The Name in the Law. a Person's Name in Italian Civil Law from the Civil Code of 1865 to the Constitution of 1947

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 particular 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 purposes, 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.

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However, if as we have said, the law is society (or is also society), 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 relationship 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 administrative 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.

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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 legislation 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

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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 legislation 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. The Civil Code of 1865 does not contemplate names in the first of the two functions just defined, in other words the right to a personality. The first book “delle persone”2 distinguishes between the “physical” and “moral” (or “legal”) person, but to neither of the two categories does it recognize or attribute a subjective right to one’s own name. Jurisprudence almost unanimously defines civil rights as those of a “purely private and individual nature concerning the family, prop-

2 “On persons”.

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erty and which are governed by the Civil Code […] They are differentiated from political rights which are the option or prerogative to participate more or less directly in the exercise of public authority in the triple orders of the legislative, judiciary and executive” (Pacifici Mazzoni 1867, 121). As an example of civil right the juruisprudence commonly includes the right of succession, the right to give or receive by will, to make contracts, to marry, etc. An example of political rights includes the right to be elected, to be a Member of Parliament or other elected assembly, to be a judge, etc. But in none of the two categories is a presumed “right to a name” mentioned. Some com- mentators have theorised that alongside civil and political rights there is a third category of rights—so-called “public rights”—which include the rights held by all, foreigners included, regardless of sex or age, whether adult or child. In this latter, perhaps it would have been better to include the subjective right to one’s own name, whereas in fact in the list of examples of this tertium genus showing the right of asso- ciation, freedom of conscience, freedom to think, freedom to communicates one’s own ideas including through the press and other channels but the right to one’s name is not mentioned. The code of 1865 opens with the provisions on the publication, interpretation and application of the laws in general, whose articles are numbered from 1 to 12; successively in book I moves to “Delle persone” (articles 1 to 405. The title of the book is Citizenship and the enjoyment of civil rights (articles 1 to 15). It is worth stressing that the persons called ‘subjects’ by the Albertino code are now referred to as “citizens” (article 1), with all the consequences which this different qualification entails. Paragraph II is entitled Civil Domicile and Resi- dence (articles from 16 to 19); paragraph III (articles 20 to 47) Contracts; paragraph IV (articles 48 to 52) Relationships and affinity; paragraph V (articles 53 to 158) Marriage; paragraph VI (articles 159 to 201) Filiation; paragraph VII (articles 202 to 219) Adoption; paragraph VIII (articles 220 to 239) Guardianship; paragraph IX (articles 240 to 322) Minors, guardian and coming of age; paragraph X (articles 323 to 342) Adults, prohibition and incapacity; paragraph XI (articles 343 to 349) Guardian registers; and finally paragraphr XII (articles 350 to 405) entitled Registrar documents. However, as stated, in the entire discussion nothing is mentioned about the right to a personal identity. Names as instrument of public order represent quite a different problem, also because the attention paid by legislators and jurists to

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this different function notably has older roots. We can reasonably affirm that this attention started to acquire weight and official status at the start of the modern era: individuals acquired the dignity of ‘subjects’, their relationship with the state was organised through a broad and regulated bureaucratic structure, economic and commercial relationships were intensified and all this gave rise to a need for certainty in the identification of the individual and at legally important times in their personal circumstances such as birth, death, marriage, parenthood, succession, the buying and selling of property, etc. As stated by Ludovico Gomez in 1557: “Magna […] est benevolentia magni principis, quando subditum agnoscit, et nominat proprio nomine” (Gomez 1557, 273). But this “magna benevolentia” was not disinterested: matching individuals with a name represented a necessary instrument for their control and to attribute visibility and enforce- ability erga omnes to the wide networks of private contracts which form the connective tissue of the economy: contracting parties should be properly identified in order to protect third party interests and, to this end “formalem nominis expressionem requiri, non aequipollens” (Rebuffi 1581, 149). In order to demonstrate the importance the 1865 Code attributes to the name as an instrument of public control, that it to attribute with certainty events, behaviour, etc to given individuals and not to others, it will be sufficient to quote from a few articles. The twelfth paragraph of the first book deals with the Civil Registration Documents. Article 352 of this paragraph states that all civil registration documents shall include the comune, street address, year, day and time issued and also the first name, surname, age, profession and domicile or residence of the person specified. In particular, the legislator wanted to be sure that the most important events of a person’s life were recorded. Article 374 states: “L’atto di nascita deve enunciare il comune, la casa, il giorno e l’ora della nascita, il sesso del neonato e il nome che gli è stato dato. Se il dichiarante non dà un nome al neonate, vi supplirà l’uffiziale dello stato civile”3. Moreover (art. 378) “Quando un fanciullo sia stato consegnato ad un pubblico ospizio [ … ] l’amministrazione deve pure indicare all’uffiziale dello stato civile il nome e cognome dato al

3 “The birth certificate must enounce the commune, house, day and time of the birth, the sex of the baby, and the name it has been given. If the deponent does not give a name to the baby, one shall be provided by the registrar official”.

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fanciullo e il numero d’ordine in cui sarà iscritto”4. As far as marriage is concerned, article 383 states that “l’atto di matrimonio deve indicare il nome e cognome, l’età e la professione, il luogo della nascita, il domicilio o la residenza degli sposi. Il nome e cognome, il domicilio o la residenza dei loro genitori”5. Finally, as to death, article 287 states that “l’atto di morte enuncerà il luogo, il giorno e l’ora della morte, il nome e cognome, l’età, la professione e il domicilio o la residenza del defunto; il nome e cognome del coniuge superstite, se la persona defunta era congiunta in matrimonio, o del predefunto coniuge, se era vedova; il nome e cognome, l’età, la professione e il domicilio dei dichiaranti”6 However, as stated above, the name-label is also vital for holding a given person responsible for the outcome of the manifestation of his or her will (for example in the case of a contract). Under law, the means by which a person recognises that a deed has been made by him or her, along with the expression of his or her will or acknowledgement of its content, consists of placing his or her name written in that person’s own hand (signature) at the bottom of the deed. As has been rightly emphasised by jurisprudence “the legal choice obviously embraces the general principle of the appropriateness of the statements by the parties by means of a signature […] in a private deed this signifies the appropriateness of the content by the signatory and, on the contrary, where deemed necessary the documentation itself, regardless of the person who drew it up” (Muroni 2005, 126). In other words, the placing of the person’s signature (surname and first name) constitutes “an indispensable element for the document, drawn up in the exercise of a private individual’s free will, to obtain legal

4 “When a young girl or boy has been delivered at a public hospital […] the author- ities shall inform the registrar’s office of its first name, surname and the order number under which it as recorded”. 5 “The marriage certificate should indicate the first name and surname, the age and profession, place of birth and domicile or residence of the spouses. The surname and first name and domicile or residence of their parents”. 6 “The death certificate shall enounce the place, day and time of death, the first name, surname, age and profession and domicile or residence of the deceased; the first name and surname of the surviving spouse in the event of the deceased having been married or of the deceased spouse if the person was a widow or widower; the first name and surname, age, profession and domicile of the deponents”.

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status in respect of subsequent decisions, both legal and substantial, that this status implies […] to the extent that on the one hand it has a so-called indicative function because it serves to identify the author of the document whilst, on the other hand, the signatory assumes the ownership of what of what is contained in the document as well as of the related legal consequences [ … ] It therefore seems to be possible to compare the dual functions provided by signing with the ineligibil- ity of acceptable alternatives to this, given the consequences which this presupposes, including so-called ‘allographic’ deeds, i.e. prepared by others or made through the use of mechanical instruments” (Mur- oni 2005, 129). All this is clearly stated, by means of example, under article 1316 which states: “L’atto che per incompetenza od incapacità dell’uffiziale o per difetto di forma non ha forza di atto pubblico, vale come scrittura private, quando sia stato sottoscritto dalle parti”7. No less explicit is article 1320 (“La scrittura privata [ … ] ha la stessa fede dell’atto pubblico fra quelli che l’hanno sottoscritta, e fra I loro eredi ed aventi causa”)8 and article 1321 (“ quegli contro cui si produce un atto privato, è tenuto a riconoscere o negare formalmernte il proprio carat- tere o la propria sottoscrizione”)9.

3. Towards the reform of the Civil Code The period between the coming into force of the unitary civil code and the first World War was rich in parliamentary debates and discussions, particularly focusing on the laws pertaining to the family, but discussions focused, in the best of cases, on the approval of certain reform projects by the Chamber of Deputies, obviously more attentive to the requirements of renewal but which were immediately blocked by the Senate.

7 “Any deed which, owing to the incompetence or incapacity of the official or owing to any legal flaw it does not have the force of a public deed, it shall be deemed a private deed where it has been signed by the parties”. 8 “The private deed […] has the same weight as a public deed among those who signed it and among their heirs and claimants”. 9 “When a private deed is produced against any person, that person shall be bound to either formally acknowledge or refute his own handwriting or his own signature”.

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“This is a further confirmation of the substantial imbalance which exists, as well as of the more or less ephemeral nature of parliamentary majorities, between the various political forces (innovative—or more “open”—and conservative, secular and catholic, but with the latter as yet not being officially present), a balance which cannot but lead, especially when it relates to modifying laws which up to now have been left to the settled—and protected—structure of the code, to half a century without reforms” (Bonini 1996, 25). However, the end of the nineteenth century heralded a period of profound social change which was almost entirely connected to industrial development. In urban centres there was a concentration of individuals who were unrelated to each other and were uprooted from the cultural and social contest in which they had been recognised and “identified” until then. In these large groups of individuals who found themselves outside their normal environment, the traditional elements of identification vanished or were annulled. It was no longer possible for people to identify themselves by saying that they were from such and such a farm or hamlet because everyone worked in the same place; no-one could identify themselves by saying that they were the son of Tom or Dick or Harry, because Tom or Dick or Harry had, in most cases, stayed on the farm and no-one in the city knew them, no-one had ever heard them speak; no-one could identify them on the basis of the work they did (the pruner, the grafter, the shepherd, the hind, etc.,) because everyone did more or less the same work; no-one could be recognised on the basis of the clothes they wore because everyone had the same outfit and everyone adjusted to the same rhythm of work. In pre-industrial and agricultural society, everyone’s life was entirely under the gaze of the community at large, everyone knew and recognised each other: the patriarchal structure of the family, the economic relationships which were then prevalent, the differentiated hab- itat of life and work, all these elements taken together did not contrib- ute to any sense of urgency about the need to have a more accurate identification. But industrialisation, with the concentration of an ever greater number of people in an ever more limited space, both in the family and at work, with the multiplication of undesired personal con- tacts and, eventually, the increasing anonymity of the individual, com- bined to instil a need in each individual to have an identity and a

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concrete symbol of their own personal history. With the duty to have a name in order for it to be possible for one to be catalogued by the state came the right to have a name, as a sign of one’s own identity, family history and sense of cultural belonging. In conclusion, in addi- tion to the structural transformations to the economy identified as the “industrial revolution” there was also the so-called social question, the agricultural crisis and therefore the need for new legislative schemes able to bring order to this rapid change through a new discipline for commercial relationships, employment relationships and, last but not least, through a rethinking of the rights of the individual personality.

4. The Civil Code of 1941 It is clear, then, that reform of the civil legislation in the Kingdom, which led to the approval of the Civil Code currently in force, was triggered by the profound economic, social and political transformations of Italian society. In this context, the circumstances linked to the first World War and the colonial wars represented the occasion for the first modifications of the text of 1865: Law 671 dated 22 May 1915 (Conferral on the King’s government of extraordinary powers in the case of war) authorised the government to modify the law in all cases in which this “was required for the defence of the Realm, the protection of public order and owing to urgent or extraordinary needs of the national economy”. And even after the end of the war and the return to Parliament of its constitutional prerogatives in the legislative field the work of reform continued. With Law 2814 dated 30 December 1923, Parliament conferred a proxy on the Government to make appropriate amendments to the civil code and to publish new codes on civil and commercial procedures and those pertaining to the merchant navy at the time of legislative unification with the new provinces. 1938 saw the publication of the new first book of the Civil Code: “Vittorio Emanuele III by the grace of God and by the will of the Nation King of Italy, Emperor of Ethiopia. Pursuant to laws 2814 dated 30 December 1923 and 2260 dated 24 December 1925, when delegate to the King’s Government the power to make modifications to and amendments to the Civil Code and to separately publish individual books or chapters of the said amended Code; pursuant to the

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opening of the parliamentary Commission pursuant to the provisions of article 2 of Law 2814 dated 30 December and article 3 of Law 2260 dated 24 December 1925; Heard by the Council of Ministers; Upon the proposal of our Attorney General, Secretary of State for Justice; We have decreed and do hereby decree: Art. 1 - the text of the First Book of the Civil Code (Persons) and the Provisions on the application of the laws in general, as shown above, are approved and shall come into force on 1 July 1939- XVII.” In new First Book regulations are provided on the subjective right to a name. Article 6 establishes that: “Ogni persona ha diritto al nome che le è per legge attribuito. Nel nome si comprendono il prenome e il cognome. Non sono ammessi cambiamenti, aggiunte o rettifiche al nome, se non nei casi e con le formalità dalle leggi indicati”10 Article 7 states: “La persona alla quale si contesti il diritto all’uso del proprio nome o che possa risentire pregiudizio dall’uso che altri indebitamente ne faccia, può chiedere giudizialmente la cessazione del fatto lesivo, salvo il risarcimento dei danni”11. Article 8 states: “Nel caso previsto dall’articolo precedente, l’azione può essere promossa anche da chi, pur non portando il nome contes- tato o indebitamente usato, abbia alla tutela del nome un interesse fondato su ragioni familiari degne d’essere protette”12. And, finally, article 9 extend the legal protection to the pseudonym by stating that “lo pseudonimo, usato da una persona in modo che

10 “Any person has the right to the name which he or she has been legally given. The name includes both the surname and first names. No changes, additions or cor- rections of names are allowed unless in cases and pursuant to the formalities which are stipulated by law”. 11 “Any person, to whom the right to use his own name is disputed or who may feel prejudice from the use that other any unduly makes of it, may legally ask to cease this injurious behaviour, without prejudice to any claim for damages”. 12 “In the case referred to in the previous article, the action can also be taken by any person who, whilst not having the name which is contested or being improperly used, has an interest in protecting it based for family reasons”.

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abbia acquistato l’importanza del nome, può essere tutelato ai sensi dell’art. 7”13. It is obvious that through the articles which have just been quoted, the law attributed to the name (meaning the surname and first names) a new dimension: that of subjective law, in other words the basic element of personality. In this way the law acknowledges this “need for identity” linked to the changes in the economic, social and cultural reality of which we spoke earlier. The name, stably inserted among the most relevant aspects of the personality, comes to express “a con- ceptual unit of all the intellectual, social; and moral aspects, a symbol of the entire and complex personality of the person who bears it” (Dogliotti 1999, 165). In this way the name is no longer only used as an “administrative label”, a function destined to progressively lose importance, giving way to other, more efficient means of control and classification; it starts to act as a code for individual identity and, at the same time, as far as its more significant part is concerned, as a means of family identity14, in other words—usually—of the family group to which he or she belongs or originates (filiation) or from the moment subsequent to birth (recognition of the natural child, adoption). (Perlingieri 1993, 726). In order to understand better the importance of this change, it is useful to emphasise what is meant by “subjective law” in legal terms. The fundamental aim of private law is to regulate and protect interests pertaining to “life and property” to the extent and within the limits which are deemed to be legally important. Predominantly, these interests refer to property but, in some fields, such as family law for example, or in the field of personality rights, ethical or non-property rights are also be taken into consideration. Therefore, “the greatest protection is afforded by law, when any law gives a person, for the fulfilment of his or her own interests, a subjective right […] A subjective right is manifested as the synthesis of a position of strength […] The protection granted by subjective right is potentially without limit, with the exception of the duty to it not to be abused” (Gazzoni 1998, 57).

13 “the pseudonym used by a person in such a way that it has acquired the importance of the name, can be protected pursuant to the provisions of article 7”. 14 On this point see G. Martini, Name and the Law, in Proceedings of the 19th International Congress of Onomastic Sciences, Aberdeen 1998, p. 206.

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In other words “there should be no doubt that the subjective right still represents the prototype of the active and advantageous situations. Or better still rather the prototype, where it can be shown that this (even in its various types) falls outside the framework of these situations, still constitutes the sole situation of advantage ” (Bigliazzi Geri - Breccia - Busnelli - Natoli 1987, 283). By recognising ‘in any person” the subjective right to a name, the new first book of the Italian Civil code intended to protect the intimate relationship between the person and the proper name in the most complete manner. The first paragraph of article 6 lays down the essential elements of the right to a name for individuals, making reference to the individual choice (the first name) and the family identity (the surname) and to law, but without providing any definition of what is meant by “name”, limiting itself to indicating its “composition”. We may nevertheless easily affirm that, according to the law and jurisprudence, it is a means of identification made up of signs or verbal emblems” (Breccia, 1988, 374). This is not the place for a minute interpretative analysis of article 6 on the basis of the various systematic, historical and teleological criteria, etc; however, it is worth emphasising, in outline only, some essential points. The letter of the article speaking of “any person” recognises the existence of the right to a name not only for citizens but also any individual, without distinction or discrimination. The article speaks of a right to a name but not of a right over the name. This means that the proper name is not considered as a “thing” an object over which the subject has (or does not have) rights, but as a dimension of the subject himself or herself, an essential component of that person’s identity. In the same way, the law speaks of a right to life and not the right over life, the right to health but not the right over health, etc. In other words the name (like life, health, freedom and other values) does not represent an external asset over which rights may or may not be exercised, by rather constitutes one of the essential and constituent components of the human being which it is not possible to do without. Consequently, it is an essential component of any possible. First names and surnames are “co-essential and indissociable” elements; where they are disjointed they have no identifying validity” (Bigliazzi Geri - Breccia - Busnelli - Natoli 1987, 134). If a distinction

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is possible to make this only regards the context to which the identification refers: “Everyone therefore has protection both for the defence of the name (first name and surname) which is an expression of the person’s own personality, as well as to defend his or her surname which is a component of a family group; in the first hypothesis the right is individual, personal and exclusive; in the second hypothesis the right is not individual, it is not an exclusive instrument to protect the individual and his personality; this is more based on the requirement to protect the person himself or herself. But those components of the family group and which belongs to all the components of the group” (Perlingieri 1993, 726). Once it has been clarified (art. 6) that a name constitutes a person- alised and protectable right erga omnes of any person, article 7 goes on to describe the instruments of defence which are at the disposal of the holder of this right against anyone who contests or disturbs the peaceful use or otherwise illicitly uses it. As we have stated, the right to a name is intimately connected with personal identity, understood as being the right of a person to “be represented in his or her social life with his own true identity, as well as in the reality of life [ … ] known or which could be recognised with the explanation of the criteria of the normal diligence and objective good; and in other words not to have externally altered, distorted, obfuscated or contested his own intellectual, political, social, religious ideological and professional property, etc which shall be expressed […] in the social environment” (Court of Appeal, ruling n. 3796 dated 22/06/1985). It follows, that any attack on the right to a name involves an attack on personal identity and, on the other hand, that the attack on the right to a personal identity goes, more often than not, through an attack on the right to a name. It is debatable whether the list of cases of attacks on the name shown by the article shall be deemed definitive or merely illustrative. I would hope the latter solution to be preferable in that, through the systematic interpretation of the entire legislation in terms of name, you obtain the possibility for the claimant to also take action to obtain a check on his or her proper name, “which presupposes the existence of situations liable to make the identification or the person

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precarious or which involve alterations or irregularities to the structure of the name” (Breccia 1988, 449), or to obtain the correction of any errors which relate to it. In respect of prejudicial behaviour, purely for the purposes of providing an example, I can quote the case whereby a name is used by someone who does not have the right to do so, the offensive use of another person’s name (in other words, use of someone else’s name in an context which is offensive or distorts the social and cultural identity of the legitimate holder), use of someone else’s name for a financial benefit (for example for describing a commercial product), etc. As far as the form of legal protection is concerned pursuant to the provisions of article 7, it is clear: the owner of a “usurped” name can ask the Judge to order the cessation of the behaviour which is deemed to be prejudicial and order the usurper to pay financial damages. A particular form of protection is that under the second paragraph or the article which is made through the ordering or the publication of a sentence in one or more newspapers. Article 8 extends the legitimacy to promote the actions pursuant to the provisions of article 7 to persons other that the bearer of the name whose interest shall be based on family reasons worthy of being protected. There is therefore not a precise link of kinship of affinity fixed as, on the other hand, occurs for other aspects of the personality. This extension of the right of protection is an element of notable interest in that it confirms what we have already observed when speaking of article 6 in relation to the peculiarity of the right to the name. This therefore confirms that the name we have is not an asset over which we have rights, as we would have rights over a house or a car, but represents an essential part of ourselves, such as our character, religious faith, blood group, culture, etc. In fact, whereas the right to protect active situations concerning property usually falls to the owner, this is not the case for one’s name, which is specifically, by its very nature,. strictly connected with the moral and cultural personality of the person who bears it. To give a simple example: if I have the right of ownership over a house, I can only protect this right in the event of any aggression (it is also obvious that my two sons have a significant interest in my defence of this right) and I cannot transfer this right over the house fully to each one of my two sons, or to both, but only half to each one. Moreover, if I leave my house (fully or partly) to my heirs, nothing remains of it for any of my other non-family heirs. However none of the above applies to names. My right to my name

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can also be protected by my two sons and will be fully transferred to both my sons. Not only: it belongs also to all the other members of my family as a moral legacy and who are not only my heirs but also to those who have a surname which is different to mine. Article 9 is particularly interesting in that it concerns the legal protection of pseudonyms. The article does not give a definition of “pseudonym” but jurisprudence defines it as a “verbal expression” (within the limits allowed by public order and common decency) which is a particular means of identification for a person with reference to a particular sector of his or her activity” (Cian - Trabucchi 1997, 208). Etymologically, the word means “false name” but in law it is necessary to distinguish both hypotheses: the scope and consequence of a false name is that of concealing the identity and replacing it with a “false” one which seeks to pass as true. The pseudonym, on the other hand, has the function, like the name, of identifying the person to whom it is attributed albeit that this is limited to a given scope (territorial, cultural, artistic, professional, etc.), with the true identity of the person being momentarily “reserved” but without any attempt to replace it. In fact, a pseudonym usually co-exists with the real name and, together with this, contributes to identifying the moral personality of the bearer. A false name, on the other contary, is used to hide the real legal name and to feign one which is different. From this it tran- spires that the legal protection of the pseudonym presupposes one of the following two cases: “that in using a name other that the legal name, this is done without any intent to hide the latter but only to better highlight the specific activity (here we think of movie actors who in relation to the role they are interpreting wish to give exotic resonance to the name which appears in the credits. Or a pseudonym may be used to avoid any fastidious or even damaging interference between spheres of activity which one may wish to keep secret (in this sense the pseudonym responds to the same legitimate “non use” of the name, or anonymity. An example of this is intellectual creation which, through the express wish of this author, “does not wish to identify with any degree of certainly the origin of the work” (Breccia 1988, 482). Once the boundary has been clarified in respect of the illegal falsifica- tion of the name and use of the pseudonym, we can see that the law gives a broad option of choice in respect of the latter, with the

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exception of the limits derived from public order and common decency and those derived from the obligation to respect the legal names of others (for example adopting as a pseudonym the real name of someone else can entitle the latter to request that this “improper” use be prohibited) and that the legal protection is granted to the pseudonym only where this has assumed an importance to the bearer as an expres- sive element of his or her personality, similar to that of the legal name. But article 9 is also important for a different reason: little in what we have stated above has referred to the fact that the new Code demonstrates that by now the name has assumed a dimension which is different from that of a simple “administrative label”. Therefore, article 9 is an exemplary confirmation of this. In fact, it is evident that a pseudonym does not have any use for the purpose of cataloguing citizens, but rather may act as an element of confusion in this regard, and yet the article extends to pseudonyms the same protection given to legal names. This demonstrates that one of the reasons, or rather the main reason why the law protects the name is quite different: its aim is to protect the personality of the citizen in it most intimate cultural and moral aspects. This is why even a freely chosen fantasy name is protected, and why this protection is only given on the condition that this fantasy name has assumed for the person in question, in respect of his or her cultural legacy and social relationships, “the importance of the name”. In other words, for the purpose of administrative certainty or public order it would be better to protect the legal name Vera von Lehndorff, but it has also been deemed consistent with public interest to afford protection also to the pseudonym Veruska, which is an essential element of the moral identify of Ms. von Lehndorff and irrevocably linked to her personality. By examining the articles, we therefore get full proof that the attention paid by the Code (First Book) to the question of names led, in the first half of the twentieth century, to important developments, particularly “with regard to the relevance of the conflicts between public and private interests involved in the governing of the different signs, or: between policy and the requirements of public security on the one hand, and guarantees of purely personal and family interests and the person’s ‘creative’ freedom on the other” (Breccia 1988, 502). This fact “leads the interpreter to place the discipline of the name at the cen- tre of the legal analysis in relation to the new categories of the right

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or rights of personality […] The name has a significance in the social and family life of the person not only as a sign of the legal identity but also that of a symbol of a personality which is contained in the distinctive sign (even more so when the individual is known in the world of business, the arts or sporting activities thereby also imprinting on his name a prominent ‘purpose’ and social relevance). This private, and yet at the same time ‘public’ aspect of the function and use of the name (an aspect which is, in itself, extraneous to the requirements of state control of the legal name) can be expressed on the basis of the private autonomy with the legitimate recourse to autonomous distinctive signs compares to the official designation of the physical person. This option is clearly legally recognised through the fact that the pseudonym is protected” (Breccia 1988, 502). The practical experience of the law in its everyday application confirms that legal protection is required, mainly from those whose would wish to prevent a person’s name from being associated with a moral and cultural image different from the one which it has per se; “The most significant conflicts are extended to those situations where the name is missing, altered, denied, contested or ‘appropri- ated’ by others. This more often relates to a context of use rather than usurpation’. Names shall not be associated with a moral image other than the one that the person has made from his or her own identity. It should aspire to creating a ‘truth’ consistent with the social mask; and to react to any use of the name which exacerbates this fracture. In a manner which is more or less direct and conscious, the discipline of the name has nevertheless been involved (both theoretically and in terms of applied law) in discussions on the limits of the civil law protection of the human being” (Breccia 1988, 503). Unfortunately, the attention which has been paid to the name by the law in this dimension as a symbol of the personal dignity and liberty has not always been used for the right purposes. Once the importance of the name is understood, the legislator has understood not only how to protect it but also how to “strike at it” in order to strike at the dignity and liberty of its holder. Therefore, particular laws concerning the name were adopted also for the purposes of discrimination and perse- cution of cultural and ethnic minorities. In the Official Gazette of the

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Kingdom n. 204 dated 01/09/1939 Royal Decree n. 1238 dated 09/07/1939 was published. The Ministry of Justice, in its introductory report to His Majesty the Emperor King stated: “Sire, in accordance with what has been set out under article 113 of Your Decree dated 24 April 1939 n. 640, setting out the provisions for the enacting of the first Book of the Civil Code, I have the honour to submit for Your sovereign approval, the new law on civil status based on the profound innovations which has been made to this first Book in respect of the legal institution regards a person’s status”. Naturally the rules contained in the Law on civil status particularly referred to the name as the means of legal identification, in other words in its public dimension, but in the context of decree 1238/39, the name also appears as a fundamental person’s right. In particular, I intend to refer to article 164, which states: “Nulla è innovato alle disposizioni del R. Decreto. Legge 10 gennaio 1926, n. 17, convertito nella Legge 24 maggio 1926, n. 898, del R. Decreto 7 aprile 1927, n. 494, e del R. Decreto 31 maggio 1929, n. 1367, che regolano la restituzione in forma italiana dei cognomi delle famiglie dei territori annessi, facendo altresì salve le disposizioni sulla disciplina dei cognomi degli appartenenti alla razza ebraica”15. With the regulations set out (and confirmed) under the above mentioned article 164, Italian law imposed on citizens which belonged to a linguistic minority the obligation to change the foreign form of the surname making it subscribe to the “Italian” form, with the obvious intention of cancelling or obfuscating a particular cultural identity or to “accredit it” to the dominant culture. In fact article 1 of Royal Decree n. 17, dated 10 January 1926 stated: “Le famiglie della provincia di Trento che portano un cognome originario italiano o latino tradotto in alter lingue o deformato con grafia straniera o con l’aggiunta di suffisso straniero, riassumeranno il cognome originario nelle forme originarie. Saranno egualmente ricondotti alla forma italiana i cognomi di origine toponomastica, derivanti da luoghi, i cui nomi erano stati tradotti in altra lingua, o deformati con grafia

15 “Nothing is innovate in respect of the provisions of Royal Decree-Law n. 17 dated 10 January 1926, enacted into law n. 898 on 24 May 1926, Royal Decree n. 494 dated 7 April 1927 and Royal Decree n. 1367 dated 31 May 1929, which regu- lates the Italian form of composition of the family surname of the annexed territo- ries; the provisions on the governing of the surnames of families belonging to the Jewish race are confirmed”.

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straniera, e altresì i predicati nobiliari tradotti o ridotti in forma straniera […] Chiunque, dopo la restituzione avvenuta, fa uso del cognome o del predicato nobiliare nella forma straniera, è punito con la multa da L. 500 a L. 5.000”16. The provisions of article 1 was extended by the subsequent article 2: “Anche all’infuori dei casi preveduti nel precedente articolo, possono essere ridotti in forma italiana con decreto del Prefetto I cognomi stranieri o di origine straniera, quando vi sia la richiesta dell’interessato”17. Finally, article 3 establishes that the provisions of articles 1 and 2 can be extended to other provinces of the Kingdom. Royal Decree n. 1238 dated 9 July 1939 (“Laws on Civil Status”), generalizes on these “normalizing” practices. In fact, article 72 provides that it is prohibited to give to a child of Italian citizenship any foreign name; it is prohibited to give foreign surnames also to children who are not recognized by the parents. As consequence of all this the Prefect of Trieste designated a commission of philologists and jurists who started their work on 16 May 1927 and, twenty months after, presented to the Prefect a list of about 2.000 names and surnames that should be ‘translated’ into Italian form. The Commission fixed very simple criteria for this ‘translation’: the rectification of spelling (Franceskin becomes France- schini; Vekjet becomes Vecchiet, Kosmatin becomes Cosmatin, Korda becomes Corda, Kotur becomes Cottur, etc); the abolition of suffixes –ich, -cich, -vich (Benedettich → Benedetti, Valencich → Valenti, Francovich → Franco, Urbancich → Urbani, Cossich → Cossi, etc.); the simple literal translation of the original surname (Vodopivec →

16 “Families from the province of Trento which have an ordinary Italian or Latin surname translated into another language or deformed by foreign spelling or ending up with a foreign suffix, shall revert back to the original surname in its original form. Surnames of a toponomastic original wich may be derived from places whose names have been translated into other language or deformed with foreign spelling, as well as noble predicates translated or shortened in a foreign format shall revert back to the Italian format [ … ] Whoever, after the restitution has occurred, uses surname or noble predicate in the foreign format shall be punished with a fine ranging from L. 500 to L. 5.000”. 17 “Including for those cases which fall outside the scope of the previous article, foreign surnames can take an Italian format where this is approved pursuant to the decree made by the Prefect and where this is requested by the person in question”.

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Bevilacqua18, Covacich → Fabbri19, Kaldenbrunner → Freddofonte20, Kleinschuster → Sutorini21, etc.). In some cases the same surname was ‘translated’ into different forms: so Covacich became Covacci, Cov- elli, Fabbri e Fabbroni22! In most cases, on the contrary, different surnames were ‘translated’ into the identical Italian form (Cosmaz, Kotzman, Cusma, Kozmac, Kozman, Kozmazh, Kozmec and Kuzma → Cosma23; Percic, Percich, Percig, Percih, Peric, Pirc, Pirec, Piric, Pirich, Pirz → Pieri; Valencic, Valencih, Valent, Valentic, Valentich, Valensitz, Valenzhizh → Valenti; Velacic, Velacich, Velasich → Velassi; Vidovic, Vidovich, Vidosig, Vidossevich → Vidossi, etc.). However, even more accentuated was the persecutory nature of the legislation in respect of the Jewish race (set out under article 64 of Decree 1238/39) and in particular Law n. 1055 13/07/1939. In this case the aim of the legislator was not so much to deny cultural diversity, which in part remained, but that of underlining this diversity for the purposes of discrimination and, in the final analysis, repression. Article 4 of the above said law provided: “I cittadini italiani non appartenenti alla razza ebraica, che abbiano cognomi notoriamente diffusi tra gli appartenenti a detta razza, possono ottenere il cambia- mento del loro cognome”24. In this case the legislator, by dealing with the “unfortunate” cases of Italian citizens of the Arian race who, for a variety of reasons, held a surname which was “commonly associated with those belonging to the Jewish race” deemed it to be sufficient, it order to strike against the Jewish culture, to delete the most visible sign of it. Something like this also occurred in the cases which are described under article 3: “I cittadini italiani, nati da padre ebreo e da madre non appartenente alla razza ebraica, che a’ termini dell’art. 8 ultimo comma del R. Decreto-Legge 17 novembre 1938-XVII, n. 1728, non

18 That is: “Drink-water”. 19 That is “Smith”. 20 That is “Cold Spring”. 21 That is “Little shoemaker”. 22 That is “Big Smith”. 23 For the complete list of the ‘translated’ surnames: Miro Tasso, Un onomasticidio di Stato, Mladika, Trieste 2010. 24 “Italian citizens who do not belong to the Jewish race, which have surnames which are commonly associated with those belonging to this race may obtain a change of their surname”.

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sono considerate di razza ebraica, possono ottenere di sostituire, al loro cognome, quello originario della madre”25. Also here the choice of the legislator is “prudent” in that it prefers to save what is salvage- able: in view of the fact that the person in question is not fully Jewish, it limits itself to bringing about a deletion of the Jewish cultural component in the paternal surname, by leaving it to the mother’s surname to represent the moral and cultural identity of the person. But this moderate repression is no longer sufficient in the cases covered by article 2: “I cittadini italiani appartenenti alla razza ebraica non dis- criminate a’ termini dell’art. 14 del R. Decreto-Legge 17 novembre 1938-XVII, n. 172, convertito nella Legge 5 gennaio 1939-XVIII, n. 274, che avessero mutate il proprio cognome in altro che non riveli l’origine ebraica, debbono riprendere l’originario cognome ebraico.. Tali cambiamenti possono essere disposti anche d’ufficio”26. Here the law is targeting citizens who belonged to the Jewish race and was not content any more to just cancel out their names (seen as a symbol and message of their culture) but, on the contrary, wants that these sym- bols are indelible and very visible like a sort of tattoo, right to better identify those of the Jewish race and to be able, with less difficulty, to cancel them out (and not only their names) from the context of social life.

5. The Constitution of 1947 In order to avoid similar aberrations at the fall of the Fascist regime, the need was felt to afford constitutional relevance to the personal right to a name, a subject which traditionally fell within the remit of the ordinary legislator.

25 “Italian citizens, born of a Jewish father and a mother not belonging to the Jew- ish race who, pursuant to the terms of article 8, final paragraph of Royal Decree-Law dated 17 November 1938-XVII, n. 1728, are not considered to belong to the Jewish race, may obtain permission to replace their surname with the surname originally belonging to their mother”. 26 “Italian citizens belonging to the Jewish race not subject to the terms of article 14 of Royal Decree-Law n. 1972 dated 17 November 1938-XVII, n. 172, enacted into law n. 274 dated 5 January 1939-XVIII,, who have changed their own surname into another so as not to show their Jewish origin, shall revert back to the original Jewish surname. These changes can be made ex officio”.

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Article 22 of the constitution states that: “Nessuno può essere privato, per motivi politici, della capacità giuridica, della cittadinanza, del nome”. The text is very clear, but the discussion by means of which the Parliament arrived at approving the article provides another means of confirming what was just stated. On 21 September, the first sub-committee of the Commission for the new Constitution approved the first two paragraphs of what would then become in the final draft, article 22, with the following text: “Nessuno può essere privato del proprio nome”27. During the discussion on. Ottavio Mastrojanni objected that the statement about the name appeared to him to be superfluous in that he did not understand how it was possible to deprive a person of his or her own name. A reply was given to this objection by on. Camillo Corsanego, recalling that during the Fascist regime many people were forced to change their name. The Chair of the Commission, on. Umberto Tupini, expressly recalled, to this end, the anti-Semitic legislation already mentioned in this article. The text was therefore unanimously approved. Later on in the discussions, dealing with the problem of “citizenship”, the sub-committee emphasised that citizenship and one’s name con- stitute fundamental human rights of which no one can be deprived. A few months later on 28 March 1947, after the preparatory work of the sub-committee had already been sent to the Commission for the new Constitution, and from here directly to the Assembly, at the afternoon sitting, on. Ugo Della Seta proposed an extension to article 17 of the draft (the current article 22 of the Constitution) so as to not only pro- hibit the depriving but also the disabling of the right to a name (and to citizenship and also, in the light of the experience of the Fascist legislation, felt it appropriate to replace the expression “for political motives” with the broader “for racial, religious or political motives”. The proposal was not approved, and neither was the other proposal put forward by on. Giuseppe Cappi, who suggested the deletion of article 17. In reality this drastic proposal did not arise from any disregard for the right to a name, but on the contrary from the lucid belief that his right was so profound and intrinsic to the person that it was already protected under article 3 of the Constitution which established

27 “No-one can be deprived, for political motives, of his legal capacity, his citizenship and his name”.

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that all citizens are equal before the law without any distinction as to sex, race, language, political opinion, personal or social circumstances. From these few comments it is evident that the insertion of the subjective right to a name in the Constitution was the result of a desire to avoid passing any discriminatory laws in the future similar to those which were remembered from the Fascist era. However, if this was the contingent motivation (purely a reaction, to use the words of on. Giuseppe Cappi), once the article was approved, the right to a name acquired a constitutional dignity to all effects, which went beyond any contingent reasoning which may have been behind the approval of the article. When I say “constitutional dignity”, I refer to two levels of dignity: one which is purely ideal, in that the principles which are included in the constitution are those which are deemed most important and, in a certain way, ones which cannot be denied in any given civilised society; a “dignity”which is more particularly legal to the extent that the constitutional laws cannot be modified through the usual procedures of producing laws, but require procedures which are even more complex and can only be activated through a government majority, as well through an understanding being reached with the opposition or with significant parts of it. Once this dual constitutional “dignity” was achievd, the right to a name was fully embedded into a person’s fundamental rights, so much so that today it is a fundamental part of the right to personal identity. Moreover, through the inclusion of this right in the constitution, it will be protected not only from any attack made by private individuals (protection already granted in the laws of the Civil Code) but also from attacks from public powers. And this protection, considering the wording of the article and its position within civil liber- ties, must be given not only to Italian citizens but to all individuals. In fact today, as a consequence of this constitutional recognition, “protection of personal identity is without fail differentiated from specific moral, cultural, ideological connotations [ and ] finds its central nucleus in the protection of the name which is considered not only as a necessary means of identification of the individual within the scope of the persons subject to a legal order based on legal principles of public interest, but also in its current quality as an emblem- atic symbol of the individual’s personal identity and therefore as an aspect of the human personality which is worthy of being protected. As shown in jurisprudence, the constitutional protection of the right

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to a name given to the person at the time of his or her birth, in accordance with legal provisions, shall be deemed absolute” (Court of Appeal, Div. I, 26/05/2006, n. 12641).

References

Bigliazzi Geri, Lina, Breccia, Umberto, Busnelli, Francesco D., Natoli, Ugo. 1987. Diritto civile. [Civil law.] Vol. I, Tomo I. Torino: UTET. Bobbio, Norberto. 1957. Diritto. [Law.] In: Novissimo Digesto Italiano. [The newest Italian Digesto.] Torino: UTET. Bonini, Roberto. 1996. Disegno storico del diritto privato italiano (dal Codice civile del 1865 al Codice civile del 1942). [Historical outline of Italian civil law (from 1865 Civil Code to 1942 Civil Code).] Bologna: Pàtron Editore. Breccia, Umberto. 1988. Persone fisiche. [Natural persons]. In: Scialoja- Branca (ed.), Commentario del codice civile. [Commen- tary on the Civil Code.] Bologna: Zanichelli. Cian, Giorgio, Trabucchi, Alberto. 1997. Commentario breve al Codice civile. [A short commentary on the Civil Code.] Padova: CEDAM. Del Vecchio, Giorgio. 1965. Lezioni di filosofia del diritto. [Lessons on the philosophy of law.] Milano: Giuffré. Dogliotti, Massimo. 1999. Le persone fisiche. [Natural persons.] In: Pietro Rescigno (ed.), Trattato di diritto privato. [Treatise on Civil Law.] Vol. II. Torino: UTET. Gazzoni, Francesco. 1998. Manuale di diritto privato. [Handbook on Civil Law.] Napoli: Edizioni Scientifiche Italiane. Gomez, Ludovico. 1558. In iudiciales regulas Cancelleriae Commen- tarii. Lugduni apud Nicolaum Edoardum. Martini, Giovanni. 1998. Names and the Law. In: William F. H. Nico- laisen (ed.), Proceedings of the XIXth International Congress of Onomastic Sciences. Vol. I, 206-213. Aberdeen, August, 4-11, 1996. Aberdeen: Department of English, University of Aberdeen. Muroni, Raffaella. 2005. Libro sesto. [VIth Section.] In: Guido Alpa, Vincenzo Mariconda (eds.), Codice civile commentato. [Com- ments on the Civil Code.] Milano: IPSOA. Pacifici Mazzoni, Emidio. 1867. Istituzioni di diritto civile italiano. [Aspects of Italian Civil Law.] Firenze: Pellas.

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Perlingieri, Pietro. 1993. I diritti del singolo quale appartenente al gruppo familiare. [The rights of the individual as member of the family.] In: Commentario al diritto italiano della famiglia. [Com- mentary on Italian family law.] Vol. VI, I. Padova: CEDAM. Rebuffi, Pierre. 1581. Tractatus Nominationum XIII. In: Tractatus varii. Lutetiae: Lugduni. Ricoeur, Paul. 1987. Sur l’individu. Paris: Seuil. Romano, Santi. 1951. L’ordinamento giuridico. [The legal system.] Firenze: Sansoni. Tasso, Miro. 2010. Un onomasticidio di Stato. [A State Killing of names.] Trieste: Mladika.

Giovanni Martini 5 via Fratelli Grassi IT-54100 Massa Italy [email protected]

Summary: Personal names in Italian Civil Law from the Civil Code of 1865 to the Constitution of 1947 After a brief introduction which sets out the guidelines and the objectives of the research, the article examines the development of Italian legislation in respect of personal names, from the Civil Code of 1865 to the establishment of the Republic in 1947. The Civil Code of the Kingdom of Italy, promulgated through Royal Decree dated 25 June 1865, n. 2358 pursuant to the delegation issued by the Author- ity of the Government under Law 2, dated 2 April 1865, n. 2215 unified the country’s civil law, superseding and rendering null the five different civil codes which applied within the territory of Italy. The code of 1865 did not explicitly recognise the existence of a subjective right to a name as being a fundamental aspect of the right to a personal identity, but naturally could not but deal with the name as the means of identifying citizens, in other words as the administrative instrument vital for recognising and controlling individuals overall and bringing certainty to business activity. On 1 July 1939 there came into force Royal Decree n. 1852 dated 12 Decem- ber 1852, which approved the first book of the new Civil Code (on individuals and families) which was then included in the complete text of the Code, approved by Royal Decree n. 262 dated 16 March 1942 n. 262 and which came into force on 21 April 1942. The new code expressly recognised the right of an individual to a name (article 6, paragraph one) thereby establishing its “immutability” (art. 6, second paragraph). In analysing article 6 and the

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others which are related, I will try to show how from the discipline adopted it clearly shows the private law elements of personal names. But Italian law dealt with names as a person’s fundamental right not only to protect it but also in order to assail and strike the culture represented by the name. In this respect, the R.D.L. dated 10 January 1926, Royal Decree no. 1238 dated 9 July 1939 (law on civil status) and Law n. 1055 dated 13 July 1939 (provisions in relation to surnames) are worthy of attention. Subsequently, the right to a personal name was constitutionally recognised under article 22 of the Italian Constitution of 1947.

Résumé: Le nom dans la loi. Le nom de personne dans la loi civile italienne, du Code Civil de 1865 à la Constitution de 1947 Après une brève introduction qui définit les orientations et les objectifs de la recherche, l’article étudie le développement de la législation italienne en matière de nom de personne, du Code Civil de 1865 à la création de la Répu- blique en 1947. Le Code Civil du Royaume d’Italie, promulgué par décret royal du 25 juin 1865 (n°2358), dans la suite de la délégation délivrée par l’autorité du gou- vernement dans la loi 2 du 2 avril 1865 (n°2215), a unifié la loi civile du pays, en remplaçant et annulant les cinq codes civils différents alors en vigueur sur le territoire italien. Le Code de 1865 ne reconnaît pas explicitement l’existence d’un droit subjec- tif à un nom en tant qu’aspect fondamental du droit de l’identité personnelle, mais ne pouvait naturellement que traiter du nom en tant que moyen d’iden- tifier les citoyens, c’est-à-dire en tant qu’instrument administratif vital pour reconnaître et contrôler les individus globalmente et apporter une certitude à l’activité commerciale. Le 1er juillet 1939 est entré en vigueur un décret royal (n°1852), du 12 décembre 1852, qui approuvait le premier livre du nouveau Code Civil (sur les individus et la famille), qui fu alors inclus dans le texte complet du Code approuvé par un décret royal du 16 mars 1942 (n°262) entré en vigueur le 21 avril 1942. Le nouveau code a expressément reconnu le droit d’un individu à un nom (art. 6, al. 1er), établissant ainsi son caractère immuable (art. 6, §2). En analysant l’art. 6 et les autres qui lui sont liés, je vais tenter de montrer comment la règle adoptée dévoile clairement les éléments de droit privé du nom. Mais la loi italienne traîte des noms en tant que droit fundamental de la personne, non seulement pour le protéger, mais aussi dans le but d’attaquer et de lutter contre la culture représentée par le nom. À cet égard, sont dignes d’attention le R.D.L. du 10 janvier 1926, le décret royal du 9 juillet 1939 (n°1238), sur l’état civil), et la loi du 13 juillet 1939 (n°1055, dispositions relatives aux noms de famille). Par la suite, le droit à un nom personnel a été reconnu par la Constitution, conformément à l’art. 22 de la Constitution italienne de 1947.

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Zusammenfassung: Name und Gesetz. Der Personenname im italienischen Zivilrecht vom Codice Civile 1865 bis zur Verfassung von 1947 Nach einer kurzen Einführung, die die Leitlinien und Ziele der Studie darlegt, untersucht der Artikel die Entwicklung der italienischen Gesetzgebung hin- sichtlich der Personennamen vom Bürgerlichen Gesetzbuch des Jahres 1865 bis zur Gründung der Republik 1947. Der Codice Civile des Königreichs Italien, verkündet durch Königliches Dekret vom 25. Juni 1865, Nr. 2358 in Übereinstimmung mit der Verlautba- rung der Regierungsbehörde (ausgegeben als Gesetz Nr. 2 vom 2. April 1865, Nr. 2215), vereinheitlichte das Zivilrecht des Landes und erklärte die fünf unterschiedlichen Gesetzesammlungen, die auf dem Gebiet Italiens bisher angewendet wurden, für ungültig. Das Gesetzbuch von 1865 kannte zwar noch kein subjektives Recht der Namenvergabe als fundamentalen Aspekt der persönlichen Identität an, son- dern behandelte den Namen noch lediglich als ein Mittel der Identifizierung der Bürger, also als administratives Instrument, das für die allumfassende Feststellung and Überwachung der Personen sowie für die Rechtssicherheit bei geschäftlichen Aktivitäten unerlässlich ist. Am 1. Juli 1939 trat das Königliche Dekret Nr. 1852 vom 12. December 1852 in Kraft, mit dem das erste Buch des neuen Zivilrechts (zu Einzelpersonen und Familien) angenommen und danach in den vollständigen Text des Buches aufgenommen wurde. Dieses wurde durch Königliches Dekret Nr. 262 vom 16. März 1942 genehmigt und trat am 21. April 1942 in Kraft. Das neue Gesetz erkannte ausdrücklich das Recht des Einzelnen auf Vergabe von Namen an (Artikel 6 §1) und gründete damit seine “Unveränderlichkeit” (Art. 6 §2). Bei der Analyse von Artikel 6 und den anderen im gleichen Zusammnehang werde ich versuchen zu zeigen, wie mit der angenommenen Regelung die privatrechtlichen Aspekte eines Namens zur Geltung kommen. Doch wurde der Name im italienischen Recht nicht in erster Linie deshalb als fundamentales Recht der Einzelperson behandelt, um dieses zu schützen, son- dern auch, um auf die durch Namen repräsentierte Kultur Druck auszuüben. In diesem Zusammenhang sind das R.D.L. vom 10 Januar 1926, Königliches Dekret Nr. 1238 vom 9. Juli 1939 (Gesetz über den Zivilstatus) und das Gesetz Nr. 1055 vom 13. Juli 1939 (Vorschriften zu den Nachnamen) beachtenswert. In der Folge wurde das Recht auf einen Personennamen schließlich in Artikel 22 der italienischen Verfassung von 1947 als Grundrecht anerkannt.

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