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Sunday, March 10, 2013

EMANUELE CONTE and PAOLO NAPOLI on "Law and History/Philosophy"

Dear all,
next week's classes (March 13-14-15) will be devoted to the in-depth analysis of the interactions between Law and History by Prof. Emanuele Conte, who will focus on the role of legal historical studies from the 19th century onwards. The classes will be enriched by the participation of Prof. Paolo Napoli (EHESS, Paris), who will teach, on Friday, a class on Law and Philosophy, with particular reference to the concept of Legal Geneaology.
Suggested readings:
- James Q. Whitman, "Bring back the Glory!", in "Rechtsgeschichte", 4 (2004), pp. 74-81.
- Mathias Reimann, "Nineteenth German Legal Science", in "Boston College Law Review", 31.4 (1990), pp. 842-897, especially par. II and III.
- Michel Foucault, "Nietzsche, la généalogie, l'histoire", Hommage à Jean Hyppolite, Paris, P.U.F., coll. «Épiméthée», 1971, pp. 145-172, available online:
Prof. Conte's CV
Professor of Legal History at the Università degli Studi di Roma Tre and Directeur d'etudes at the Ecole des Hautes Etudes en Sciences Sociales (Paris).
He graduated cum laude in 1983 at the University La Sapienza of Rome, and received his Ph.D. in Medieval Legal History at the University of Milan. He has done research at the Max-Planck-Institut für Europäische Rechtsgeschichte Frankfurt am Main, and at the University of California at Berkeley.
He has held visiting professorships at Universitat Autonoma de Barcelona (Spain), the Ecole des Hautes Etudes en Sciences Sociales, Paris (France), the University of Paris II Panthéon (France), the University of Toulouse I (France), the University of Paris X Nanterre and the Ecole Normale Superieure Lettres et Sciences Humaines, Lyon. He has been visiting fellow at Berkeley University (US) and Cambridge University (Peterhouse).
He serves as a member of the board of direction of many academic journals and series in Italy, France, Spain, the UK.
He has given many papers and lectures in Italy, Germany, France, United Kingdom, USA, Switzerland, Finland, Denmark, Argentina and Spain. His books and other publications focus mainly on medieval and early modern legal history, on philology of legal texts and on the relationship between history and law in the 19th ant 20th century.
Prof. Napoli's CV
Prof. Paolo Napoli is currently Directeur d’études at the Ecole des Hautes Etudes en Sciences Sociales – EHESS, in Paris (since 2010), where he directs the Centre d'étude des normes juridiques “Yan Thomas” – CENJ. In 1987 he graduated at the Faculty of Law of the University La Sapienza (Rome), with a degree thesis on power and law in Michel Foucault’s works. He afterwards began his research on the notion of police during the modern era in Italy (CNR), France (EHESS), Germany (Max Planck Institut für Europäische Rechtsgeschichte Frankfurt am Main) and USA (Berkley). In 1997 he received his first Ph.D in Legal philosophy at the University of Bologna and in 2002 he received a second Ph.D. in Law and Social Sciences at the EHESS (Title of the PhD thesis: La police en France à l’âge moderne (XVIII-XIX siècle). Histoire d’un mode de normativité.
He is the author of many articles and two books:
- Naissance de la police moderne. Pouvoir, normes, société, La Découverte, Paris 2003.
- Le arti del vero. Storia, diritto e politica in Michel Foucault, La città del sole, Napoli 2002.


  1. yesterday Prof Conte asked us to research something about roman law in China.I read that chinese started to know roman law ,about 100 years ago.The first book in chinese about roman law was published in 1904 but is a translation of a japanese book.In the chinese law schools there are roman law courses but they are optional.The interest of the institutions and of the university for roman law is growing up and is demonstrated by a frequent roman law book's translation!

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  3. I read in an interesting article that in order to approach the sources of Roman law, in recent years,the Chinese jurists have come here in Italy, they learned Latin and Italian.They started to translate the Corpus Juris Civilis (from Latin to Chinese)and our Civil Code(from Italian to Chinese).These sources have influenced new rules of modern China.

  4. To day with the professor Naples, we tried to analyze the philosopher Foucault.
    At first look, the work of the French philosopher Michel Foucault looks more like a historical survey than as a genuine philosophical study.
    Foucault rationality and truth are elements with their own history, and not constant values and universal. As in Nietzsche, Foucault also for every aspect of our experience has a story, even the things we consider to be solid and timeless are traversed by a historicity that is neither linear nor progressive.
    the truth are not universal values but elements that change over time, different in each subsequent configuration.
    I can almost be compared to the custom(consuetudine)constitutional. It consists of a constant and uniform behavior (diuturnitas), held by the subsidiaries with the conviction (opinio juris) that such behavior is a duty or morally obligatory.
    The custom represents a spontaneous, natural, unconscious, informal, as opposed to rules that are artificial, conscious, formal.
    But the truth, says , Foucault is a constraction of different interpretation there are not truth fact but only interpretation…INFACT the history is written by the victors not by losers, if we listen they would be completely different versions.
    The custom grows together with his people…rules,conversely are empty because they are impersonal,they are just a technical instrument .
    well, this was the speech that impressed me most. this analysis of the genealogy of truth and the rules paragon.

  5. I've found an article that emphasizes how Roman law gives nowadays contributions to Chinese rule of law. Roman law in fact isn't only an instrument to understand the solution of controversies'system, but it's also a source of inspiration for equity and safeguard of rights,giving importance to the person( physical and juridical)!

  6. In the explanation of the prof. Di Napoli, I was interested by the step of the administrative law. Prof. Di Napoli has exposed the theory about the recent birth of the administrative law, approximately in coincidence with the French Revolution. According this theory the administrative law would be younger than private and public law. I want expose in my comment another theory about the administrative law :for other authors the administrative law has ancient origins. In fact, someone says it already was current in Roman law: there was administrative offices , like for example "praefectus praetorio", "praefectus annonae". However, for many authors these are simple elements not relevant to talk about administrative law. Others,in particular The french school, instead, see the origins in the medieval age, specially for the "publics services law", that is essentials services for the community. Typical example about a public service was the "mill" (mulino), an essential element for the feed of the people. But there are many other examples of the administrative law in medieval age like postal service with horse (a way to difuse the orders of king among the people), or water rules (water already was a public asset and its utilization had to be authorized and granted). All these example configure the administrative rules, though there wasn't a system of administrative law!

  7. Yesterday the Professor Napoli talked about the Faucault's opinion about the genealogy of Nietzsche and the relationship between genealogy , the origins and the law. In an illuminating essay, titled "Nietzsche, genealogy, history , Foucault exposes the
    own conception of history, based on genealogical method. Genealogy does not oppose itself to history as the lofty and profound gaze of the philosopher might compare to the molelike prospective of the scholar;on the contrary it rejects the metahistorical deployment of ideal significations and indefinite opposes itself to the search for “origins”. Origin: the site of truth? No: “trouth and its original reign, has had a history within history”. Nietzsche has always criticized the concept of history as that which would enable us to recognize anywhere. Against this setting throws genealogy, understood as a refusal of absolute objectivity. In fact, the truth is a fiction, because it is based on values and because the values are artificial human construction. Genealogy as critics of the unity of subject: the self is not an identity but an artificial construction of different events. another concept that struck me is that in which he argues that knowledge is not made for understanding, but is made for cutting.

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  9. I wrote a little article on the history of this relationship between Chinese Law and Roman Law in the last 40 years. In this article i will try to introduce at the end, the notions learned from Prof. Napoli. Prof. Conte talked about the concepts of historical continuity and historical fracture in prospective of the relationship between law and history. In order at this last concept we put the focus on the importance of Roman law on the case of Polish law and I also commented what is happening in China. First of all, a figure really important is Jiang Ping, Romanist, civil law and director of the Working Group for the preparation of Draft of the Civil Code of the PRC, while also Rector of the University of China Political Science and Law in Beijing. In his Text ‘Chinese law and the Roman legal system’, writes: "With the development of the socialist market economic reforms in 1980, Chinas legal system and legal doctrine are profoundly transforming. In a certain sense we can say that this transformation is a consequence of the rise of the spirit of Roman law, civil law and humanism ". In fact during the December 1978, the Third Plenary Session of the Central Committee elected by XI National Congress of the Communist Party of China came up again with an interest in Roman law, based on the dynamism it imprinted in European history; In the same period was introduced in Chinese universities study of Roman law. "Many scholars admit [...] the 'rationality' of Roman law private" despite in the Chinese socialist legal system "is not known the division of public and private law" (Ping Jiang in Chinese Law and the Roman Legal system, 2005, p. 4). In addition, Jiang Ping says that it is a significant presence in the Roman law of 'natural law'. In contrast to the philosophical tradition of ancient Chinese law, Roman law "has produced a dualistic concept of law, making a clear distinction between ideal law and effective law [...]. This distinction has determined the realization that the effective law was subject to examination and criticism in constant tension to the ideal law. The main merit of the ‘ius naturale’ in Roman law is that it has enhanced the individuality and having freed from subjection social authority. For example this process has been the ‘theoretical tool’ used to abolish the slave system. Another consequence related to the acceptance of the existence of a natural law, is the emergence of profiles of "objectivity" of the law and in this framework the Chinese jurists focus their attention on the deepening of the principles of equality that was timely expressed in the General Principles of the Civil Law enacted in 1986. In this climate, are published: two new books on Roman law (one of Zhou Nan and other authors, commissioned in 1983 by the Ministry of Education, and the other of Jiang Ping, Jian He, 1987), some law reviews and are published several articles attentive to issues, ranging from the XII Tables to the right of citizenship, jus gentium, the role of Roman law in Europe and so on. In relations to this in 1989 was published, for the first, time a translation of the 'Institutiones' of Giustiniano (Zhang Qitai in 1989).

  10. The mindset that brought in those years a large number of Chinese-language translations of texts of Roman law, including the Digesto and other parts of the Corpus Juris Civilis is expressed clearly by Mi Jian: "The most urgent task in China in the field of study of Roman law is the translation and publication of the sources of Roman law and the main texts on it published in the world" (Mi Jian in Chinese law system and Roman law system, 2005, p. 24). A very important date is 1994. The international congress of Roman Law, Chinese law and codification of civil law, held in Beijing in 1994 by CUPL, in collaboration with the University of Rome Tor Vergata and the research team on the spread of Roman law, marked a turning point in scientific debate (among those who took part, many are currently members of the working group for the drafting of the Civil Code or other laws). In this Congress were discussed many historical issues relating to legal science, legal history, the principles of Roman law that have influenced the European historical / legal framework. Subsequent conferences were organized as: Roman Law, Chinese law and codification of civil law. Property rights and obligations, in 1999, coinciding with the 50th anniversary of the PRC and in conjunction with the entry into force of the important law on contracts, and the congress Roman Law, Chinese law and codification of civil law. Roman law, property rights, liability and commercial law in 2005. For this reason, important centers of study were born: The Centre for the Study of Roman Law and Italian Law (CSDRI) has been set up in China University of Political Science and Law in Beijing (CUPL)the in 2005 was founded a magazine, "Digesto"; at the University of Economics, Political Science and Law Centre-south of Wuhan was set up a study center on codifications; at the University of Xiamen was founded in 2000, the magazine "Roman law and modern civil law"; Hunan university was set up a study center on the Roman legal system. The Growth of the number of law faculty has been impressive, and all of us know that the academic training of jurists, is the key point for the development of the system. Finally, the question that arises is: What can we expect from this 'romanistic turning'?Certainly we can say that, as we have seen, Chinese culture has clearly perceived as the system has to be done from 'Ursprung', exactly from ancient sources. If we want there is an important link with the Genealogy. The path started years ago from China is based on a method, founded in the specific case of interdisciplinary knowledge, that, combining a systematic historical and social experiences, archival and legal and social-linguistic, provides the tools to find, read, understand and contextualize the disparity of the sources. For this reason, China not pretend to simply know the schemes formulated in Roman Law, and how they have influenced, over the centuries, the Western law, but wanted to address and translate the sources in order to acquire all concepts, principles, institutions in the way they were originally considered, and then be able to shape their own reading of the system and its contribution to it. We can only wait what will be the result of the work for the new China’s codification.

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  12. In relation with the Professor Conte’s lesson about Law and History, one of the first aspects that should be addressed is the comparation between Law and Nature, seeing the first as an imitation of the latter. Infact History can play the same role as Nature: it's the positive or the negative model that attracts or repels the rules. In connection, the opinion of James Q. Whitman, professor of comparative and foreign law at Yale University, is very interesting. In his essay, he talks about the evolution of legal system. First, it considered the map of society. According to idea of Puchta, one of the most important exponent of the Pandettistic school, law was a system with basic principles, as a free will. But now, for Whitman, nobody really believes any longer that the laws are the map of society. In this sense no one believes that the basic principles of the legal system are necessarily the basic principles of society. Then the law has become the technical execution of decisions made by the persons in the real centres of social power. Law matters less and so legal history matters less. This is the fundamental reason because in our university the study of history of law is marginal. “We like history simply because we get pleasure from poking around old books”, this is a phrase of Professor Whitman which gives us a lot to think about. We love old things, but sometimes we overlook their true value. In this sense, we must remember “storia docet”: it’s from the big war massacres that we understand that there is peace over war. This is the meaning of the whitmanian "evil", where the law is the product of the conflict between good and evil. We have a number of examples of this concept from Roman times, remembering the benign figures of Lucretia and Verginia, who through their efforts have created a sort of moral obligation. In ancient fables, the end represents a moral lesson for all. The same role would be played by history and in this matter the law becomes incarnate in history. We need history to justify the law and we ought to rejoice in having a role. At the same the past is history, we can do more than cling to the past, through the critical spirit that we have developed as a result of mere events. However, to claim to find the meaning of history is always to say something false. That is why analyzing the current Chinese Law, we can see how it is taken in large part to our dear Roman Law. The reason is simpler than it seems: it is reduced to three main characteristics as the nature of heredity, its social value and rationality. With regards to the first, the possibility that it is inherited from the Socialist Law has been established. While the general social value is especially in reference to a market economy. The third appearance is characteristic of Private Roman Law. In addition, it was considered important for the spirit of natural Law, contained in it, which fits the nature of humanity. This spirit rises in China due to the period of the so-called legal nihilism with the market economy: for example Law on maritime trade of the Republic of China, where much importance is given to business use. We can therefore say that we have always look for a Law, even if artificial, more similar to human nature, which has become the justification of the most normative production of modern states.

    - Bring back to the Glory, James Q. Whitman
    - Diritto cinese e sistema giuridico romanistico, contributi, L.Formichella, E.Toti, G.Terracina


  13. According to one of our topics of the week (“Law and Philosophy”) I would like to focus my attention on the importance of Foucault’s work on how Law enhances itself and operates in our juridical systems.
    In the Prof. Napoli’s lecture we had the chance to peruse part of the Foucault’s analysis on the nietzschean work “On Genealogy of Morality”.
    Especially we concentrated on the Foucault’s essay “Nietzsche,Genealogy and History” where we could find sparks and guidances to learn and to better understand Nietzsche’s way of thinking about the connection between Genealogy and ruling class’ activity.
    First of all we have found out nietzschean definition of Genealogy; in Foucault’s writing, despite what we might think about an explanation of the word Genealogy that could lead us to a plain meaning (as for instance “study of the origin”) we develop the German philosopher’s work on his idea of Genealogy.
    Even if we may refer one of Genealogy’s purpose to the “search of the origins”, Michel Foucault by quoting Nietzsche, asserts that we have to deny a metaphysical approach and try to distance ourselves from it: Genealogy is not an instrument to reach the essence of things, it is not a mean to achieve the pure spirit of things.
    And particularly because of that Foucault writes: “What is found at the historical beginning of the things is not the inviolable identity of their origin, it is the dissension of other things. It is disparity” [...] “Origin is the site of truth? Truth and its original reign has had a history within history”.
    By asserting that, according to the nietzschean criteria to define Genealogy, Foucault’s also affirm that Genealogy is not the birth of values (as Truth as I have just quoted) and things but, at the contrary, the same values and things are not innate concepts but they are directly coming from an human construction.
    At this point, having this very small resume of the idea of Genealogy in the opinion of Foucault as he paraphrased Nietzsche, we could try to approach this statements on the juridical research.
    So if we agree on saying that Genealogy’s purpose is to critic and not to create and to consolidate great values maybe we can use the same method to the ruling class’ aim.
    If a value as Truth is an artificial construction of a man as he want to create a rule which content is this value we can figure out that rules are formal containers of values.
    This phrase could seem tautological but is not: if we establish that to cause a universal rule we do not have to draw from the pure essence of thing the procedure of creating juridical systems is empty of values itself.
    If we agree on that we can easily figure out that “Law is a matter of procedure” so ruling class’ objective is not to give us rule with innate values in but to produce a system where values are crystalized in rules.
    Prof. Di Napoli clarified this last point giving us an example; after having shown us the historical and structural differences between Private Law and Administrative Law he helped us to understand how we could apply genealogical method to them.
    We can easily figure out that in Private Law legal needs were constructed from the beginning in a juridical way: thinking about the Corpus Iuris Civilis and the Justinian codification we can sustain that Private Law has had its own “sedes materiae”.
    Speaking about the Administrative Law we realize that we have to arrange its birth on the 19th century and before that date we couldn’t find any codification or legal activity as the justinian one.
    Prof. Napoli showed us that the genealogical method (as we have learnt with Foucault’s work) fits with Administrative Law and can’t fit with Private Law: because of the lack of principles and values in the Administrative Law (no codification,only practice) we can use Genealogy as a method to find out them out of the practical aim that Administrative Law has had since was born.

  14. In my opinion the Foucault’s essay could help us to have a critical perspective about how legal systems were created as a “rule set” born both with historical events and basics.
    If we apply the genealogical method (as Nietzsche affirmed) it could train us to better understand how the study of origins is adaptable to legal systems based only on practice and not for system which already have had their sedes materiae.
    I personally think that ruling class’ aim wouldn’t be only to create rules as empty containers but its purpose it would may be to produce legal systems where rules are themselves principles and values for the community.
    So I think that they are facts and of course there is an interpretation for them, but the two things are related, one doesn’t exclude the other; in a legal system there are rules that settle facts and behaviors and the same rules could be interpreted by professionals (as lawyers for instance) and scholars to help ordinary people understanding them.
    Unfortunately I do not have such a deep knowledge of this subject that could help be to go inside as I would. But I found the Professor Napoli’s lecture so intense and interesting that I’ve tried anyway to write my personal opinion about Foucault’s essay.

  15. Talking about Law and Philosophy,is useful to make a point to one of the most important German philosopher of the 19th century:Georg Wilhelm Friedrich Hegel;he was born in Stoccarda in 1770 and died in Berlin in 1831.He was a conservative thinker.
    The key concepts of his doctrine are:1)the justificatory function of philosophy;2)the identity between reality and rationality(what is rational is real and what is real is rational).
    Hegel affirms that there is a close connection between philosophy and history.
    The reality is the history from which philosophy cannot be separated;it includes what the historical trend becomes.
    Philosophy cannot be separated from its historical moment(as also law does).
    Hegel has an optimistic conception of history:it is evolution,progress and it is guided by rationality to freedom.
    Injustices and sufferings are the tools you need to progress the history.
    The history is the realization of divine plan(history is God will):Hegel has a providential view of history.
    History is also the journey of the spirit that gradually reaches its truth and its "self-consciousness" in the Absolute.
    Philosophy is based on rationality and therefore it has the primacy over history.
    The opposition is the essence of life:reality infact is dialectical.
    Understanding of the history follows the pattern of logical necessity through the dialectical movement from thesis to anthithesis to synthesis.
    Dialectical rationality can understand the oppositions and knows how to solve them.
    Established that the reality is rationality,you need to make the task of philosophy:it should simply faces off the historical reality and justifies it by rationality.
    Philosophy has to develop the experience in concepts for showing reality.
    According to Hegel,the philosophy symbolizes the light of reason against darkness.

  16. I’m glad to see the interest that last week’s lessons sparked in my colleagues. It was the same for me! Special thanks go to Matteo for his fundamental contribution. While some of you were not new to these lessons, it was the first time I could attend Prof. Conte’s lessons.
    Really exciting!
    Not to bore you repeating the already known content of the lessons, let me share with you some thoughts triggered by Prof. Napoli’s lesson.
    I prepared myself reading the interesting essay by Michel Foucault "Nietzsche, la gènèalogie, l'histoire".
    It was my first time approaching to the concept of genealogy applied as a philosophical critique to history. It was like changing the lens of my camera.

    Surely I agree with the critique moved to metaphysics, abolishing temporality, and making past, present and future equivalent. The concept of absolute objectivity it’s always dangerous. The knowledge perspective is definitely more familiar to us, aspiring lawyers.
    “History is the concrete body
    of a development”.
    I was very impressed reading how the concept of knowledge is not only intended as understanding but also
    as taking a stand. “Knowledge is not made for understanding, it is made for cutting”.

    Moreover, during the lesson, the focus on the concept of ”Origins” reminded me about the passage of the reading “Humanity does not gradually progress from combat to combat until it arrives at universal reciprocity..” which also reminds me about the hindu concept of “Yugas”, the four Eras, into which life’s
    evolution is divided which follow one to the other continuously.

    Professor Napoli also focused on some aspects related to the philosophical essay.
    First of all, I’ve found many similarities in the critique moved to the absolutism and to the self-evident objectivity, with the Prof. Ferrajoli’s theories. Ferrajoli moved from these points, through the postulates of criminal principles, to connect all in a critical discussion of the maximum use of the criminal law (“diritto
    penale massimo”), for a decriminalization.

    Finally, I want to thank Prof. Napoli and Dr Di Paolo for the explanations which followed the lesson. I asked for an explanation on why we cannot track administrative law in history before 1800 (thinking about
    Costitutiones of roman emperors and the decrees of kings). Luckily while my objection was wrong it was considered understandably intuitive!

  17. Alice Borsacchi

    I think that law and history are directly consequential. Law couldn't develops without the contribution of history and neither history couldn't becoming as nowadays without the provision of the law. Society started to exist when the wild primordial world was adjusted by the law; i consider law as the shadow of history, as the italian expert in history. philosophy and policy Norberto Bobbio said during the will focus the 19th century. The 19th century represents the turning point of the theories relating with the relations between law and history; lots of historiographer and jurists brought to an end deeply analysis on this theme and suggests lots of interpretations about it. One of the most important is James Q. Withman, an American lawyer, and Ford Foundation Professor of Comparative and Foreign Law, at Yale University. In his essay, entitled "Bring back the glory", published in "Rechtsgeschichte", he adfirmes that, during the 19th century, << legal history was the nursery of the social sciences>> and, as a result of the 19th century, today legal history represents << the ancilla of the law faculty >>. I agree with this statement as i had suggested in the introduction.
    "Bring back the glory" begins with a backward glance at the nineteenth century, when legal history played a leading role in the intellectual life of the western world. James Q. Whitman mentions great interpreters of history that were attracted by the relation between history and law, like Karl Marx and Max Weber. Karl Marx and Max Weber approach to this relationship without theories of reference and introduced the concept that end up the relationship between philosophy and law was unavoidable. It's important riconsidering all the elements under the magnifying glass of this unknowed relationship between history and law. Historiographer or jurists tha today are approaching with the law pleads for something of a Return of Grand Theory in legal history. It is true that <>. Law also reflects stylized histories of a given society’s past-histories like that of the American triumph over race slavery, or the European triumph over Nazism.
    James Q. Withman is sure that legal historians have a responsability related with their role in the world because they could solve the fundamental tension between truth and meaning; it's an hard task but we can underline that a correctly interpretation of history by legal historians could "bring back the glory" of the past.
    << ... We are sure we can be right about the facts.. if we get the evidence right, nobody will ever have the pleasure of proving us wrong ...>>.
    So a correctly analysis of the meaning of historical facts by law is the key to understand the deeply radicated relationship between history and law ...

    [ Sources :

    - Dag Michalsen
    "WOZU – Rechtsgeschichte?"

    - Emanuele Conte
    "Una domenica piovosa"

    - James Q. Whitman, "Bring back the Glory!", in "Rechtsgeschichte". ]