The Name in the Law. a Person's Name in Italian Civil Law from the Civil Code of 1865 to the Constitution of 1947
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The name in the law. A person’s name in Italian Civil Law from the Civil Code of 1865 to the Constitution of 1947 Giovanni MARTINI 0. Introduction The definition of the concept of ‘law’ has always been one of the central problems of academics and philosophers. The difficulty of the problem comes from the need to identify the elements which characterise the legal rules and distinguish them from other sets of rules (moral rules and customs in particular) even if they co-exist and overlap. In the complicated development of this research, the distinctive and peculiar nature of the law has sometimes been identified in a par- ticular structure of its rules and sometimes in their content or in the type of language used, the subject covered by the rules, etc. This is not the place to undertake an analysis of these different types of approaches to the problem, also because it would be impossible to give a complete presentation of the various theories. For our pur- poses, it is important to underline that, from the variety of the solutions shown, one point appears to be clear: the deep and unbreakable link between the law and society. The law undeniably “governs the social actions of people or the actions which man takes when he is living in a society” (Bobbio 1957, 771). Ubi societas ibi jus, says an old legal maxim; in other words: the vital element in any social organisations is comprised of the rules which govern community life. But the link between law and society is often so deep that the statement remains true even and when it is reversed: ubi jus ibi societas. In other words, “the proprium of law is to regulate the relationship between individuals [ … ] its topic is intersubjectivity” (Bobbio 1957, 771). Morality itself is referred to by some as allowing people to act or not act as they see fit and that in so doing they are answerable not only to the courts but also to their conscience; the law, on the other hand, lays down a duty towards others and which particularly relates to relationships with others. Onoma 45 (2010), 163-190. doi: 10.2143/ONO.45.0.2182822. © Onoma. All rights reserved. 995191_ONOMA_45_09.indd5191_ONOMA_45_09.indd 163163 229/11/129/11/12 114:494:49 164 GIOVANNI MARTINI However, if as we have said, the law is society (or is also soci- ety), and even if the law is relational (or is also relational), then the links between law and a person’s name are deeper than commonly believed. In fact, it is not possible to imagine a society or a relation- ship which can disregard the existence of an instrument which allows people to identify themselves and, reciprocally, to know those with whom they are entering into a relationship: as stated by Ricoeur1, before for a charge can be brought, it is necessary for the individual to be identifiable. Therefore, this instrument, in the majority of cases, is personal name. In other words, the name is not only one of the many aspects of life in which the law is involved; it is much more than this: it is a logical and factual element which is vital for the very existence of social relationships and therefore, at the same time, also for the law. The examination of the historical development of law pertaining to names confirms this thesis. Starting from this interpretation I will examine the development of Italian law in respect of names during the period going from the proclamation of Italian unification until the Republican Constitution of 1947. 1. The Kingdom of Italy “In the middle of the most serious preoccupations of politics, where it has been possible to momentarily stay silent on working on admin- istrative legislation, the work on civil legislation has not let up. When a nation, gathers its scattered membership, and reconstitutes a unified and independent state, its first need is to express its new existence, setting it down on paper, and confirming the unit or the state through the unity of the law […] The interests do not clash with civil unification; politics claims it, a wish grants the request, justice follows, which is always the same for all countries, it is a badly behaved legislator who contradicting the nature of your pronounce- ments interprets them differently in the different provinces of the same state”. With these high-sounding words the Minister of Grace and Justice G. B. Cassinis presented to Parliament his draft revision of the 1 In particular refer to P. Ricoeur, Sur l’individu, Seuil, Paris 1987. Consistently the French author relied on the notion of the proper name to argue for the wisdom of such concepts as “promise”, “responsibility”, “obligation”, “contract”, “accusa- tion”, etc., as being concepts which are fundamental for the language of the law. 995191_ONOMA_45_09.indd5191_ONOMA_45_09.indd 164164 229/11/129/11/12 114:494:49 THE NAME IN THE LAW 165 so-called ‘Albertino’ Civil Code which was to become the new Civil Code for the United Italy. The passage from the political unification of Italy to the unification of civil law came about in a relatively brief space of time, that is to say, from 1859 to 1865. The first proposal of the unitary legislator was that of a simple extension of the new terri- tories to be covered by the Albertino Civil Code of 1837 (i. e. the Cassinis draft of 1860). Once the decision had been taken to produce a radically new civil law, various draft codes were prepared; a second Cassinis draft in 1861, the Biglietti draft of 1862 and finally the Pisanelli draft of 1863. In order to hasten the development of the draft, Parliament, through law no. 2215 dated 2 April 1865, authorized the Government to implement, perfect and publish the new code, which was promilgated by Royal Decree no. 2358 dated 25 June 1965. Jurists were no less determined than politicians. This was expressed by E. Pacifici Mazzoni in his Istituzioni di diritto civile italiano: “Completed, if not perfect, Italy, has all National business being concentrated in the law and in the cry to arms followed by the call to work and to study. A field of business so vast and so fertile, is offered by the new Legislation. This is even more reason to spur us on to quickly start this work; the magnitude of this Legislation, the need and usefulness of its interpretation e.g. the needs of everyday life and the Love of one’s country, which as great as it was, has fallen this low” (Pacifici Mazzoni 1867, 7). In effect, prior to the approval of the unitary Civil Code, Italian leg- islation was split into different systems. Napoleon issued the new French Civil Code on 30 venteuse Year XII (that is 12 March 1804). This was subsequently extended to all occupied countries (decree dated 16 January 1806, issued by Bonaparte as emperor of France and King of Italy). As far as Italy is concerned, the Napoleonic code became law in Piemonte from 20 March 1804, in the Duchy of Parma from 23 September 1805, in Liguria from 23 September 1805, in the Duchy of Modena on 30 January 1806, in Lombardo-Veneto from 1 April 1806, in the Duchy of Lucca and Piombino from 21 April 1907 1806, in Piacenza and Guastalla from 12 August 1806 and in the Kingdom of Naples from 1 January 1812. With the fall of Napoleon and the restoration of the “legitimate” dynasty, the laws which the French Code had supplanted were restored. In this way for example, the Kingdom of Lombardo-Veneto regained the Austrian general 995191_ONOMA_45_09.indd5191_ONOMA_45_09.indd 165165 229/11/129/11/12 114:494:49 166 GIOVANNI MARTINI Code; in the Kingdom of Piemonte, the return to power of Vittorio Emanuele I coincided with the return of the Regal Constitutions of 1770 and subsequently, Carlo Alberto of Savoy promulgated through an edict dated 20 June 1837, the civil code for the States of his Maj- esty the King of Sardinia; the return of the House of Este to Modena brought the reintroduction of the Laws and Ducal Constitutions of 1771; in Tuscany, Ferdinando III of Lorena revived the civil legisla- tion of the Grand Duchy, etc, etc. Once the Italian territory was reunited under a single sovereign authority (proclamation of the King of Italy under the Savoy Dynasty of Carignano dated 17 March 1861) and with the affirmation, both cultural and political, of the principle of nationality, it appeared vital to reunite all the subjects of the kingdom under a single law and put an end of the system of different legal systems. The new civil code was promulgated at Florence, the new Capital of the Kingdom, by Royal Decree no. 2358 dated 25 June 1875, with the provisions that this was come into force in all the provinces of the kingdom with effect from 1 January 1866. 2. Personal names in the Italian Civil Code of 1865 As stated, a name constitutes an essential element of both society and law for two reasons. Firstly, it is the fundamental element of personal identity; in this regard it represents the number or the code which contains and expresses the cultural identity of the persons who bear it. Second, the name constitutes a tool for the cataloguing of the legal subjects of the law; in other words it is a sort of label which is applied to an individual which makes it possible to distinguish one subject from another and therefore allows the State to collect and catalogue the circumstances of each one.