Law and the Christian Tradition in Italy: The Legacy of the Great Jurists

Firmly rooted on Roman and Canon law, Italian legal culture, from the Middle Ages to our day, has had an impressive influence on the civil law tradition, and it is rightly regarded as “the cradle of the European legal culture.” Along with the Justinian’s compilation, the US Constitution, and the French Civil Code, the Decretum of Master Gratian or the so-called Glossa ordinaria of Accursius are one of the few legal sources that have influenced the entire world for centuries. This volume explores a millennium-long story of law and religion in Italy through a series of 26 biographical chapters. The chapters range from the first Italian civilians and canonists, Irnerius and Gratian in the early twelfth century, to the leading architect of the Second Vatican Council, Pope Paul VI. Between these two book ends, this volume offers notable case studies of familiar civilians like Bartolo, Baldo, and Gentili and familiar canonists like Hostiensis, Panormitanus, and Gasparri but also a number of other jurists in the broadest sense who deserve much more attention especially outside of Italy. All chapters have been written by distinguished legal scholars and historians from Italy and around the world. This diversity of international and methodological perspectives gives the volume its unique character; it will appeal to scholars, lawyers, and students interested in the interplay between religion and law in the era of globalization.

Law and the Christian Tradition in Italy: The Legacy of the Great Jurists Edited by Orazio Condorelli and Rafael Domingo (Routledge, 2020) 1 Law and the Christian Tradition in Italy: The Legacy of the Great Jurists Firmly rooted on Roman and Canon law, Italian legal culture, from the Middle Ages to our day, has had an impressive influence on the civil law tradition, and it is rightly regarded as “the cradle of the European legal culture.” Along with the Justinian’s compilation, the US Constitution, and the French Civil Code, the Decretum of Master Gratian or the so-called Glossa ordinaria of Accursius are one of the few legal sources that have influenced the entire world for centuries. This volume explores a millennium-long story of law and religion in Italy through a series of 26 biographical chapters. The chapters range from the first Italian civilians and canonists, Irnerius and Gratian in the early twelfth century, to the leading architect of the Second Vatican Council, Pope Paul VI. Between these two book ends, this volume offers notable case studies of familiar civilians like Bartolo, Baldo, and Gentili and familiar canonists like Hostiensis, Panormitanus, and Gasparri but also a number of other jurists in the broadest sense who deserve much more attention especially outside of Italy. All chapters have been written by distinguished legal scholars and historians from Italy and around the world. This diversity of international and methodological perspectives gives the volume its unique character; it will appeal to scholars, lawyers, and students interested in the interplay between religion and law in the era of globalization. Orazio Condorelli (born 1966, PhD 1994) is Professor of Ecclesiastical Law and Canon law at the University of Catania, Italy. A specialist in legal history as well as in canon law and law and religion, he has authored or edited several books, including the Proceedings of the XIth Congress of Medieval Canon Law (2000, with Manlio Bellomo), and the series Der Einfluss der Kanonistik auf die europäische Rechtskultur (2009-2020, with M. Schmoeckel, F. Roumy, Y. Mausen and D. von Mayenburg). Professor Condorelli is Director of the International School of Ius commune (with M. Bellomo and K. Pennington), co-editor of the Rivista Internazionale di Diritto Comune, vice-president of the Iuris Canonici Medii Aevi Consociatio (2008-2020) and member of the Board of Directors of the Stephan Kuttner Institute of Medieval Canon Law (Munich-Yale). Rafael Domingo (born 1963, PhD 1987) is the Spruill Family Professor of Law and Religion at Emory University in Atlanta, USA, and Alvaro d’Ors Professor of Law at the University of Navarra, Spain. A specialist in legal history, legal theory, ancient Roman law, and comparative law, he has authored or edited more than twenty five books, including The New Global Law (CUP, 2010), God and the Secular Legal System (CUP, 2016), Roman Law: An Introduction (Routledge, 2018), Great Christian Jurists in Spanish History (CUP, 2018, with Javier MartínezTorrón), Great Christian Jurists in French History (CUP, 2019, with Olivier Descamps), and Christianity and Global Law (Routledge, 2020, with John Witte, Jr.). 2 Contents List of Contributors Foreword: John Witte, Jr. Introduction: Orazio Condorelli and Rafael Domingo. 1. Irnerius (ca. 1055 to ca. 1125) Andrea Padovani 2. Gratian (late eleventh century to ca. 1145) Atria A. Larson 3. Azo (ca. 1165 to ca. 1120) and Accursius (1182/5 to ca. 1263) Emanuele Conte 4. Sinibaldo Fieschi (Pope Innocent IV) (1180/90–1254) Kathleen G. Cushing 5. Enrico da Susa (Cardinal Hostiensis) (ca. 1200–1270) Kenneth Pennington 6. Thomas Aquinas (1225–1274) Charles J. Reid Jr 7. Cino Sinibuldi da Pistoia (ca. 1265–1336) Giuseppe Speciale 8. Giovanni d’Andrea (1270–1348) Peter D. Clarke 9. Bartolo da Sassoferrato (1313/14–1357) Orazio Condorelli 10. Baldo degli Ubaldi da Perugia (1327–1400). Julius Kirshner 11. Paolo di Castro (1360/62–1441) Susanne Lepsius 3 12. Niccolò Tedeschi (Panormitanus) (1386–1445) R. H. Helmholz 13. Thomas Cajetan (1469–1534) Wim Decock 14. Andrea Alciato (1492–1550) Alain Wijffels 15. Robert Bellarmine (1542–1621) Lorenzo Sinisi 16. Alberico Gentili (1552–1608) Giovanni Minnucci 17. Giovanni Battista de Luca (1613–1683) Italo Birocchi 18. Giambattista Vico (1668–1744) Marco Nicola Miletti 19. Cesare Beccaria (1738–1794) Maria Gigliola di Renzo Villata 20. Pietro Gasparri (1852–1934) Alberto Lupano 21. Contardo Ferrini (1859–1902) Rafael Domingo 22. Luigi Sturzo (1871–1959) Romeo Astorri 23. Francesco Carnelutti (1879–1965) Giovanni Chiodi 24. Alcide De Gasperi (1881–1954) Olivier Descamps 25. Arturo Carlo Jemolo (1891–1981) Carlo Fantappiè 26. Giovanni Battista Montini (Paul VI) (1897–1978) Jean-Pierre Schouppe 4 Contributors Romeo Astorri, Professor of Church and State Relations, Catholic University of the Sacred Heart, Milan, Italy. Italo Birocchi, Professor of Legal History, Sapienza University of Rome, Italy. Giovanni Chiodi, Professor of Legal History, University of Milano-Bicocca, Italy. Peter D. Clarke, Professor of Medieval History, University of Southampton, United Kingdom. Orazio Condorelli, Professor of Ecclesiastical Law and Canon Law, University of Catania, Italy. Emanuele Conte, Professor of Legal History, Roma Tre University, Italy; and Professor of Legal History, École des hautes Études en Sciences Sociales, Paris, France. Kathleen G. Cushing, Reader in Medieval History, Keele University, U.K.; and President of the Iuris canonici medii aevi consociatio (ICMAC). Wim Decock, Professor of Legal History, Universities of Leuven and Liège, Belgium. Olivier Descamps, Professor of Law and Legal History, Panthéon-Assas University (Paris II), France. Maria Gigliola di Renzo Villata, Professor of Legal History, University of Milan, Italy. Rafael Domingo, Spruill Family Professor of Law and Religion, Emory University, Atlanta, Georgia, USA; and Alvaro d’Ors Professor of Law, University of Navarra, Spain. Carlo Fantappiè, Professor of History of Canon Law, Roma Tre University, Italy. R. H. Helmholz, Ruth Wyatt Rosenson Distinguished Service Professor of Law University of Chicago, IL, USA. Julius Kirshner, Professor Emeritus of Medieval and Renaissance History, University of Chicago, IL, USA. Atria Larson, Assistant Professor of Theology, Saint Louis University, MO, USA Susanne Lepsius, Professor of Learned Law, German and European Legal History and Civil Law, Ludwig Maximillians-University of Munich, Germany. 5 Alberto Lupano, Professor of Legal History, University of Turin, Italy. Marco Nicola Miletti, Professor of Legal History, University of Foggia, Italy. Giovanni Minnucci, Professor of Legal History, University of Siena, Italy. Andrea Padovani, Professor Emeritus of History of Medieval and Modern Law, University of Bologna; and Professor of History of Canon Law, Saint Pius X Institute of Canon Law, Venice, Italy. Kenneth Pennington, Kelly-Quinn Professor of Ecclesiastical and Legal History, Catholic University of America, Washington, DC, USA. Charles Reid, Jr, Professor of Law, University of Saint Thomas, Minneapolis, MN, USA. Jean-Pierre Schouppe, Professor of Canon Law, Pontifical University of the Holy Cross, Rome, Italy. Lorenzo Sinisi, Professor of Legal History, University “Magna Graecia” of Catanzaro, Italy. Giuseppe Speciale, Professor of Legal History, University of Catania, Italy. Alain Wijffels, Professor of Comparative Law and Legal History, Leiden, The Netherlands; KU Leuven and UCLouvain, Belgium; and Senior Research Fellow, CNRS, Lille, France. John Witte, Jr., Robert W. Woodruff University Professor, McDonald Distinguished Professor of Religion, and Director of the Center for the Study of Law and Religion, Emory University, Atlanta, Georgia, USA. 6 Foreword “Thrice has Rome conquered the Western world,” Rudolf von Jhering once wrote: “by her arms, by her church, and by her law.” Another volume in this series analyzes the first of these conquests, and the shaping influence of the ancient Roman Empire on law and religion in the first millennium Western world. This volume takes up the second and third of these “conquests” – the transformative power of the Roman church and Roman law on the Italian peninsula (“Italy” today) in the second millennium. Italy was the site of the “papal revolution,” when Pope Gregory VII (r. 1073-85) and others established the Roman Catholic Church as the preeminent legal and political ruler of medieval Christendom. Italy was the site of the rebirth of Roman law when scholars rediscovered the Digest of Justinian in ca. 1070 and created the first law faculties in Bologna, Padua, Naples, and Siena dedicated to its intense study and new application in statutes and cases. Italy was the site of the rebirth of the Church’s canon law with the publication of Gratian’s Decretum in ca. 1140 unleashing a massive new industry of church legislation and canonical jurisprudence, built in part on Roman law prototypes. And Italy was the birthplace of scholastic theology and philosophy, catalyzed by the rediscovery of Greek, Roman, and patristic sources and brought to sublime expression in the monumental Summae of Thomas Aquinas and others. This Italian story of birth and rebirth in law and religion repeats itself in the middle of the second millennium. The Italian renaissance brought the world not only breathtaking new art, architecture, and literature, based in part on classical Roman prototypes. It also brought the Church comprehensive reforms and renewals of its doctrine, liturgy, catechesis, and governance set out in the monumental decrees of the Council of Trent (1546-63), the church’s definitive response to Protestant and other reform movements in Christendom. The Tridentine decrees also transformed the canon law, leading to the publication of the Roman edition of the books of the Corpus Iuris Canonici in 1582 and the (re)establishment of canon law faculties and methods in many major universities around Italy and well beyond. The Renaissance renewed Roman law and civilian learning both through application of the famous mos gallicus method to numerous public, private, penal and procedural law questions and through publication, with the new 7 printing press, of masterful new legal treatises, the best of them gathered in the massive Tractatus universi juris of 1584 issued under the auspices of Pope Gregory XIII. And this was the time of a brilliant neo-Thomist renaissance in theology, philosophy, and jurisprudence, led more centrally by the University of Salamanca in neighboring Spain, but also transformative of legal, political, and social scholarship in many Italian universities. And rebirth and renewal in law and religion recur yet again at the end of the second millennium. The Catholic Church, badly shaken by the attacks of modern liberalism and sharply divided across a vast new colonial empire, responded with another renewal of Thomistic thought in the sweeping new social teachings movement inaugurated by Pope Leo XIII and culminating in the constitutions, declarations, and decrees of the Second Vatican Council (1962-65) a century later. The Church transformed its canon law with the promulgation of a new Code of Canon Law, first in 1917 and again in 1983, reviving anew deep canon law jurisprudence, now regularly taught in seminaries and law faculties. Renewal and reform of state law came with the great legal codification movements of the 19th and 20th centuries, the constitutional transformation of Italy in the grim aftermath of Mussolini and two world wars, and the negotiation of a whole series of brilliant new concordats between the Holy See and Italy and various nation-states in Europe and the Middle East. This volume tells this millennium-long story of law and religion in Italy through a series of 26 well-chosen and well-written biographical case studies. The chapters range from the first Italian civilians and canonists, Irnerius and Gratian in the early twelfth century to the leading architect of the Second Vatican Council, Pope Paul VI. Between these two book ends, we get exquisite case studies of familiar civilians like Bartolo, Baldo, and Gentili and familiar canonists like Hostiensis, Panormitanus, and Gasparri but also a number of other distinguished jurists who deserve much more attention today from non-specialists. A few famous popes and cardinals who shaped the law, Innocent IV, Cajetan, Bellarmine, and Paul VI make an appearance on these pages. So do a few theologians and philosophers with profound legal insights and reforms, such as Aquinas and Sturzo. But most of the case studies focus on canon law and civil law jurists – judiciously selected from the 2159 jurists who appear in the two-volume biographical dictionary of Italian jurists (Dizionario biografico dei giuristi italiani, 2013), and collectively representing the major schools and shifts in thought about the multiple interactions of law and Christianity 8 over the second millennium. And almost all the case studies feature devout Catholics who dominate the religious landscape of Italy until the twentieth century when creative free-thinkers begin to reconstruct and reform traditional teachings yet again. This volume is part and product of an ongoing project on “Great Christian Jurists in World History.” The project is directed by the Center for the Study of Law and Religion at Emory University, where the editors Professors Orazio Condorelli and Rafael Domingo are senior fellows. Each volume in this global Great Christian Jurists series focuses on a specific country, region, or era, and samples the life and work of a score or more of its greatest legal minds over the centuries. These legal minds include not only civil and canon lawyers and judges but also theologians, philosophers, and church leaders who contributed decisively to legal ideas and institutions, or who helped create landmark statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Kuttner, and Scalia appear in this series, but so do Augustine, Isidore, Aquinas, Calvin, Barth, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law, nor will it devolve into a new form of hagiography or hero worship of dead white males. It is instead designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia. In due course, we hope to produce some fifty volumes and one thousand biographical case studies all told. Columbia University Press opened this series in 2006 by publishing a three-volume work titled Modern Christian Teachings on Law, Politics, and Human Nature, divided into case studies of nearly thirty modern Catholic, Protestant, and Orthodox Christian figures. Cambridge University Press has in print or in press newly commissioned studies on great Christian jurists in the first millennium, as well as in English, Spanish, French, Lowlands, and American history. Routledge will publish major new volumes on Great Christian Jurists in Nordic, Russian, Welsh, and Latin American history. Mohr Siebeck is taking up the German story, Federation Press the Australian story. In due course, the Center for the Study of Law and Religion aims to commission similar studies for other parts of the world, particularly countries in Eastern Europe and Eurasia, and discrete regions and eras in the Middle East, Africa, and the Pacific Rim. 9 This volume was made possible by a generous grant from the McDonald Agape Foundation which supported the work of the editors and contributors. On behalf of the editors and my colleagues in the Center for the Study of Law and Religion, we express our deep thanks to Ambassador Alonzo McDonald, Ms. Suzie McDonald, Mr. Peter McDonald, and the other members of the Foundation board for their generous support for this and many other related volumes on law and Christianity. We are also most grateful for the perennial support, counsel, and encouragement of Gonzalo Rodríguez-Fraile for Rafael Domingo’s work on fundamental questions of law, religion, and spirituality viewed in rich interdisciplinary perspective. We are deeply grateful to Dr. Gary S. Hauk, former Emory University historian and current senior editor in our Center, for sharing his superb editorial talents so generously in copyediting this manuscript. We also express our warmest thanks to our Center colleagues, Ms. Amy Wheeler and Ms. Anita Mann for their skillful administration of this and other scholarly projects. It was a joy for me to work with Professors Condorelli and Domingo and to learn from the two dozen leading scholars from European and North American universities whom they commissioned to write fresh chapters. We are especially grateful that so many great Italian jurists and legal historians were kind enough to join this volume and present their work in English form – no easy task for those scholars grounded in Latin sources and accustomed to writing in Italian, French, or Spanish, and no easy method to accept in a day when doctrinal, social, and political historiography is more fashionable. It is a delight to publish this volume and several others in the distinguished Law and Religion series edited by one of the world’s preeminent scholars of law and religion, Professor Norman Doe. Professor Doe and his many colleagues in the Cardiff Centre for Law and Religion have been vital trans-Atlantic allies with our Emory Center for the Study of Law and Religion. We give thanks for their leadership in this expanding global field of interdisciplinary legal study, and for their partnership with us in publishing this and parallel volumes on law and Christianity. 10 Finally, we express our warm thanks to Alison Kirk and her colleagues at Routledge in taking on this volume and applying their usual standards of excellence in their editing, production, and marketing. John Witte, Jr. Director, Center for the Study of Law and Religion Emory University 11 Introduction Orazio Condorelli and Rafael Domingo In the current sociocultural context, the historical problem of the role of Christianity in the formation of the common legal tradition of the Western world is inescapable. This volume on the relationship between law and the Christian tradition in Italian history, represented here by a gallery of great jurists, constitutes an attempt to offer a partial answer to this question. In 1942, while the Second World War was raging, and part of Europe was dominated by totalitarian regimes, the Italian idealist philosopher Benedetto Croce wrote a short essay titled “Why We Cannot but Say We Are ‘Christians’” (Perché non possiamo non dirci cristiani).1 We think that the core of Croce’s answer is still valid. He considered, in the light of history, that Christianity “was the greatest revolution that humanity has ever accomplished,” a revolution that “operated in the center of the soul, in the moral conscience,” and that the members of Western society, regardless of the adhesion of individuals to the Christian faith, “in the moral life and in thought” are “children of Christianity.” Croce felt the need to state this belief in a highly tragic historical moment, in which the compression of fundamental freedoms and horrible crimes against humanity manifested themselves—even in the eyes of a secular spirit, as he was—as an open denial of the Christian commandment of love: “And to preserve and rekindle and nourish the Christian sentiment is our ever recurring need, acute and tormenting today more than ever, between sorrow and hope.” 12 The editors of this volume share the conviction that the Western world cannot but be said to be Christian. And yet, we are not sure that this belief can generally be shared today, sometimes due to ideological rejection, sometimes simply due to ignorance or neglect of history and, for our concerns, ignorance of European legal history. The Western world today tends to present itself as a society in which religion is (or should be) confined to the sphere of the conscience of each person, while law and politics should be built regardless of the demands of religion. In liberal democratic societies, as well as in supranational institutions inspired by the principles of democracy and human rights, such a premise nevertheless leaves open a way of communication between the sphere of religion and conscience and the dimension of law: this way passes through the dynamics of democracy and rights to freedom. But it would be difficult to deny that in the same Western world a certain sense of intolerance circulates towards other cultural and legal experiences in which the process of secularization has just begun or to which it is totally foreign. In fact, attempts to exclude religion from the public sphere clash with a growing pressure, also fueled by migrations and globalization, aimed at giving legal and political recognition to demands coming from religion and conscience. Religion today, as always, is an unstoppable driving force behind the development of societies. On the other hand, the separation between the sphere of secular law and that of religious law is called to be reassembled in a deeper unity of the human person. In practice, however, effects are not always satisfactory, and sometimes people remain existentially divided because of the impossibility of reconciling the conflict between the law of God and human laws. 13 The problem of how we must build our present and our future is inevitably connected with the understanding of our past. It would be unrealistic to think of being able to act independently of any religious conditioning coming from the common European legal past, or from solicitations that arise from the confrontation with different legal cultures. In the current geopolitical context, the processes of globalization coexist with forces emerging from cultural and religious pluralism. Even legal history has a role in the process of building up a common home for humanity and a global law. In facing different cultures, the Western world still considers itself the depository of some Christian values that distinguish it from other societies. One of these values consists in the healthy distinction (not intolerant separation or exclusion) among politics, law, and religion.2 This distinction is today accompanied by the recognition of a catalog of human rights in which religious freedom emerges as the first freedom that individuals historically have claimed from the public power. We believe that the essays collected in this volume can help explain the contributions that the values of Christianity, through the mediation of the thought of the jurists, gave to the formation of the Western legal tradition. Our volume is part of a larger research project on Christian jurists in the history of the Western world, led by John Witte Jr., director of the Center for the Study of Law and Religion at Emory University. The project aims to explore the ways in which Christianity has forged the conformation of law and the sense of justice from within, more precisely how the thought of Christian jurists has interpreted, throughout history, the teachings of Christ and has contributed 14 to the formation and consolidation of legal and social Christian values. It is clear that the interpretation of the core values of Christianity has not been uniform throughout history. The historical perspective is therefore necessary both to recognize the roots—sometimes ignored or intentionally neglected—of our present, and to understand the extent to which our present is detached from some interpretations given in the past (e.g., about the value of human life or the legitimacy of the death penalty), or has changed on the basis of revised anthropological convictions that were undisputed until a few decades ago (e.g., the concepts of marriage and family). Our volume is placed, in spirit as well as formal structure, next to the volumes already published, in which the relationship between Christianity and law has been explored through the thought and writings of jurists belonging to the legal traditions of some Western countries. Between 2017 and 2019 the volumes dedicated to English, Spanish, French, and American jurists appeared,3 along with a volume on the great Christian thinkers of the first millennium.4 Our volume also shares the ideals and principles which have recently inspired a book on the interactions between Christianity and global law.5 This volume has a biographical structure. The historical and theoretical interest at the basis of the research is pursued through a gallery of jurists who, because of their Italian background, belong to the Catholic tradition (though not exclusively) and, in any case, were involved from the sixteenth century onwards in the dialogues (and conflicts) with other churches or denominations. 15 On the model of the other volumes of the series, our book also starts from a broad meaning of the category of “jurist”—a term that deserves some clarification. After the eclipse of the Roman civilization and the parenthesis of the early medieval period (“an age without jurists”6), it was between the eleventh and twelfth centuries (the “medieval renaissance”)7 that the jurist emerged from the masters of liberal arts as a new intellectual figure. The jurist was distinguished from other thinkers such as philosophers and theologians by his specific scientific training and his professional activity, exercised in the universities as a teacher, in the courts as a judge or lawyer, and in secular or ecclesiastical administrations. In this volume we adopt a broad interpretation of the category of jurist. The reader might be surprised to find that some chapters concern theologians (Thomas Aquinas, Thomas Cajetan, and Robert Bellarmine), while other jurists are more commonly known for their philosophical speculation (Giambattista Vico), or were intellectuals and men committed to political action (Luigi Sturzo and Alcide De Gasperi) or a pope (Innocent IV and Paul VI). In our book, in short, we have included personalities who, beyond the specific social role of the jurist in the strict sense, in our opinion have made a significant contribution to the interpretation and development of the law in the broadest sense of the term. Without disregarding the epistemological reasons for a more restrictive approach, we think that an enlargement of the horizon and an inclusive approach allows us to fruitfully integrate the law with other perspectives of analysis (politics, economics, sociology, theology, etc.). Moreover, in making these choices the editors did not act alone, because the final choices were agreed upon by the contributors to the volume. On the other hand, if it is true that some personalities included in the book are not jurists in the strict sense, we think that the unity of the perspective of interpretation is guaranteed by the fact that all the authors of the individual chapters are themselves renowned jurists and law historians. 16 This volume is neither a dictionary nor an encyclopedia: excellent works of both types have been published recently.8 The book is divided into twenty-six chapters that trace the biography of twenty-seven authors (one chapter deals with Azo and Accursius together). The selection was not easy, as one may guess in recalling that the Dizionario Biografico dei Giuristi Italiani, published in 2013, includes the biographies of 2,159 jurists from the twelfth century until 2010. We are aware that every selection involves a certain degree of discretion, and that the final choice can cause approval or discontent according to the tastes or expectations of the reader. We chose twenty-seven jurists whom—due to their intellectual commitment or the way in which they translated their Christian vision into civil action—we consider particularly representative in order to illustrate the interactions between Christianity and legal thought. It is inevitable that not all the authors included in the list appear at first sight to be figures of universal importance, but the purpose of the volume is also to reconstruct a particular intellectual milieu, embodied, so to speak, in the Italian legal tradition. The choice of jurists was conditioned primarily by the need to maintain the length of this volume in line with the other volumes of the series. The selection was oriented in the sense of privileging the jurists of the high and late medieval period (1100–1500) and early modern period (1500– 1800), respectively, twelve and seven jurists each. In the twelfth through eighteenth centuries, Europe was characterized by a profound cultural unity rooted in the Christian faith founded on the texts of the Old and New Testament and in the living tradition of the Church. This cultural unity was also expressed in the field of law: the legal culture based on the ius commune (civil and canon law: utrumque ius) remained the basis of the training of jurists in European 17 universities until the age of codifications.9 It cannot be denied that the religious differences originating in the Reformation of the sixteenth century reverberated in their effects on this common experience, but they did not break this unity. The nineteen jurists selected for the twelfth through eighteenth centuries were undisputed protagonists of European legal culture and its projections into the New World. The selection of jurists of the nineteenth and twentieth centuries was thornier and more difficult. In general, and not only in the context of Italian history, the processes of secularization made the incidence of religious thought in the elaboration of law less evident and full-blown. This was, generally, an effect of the processes that tended to lead religion back into the private sphere of the citizens, but the phenomenon is more directly connected with the policies of Church–State separation that tended to secularize the legal systems of the States, freeing them from the structures of the confessionalism that had stratified over the centuries. This process would lead to the consolidation and exaltation of legal positivism, which reduces law (ius) to the law produced by the nation-State (lex), excluding thus the sources of religious laws. The seven personalities chosen for these last two centuries are partly central figures of these events and partly forerunners of the twentieth-century cultural and political renewal, which, in the Catholic Church, culminated in the ecclesiology of the Second Vatican Council. Through this renewal, the new coordinates of the relations between law and religion were outlined within the framework of the rights to freedom and of democratic dynamics. In examining the relationship between Christianity and law through the legacy of some great Italian jurists, the volume presupposes a historical fact, namely that Christianity and law have 18 merged into the historical experience of the western world, and that this fusion has given a peculiar mark on western civilization, which distinguishes it from other civilizations and experiences of relations between law, politics and religion. This awareness does not mean to deny that in the contemporary world the various combinations of factors, such as postsecularization, globalization and the accentuation of cultural and religious pluralism, produce new social scenarios that require jurists and politics to find shared solutions by reasoning according to cultural categories that are no longer monolithic or homogeneous. From this perspective, we cultivate the hope that this volume will stimulate an intellectual dialogue between Christians of all denominations, as well as between Christians and non-Christians in general. Italian Christian Jurists in the Middle Ages The two jurists whose portraits open our gallery occupy a unique and incomparable position in the European legal tradition. Irnerius and Gratian can rightly be considered the founders of medieval legal science, respectively in the fields of civil law and canon law.10 Irnerius recomposed and restored Justinian’s Corpus Iuris, which in the early Middle Ages had been known in incomplete form, and he made these texts the basis of the new science of civil law. Gratian was the author of a canonical collection, the Concordia discordantium canonum, otherwise known as Decretum magistri Gratiani, the book on which the science of canon law was built. Both Irnerius and Gratian worked in the early decades of the twelfth century in Bologna: the city is rightly considered the mother or cradle of legal studies (alma mater studiorum). 19 Medieval legal science was born therefore as interpretation of texts of authority: on one hand the ancient laws of the emperor Justinian (the so-called libri legales, legal books), and on the other a private work, the Decretum, which collects a very wide selection of the sources of Church law (about four thousand passages). Irnerius and Gratian were not isolated geniuses but participated in a broad movement of cultural renewal, from which the formation of an autonomous legal science arose, born from the bosom of the liberal arts (artes liberales). Hence the jurist emerged as a new intellectual figure. The work of Irnerius and Gratian gave a decisive impulse to the new science, both in its methods and in its contents. Irnerius could do his work because he was a master of liberal arts, and perhaps even a theologian. Andrea Padovani presents the portrait of a man that medieval jurists themselves considered the primus illuminator of legal science, that is, the one who lit the light of the new science. His teaching is handed down mainly through extremely concise glosses, sometimes requiring arduous interpretation, which touch with great acuteness and incisiveness the main themes which medieval legal thought discussed: the great themes of legal theory, such as the meaning of justice and of equity, the natural freedom of the human person, the idea that individual will is the basis of contractual relations between private individuals, the fundamental questions concerning sovereignty, and the relations between citizens and political power. Gratian, the father of the science of canon law, was a jurist with deep knowledge of theology, perhaps matured in French schools, as Atria Larson suggests. His contribution consists not only in the compilation of a canonical collection but also in an original style of thought transmitted through his dicta, that is, those passages of the Decretum in which Gratian carries out the 20 hermeneutical work directed at rediscovering the intimate harmony of the multiple and discordant sources handed down over a millennium of Church history. The Decretum presents a true system of Church law. Gratian’s brilliant approach manifests itself in the first twenty distinctiones (distinctions), in which the author proposes a hierarchically articulated picture of the sources of law. His scientific contribution on this point is invaluable: Gratian gives his readers, for the centuries to come, a vision of law as a unitary reality articulated in the distinction between natural law and human law, in which canon law, founded on divine revelation, concerns the supernatural dimension of the relation between the baptized person and God in the body of the Church. Irnerius and Gratian were the two pillars on which the legal science of the second millennium was built. From their schools sprang generations of jurists, who, from the method they adopted, are called glossators and, specifically, decretists, inasmuch as they made Gratian’s Decretum the basis of their science. With Azo and Accursius our gallery presents two fundamental authors of the school of glossators of Roman law. About a century after Irnerius, the scientific path of the civil-law glossators found two moments of high synthesis in the works of these great jurists, in particular in Azo’s Summa aurea (which gathered the the Summa Codicis, the Summa Institutionum and the Summulae Digestorum) and in Accursius’s apparatus on the five volumes into which the Justinian’s Corpus Iuris was divided in the medieval tradition. Accursius’s glosses were received by schools as the standard gloss on the libri legales, and therefore were constantly reproduced on the margins of Justinian’s Corpus, first in manuscripts and later in printed editions. The works of Azo and Accursius—as Emanuele Conte highlights—are an extraordinary testimony to how the glossators used the ancient laws of Justinian to affect the 21 fabric of medieval society and to give a new direction to social and economic developments. An example concerns the network of relations between the urban world, rural society, and feudal lordships, with the related theme of the bonds of personal dependence, which were seen as a sort of wound brought to natural human freedom, an idea that arose from Christian teaching grafted onto Justinianic sources. While Justinian’s Corpus Iuris was a collection of laws inherited from the ancient Roman and Byzantine past, from the second half of the twelfth century the new legal system of the Latin Church developed on the foundation of the canonical tradition collected by Gratian in the Decretum. The tools of this development were the decretals of the popes and the decisions of the general councils of the Latin Church. These materials were selected and published in a series of collections by the Roman pontiffs which, along with the Decretum, represent the large nucleus of the series that would be known as Corpus Iuris Canonici: the Decretales of Gregory IX (1234), the Liber Sextus of Boniface VIII (1298), and the Clementinae of Clement V (published by John XXII in 1317). The school of the decretalists arose in the second half of the twelfth century and had its heyday between 1250 and 1350 approximately. Sinibaldo Fieschi, Enrico da Susa, and Giovanni d’Andrea are recognized as the triad of the most authoritative canonists of that era. Sinibaldo was a master canonist and became Pope Innocent IV; Enrico da Susa was a teacher, bishop, and cardinal (with the Latin title of Hostiensis); Giovanni d’Andrea was a layman who acquired an incomparable authority in his time as master in the Studium of Bologna. Sinibaldo Fieschi, whose profile is outlined by Kathleen Cushing, in his apparatus on the Decretales of Gregory IX 22 defined some thematic paths which, in the wake of his original teaching, would later be examined in depth by the jurists of the following decades and centuries: the relationship between the societas christiana and the infidels, the modalities of the missionary action of the Church, the theme of the crusade, the relations between secular and ecclesiastical power, and the definition of the respective spheres of competence. As Kenneth Pennington shows in the chapter on Enrico da Susa, these themes and the doctrinal approaches of the decretalists would resurface as main points of reference in the discussions that, after the discovery of America, accompanied the penetration of European institutions and culture into the New World. Giovanni d’Andrea, whose portrait is presented by Peter Clarke, explores the internal problems of the societas christiana and shows some methodological trends that herald legal humanism. In this context, it seemed appropriate to insert a chapter on Thomas Aquinas, whose figure is introduced by Charles J. Reid, Jr. A volume on the great Christian jurists could not overlook this theologian and philosopher, whose thought was decisive for the development of many legal concepts. First of all, his teaching on law (ius and lex) became an essential point of reference for jurists of the medieval and modern ages. Moreover, the idea of law (ius) as a res iusta (the right thing) and the idea of the law (lex) as an order given by reason (ordo rationis) proposed again, in the clarity of an impeccable philosophical construction, a teaching that was coherent with the doctrines elaborated by the jurists in the wake of Isidor of Sevilla and Gratian. In the works of Thomas Aquinas, such conceptions of law take place along ramifications that touch virtually all 23 areas of civil life. His teachings (for example, his contribution to the theory of just war, a theme particularly relevant in the modern age) came fully into the discourse of the jurists. The thirteenth and fourteenth centuries in Italy and wider Europe were characterized by an intense process of normative production linked to the development and consolidation of the various political and social institutions (kingdoms, city communes, guilds of arts and crafts, etc.). A great variety of local and particular laws (called iura propria in the wake of a teaching of Gaius handed down in the Digest 1.1.9), was joined to the ius commune (civil and canon law) which was scientifically created in the universities. Ius commune and iura propria were the two poles of a legal system of which the jurists elaborated the rules of interpretation and resolution of conflicts. However, the ius commune remained the basis for the training of jurists, because it offered the indispensable categories and principles for interpreting the iura propria.11 Cino Sinibuldi da Pistoia, Bartolo da Sassoferrato, and Baldo degli Ubaldi testified in an exemplary way to the developments of legal science in the renewed political, social, and cultural framework of the fourteenth century. First-rate jurists, all three of them worked in the institutional context of Italian cities. They represent the continuity and the development of a teaching line that was formed in the relationship between master and pupil: Cino was Bartolo’s master, and Bartolo was Baldo’s master. In the peculiar political context of central and northern Italy, Cino and Bartolo experienced the profound crisis of the imperial institution. Like Dante Alighieri, they cultivated the hope of a restoration of the role of the empire as supreme guarantor of order and justice and regulator of the conflicts that lacerated the Italian city-communes, but they also proved the disappointment of political ideals founded on the concord between ecclesia 24 and imperium as the foundation of the order of Christian society. New city lords emerged from the crisis and the conflicts: medieval political thought, inspired by the tradition of the fathers of the Church, qualified them as tyrants. Cino da Pistoia, whose portrait is offered by Giuseppe Speciale, was a jurist and a poet contemporary of Dante. Cino passed on to Italy the methods and teachings of the French jurists of Orléans (Jacques de Revigny and Pierre de Belleperche) and is considered the leader of a methodological renewal from which the school of commentators emerged. Bartolo, presented by Orazio Condorelli, was a master of the highest authority, whose work ended up identifying the characteristics of the school of commentators. In Bartolo’s work, the relationships among ethics, law, and theology, between the external forum and the forum of conscience, are clearly highlighted as internal problems of legal discourse and political thought. Baldo went down in history as “the most philosophical of jurists.” Julius Kirshner highlights Baldo’s outstanding contribution to the identification of the legal forms inspired by the ideals of Christian economic ethics. With their consilia (legal consultations) the jurists, alongside the theologians, acted as authoritative moral guides for the operators of economic life. The overview of medieval jurists closes with two bright stars of the first half of the fifteenth century, Paolo di Castro and Niccolò Tedeschi, whose profiles are outlined by Susanne Lepsius and Richard Helmholz. Respectively a layman and an ecclesiastic (bishop and cardinal), a civilian and a canonist for education and academic life, both Paolo di Castro and Tedeschi expressed a unitary conception of law, which manifested itself in the system of utrumque ius, that is, the system in which civil law and canon law were competing forces in governing the life of the societas christiana12. Both lived, albeit in different phases and with different roles, at the 25 time of the Great Schism that divided Western Christianity in the decades between 1378 and the Council of Basel (1431). Both stand out for their clear and original thought, for they were able to gather the best of what medieval legal science had elaborated, and to pass it on to future generations, who would recognize their excellent merits. They were not isolated thinkers in an ivory tower, but their thought was constantly elaborated in the dialectical confrontation with the practice of economic and social relations and with the grievous emergencies of the divided Church. Italian Christian Jurists in the Early Modern Age (1500–1800) The modern age was a period of crisis. The signs can be seen in the social, political, epistemological, and anthropological perspectives inherited from the Middle Ages, but these multiple upheavals did not demolish the unity of European legal culture.13 A fundamentally homogeneous experience continued until the social and political transformations of the second half of the eighteenth century led to the codification of national laws. From the Iberian Peninsula to Poland and Hungary, from Scandinavia to Sicily, this experience was nourished by substantially homogeneous legal studies grafted onto the trunk of medieval legal science and cultivated in the European universities.14 The European exploration of America beginning in 1492 disclosed new geographical and anthropological horizons that forced European culture to confront itself with situations that were not entirely new (relationships with peoples who had not known Christianity), but this phenomenon had absolutely new quantitative proportions. The moral issues emerging from the conquest and colonization of America fueled the persistent connections between theology and 26 law that had characterized medieval legal culture. In the confrontation with the Indo-American populations, European culture identified a suitable instrument of juridical dialogue in natural law and in the principles that flow from it: natural law, elaborated by jurists and theologians, became a true “intercultural” law ante litteram. The Protestant Reformation caused multiple institutional and intellectual upheavals. The various reformed churches and denominations experienced different processes of institutionalization. This plurality of churches and denominations within the same political contexts imposed the search for forms of peaceful coexistence and urged an intense reflection on the topics of tolerance and religious freedom as barriers against bloody religious conflicts.15 The Catholic Church, with the great enterprise of the Council of Trent (1545–63), confirmed and reformulated the truths of the Catholic faith, but was also forced to react to the crisis of ecclesiastical institutions, of the moral life, and of the discipline of the faithful and of the clergy. This new rupture of European religious unity did not, however, diminish the fundamental unity of European legal culture and did not interrupt the processes of communication among intellectuals of the various religious affiliations. In this framework, there were also important innovations in the methodology of legal studies. The application of the humanistic method in the science of law aimed to introduce a historical and philological approach in the study of traditional sources. Legal humanism aimed to study the texts of civil and canon law as sources for the knowledge of the history of Roman and Byzantine civilization or the history of the Church; however, the historical-philological interests of the 27 humanists could not eliminate the traditional approach based on the need to coordinate—for the demands of practice and for civil and ecclesiastical government—the ius commune with local or national laws. France is normally considered the cradle of the new humanistic method applied to law (mos gallicus), while Italy remained the homeland of the traditional legal method—a method which, under the name of Bartolo (“bartolism”), is qualified as mos italicus. Andrea Alciato—as Alain Wijffels points out—consciously embodied, with excellent results, the different tendencies rooted in the humanistic method. In Alciato the tradition of mos italicus— also acquired in legal practice, which required the mastery of traditional methods—was combined with an extraordinary historical and philological expertise acquired in the schools of Italian humanists during his youth. His teaching in France, in Avignon and later in Bourges, and the intellectual relations with European humanist circles are evidence of a persistent circulation of ideas that fertilized the intellectual environment of sixteenth-century Europe despite religious divisions. Our gallery includes two theologians who, in different times between the sixteenth and seventeenth centuries, had a very important presence in the development of legal doctrines on the themes involved in the social, religious, and political events we have mentioned. Thomas de Vio (know as Cajetan), whose profile is outlined by Wim Decock, testifies to the continuity of the authority of the thought of Thomas Aquinas in the modern era. Cajetan’s commentaries on the Summa theologiae not only favored the dissemination of the teaching of Aquinas but also constituted a tool for updating Aquinas’s doctrines in relation to new historical developments. Cajetan was immersed in the theological controversies of the time (he was an examiner charged 28 with identifying the heretical statements contained in Luther’s writings). The connection between theology and law, already widely experienced in medieval centuries, in Cajetan arises in the moral-theological approach to the thorny legal questions of his time, such as those concerning the lawfulness of commercial operations. The authority of his writings, which certainly reflects the authority of the teaching of Aquinas, was very significant in European and Latin American theological and juridical literature. Lorenzo Sinisi introduces the central figure of Robert Bellarmine, who lived and worked when the effects of the Reformation were consolidated and the Catholic Church was engaged in defending the orthodoxy of the faith and in working for deep ecclesiastical and moral reform. In his Disputationes de controversiis Christianae Fidei adversus huius temporis haereticos, Bellarmine systematically outlined Catholic doctrine in comparison with the ideas of the reformers and on the basis of the treasure of Catholic doctrine. One of the central themes of his ecclesiology consists in defining the position of the Roman pontiff in the constitution of the Catholic Church in connection with the intent to defend the libertas ecclesiae against interference by Catholic sovereigns in the government of the Church (variously named “jurisdictionalism,” “regalism,” “Gallicanism,” etc.) and, correlatively, with the aim of defining the powers of the ecclesiastical authority in temporal matters. His doctrine of the potestas indirecta in temporalibus (indirect power in temporal matters) was rooted in the medieval teaching of the potestas ecclesiae in temporalibus ratione peccati (power of the Church in temporal matters by reason of sin), and became the cornerstone of the Catholic teaching on the relations between the Church and civil authority up to the threshold of the Second Vatican Council. 29 The dialectic of positions and methods is well manifested by Alberico Gentili, whose figure is presented by Giovanni Minnucci. Gentili is an extremely original author in the picture we have described. A jurist trained in the method of the mos italicus, later in his life he also approached the method of legal humanism. He had to flee Italy for having adhered to the religious ideas of the Reformation and had a brilliant career in England. Deservedly counted among the founders of modern international law, Gentili was a staunch supporter of the distinction of the roles of theology and law and expressed his impatience with the confusion of the two perspectives. If theology deals with the relations between humankind and God, law should concern the relations between persons: theologians, therefore, should maintain silence in the field that is not their responsibility. Gentili, who had a personal experience of the religious conflicts that ravaged the Europe of his time, identified religious freedom as a necessary solution to establish a peaceful coexistence in a society marked by different confessions and religious groupings. This diversitas religionis no longer concerned the relationship between Christians and infidels but connoted the Christian world from within. The gallery continues with Giovanni Battista De Luca, who is recognized as the greatest Italian jurist of the seventeenth century. Italo Birocchi points out that De Luca’s work is centered on the idea that practice is the highest moment in jurisprudence, since the principles of law are applied to the regulation of human relations in function of the common good. From the point of view of method, his work marks the crisis of the mos italicus and of the scholastic method inherited from the Middle Ages and is also characterized by the convinced promotion of the Italian language as an instrument of legal communication. These trends translated into a pronounced attention to the 30 demands of legal practice and the experiences of the great courts. The legal system was still centered on the two common laws (iura communia), but it also had to confront the territorially defined dimension of local law (ius patrium) in a coordination which gave rise to the features of “today’s law” (ius hodiernum). According to De Luca, the jurist is the depositary of the virtue of prudence, which must be exercised in relation to a positive law that at that time was mainly entrusted to the legislation of territorial princes. In his thinking, the practical dimension of prudence is tinged with a certain realistic skepticism, still nurtured by a Christian vision of the world. This realistic approach aims for “the things of this world,” for the definition of reasonable solutions rather than the implementation of an abstract idea of truth or common good. The transition from the century of the Baroque to the Enlightenment is illustrated through Giambattista Vico: his presence in the gallery of the great Italian jurists gives a well-deserved space to a thinker who occupies an undisputed place in the history of philosophical thought, but who has not received equal attention in the perspective of the history of legal thought. Marco Nicola Miletti highlights how religiosity deeply permeates Vico’s vision of law and institutions. His speculation on law is contained both in specifically juridical works and in his masterpiece, Scienza nuova (The New Science). More than analyzing contingent norms, Vico turned his attention to identifying the philosophical principles that govern the historical reality of law, which he found in the convergence between nature and law (ius) and between truth and fact (verum and factum). Vico discovered the religious roots of law in the universal history of humankind and proposed them as the foundations for the idea of law in dialogue with the skeptical, libertine, or relativistic currents of his time. His works reveal original perspectives that resulted in acute contributions in the field of philology, anthropology, and legal history. 31 With Cesare Beccaria, whose profile is outlined by Maria Gigliola di Renzo Villata, we enter the heart of the Enlightenment. His universal fame is linked to a booklet, Dei delitti e delle pene (On Crimes and Punishments), which represents a manifesto of the Enlightenment tendencies towards the reform of the legal system and the modernization and humanization of criminal law. Beccaria lived in Milan, where ideas of renewal circulated with the prospect of reforming the legal system through the promulgation of a code of laws—a trend in Europe during the second half of the eighteenth century. Beccaria’s adherence to Enlightenment thought matured in this milieu open to reforms, under the influence of the writings of Montesquieu, the Encyclopedists, and Rousseau. The fruit of this turning point was the work Dei delitti e delle pene (1764), which brought the author universal fame. The idea of reforming criminal law is here connected to a broader prospect for reform of the legal system, which included criticism of the system of sources and the methods of traditional jurisprudence and was rooted in the idea of a social pact based on human freedom. The prospects for reform and modernization of criminal law were based on several principles: the idea that criminal repression must affect acts that endanger civil coexistence; the principle of legality (a punishment can be imposed only when an action is previously defined as a crime by criminal law, since the judge is subjected to law); the presumption of innocence; punishment proportionate to the crime; and the refusal of judicial torture. The purpose of these reforms was to guarantee legal certitude and to limit judicial arbitrariness. Beccaria’s work received the praise of Enlightenment authors (Voltaire, Bentham), but in reactionary circles it was judged as an expression of a spirit that aimed to pervert religion and subvert the established order. In our eyes as observers of the twenty-first century, the ideas advocated by Beccaria appear as indisputable cornerstones of a modern and secularized criminal 32 law, inspired by an idea of justice and humanity that is fully consistent with a Christian vision of social relations. Italian Christian Jurists in the Nineteenth and Twentieth Centuries In the history of European society, the last two centuries have experienced changes that created a clear break with the past. Past times began to be seen as an ancien régime from which the new course was intended to stand out in terms of freedom and progress. The French Revolution marked the beginning of a process of irreversible changes, which took place in different times and modes in the various European countries. The processes of secularization of European society went hand in hand with institutional changes that were driven by the idea of the nationState. From the perspective of the history of law, such changes marked the end of the age of European ius commune, in which the coexistence and application of particular laws was guaranteed by the connective tissue of a culture that was common because it was founded on the methods and values that legal science had built over centuries on the texts of Justinian’s law and canon law. The codes were instruments of this desire for change. The codification of national laws was motivated by the intention of bringing order to the confused system of sources and building a new civil order on the basis of the primacy of positive law. National codifications, imposed during the nineteenth century, were built with ancient materials filtered through eighteenthcentury rationalism and doctrines of natural law and reread through the values proposed by the Enlightenment and the French Revolution. If, to a certain extent, this process testifies to a 33 continuity in the cultural tradition of European law, the new legislation was nevertheless based on the idea that law is a phenomenon produced by the sovereign will of the State and substantially coinciding with sources produced by the State or with sources that State law recognizes and accepts as productive factors of legal effects. The nineteenth-century code generally appears as a complete law with no gaps, which does not admit to being integrated by external sources (natural law, equity, custom, etc.). The law of the codes, therefore, reduces or deletes the spaces that in previous experiences were occupied by canon law or by the laws of other religious confessions. Canon law, which had contributed in a decisive way to the formation of a common legal tradition, was therefore confined as positive law to an area of irrelevance with respect to civil relations or was considered relevant only to the extent that State law permitted it. At the same time, even legal science was forced to “nationalize” itself, due to the need to build the new legal order on the basis of the new laws. This phenomenon did not prevent jurists from maintaining an awareness of a permanent supranational dimension of legal science, because the sharing of methods and the memory of that common juridical past nurtured relations between the differentiated codified laws of the European nations. Such historical processes took a peculiar turn in the Italian institutional situation of the nineteenth century. The conclusion of the Napoleonic experience and the restoration dictated by the Congress of Vienna gave birth to the new political structure of the “preunification” States. And yet the design of the new territorial map also marked the beginning of an irreversible process of political unification. Italian national unity was achieved in 1861 and was the fruit of 34 ideals, revolutionary movements, and wars of independence that gave substance to the Italian Risorgimento. Vittorio Emanuele II of Savoy, king of Sardinia, became the first king of Italy. Political unification was the premise of national legal unification.16 The statute that Carlo Alberto had granted for the Kingdom of Sardinia in 1848 became the Statute of the Kingdom of Italy: it laid the foundations of a constitutional monarchy founded on liberal principles. The Civil Code of 1865 was the first legislative monument of united Italy. The fact that Rome is the see of the pope—head of the Catholic Church but also, at that time, temporal monarch of the Papal States—deeply conditioned the process of Italian unification and the subsequent political vicissitudes of the Kingdom of Italy. In 1870 the Italian army conquered Rome and ended the centuries-old history of the Papal States. The supreme pontiff retired to the Vatican, declaring himself a prisoner, and Rome became the capital of the Kingdom of Italy. Although the Statute of the Kingdom declared that the Roman Catholic apostolic religion was the “only religion of the State,” and that other cults were “tolerated in accordance with the laws” (Article 1), the ecclesiastical policy of the Kingdom of Italy was hostile to the Church and anticlerical. The progressive secularization of the structures of the State passed through the equalization of citizens before the law without distinction of religion, the abolition of historical privileges of the Church (ecclesiastical immunities, such as the privilege of the forum), the secularization of marriage (civil marriage was introduced in the Civil Code of 1865), the suppression of ecclesiastical institutions, and the confiscation of their assets. 35 Camillo Benso, count of Cavour, first president of the Council of Ministers of the Kingdom of Italy, had prefigured the design of a “free Church in a free State.” This program was only partially implemented in the direction of the separation between State and Church; rather, it took place in the line of a sort of “liberal jurisdictionalism,” which still granted relevant powers for the State in the life and organization of the Catholic Church. The end of the temporal power of the popes opened the “Roman Question,” which was the source of deep disagreements that for many decades would condition the relations between State and Church and the participation of Catholics in Italian political life. With the Law of Guarantees, the Italian State regulated unilaterally the prerogatives of the pope and the Holy See, and the relations of the State with Church (Law 214/1871). The solution of the Roman Question and religious pacification were achieved only during the fascist regime, with the stipulation of the Lateran Pacts and the creation of the Vatican City State (1929), which guaranteed a territorial basis for the spiritual sovereignty of the Holy See.17 The first two personalities who open the gallery of contemporary jurists operated in this context.18 Contardo Ferrini—whose profile is outlined by Rafael Domingo—belongs to a generation of Italian jurists who include several eminent scholars of Roman law. During the nineteenth century the national codifications had removed the force of positive law from Roman law; in Germany this point of arrival was reached with the Bürgerliches Gesetzbuch, the civil code that went into effect in the German empire in 1900.19 These developments gave Roman law back to history, and thus favored a reorientation of research interests towards the historical studies of Roman and Byzantine law. In Italy, the affirmation of the French codification model 36 caused the success of the method of the so-called French exegetical school. But these new achievements went hand in hand with the maturation of awareness, fueled above all by German Pandectism, that Roman law offered the essential legal tools with which nineteenth-century jurists built an autonomous theoretical system of legal principles, institutions, and legal dogmas. In the outline of the secular jurists included in this volume, Ferrini is a unique figure, since in a short and intense life he gave testimony of Christian faith and values, for which he was beatified in 1947. Pietro Gasparri—whose figure is presented by Alberto Lupano—was an eminent canonist but also a person endowed with uncommon practical skills, which he put to profit at the highest levels of the government of the Catholic Church. His work as a jurist took place at a time when canon law had lost much of its relevance in civil life due to the secularization of European society. Canon law suffered a sort of scientific marginalization due to the breakdown of the methodological unity of legal science provoked by the exclusive supremacy of national State law. In Italy, in the last two decades of the nineteenth century, this tendency gave rise to the socalled State ecclesiastical law, that is, the legal area concerning the laws of the State which governs religious matters. Francesco Scaduto and Francesco Ruffini, although following different doctrinal guidelines, are the two recognized founders of this branch of Italian legal science.20 As a jurist, Gasparri was an heir to the classical tradition of canon law, which he illustrated with important contributions, among which a treatise on marriage stands out. He was also the true architect of the Church law codification, which concluded in 1917, when Benedict XV promulgated the first Code of Canon Law (Codex Iuris Canonici). As Secretary of State of 37 the Holy See during the pontificate of Pius XI, Pietro Gasparri conducted the negotiations with the Italian State that led to the conclusion of the Lateran Treaty in 1929. Luigi Sturzo and Alcide De Gasperi—introduced by Romeo Astorri and Olivier Descamps, respectively—lived during extremely tumultuous and changing times of Italian, European, and world history between the last three decades of the nineteenth century and the fifties of the following century. After the capture of Rome in 1870, the Holy See declared that it was not appropriate for Catholics to participate in the political life of the Italian State (Non expedit, 1874). This prohibition remained formally in force until 1919. In that year the Italian Popular Party, inspired by Catholic social teaching, was founded among others by Luigi Sturzo, a Sicilian Catholic priest, and Alcide De Gasperi, who later founded the Christian Democracy Party. The March on Rome (1922) marked the beginning of the fascist regime and the starting point of a political and institutional process that transformed the structures of the liberal State into a totalitarian regime.21 Realizing that religion is a powerful instrumentum regni, Benito Mussolini obtained the consent of Catholics by promoting conciliation between the Kingdom of Italy and the Catholic Church; his political action, however, provoked a tragic involution towards a model of a totalitarian State that denied the civil and religious values of freedom, equality, and solidarity. The publication of the racist laws (1938) and the subsequent adherence to the Hitlerian plan to exterminate the Jews was one of the saddest and most execrable pages of fascist politics.22 38 Luigi Sturzo represented an incessantly critical voice against the idolatry of the omnipotent State, the dangers of nationalisms, and the aberrations of totalitarianism. In his long intellectual journey, which extended from the last decade of the nineteenth century to the second postwar period, he elaborated a coherent and organic doctrine on international organization and war, on the relations between democracy and totalitarianism, on cooperation between Church and State, and on the ways of Catholic participation in political life. His thought exalted the Christian roots of the values of peace, justice, and freedom. After the fall of fascism (1943) and the end of the Second World War, the institutional referendum marked the end of the monarchy and the birth of the Italian Republic (June 2, 1946). The Constituent Assembly had the task of tracing, on the ruins left by the war and the fascist regime, the path that the republic should take. It was a choral effort in which all the parties that sat in the Assembly participated, and in which the Catholic forces made a fundamental contribution. Among the leading exponents of the Catholic world who took part in the Assembly, two jurists deserve mention: Giuseppe Dossetti (professor of canon law and ecclesiastical law) and Giorgio La Pira (professor of Roman law)— two men endowed, like De Gasperi, with intense religious faith. Dossetti and La Pira contributed to providing the Constitution of the Italian Republic a Christian inspiration (1948). This inspiration is found at the beginning of the Constitution, in Article 2, which is located in the section of the Fundamental Principles: “The Republic recognizes and guarantees the inviolable rights of the person, as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic, and social 39 solidarity be fulfilled.” This article, in turn, “inspires so much of the principles and the very organizational structure determined by the Constitution.”23 From 1946 to 1953 De Gasperi was the head of the Italian government. In his activity constantly nourished by his fervent Catholic faith, De Gasperi is considered to be one of the founding fathers of the European integration on the basis of the ideals of freedom, democracy, and peace. Francesco Carnelutti and Arturo Carlo Jemolo embodied, each according to his personality, the figures of “well-rounded” jurists. The long spans of their lives allowed them to experience the profound evolution of Italian and world society between the last decades of the nineteenth century and the seventies of the twentieth century. The prestige of Carnelutti, as Giovanni Chiodi highlights, went beyond national boundaries due to the extraordinary breadth of the fields of law which he mastered with great skill. His works range from civil procedural law to criminal and procedural criminal law, from civil law to commercial and labor law, from the methodology of law to the general theory of law. Moved by a deep religious faith, in his old age Carnelutti experienced the sense of the insufficiency of the legal dimension as a key to understanding human life: this led him to broaden his horizons as a scholar and writer, and to challenge himself in interpreting the Gospel message in writings in which law, ethics, and religion are intertwined. Jemolo, whose profile is outlined by Carlo Fantappiè, was likewise able to combine the methodological conviction of the unity of legal science with an extraordinary ability to dominate multiple fields of law. Jemolo was a promoter of the Italian civil conscience not only with his scientific writings, but also with an intense activity carried out in newspapers and magazines. The relations between law and religion and between civil society and religious society were the 40 fields of research that he pursued with greater passion and with a rare mastery that allowed him to combine law with history and theology. Jemolo was endowed with a Catholic faith as profound as it was critically restless and pessimistic, a faith that resulted in a tormented political thought and in a preference for the model of separation between State and religion. When the republican constitution came into force, Jemolo repositioned the fulcrum of juridical analysis from the traditional question of relations between State and Church towards the centrality of the rights of freedom and of equality of citizens without distinction of religion. His intellectual convictions and his religious positions found a landing point in the idea of “secular conscience” (coscienza laica). The concept of secularism (expressed in Italian with the noun laicità and the adjective laico) has taken a central position in legal thought and in the political debate in Italy in the second half of the twentieth century, up to the present day.24 The convergence of the right of religious freedom with the principles of equality and of cooperation between the State and religious confessions led the Italian Constitutional Court to identify secularism as a supreme principle of the Italian constitutional order. According to the Court, the principle of secularism “implies not the indifference of the State before religions, but a guarantee of the State for the safeguarding of freedom of religion, in a system of confessional and cultural pluralism” (Judgment n. 203/1989). In another judicial decision, the Court specified that the principle of secularism involves “equidistance and impartiality” of the State in the face of religious confessions, and that it characterizes “in a pluralistic sense the form of our State, within which different faiths, cultures, and traditions have to coexist, in equality of freedom” (Judgment n. 508/2000). This meaning of 41 secularism has now become a stable pillar of the living law and distinguishes the Italian experience from other ways, such as the French one, to conceive the sense of secularism.25 Jean-Pierre Schouppe introduced the last personality of our gallery: Giovanni Battista Montini, archbishop of Milan and later Pope Paul VI, who was canonized by Pope Francis in 2018. Paul VI followed the steps of his predecessor, John XXIII, of whom Montini was a friend and collaborator in the preparation and development of the Second Vatican Council (1962–65). The council, convened by John XXIII but suspended upon his death, was reopened by Paul VI. The ecumenical assembly started a process of renewal in the tradition that continues to this day. Paul VI not only completed the council but was also the first of a series of pontiffs who had the task of implementing the conciliar principles concerning the internal life of the Catholic Church, the dialogue with other Christian churches and denominations and with non-Christian religions, as well as relations with the political community. The major contributions of Paul VI to the life of law consist in the promotion of the culture of human rights (encyclical Populorum progressio, 1967, in the wake of John XXIII’s Pacem in terris, 1963) and in the work of revising the legislation of the Catholic Church on the basis of the principles of Vatican II. This process was completed by John Paul II with the promulgation of the Codex Iuris Canonici (Code of Canon Law, 1983) and the Codex Canonum Ecclesiarum Orientalium (Code of the Canons of the Eastern Churches, 1990). According to John Paul II the new Latin code (but the same can be said of the Eastern code) “could be understood as a great effort to translate this same doctrine, that is, the conciliar ecclesiology, into canonical language” (Apostolic Constitution Sacrae disciplinae leges, 1983). 42 The teaching of the Second Vatican Council presents the Catholic Church as people of God and emphasizes the dignity and equality of the faithful within the diversity of their functions. This teaching has also produced a significant reorientation of the doctrine of relations between Church and State and, more generally, of the role of the Church in the contemporary world (Pastoral Constitution Gaudium et spes, 1965). The conciliar teaching abandoned the centuriesold language of the potestas in temporalibus (direct or indirect), entrusted the lay faithful with the task of animating the world and giving witness of Christ, and recognized the rightful autonomy of temporal realities and the mutual independence of the political community and of the Church. But the council also claimed the right of the Church “to preach the faith, to teach her social doctrine, to exercise her role freely among men, and also to pass moral judgment in those matters which regard public order when the fundamental rights of a person or the salvation of souls require it” (Gaudium et spes, n. 76). The Second Vatican Council therefore outlined the path of a Christian secularism, linking the council’s own teaching to the problems of the contemporary world, the function of the faithful in society, and the specific mission of Christian jurists.26 Conclusion It is superfluous to reaffirm how great and profound was the contribution of Italian Christian jurists to the development of European and Western legal culture. This contribution lies at the very origins of medieval legal science (twelfth century), is expressed in the formation of a European ius commune in the centuries of the societas christiana, and in modern times continues during the centuries of divided Christianitas until the end of the ancien régime. In the twelfth 43 through eighteenth centuries, the work of Italian jurists took place in a cultural and scientific dimension that did not know national boundaries, and in which jurists spoke a common language, despite the differentiation of the legal experiences of the different European territories. Their work continued in the nineteenth and twentieth centuries, but in a context in which the formation and consolidation of national states led to the emergence of new national laws. Christian values, according to the collective consciousness developed over the centuries, represented a leaven of legal culture and, through the convergence of civil law and canon law, contributed to the formation of a common legal tradition. We expect that this volume will contribute to nourishing an academic conversation on the role of Christianity, and more generally of religions, in the building of a common home for humanity which, within the framework of the current processes of globalization, can be considered an inclusive place, respectful of cultural and religious diversity, and active in protecting rights and promoting peace. We believe, in particular, that Christianity has much to say in the era of globalization because at the heart of Christianity lies a message of divine love and loving fellowship among individuals created in the image of God. Such a contribution can even be expressed in accordance with the secular standards accepted by the dynamics and proceedings of liberal democracies.27 From this point of view, present-day Western democracies show conflicting tendencies: on one hand is the attempt to confine religion to the private sphere and to exclude it from the public dimension; on the other hand, the plurality of faiths and cultures that characterizes global society stimulates an 44 irresistible push towards the public emergence of religious instances and the claim of individual rights based on cultural and religious foundations. The passionate debate about the opportunity or nonopportunity to mention the Christian roots of Europe in the preamble to the (never entered into force) European Constitution has been temporarily dismissed, but this dismissal does not cancel the substance of the problem.2829 From one point of view, since the Christian roots are an unquestionable historical fact, not to mention them may appear to be an adequate choice, inasmuch it is justified by the desire to define a more inclusive formula. From a different perspective, this choice conceals the ideological tendency to want to build the future by obliterating a fundamental part of the European legal tradition: which would be like cutting a plant, Europe, from its roots. In other words, this choice implies the secularist idea (and perhaps, after all, a nonreligious vision of life) that Christianity, and more generally religions, must be confined to the sphere of individual conscience, which, however, is anthropologically difficult to separate from the public dimension. The individual person who believes (or the one who does not believe) is always a human person who acts in society, who aspires to act in accordance with his or her beliefs, who yearns for building a society in which beliefs and religious experiences are recognized as bearers of values to be shared or at least to be respected. The relationship between Christianity and law remains one of the fundamental questions of our day. Cultivating the memory and deepening the understanding of this crucial relationship should be regarded as a necessary task of theologians and legal scholars for helping understanding our secular present and building our postsecular future. 45 Bibliography Aquarone, Alberto. L’organizzazione dello Stato totalitario. Torino: Einaudi, 1995. Ascheri, Mario. The Laws of Medieval Italy (1000–1500): Foundations for a European Legal System. Leiden / Boston: Brill, 2013. Original Italian edition: I diritti del medioevo italiano. Secoli XI–XV. Roma: Carocci, 2000. Bellomo, Manlio. Breve storia della scienza giuridica dal rinascimento medievale alla modernità in crisi. Leonforte: Euno, 2019. Bellomo, Manlio. The Common Legal Past of Europe: 1000–1800. 2nd ed. Translated by Lydia G. Cochrane. Washington, DC: Catholic University of America Press, 1995. Last version of the original Italian edition: L’Europa del diritto comune. La memoria e la storia. Leonforte: Euno, 2016. Benedict XVI, Pope. Address to the Participants in the 56th National Study Congress Organized by the Union of Italian Catholic Jurists. December 9, 2006. At https://w2.vatican.va/content/benedictxvi/en/speeches/2006/december/documents/hf_ben_xvi_spe_20061209_giuristi-cattolici.html Benson, Robert L., and Giles Constable, with Carol D. Lanham, eds. Renaissance and Renewal in the Twelfth Century. Cambridge, MA: Harvard University Press, 1982. 46 Berman, Harold J. Law and Revolution. Vol. 1, The Formation of the Western Legal Tradition. Cambridge, MA / London: Harvard University Press, 1983. Berman, Harold J. Law and Revolution. Vol. 2, The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, MA / London: Harvard University Press, 2003. Binchy, Daniel. Church and State in Fascist Italy. Oxford: Oxford University Press, 1941. Birocchi, Italo. Alla ricerca dell’ordine. Fonti e cultura giuridica nell’età moderna. Torino: Giappichelli, 2002. Birocchi, Italo, Ennio Cortese, Antonello Mattone, and Marco N. Miletti, eds. Dizionario Biografico dei Giuristi Italiani. 2 vols. Bologna: il Mulino, 2013. Brundage, James A. Medieval Canon Law. London, New York: Longman, 1995. Calasso, Francesco. Medio Evo del diritto. Milano: Giuffrè, 1954. Calasso, Francesco. L’unità giuridica dell’Europa. Edited by Piero Fiorelli. Soveria Mannelli: Rubbettino, 1985. 47 Cappellini, Paolo, Pietro Costa, Maurizio Fioravanti, and Bernardo Sordi, eds. Enciclopedia Italiana di scienze, lettere ed arti. Il contributo italiano alla storia del pensiero. Ottava Appendice, Diritto. Rome: Istituto della Enciclopedia Italiana, 2012. Available at http://www.treccani.it/enciclopedia/elencoopere/Il_Contributo_italiano_alla_storia_del_Pensiero:_Diritto Caravale, Mario. Alle origini del diritto europeo. Ius commune, droit commun, common law nella dottrina giuridica della prima età moderna. Bologna: Monduzzi, 2005. Cardia, Carlo. Risorgimento e religione. Torino: Giappichelli, 2011. Cartabia, Marta, and Andrea Simoncini, eds. Pope Benedict XVI’s Legal Thought: A Dialogue on the Foundation of Law. Cambridge: Cambridge University Press, 2015. Coing, Helmut. Europäisches Privatrecht. Vol. 1, Älteres Gemeines Recht (1500–1800). München: C.H. Beck, 1985. Coing, Helmut. Europäisches Privatrecht. Vol. 2, 19. Jahrhundert. Überblick über die Entwicklung des Privatrechts in den ehemals gemeinrechtlichen Ländern (1800 bis 1914). München: C.H. Beck, 1989. 48 Condorelli, Orazio, Franck Roumy, Mathias Schmoeckel, Yves Mausen, David von Mayenburg, eds. Der Einfluss der Kanonistik auf die europäische Rechtskultur. 6 Vols., Köln – Weimar – Wien: Böhlau, 2009-2020. Cortese, Ennio. Il diritto nella storia medievale. 2 vols. Rome: Il Cigno, 1995. Croce, Benedetto. “Perché non possiamo non dirci ‘cristiani,’” La Critica 55 (1942): 289–97. Dalla Torre, Giuseppe, ed. Lessico della laicità. Rome: Studium, 2007. Dauchy, Serge, Georges Martyn, Anthony Musson, Heikki Pihlajamäki, Alain Wijffels, eds. The Formation and Transmission of Western Legal Culture: 150 Books that Made the Law in the Age of Printing. Cham: Springer, 2016. De Siervo, Ugo. “Giorgio La Pira.” In Cappellini, et al., Il contributo italiano alla storia del Pensiero—Diritto 589–593. Descamps, Olivier, and Rafael Domingo, eds. Great Christian Jurists in French History. Cambridge / New York: Cambridge University Press, 2019. Dizionario biografico degli Italiani. Rome: Istituto della Enciclopedia Italiana, 1960. Available on-line: www.treccani.it/biografico/index.html# 49 Domingo, Rafael. God and the Secular Legal System. New York / Cambridge: Cambridge University Press, 2016. Domingo, Rafael, ed. Juristas Universales. 4 vols. Madrid / Barcelona: Marcial Pons, 2004. Domingo, Rafael, and Javier Martínez Torrón, eds. Great Christian Jurists in Spanish History. Cambridge / New York: Cambridge University Press, 2018. Domingo, Rafael, and John Witte Jr., eds. Christianity and Global Law. London / New York: Routledge, 2020. Dreisbach, Daniel L., and Mark David Hall, eds. Great Christian Jurists in American History. Cambridge / New York: Cambridge University Press, 2019. Fantappiè, Carlo. Storia del diritto canonico e delle istituzioni della Chiesa. Bologna: Il Mulino, 2011. Ferrari, Alessandro, and Silvio Ferrari. “Religion and the Secular State: The Italian Case.” The Cardozo Electronic Law Bulletin 16.1 (2010): 431–48. Ferrari, Silvio. “State and Church in Italy.” In State and Church in the European Union, edited by Gerhard Robbers, 209–230. Baden-Baden: Nomos Verlagsgesellschaft, 2005. 50 Finocchiaro, Francesco. Diritto ecclesiastico. 12th edition. Edited by Andrea Bettetini and Gaetano Lo Castro. Bologna: Zanichelli, 2015. Gentile, Saverio. La legalità del male. L’offensiva mussoliniana contro gli ebrei nella prospettiva storico-giuridica (1938–1945). Torino: Giappichelli, 2013. Ghisalberti, Carlo. La codificazione del diritto in Italia 1865–1942. 13th ed. Rome / Bari: Laterza, 2009. Ghisalberti, Carlo. Storia costituzionale d’Italia 1848–1948. 7th ed. Rome / Bari: Laterza, 2010. Ghisalberti, Carlo. Unità nazionale e unificazione giuridica in Italia. 13th ed. Rome / Bari: Laterza, 2018. Grossi, Paolo. A History of European Law. Chichester: Wiley-Blackwell, 2010. Original Italian edition: L’Europa del diritto. Rome / Bari: Laterza, 2007. Grossi, Paolo. Scienza giuridica italiana. Un profilo storico 1860–1950. Milano: Giuffrè, 2000. Hartmann, Wilfried, and Kenneth Pennington, eds. The History of Courts and Procedure in Medieval Canon Law. History of Medieval Canon Law. Washington, DC: The Catholic University of America Press, 2016. 51 Hartmann, Wilfried, and Kenneth Pennington, eds. The History of Medieval Canon Law in the Classical Period, 1140–123: From Gratian to the Decretals of Pope Gregory IX. Washington, DC: The Catholic University of America Press, 2008. Helmholz, Richard H. The Spirit of Classical Canon Law. Athens: University of Georgia Press, 1996. Hill, Mark, and Richard H. Helmholz, eds. Great Christian Jurists in English History. Cambridge / New York: Cambridge University Press, 2017. Jemolo, Arturo Carlo. Chiesa e Stato in Italia negli ultimi cento anni. Torino: Einaudi, 1971. English translation (incomplete): Church and State in Italy 1850–1950. Oxford: Basil Blackwell, 1960. La Pira, Giorgio. Principi contro i totalitarismi e rifondazione costituzionale. Edited by Ugo De Siervo. Florence: Firenze University Press, 2019. Lombardía, Pedro. Lecciones de derecho canónico. Introducción. Derecho constitucional. Parte general. Madrid: Tecnos, 1984. Miele, Manlio, ed. Gli insegnamenti del diritto canonico e del diritto ecclesiastico dopo l’Unità d’Italia. Bologna: Il Mulino, 2015. 52 Padoa Schioppa, Antonio. A History of Law in Europe: From the Early Middle Ages to the Twentieth Century. Cambridge: Cambridge University Press, 2017. Original Italian edition: Storia del diritto in Europa. Dal medioevo all’età contemporanea. Bologna: Il Mulino, 2007. Pennington, Kenneth. “Learned Law, Droit Savant, Gelehrtes Recht: The Tyranny of a Concept.” Rivista internazionale di diritto comune 5 (1994): 197–209. Pertici, Roberto. Chiesa e Stato in Italia. Dalla Grande Guerra al nuovo Concordato (1914–1984). Bologna: Il Mulino, 2009. Pollard, John. Catholicism in Modern Italy: Religion, Society and Politics since 1861. London / New York: Routledge, 2008. Reynolds, Philip L., ed. Great Christian Legal Thinkers in the First Millennium. Cambridge / New York: Cambridge University Press, 2019. Ruffini, Francesco. La libertà religiosa. Storia dell’idea. Torino: Bocca, 1901; reprint (with introduction by Arturo Carlo Jemolo and afterword by Francesco Margiotta Broglio), Milano: Feltrinelli, 1992. English translation: Religious Liberty. Translated by J. Parker Heyes, with a preface by J.B. Bury. London: Williams & Norgate / New York: G.P. Putnam’s Sons, 1912. Schmoeckel, Mathias. Das Recht der Reformation. Tübingen: Mohr Siebeck, 2014. 53 Schmoeckel, Mathias, and John Witte, Jr., eds., Great Christian Jurists in German History. Tübingen: Mohr Siebeck, 2020 (forthcoming). Seton-Watson, Christopher. Italy from Liberalism to Fascism, 1870–1925. London: Methuen / New York: Barnes & Noble, 1967. Speciale, Giuseppe. Giudici e razza nell’Italia fascista. Torino: Giappichelli, 2007. Stein, Peter. Roman Law in European History. Cambridge: Cambridge University Press, 1999. Tedeschi, Mario, ed. Il principio di laicità nello Stato democratico. Soveria Mannelli: Rubbettino, 1996. Traniello, Francesco. Religione cattolica e Stato nazionale. Dal Risorgimento al secondo dopoguerra. Bologna: Il Mulino, 2007. Wieacker, Franz. A History of Private Law in Europe with Particular Reference to Germany. Oxford: Clarendon Press, 1995. Original German edition: Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung. Göttingen: Vandenhoeck und Ruprecht, 1967. Witte, John, Jr. Law and Protestantism: The Legal Teaching of the Lutheran Reformation. Cambridge: Cambridge University Press, 2002. 54 1 Croce, at 289 and 297. Lombardía, 53. 3 Hill and Helmholz; Domingo and Martínez-Torrón; Descamps and Domingo; Dreisbach and Hall. See also Schmoeckel and Witte. 4 Reynolds. 5 Domingo and Witte. 6 Bellomo, The Common Legal Past 34–54. 7 See Benson and Constable; Berman, Law and Revolution, Vol. 1. 8 Birocchi, et al.; Cappellini, et al. Many Italian Jurists are included in Domingo, Juristas Universales. A fundamental reference work is Dizionario biografico degli Italiani. The series is not yet completed; ninety-five volumes have been published until 2019; the entries are available on-line: www.treccani.it/biografico/index.html# 9 Dauchy, et al. 10 For further reading see Bellomo, The Common Legal Past; Cortese; Brundage; Helmholz, The Spirit of Classical Canon Law; Stein; Ascheri; Padoa Schioppa; Hartmann and Pennington, History of Medieval Canon Law; Hartmann and Pennington, History of Courts and Procedure. 11 Bellomo, The Common Legal Past; Pennington, “Learned Law.” 12 Condorelli, et al. 13 L’unità giuridica dell’Europa is the title that Piero Fiorelli, editor of the volume, gave to a collection of essays by Francesco Calasso. This unity arose from the foundations of the medieval ius commune: see Calasso, Medio Evo del diritto. 14 Wieacker; Coing, Europäisches Privatrecht, Vol. 1; Birocchi, Alla ricerca dell’ordine; Caravale; Grossi, History of European Law, 39–137; Fantappiè, 163–230. 15 A classic and still-useful book is Ruffini. See also Witte, Law and Protestantism; Berman, Law and Revolution, Vol. 2; Schmoeckel. 16 On these developments, see the books by Ghisalberti. 17 Jemolo, Chiesa e Stato in Italia negli ultimi cento anni, remains a magnificent overview of these developments. Further reading: Binchy; Seton-Watson; Finocchiaro; Traniello; Pollard; Pertici; Cardia. 18 For an overview, see Grossi, Scienza giuridica italiana, and the chapters included in Cappellini, et al. (above, note 8). 19 Coing, Europäisches Privatrecht, Vol. 2. 20 Miele. 21 Aquarone. 22 Speciale; Gentile; and the contributions collected in Il Diritto Ecclesiastico 129.1-2 (2018). 23 De Siervo, “Giorgio La Pira,” and La Pira, Principi contro i totalitarismi e rifondazione costituzionale. 24 Tedeschi; Dalla Torre. 25 Ferrari, “State and Church in Italy”; Ferrari and Ferrari, “Religion and the Secular State.” 26 Cf. Benedict XVI. See also Cartabia and Simoncini. The term had already been used by John Paul II, who had repeatedly spoken of the “appropriate secular character” of the political structures (giusta laicità). 27 See Domingo, God and the Secular Legal System; Domingo and Witte, Christianity and Global Law. 2 28 Cf. Treaty establishing a Constitution for Europe as signed in Rome on October 29, 2004, Preamble: “Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.” 29 55

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