L'edificazione del diritto privato italiano dalla Restaurazione all'Unità

In this study we investigated how Italian jurists reacted to napoleonic innovations in three different moments of Italian history: during Napoleon's domination, during Restauration and in the first years after Italian unification. A systematic search in archives revealed that during French domination Italian jurists partially accepted the French model. In their opinion, the Code civil, although conceived as a synthesis of the romanistic heritage, should be adapted to Italian ethos, to the traditions, the uses and customs of the Peninsula. While, for example, divorce should be removed, some institutions that were crucial for rural economy, as perpetual lease and enphyteusis, considered by the napoleonic legislator as feudal relics, should be included again. During Restauration, the leitmotiv was the same, and it can be said that all pre-unitarian codes, with their peculiarities, show this policy of readjustment of the French code: divorce is excluded, laws on marriage are inspired by the Catholic church, some important legal means for rural economy (such as enphyteusis and water rules) are introduced, the institute of registration is accepted. As for the period in which an Italian code is created, we tried to investigate the reactions of Italian jurists confronted with the choice, taken by the new Kingdom lawgivers, to use the French code as a model again. A mixed picture emerged: although nuances and perspectives were different, it can be said that Italian jurists agreed on the importance of the Code civil as one of the models for a new Italian private law, a sort of “primus inter pares”. Most jurists insisted on the need to consider at the same time every Italian and European juridical experience (about legislation, doctrine and jurisprudence ) and especially German juridical culture. This suggestion came not only from Tuscan or Lombard jurists, but also from Piedmontese ones. We tried also to investigate the reasons why Italian politicians had so much confidence in the French model. Probably the Code civil adoption was viewed as a way to rapidly gain a law homogeneity that was seen as crucial to reinforce political unification, but it is also true that it seemed coessential to a project of laicization of Italian society. Code civil was seen as a symbol, as an icon, by people wanting to build the new State on principles of laicality.