the different courts have been unified in one Supreme Court, the unattended consequence was that the role of professors rapidly declined and that of judges increased.
The Supreme Court was entrusted to a leading figure Mariano D'Amelio, who succeeded in reorganizing the previous case law in a coherent way, imposing a practice of stare decisis which raised the impact of the Court. Thus we can see how the academic intellectuals lost their role of preminence when split up in different schools , each cultivating its own "system", and in contrast the judiciary was reorganized around one Supreme Court.
Thus from the standpoint of cultural strategies the overstatement of "theory" and "brillance" proved to be a very poor move, leading to a quite global discredit of intellectuals in favor of an increased judicial role in the legal process. All this had a further impact when the fascist regime decided to adopt a new code. The project was entrusted to law professors, but they were no longer the "oracles" of a common legal culture, but the devided exponents of different schools. Thus it was quite impossible to get together their different definitions, categories and vocabularies.
The end of the story was a unified code of private and commercial law, enacted in 194217, with some but limited influence from the BGB18, mainly in the filed of corporations and partnerships, and the law of inheritance19. As a result the new Italian code was simply a rewording of the previous codes. Indeed all the major features of the German code embodied in the "Allgemeiner Teil" of the BGB, were not transplanted, because the "querelles de chapelle" about "general conceptions" were too strong in the drafting committee.
Thus the French pattern of legislation resisted change because of the inner disharmony within the academia, provoked by the exagerations of "theory and brillance". Once again the borrowing system realized a unique mixture, among French and German patterns, unthinkable at home. It is a "contamination" based on the peculiar selectivity of borrowing. From a wider perspective we mantain that this kind of "contamination" in legal cultures is the key feature of borrowings and transplants of legal patterns, which we shall try to sketch in the conclusions.