Biography:Santi Romano

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Short description: Italian lawyer and judge (1875–1947)
Santi Romano
Santi Romano.jpg
Santi Romano in c. 1930.
Born
Palermo, Italy
Died3 November 1947(1947-11-03) (aged 72)
Rome, Italy
OccupationProfessor
Years active1898–1944
Board member of
  • Italian Council of State (1928–1944)
  • Senate of the Kingdom of Italy (1934–1945)[1]
Academic background
EducationUniversity of Palermo
Academic work
DisciplinePublic law, Jurisprudence
InstitutionsUniversities of Camerino, Modena, Pisa, Milano, Roma
Notable ideas
  • Legal pluralism
  • Legal institutionalism

Santi Romano (31 January 1875 – 3 November 1947) was an Italian public lawyer, who taught administrative law, constitutional law, ecclesiastical law and international law in several Italian universities. He was President of the Council of State from 1928 to 1944 and Senator of the Kingdom from 1934, as well as member of the Lincean Academy.

An exponent of the theory of legal pluralism, Romano made his best-known contribution to jurisprudence with his book The Legal Order (1918). Together with his maestro, Vittorio Emanuele Orlando, Romano is widely regarded as the leading exponent of the Italian school of public law of his time.[2]

Romano's relationship with fascism is controversial among scholars.

Life

Santi Romano was born to Salvatore Romano and Carmela Perez in an upper-middle-class family in Palermo.[3] He enrolled at the Faculty of Law in Palermo and, while still a student, began to collaborate with Vittorio Emanuele Orlando's law firm and with the public law journal founded by Orlando in 1891, the Archivio di diritto pubblico (it), in which he published his first essay in 1894. He graduated in 1896 under the supervision of Orlando, in 1897 he published his dissertation as a monographic work on public rights in the first volume of Orlando's Primo trattato completo di diritto amministrativo italiano.[4]

In 1898 Romano obtained the libera docenza in administrative law and the following year was appointed as non-tenured professor in constitutional law at the University of Camerino, where he remained until 1902. In 1900 he published two monographs on administrative justice, also as parts of Orlando's treatise, and in 1901 he published The Principles of Administrative Law as well as the essay "The De Facto Establishment of a Constitutional Legal Order and Its Legitimisation."[4]

In 1902 Romano moved to the University of Modena as a non-tenured professor in international law. In 1906 he became full professor of constitutional law at Moderna. In 1909 he moved to the University of Pisa as professor of administrative law. There he delivered his famous inaugural lecture "The modern state and its crises".[3][5] In 1917–1918 he published the first edition of his most influential contribution to legal theory, The Legal Order.[5] From 1917 to 1921 he was a member of the High Council for Education and from 1923 to 1924 he served as Dean of the Law Faculty of Pisa.

In 1924 Romano moved to the University of Milan, where he served as Dean of the Law Faculty in 1927–1928. In 1924 he was also appointed to the "Commission of the Fifteen" for constitutional reform set up by the Fascist government. In 1926 he became a member of the Diplomatic Litigation Council.[1][5][6] Between 1918 and 1926 he published several handbooks in constitutional law, international law, ecclesiastical law and colonial law.[5]

In October 1928 Romano joined the Fascist party and in the same year was appointed as President of the Consiglio di Stato, the Italian administrative high court.[6] He resigned as full professor but kept his academic teaching at the Sapienza University of Rome. He lectured in administrative law and organisation (1929–1931) and constitutional law (1932–1942). In 1931 he published the first volume of the Administrative Law Course. In 1934 he was appointed to the Senate (1934–1945).[5]

In 1938 he authored a controversial legal opinion on the "First marshall of the Empire".[5] This newly created military rank, the highest in the Italian military, was jointly awarded to King Victor Emmanuel III and Benito Mussolini. The King considered vetoing the law creating the rank and asked for formal advice from the President of the Council of State. Romano concluded that the law was not in breach of the Kingdom's constitution; Victor Emmanuel protested vehemently against Romano's opinion, calling him a "pusillanimous opportunist", but eventually promulgated the law.[7]

After the fall of the fascist regime and the creation of the Italian Social Republic, a Nazi-German puppet state in the north of the country, Romano issued provisions for the transferring of the State Council to the fascist-controlled city of Cremona, but when he was asked to move there he preferred to retire.[5] With the end of the civil war and the defeat of fascism, he briefly reassumed his office but in September 1944 was remitted to the High Court of Justice for sanctions against fascism (it) and subjected to a purge trial at the Council of State's purge commission:[5] suspended from service on 3 October 1944, he applied for and was granted retirement on 29 January 1945, also retaining his right to a pension.[8] He was also removed from university teaching and deprived of his position as Senator.[8] In 1946, with the casting vote of Benedetto Croce, he was dismissed from the Accademia dei Lincei.[5]

He spent the last years of his life in solitude working on his celebrated book Fragments of a Legal Dictionary, and died in Rome on the 3 November 1947.

Among his disciples are Guido Zanobini, Giovanni Miele, Massimo Severo Giannini and Paolo Biscaretti di Ruffia[9][10]

Relationship with fascism

In October 1928 Romano joined the Fascist party and in the same year was appointed as President of the Consiglio di Stato, Italy's highest administrative court.[6] Contrary to previous practice, the appointment was made on the direct initiative of Benito Mussolini, and it was the only case in the history of the court in which an academic with no previous experience as a state councillor was chosen for the post.

Scholars are divided on the interpretation of this event: according to some it was a way of co-opting important figures of the establishment into the regime, while according to others it was an attempt to fascistise the Supreme Administrative Court.[11] Scholars also disagree as to whether his adherence to fascism should be understood as technical collaboration, which had the merit of counteracting the most radical tendencies of the regime,[12] or whether it had the significance of a truly committed choice.[13]

During the fascist dictatorship, Romano managed to maintain a relatively detached and uncommitted profile. Nevertheless, he accepted to join the scientific committee of the antisemitic law journal Il diritto razzista ("Racist Law"), founded in 1939 by Stefano Maria Cutelli.[14][15]

Family life

In 1911, Santi Romano barried Silvia Faraone, with whom he had two children: Salvatore (born in Modena in 1904, who became professor in private law at the University of Florence) and Silvio (born in Modena in 1907, who became professor of Institutions of Roman Law at the University of Turin).[16][17]

Doctrine

Santi Romano is considered one the leading exponents of legal institutionalism and pluralism in the legal culture of his time. Both were theorised in his most famous work, The Legal Order (1917-1918), which has been translated into Spanish (1963), French (1975), German (1975), Portuguese (2008) and English (2017)[18] and has been described as "the most important Italian legal work of the 20th century".[17][10]

According to Romano, the law, before being a system of rules, is "an organization, a structure,"[19] an entity or social body that is organised, stable and relatively autonomous from other organisations. He calls this entity an "institution", which he identifies with the legal order. There are as many legal orders as there are institutions, since ubi societas ibi ius: where there is society, there is law.[20] Any legal order can be relevant to another, to a greater or lesser degree, as well as completely irrelevant. Certain legal orders may be internal to others: for example, both the state and the international community are, for Santi Romano, "institutions of institutions", legal orders composed of other orders.[21]

Alongside the state and the international community, Romano highlights the proliferation of a growing number of self-regulating legal orders: the "unequivocal signs of a social pluralism typical of the dynamic society of the early 20th century."[10] As his contemporary Maurice Hauriou in France, Romano is concerned with the development of organised societal structures such as mass political parties and trade unions, whose normativity does not depend on state recognition but on their independent capacity to obtain allegiance.[22] Sanctions are not essential for there to be a legal order, according to Romano, as they can be replaced by other effective means of social pressure.[20]

The plurality of legal orders and their internal and spontaneous normativity are relevant for legal scholars. Legal scholars cannot limit themselves to the interpretation of statutory law and other formally established sources of law, but must take into account the actual functioning of social bodies such as public offices, trade unions, factories, supreme constitutional organs and international organisations. They must analyse and expose not only what ought to be according to the rules, but also what happens as a matter of practice: the "boundless horizon [...] of the entire social life."[23]

However, Romano did not embrace sociological jurisprudence and remained a faithful disciple of his mentor, Vittorio Emanuele Orlando, who was the first in Italy to insist on the need to separate law and politics and to adopt a strictly legal method in the study of public law. Also Romano urged jurists to avoid "any contamination of the juristic point of view with non‐legal concepts and methods" and "availed himself of the tools of legal dogmatics."[24][25]

Honours and awards

  • Correspondent member of the Academy of Sciences of Turin (it) (1922)[1]
  • Member of the Consiglio superiore della pubblica istruzione [High Council for Education] and its Board (1917–1921)[1]
  • Member of the Presidential Commission for Constitutional Reforms (1925)[1]
  • President of the State Council (15 December 1928 – 11 October 1944)[1]
  • Member of the Accademia dei Lincei (16 May 1935 – 4 January 1946)[1]
  • Member of the Higher Council of National Education[1]
  • Member of the Diplomatic Litigation Council[1]
  • Correspondent member of the Accademia di scienze, lettere ed arti of Palermo[1]
  • Correspondent member of the Accademia di scienze, lettere ed arti of Modena[1]
  • Knight of the Order of the Crown of Italy (1911)[1]
  • Officer of the Order of the Crown of Italy (1917)[1]
  • Commander of the Order of the Crown of Italy (1921)[1]
  • Grand Officer of the Order of the Crown of Italy (1926)[1]
  • Knight Grand Cross of the Order of the Crown of Italy (1930)[1]
  • Knight of the Order of Saints Maurice and Lazarus (1916)[1]
  • Officer of the Order of Saints Maurice and Lazarus (1921)[1]
  • Grand Officer of the Order of Saints Maurice and Lazarus (1932)[1]
  • Knight Grand Cross of the Order of Saints Maurice and Lazarus (1933)[1]

Publications (selected)

In English

In Italian

  • "La teoria dei diritti pubblici subiettivi", in V. Orlando (ed.), Primo Trattato completo di diritto amministrativo italiano, Vol. 1, Milano, 1897 read online
  • "L’instaurazione di fatto di un ordinamento costituzionale e la sua legittimazione", in Archivio giuridico, Modena, 1901 (now in Scritti minori, vol. 1, Milano, Giuffrè, 1950) read online
  • Principii di diritto amministrativo italiano, Milano, Società Editrice Libraria, 1901 (3rd ed. 1912). read online
  • "Lo Stato moderno e la sua crisi", in Rivista di diritto pubblico, 1910 (now in S. Romano, Scritti minori, Vol.1). read online
  • Lezioni di diritto ecclesiastico, edited by V. Mungioli, Pisa, Società editrice universitaria, 1912.
  • L'ordinamento giuridico, in "Annali delle Università toscane", 1917-1918 (republished in Pisa by Mariotti in 1918; 2nd edition with added footnotes published in Firenze by Sansoni, 1946). read online
  • "Oltre lo Stato", in Rivista di diritto pubblico, 1918 (now in S. Romano, Scritti minori, Vol.1). read online
  • Corso di diritto coloniale, Roma 1918.
  • Lezioni di diritto ecclesiastico, edited by N. Jager, Pisa-Palermo, 1923.
  • Corso di diritto costituzionale, Padova, Cedam, 1926 (8th ed. 1943). read online
  • Corso di diritto internazionale, Padova, Cedam, 1926 (4th ed. 1939). read online
  • Corso di diritto amministrativo: Principi generali, Padova, Cedam, 1930 (3rd ed. 1937). read online
  • Prolusioni e discorsi accademici, Università degli Studi di Modena, 1931. read online
  • Principii di diritto costituzionale generale, Milano, Giuffrè, 1946. read online
  • Frammenti di un dizionario giuridico, Milano, Giuffrè, 1947. read online
  • Scritti minori, 2 volumes, Milano, Giuffrè, 1950 (2nd ed. 1990).
  • Lo Stato moderno e la sua crisi. Saggi di diritto costituzionale, Milano, Giuffrè, 1969. read online
  • Il diritto pubblico italiano, Milano, Giuffrè, 1988.
  • Gli scritti nel Trattato Orlando, Milano, Giuffrè, 2003. read online
  • L'"ultimo" Santi Romano, Milano, Giuffrè, 2013.

In German

  • Italienisches Staatsrechts, Milano, Giuffrè, 1988.
  • Die Rechtsordnung, Berlin, Duncker & Humblot, 1975. read online

In French

Writings in Honour

Scritti giuridici in onore di Santi Romano, 4 volumes, Padova, Cedam, 1940

See also

  • Vittorio Emanuele Orlando
  • Legal pluralism
  • Council of State (Italy)

Notes and references

Notes

  1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 "Scheda senatore ROMANO Santi". https://www.senato.it/Web/senregno.NSF/c825c73d0c1847b5c1257114003828d7/6589368a11ce62754125646f005f17ad?OpenDocument. 
  2. ↑ Ridolfi 2017, p. 5.
  3. ↑ 3.0 3.1 Romano 2013, p. 849.
  4. ↑ 4.0 4.1 Sandulli 2009, p. 5.
  5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Sandulli 2009, p. 6.
  6. ↑ 6.0 6.1 6.2 Ridolfi 2017, pp. 6.
  7. ↑ Virga, Giovanni (2010-08-22). "Il Consiglio di Stato alle prese con la spinosa questione del "primo maresciallato dell’Impero"" (in it-IT). https://lexitalia.it/a/?p=164. 
  8. ↑ 8.0 8.1 Ridolfi 2017, p. 9.
  9. ↑ Romano 2013, pp. 849-851.
  10. ↑ 10.0 10.1 10.2 Melis 2017.
  11. ↑ Ridolfi 2017, pp. 10-11.
  12. ↑ Ferrajoli 1999, p. 46: "The prestigious tradition embodied by Orlando and Romano managed to contain the efforts of those, such as Carlo Costamagna and Sergio Panunzio, who advocated a break with continuity and the re-founding of the State on the basis of an explicit constitutionalisation of the principles of fascism and corporatism."
  13. ↑ Ridolfi 2017, pp. 5–6.
  14. ↑ Ridolfi 2017, p. 7.
  15. ↑ De Napoli 2012, pp. 98 and 111.
  16. ↑ "Romano, Santi - Treccani" (in it). https://www.treccani.it/enciclopedia/santi-romano/,%20https://www.treccani.it/enciclopedia/santi-romano/. 
  17. ↑ 17.0 17.1 Sandulli 2013, p. 1729.
  18. ↑ Cassese 2015.
  19. ↑ Romano 2017, p. 13.
  20. ↑ 20.0 20.1 Bartolini 2020, p. 150.
  21. ↑ Sandulli 2013, p. 1730.
  22. ↑ Scarcello 2023, p. 37.
  23. ↑ Romano, Santi (1947). Frammenti di un dizionario giuridico. Milano: Giuffrè. pp. 115. 
  24. ↑ Croce 2017, pp. 114 and 116.
  25. ↑ Fioravanti 1981, p. 174.

References

Further reading

External links



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