Shifting Frames: Law and Legal "Contaminations" in Italy.

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§ 2.  The Basic of Legal History

11.   Survival of Roman law in Italy throughout the barbaric invasions was ensured by the Church, which jealously kept Roman legal textbooks in the libraries of its monasteries. Starting with the Eleventh Century, universities flourished and were active at rediscovering the ius commune as described in Justinian’s Corpus Iuris Civilis and in other legal textbooks from Classical Rome. Schools of commentators of Roman legal materials such as those of the Glossatores and of the Commentatores adapted Roman rules to ongoing changes in fields such as commercial and maritime law as society evolved from a feudal to a more modern economy, and attempted to justify the rising of independent states in territories still formally controlled by the German Holy Emperor.  In the age of Absolutism first and subsequently in the age of Enlightenment, ideas such as rationalism, natural law and division of powers made their way through the intellectual circuits of most Italian states. The French Revolution broke up and soon after Italy was invaded by Napoleon. All French approaches to law were imported at once in the country, firstly the idea of codification. Attempts to consolidate the sprawling mass of feudal, royal and canonic legal measures, regulations and court decisions had been carried out in the past but were usually limited to restricted areas of the law: collections such as the 16th and 17th C. French Ordonnances were enacted in several kingdoms in Italy in the 1700s, including Piedmont, Parma, Venice and Naples. However, the Napoleons codes were the first to really question the legal system itself by introducing principles of rationalism, equality and common rights and by sweeping away different legal treatment and privilege based on title, guild or social class.

In Italy Napoleon attempted to gain complete control over the sources of law by creating a single, authoritative body of laws enacted by the centralized state. The Italian translation of the French Civil Code of 1806 was imposed as law in all of Italy except for the Papacy.

12.  The five French codes (civil code, criminal code, commercial code, civil code and criminal procedure code) survived Napoleon’s defeat. In Italy alike in France, despite the return of conservatory régimes, the ideology of the French Revolution was not swept away and much of Napoleon’s administrative legislation was maintained by the restored monarchies, except for Lombardy and Venetia which were reorganized under the Austrian civil code of 1811. Several states adopted codes based on the French model, notably Naples (1819), Parma (1820) and Tuscany (1853). The Kingdom of Piedmont, who was to carry out the unification process, adopted, between 1837 and 1854, codes being virtually identical to the Napoleons codes. After unification, they became the codes of the new Italian nation and were progressively extended to all conquered territories.

 

13.  Early Eighteenth Century French legal tradition influenced Italian jurists and statutory law was worshipped as the only true source of legal regulation for a good thirty years, and the role of judges was limited to merely applying the law as granted by the State, not to construe it. Subsequently, Italian scholars were influenced by the Pandectists, whose theories on law organized a system based on elaborate legal definitions, dogmas and general concepts which contributed to the formation of the German Civil Code of 1900. This school of thought, as well as positivism, influenced the draft of the 1942 Italian Civil Code.

 

14.  Most of the country’s legislation underwent major reforms throughout Italy’s post-World War II history: nevertheless, the basis of the legal system remains that of 1861 based on the French model. The quest for a major reform in the main centralized structure of the State has grown in the past decade years, leading all political entities in Parliament to set up a Reforms Committee to revise the 1948 Constitution introducing principles of federalism and decentralization in State politics, economics, finance and administration. After much preparation, the reform is taking shape and is expected to be enforced by the turn of the century.

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§ 3. Primacy of Legislation

15.   The Italian Constitution is the supreme law of the land which supersedes all and any other national rules. Article 10 provides for national law to comply with international treatises ratified by Italy. Below the principles set out in the Constitution, at least formally, statutory law as a body of rules enacted by the State is thought to be the primary and sole source of law. All other sources, such as custom, jurisprudence and scholars, are in some way secondary if not even subjugated to statutory legislation. This principle derives from the French post-Civil Code legal tradition, and is still felt today in Italy as one of the strongholds of the country’s legal system. Therefore, as the Civil Code Preliminary Provisions state, in order to solve a legal problem, an Italian judge first seeks a solution in statutory laws by construing the provisions contained therein according to their literal, logical, or teleological meaning, with the aid of analogy and travaux préparatoires. Formally in Italy jurisprudence does not have a creative role in making the law, nor there exists any system of precedent, although a judge with a legal problem certainly examines previous cases to solve a dubious question and especially considers decisions by the Court of Cassation and by courts of the major cities (Milan, Rome), whose views have practically become dominant in some areas of the law such as bankruptcy, copyright and commercial law. Scholars play a fundamental role as well, dominating legal education and influencing general legislative policies on a national scale.

16.  Legislative measures are enacted by Parliament by means of statutes (leggi), and by the Government in the form of urgent or delegated decrees (decreti-legge, decreti legislativi), which require approval by Parliament. Regions, Provinces and Municipalities may enact statutes in limited matters which have the same standing as national legislation. Parliament, Government and all such entities also issue detailed regulatory measures (regolamenti) to integrate existing statutory provisions.

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§ 4. The Position of the Judiciary

17.   In Italy, decisions by the courts are not formally considered a source of law nor there exists a system of precedent whereby courts must follow previous decisions. However, court decisions play a significant role in construing statutes and decisions by the Court of Cassation are normally cited by lawyers in their complaints and pleas, and judges (although not forced to do so) very often decide along with previous cases.

18.  Separation of the Judiciary Power from the Executive is achieved by means of a special Superior Council of the Judiciary (Consiglio Superiore della Magistratura, CSM), composed of law professors and members of the bench and bar, and headed by the President of the Republic. The Council independently appoints, assigns and removes all judges except those of the Constitutional Court. Judges are public officers and state employees. Becoming a judge implies passing a state exam and making a state career.

 

19.   The Italian judicial system is headed by a Court of Cassation (Corte di Cassazione), which acts as the supreme court of the nation in questions of law in civil and criminal matters. It does not rule on the constitutionality of statutory provisions passed by the legislature. The Court of Cassation  is not bound by its previous decisions and has changed views in several occasions on important questions of law. Lower courts often follow the Court of Cassation’s latest position on a given legal question, or at least take it into consideration in the process of deciding a case. Very controversial issues are decided by the Court of Cassation in Plenary Session (Corte di Cassazione a Sezioni Unite): such decisions as well do not act as precedents, although their authority is deemed higher than ordinary Cassation decisions.

20.   In civil and criminal matters, Italy is divided into 23 Appeals Court districts (Corti d’appello), which are subdivided into 154 Tribunal districts (Tribunali, courts composed of three judges) and are further subdivided into 978 Magistrate’s districts (Preture, headed by single judges). Since 1995, Justice of the Peace districts (Giudici di Pace), composed of semi-professional judges, have the narrowest civil jurisdiction. By 1999, Magistrate districts will disappear and Tribunal districts will be extended and their offices reorganized on a single-justice basis.

In addition, there are 91 Criminal Assize Courts (Corti d’assise) and 24 Criminal Assize Courts of Appeal (Corti d’assise d’appello), all of them composed of judges and several qualified jurors.  

21.  Public policy disputes arising between single citizens and the State (including regions, provinces, municipalities and other public bodies) are regulated by administrative law provisions. Since 1974, there are 20 Regional Administrative Tribunals (Tribunali Amministrativi Regionali, TAR) who cover first degree administrative jurisdiction and whose decisions may be appealed before the Council of State (Consiglio di Stato), sitting in Rome.

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§ 5. Distinction Between Public and Private Law

22. Private law is a set of provisions directly protecting rights and interests of individuals; public law is a body of rules regulating the general interests of a community.1  Private law copes with legal relationships between individuals (human beings and corporate entities), and are generally governed by the civil code, which encompasses commercial and corporate law, family law, torts law. Public law copes with constitutional law, administrative law, civil and criminal procedure, criminal law, international law, taxation and local government.2 

23. French law distinguishes between administrative and private contracts. A similar division exists in Italian law, whereas ‘private law contracts’ are governed by the civil code and ‘public law contracts’ are regulated by administrative law.3 Public authorities and institutions as well as administrative bodies may of course enter into both kinds of contracts with individuals and corporations: for example, principal-contractor-subcontractor agreements resulting from public bids, and, to a certain extent, public employment contracts are considered ‘public law contracts’ governed by administrative law, which generally implies the predominance of the public party on the basis of the general idea that public interest must always prevail. On the contrary, a lease or a sales of goods agreement between an individual and a state agency shall be solely governed by private law, so that both parties are granted equal protection by the law and enjoy equal rights.

Employer-employee agreements as a result of collective bargaining are ‘private law contracts’ with public elements, as they generally represent minimum wage and minimum working benefits and conditions which must be granted to workers according to Articles 36 and 39 of the Constitution.

1. See Martines, T., Diritto costituzionale, Giuffrè, Milano, 1990, at 40 et seq.; ‘Diritto pubblico e privato’ in Enc. Dir., XII, at 696 et seq.; Giannini, M.S., Istituzioni di diritto amministrativo, Milano, 1981, at 403; Pugliatti, S., ‘Gli istituti del diritto civile’, Milano, 1943, at 24.

2.         This traditional division between public and private law is contained in all basic academic textbooks (see Trimarchi, P., ‘Istituzioni di diritto privato’, IX Ed., Milano, Giuffrè, 1991, at 26 et seq.; Torrente, A., Schlesinger, P., ‘Manuale di diritto privato’, Milano, Giuffrè, 1978, at 17; Pugliatti, S., ‘Diritto pubblico e diritto privato’, in Enc. Dir., XII, 1964, at 696 et seq.; Giorgianni, ‘Il diritto privato e i suoi attuali confini’, in Riv. Trim. dir. e proc. civ., 1961,  at 391 et seq.) and is taught in first year law courses at the university, where students take exams in subjects such as private law, administrative law and constitutional law.

3 .        This principle is widely accepted by scholars and by courts. See: Garri, ‘La responsabilità civile della pubblica amministrazione,’ 1996, at 146-7; Sandulli, ‘Manuale di diritto amministrativo’, Napoli, 1989, at 1167; Scognamiglio, ‘Responsabilità contrattuale ed extracontrattuale’, in NssDI, XV, at 670; Bortolotti, ‘Contratti della amministrazione pubblica’, in: Digesto IV, Utet, Torino, 1989, at 37; Meloncelli, ‘L’informazione amministrativa’, Rimini, 1983, at 282. Courts have stated this position as well: see Soc. Dufrital c. Pref. Milano, Cass. 29.07.1987 n. 6547 (Mass. Giur. It., 1987); Soc. Sopin c. Univ. Studi di Roma, TAR Lazio I, 18.11.1988, n. 1613 (Foro Amm., 1989, n. 2471; Foro it., 1990, III, 32) and Cass., 09.08.1977 (Mass. Foro it., 1977, n. 3647). Courts have also claimed land expropriation plans set out by public bodies are governed by private law: e.g. see Cass. 28.3.1987, n. 3027 (Cor. Giur., 1987, 733, n. Lombardi).

24. Jurisdiction is organized accordingly with the distinction between public and private law. Disputes arising from unfair treatment of individuals by the administration (example: violating legitimate expectations such as unlawfully eliminating a competitor’s offer for a public bid) falls within jurisdiction of administrative courts, who only verify if the administrative measure was lawful or unlawful; whereas violations of legally protected rights and interests of individuals (such as a public agency’s failure to pay a contractor for a bid) are examined by civil courts.

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25. In Italy commercial transactions are governed by rules expressed in the civil code. No special jurisdiction exists for such transactions. Commercial law in Italy is entirely dealt with by the ordinary civil courts. The formal distinction between civil and commercial law is of no particular importance and it is just a frame to arrange topics. The term ‘commercial law’ usually regards legal rules on business transactions and implies areas of the law such as partnerships, agency, etc., statutes of limitation, all of which are regulated within specific sections of the Civil Code. Bankruptcy law, intellectual property law, copyright and patent law, and, to a certain extent, stocks, bonds, securities and negotiable instruments are governed by special statutes. Maritime law is governed by the Navigation Code.

 

 II. Italian Legal Culture: A Portrait of Italy as a "Weak" Tradition.

The "Love Affair" with the French

In the previous part we gathered the basic infromation concerning the law of the country.

Now we give a first sketch of the formation of Italian legal culture, which, from the early 19th century , has grown as a bundle of borrowed traits.

As we already mentioned, in the first decades of the last century Italy has been taken over by the French army, and the French civil code of 1804 has been introduced quite in the whole country: The North West (Piedmont and Liguria) was annexed to France, and thus the Code civil has been directly put in force in those regions; the Kingdom of Italy (North East and Center) received an Italian translation of the French Code (1805), and the same happened in the Kingdom of Naples, grouping the Southern regions  (1808).

After the collapse of the French administration and the Congress of Vienna (1815), for the first half of the century, Italy has been devided in small different states, each with its own legal system. These small states can be grouped in four main regions: the North West, the North East, the South and the Center.

A slight revision of the French code was mantained in the North West [ Kingdom of Sardinia : Piedmont, Liguria and Sardinia] (1837) and in the South [Kingdom of Sicily :  Naples and Sicily] (1819). The North East [Milan, Venice, Triest, forming a single realm within the Austro-Hungarian Empire] was ruled by the ABGB. The Centre of Italy was split in two main states: Tuscany, under an Austrian Grand Duke, and the Regions of Rome and Bolonga under the Papal administration. Both countries, after the French experience, went back to the "Jus Commune", a form of uncodified Modern Roman Law, based on Justinian's Compilation as developed in  the case law.

As a result of the aggressive foreign politics of the Savoy family, ruling on the North West, Italy was unified in 1861, with capital in Turin, the siege of the Savoy family. This politics was backed by the French government against the former Austrian major influence on Italy, but later Napoleon III refused further help deciding to mantain the Pope in Rome avoiding a global unification of the country. Thus it was only in 1870, when Germans defeated the French, that Italians could finally conquer Rome and dethrone the Pope, so that the Holy city became the capital of the Kingdom of Italy.

Between France and the Italian states there was a complex relation of rivalry and friendship, but certainly Piedmont which performed the forced unity of the country was largely indebpted with French culture, and French was still the blend spoken by the ruling elites as well as by the Royal family, who indeed originated from a French fee.

From the point of view of law the North West adopted in 1848 a Constitution (Statuto Albertino) which was indeed a transplant from the French constitution of 1830 which took the throne out of the Borbons and gave it to Louis Philippes d'Orléans. In 1861 this constitution was extended to whole Italy.

In 1865 the Government decided to reshape globally the legal features of the new Kingdom, and the 2248(1865) Act (still in force) tailored Public Administration on the French patterns of the time.

In the filed of Public law there was, I think, no real alternative : first the unity was achieved by Piedmont, which belonged to a French area of influence, and which indeed became "italianized" only after 1870; secondly unity was acheved against the "others" (the Pope, the Austrians from Milan and Venice, and the southern Kingdom of Sicily) and it would really have been out of the way to adopt their "patterns". Finally the French model was perceived as a "liberal" model: France was the country of liberty and reforms, and the elites purporting the process of unity were all sharing this "liberal" culture.

In the filed of Private law the choice was among three possible alternatives: the French code; the Austrian code ruling all the Norh-East as the more economically advanced region of the new country; and the renewed Roman law, which certainly was felt to be rooted in "national" culture. A fourth alternative could have been the elaboration of a newer "Italian" pattern.

For the purpose of the above sketched "strategic" model we can consider separetly the adoption of a code, and the elaboration of a model, or the import of such a complicated system as the case-law system developed from Roman law. The purpose of the government was to frame national unity in the short run, thus the real alternative was just between the French or the Austrian code.

I mantain that it was a question of "self-definition" much more than a matter of policy. Indeed if we sketch out some basic points we can see that  both codes have been designed to cope with a market based society, and thus that no peculiar political issue was at stake in picking one or the other. Both codes were based on the following principles

1. Abolition of the caste system based on status, and general legal capacity of all citizens (general citizenship) [art. 1 C.Nap.; ¶ 17, ABGB]
2. Definition of property rights on land in "absolute" terms, and abolition of perpetuities and feudal incidents [artt. 537 and 544 C.Nap.; ¶ 308, ABGB];
3. freedom of contract and maketable property rights;
4. right of enclosures [art. 552 C.Nap.; ¶ 362 ABGB];
5. Egualitarian Inheritance law coupled with  freedom of wills.

The Austrian code is indeed widely credited to be as "liberal" as the French, 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 courts. The method of italian lawyers was styled after the prevailing French "exegetic" school . 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, Gény 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 books; 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 Marcadé, 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 sentence. 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.

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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  on new standards, and in particular the law schools were entrusted to a "first generation" of professional legal scholars. 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 influence. 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 law. 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 templates.

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 Segré 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 Pacchioni:

"[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 patterns.

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" 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 1942, with some but limited influence from the BGB, mainly in the filed of corporations and partnerships, and the law of inheritance. 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.

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Conclusion: Convergence, Divergence and "Contamination"

Is there any conception to be drawn from the history we told ?

First of all we mantain that the process of import/export of rules and institutions is an almost "unconsciuous" process of plunging them into the "ideology" of the borrowing system. Thus the meaning of the borrowed institutions will depend only on the struggle among the legal elites of the receiving system, which almost always will produce something different from the original. But we think that also the ideology of a system is very often not a product of local and inner developments, but a contamination of different traits derived from outside. In more general terms the actual legal world is more to be seen as a world of "contaminations" than a world split up in different families. The widespread cross diffusion of French and German patterns within the Civil law, and the overcoming of American models in the present, shape a similar legal landscape all across the world, with a wilderness of local variances. We do not think that these contaminations are something  new, linked with globalization. We think that, with the eventual exclusion of peculiarly insulated legal systems, as the old "classical" English Common law, rooted in a peculiar organization of the legal profession, quite every system , even in antiquity, has grown through "contaminations". What we think is that the practice of borrowings has always been a normal practice, and above all  that it has never been, nor it is to be, a peculiar activity of "comparative" lawyers. It is a purposive practice, to be carried on by municipal lawyers, and to be studied especially from the point of view of "weak" borrowing systems, responding to inner strategies of governance and legitimation of "legal" elites, involved in the conventional process of covering cases with authorities, and producing meaning.

As we saw him or her a "comparativist" is one who is not involved in these  ideological processes, because he or she or she made a "move out", as a strategy of deconstruction and critique. He's one who decided to wander about.

What a comparative lawyer can do, as a comparativist,  is to reveal the unofficial, and to critique those processes of meaning production as social and political realities, peculiarly in a  world of "contaminations".

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