From Decodification toward New Forms of Stability?

The fact that civil codes are outmoded and inadequate—in Italy and throughout Europe—is, historically speaking, a reflection of a new dimension and a change in the composition of the forces that make up society today—forces that are diversifying within the old bourgeoisie, that are seeking a new equilibrium, and that are at­tracting new elements and excluding some of the older ones.

The state, in the face of so many changes, is modifying the very nature Oflegislative action. It has rightly been observed that Italy has already shifted from a law perceived as establishing the “rules of the game” (the forms and procedures of acts, not their ends or their na­ture) to a law that guides the activities of individuals, offers incentives to entrepreneurship, and prefigures the development of entire sectors of the economy.^[35] We have passed from a state that proposed no more than a “road map” and that left its citizens full freedom and responsi­bility to choose their routes (provided that they respected certain pre­determined road signs) to a state that points to and at times prescribes the road that we must take and preestablishes its point of arrival.^[36]

We need to “construct” a new manner of being a jurist and define a new role for the jurist.

From the point of view of history, then, the age of codification is over. Now when a government manages to promulgate a code, as in Italy in 1988 with the Codice di Procedure Penede, the variety of social and political forces that it reflects, the tensions among them, and the compromises that leave traces coagulated in the code generate defects that soon lead to a need to retouch or recast the code or reshape spe­cific articles, even to revise the overall thrust of the code or the specific provisions in entire sectors of it. We have been in the age of decodifi­cation for some years now.

When the legal historians, the admirers of positive law, and even the legal practitioners became aware of this fact, they realized that they had lost a secure haven, and with it a faith that had lasted for some two centuries. As late as the 1960s, one lingerer attempted to reconstruct the history of codification as an exemplary story of men who, thanks to their dedication, their instincts, and their political tal­ents, their wisdom and their stability, rescued modem societies from the “discomfort” of a “confused state of legislation” that had been caused “above all by laws reforming local statutes and by princely laws” and by the “deformity of the... decisions” of judicial organ­isms.^[37] Others have devoted years of study and reflection to “constitu­tions” and “codifications,” and they continue to publish books and articles on these topics with an invincible faith that nothing has changed and that the history of those phenomena still holds the key for evaluating current experience. For them, the disorder and confu­sion of contemporary legislation and the obvious deformities in the sentences handed down by judges are all to be attributed to human malice, if not to ill will, ignorance, and uncouthness, whereas a model exists—the dual model of the code and the constitution—that is ade­quate per se because it was conceived and put into effect precisely in order to remove confusion, disorder, and malice.^[38]

It is not the historian’s task to predict the future or to say what the law will be like in the years to come. What is certain is that a new legal system is being created. Those who are forging it belong to the political, the economic, and the social spheres; they are legal prac­titioners, judges, and bureaucrats. Behind them one catches glimpses of some of the less somnolent professors in European and North American universities.

15.