The Age OfDecodification
In more recent history, when Italy, defeated in World War II, overÂthrew the fascist regime and replaced the monarchy of the House of Savoy with the Republic, the new Italian state needed to derogate or abrogate some of the provisions of the Codice Civile of 1942.
Since then, much more devastating changes have taken place, profoundly impairing and in part overthrowing the original structure of the nineÂteenth-century codes and many of the principles embodied in them. The term usually used to describe these events, “decodification,” gives a clear notion of their impact.[33] Their effects can be grouped in a few main categories.First, the decodification movement “got around” the codes, comÂpressing them or bypassing them by means of sweeping supplemenÂtary legislation in the form of bills on a vast number of topics. As early as 1933 Italy had laws concerning the bill of exchange (R.D. 14.12.1933, no. 1669) and the bank check (R.D. 21.12.1933, ∏θ∙ 1736) that the code of 1942 neither incorporated nor replaced, but from that date more and more special laws were passed covering broad areas of the law that closed up the gaps in the Codice Civile and cut off its capacity to expand. Among these were a law on bankruptcy (16 March 1942), laws on cooperatives (1947 and after), ccWorkers5 Statutes55 (1970), laws on industrial patents, and more.
Second, there were attempts to refurbish and recast the Codice CiÂvile. either by the elimination of provisions that had been declared contrary to the Constitution of 1948 by the Corte Costituzionale, ItaÂly’s highest court, or by the abrogation or replacement of groups of articles. This was the case, for example, concerning provisions on diÂvorce and family law. Third, some articles and some “institutes” of the Codice Civile were “frozen.55 They were neither abrogated nor declared unconstitutional, but their application was suspended when they were succeeded by special laws.
For example, the rental of urban real propÂerty and leasing of rural properties were placed under special and temÂporary regimes that contravened the provisions of the Codice Civile.It would be a mistake to neglect (and worse to ignore) the historiÂcal significance of these frequent and highly visible events. They docÂument not only the need for more up-to-date regulation than was ofÂfered by the Codiee Civile of 1942 but also the fact that the entire idea of a civil code had become outmoded. The civil code remained unÂmodified, and its old text was still applied only where it touched on topics of modest scope and usually of slight economic importance— the right to an external source of light or to windows facing neighÂboring property, the regulation of property boundaries, some quesÂtions of inheritance—or else it showed the influence of the need for new laws, as in the relationship of the classic constructs of societies of persons and of capital to the legal constructs of the cooperative and the eonsorzio (agricultural or industrial association).
The decodification of national law codes—by hemming them in with further legislation, by restoring and revising them, and by “freezÂing” certain articles—affected all the nations of continental Europe. The codes, originally conceived to bring unity to the various national laws, were submerged by the hundreds of thousands of pieces of legisÂlation that were passed in each country (more than five hundred thouÂsand in Italy alone, according to a survey made by the Corte Costituzi- onale). These were upsetting statistics in the literal sense that they overturned the codified system of law. Some scholars with a penchant for serious reflection were led to extreme conclusions. Natalino Irti wrote, cThe Codiee Civile cannot be recognized as having... the value of general law, [or as being] the seat of principles that are set forth and â€?specified’ by external laws.” The best that could be said, Irti conÂcluded, was that the code “functions henceforth as a â€?residual law,’ as a discipline for cases not regulated by particular provisions.”[34]
This conclusion probably goes too far, because both the jurist and the citizen, for whom the law was created, have need of principles.
Nonetheless, it expresses clearly the malaise and disorientation of the modern jurist. After the rational, reform-minded, and “enlightened” eighteenth century and the age of the great nineteenth-century codes, the jurist in continental Europe had been accustomed to thinking of his own times as an epoch of order, unity, and the equality of the citizens before a clear, unambiguous, homogeneous, and knowable law. The modern jurist was persuaded that he had left the age of conÂfusion far behind him and that he had eliminated the “defects of jurisÂprudence” that had been generated and fueled by a plurality of laws and by the infinite number of ways in which they could be interpreÂted. He was so sure of this that he gave a pejorative sense to the adjecÂtive “medieval,” which he applied to the entire period between the ancient and the modern worlds (roughly the period from the sixth to the fifteenth century). For over two centuries—the eighteenth to the twentieth—any provision not linked to the order and certitude of a unified code was “medieval.” Moreover, although the German “hisÂtorical school” (Savigny in particular) had warned that there were limits, risks, and dangers in a purely “rational” organization of juridiÂcal problems, nonetheless the “Pandectist” sequel to that school had worked, during the latter half of the nineteenth century, to sustain an illusion of order, albeit in the name of a sistema iuris rather than a sistema Ieyis.Our own decades are living examples of confusion, uncertainties, difficulties, and unforeseen needs. As with all historical ages, even these difficult decades require historical analysis.
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