La rinascita dello Stato – Dal conflitto magistratura-politica alla civilizzazione istituzionale europea

The central theme of this book is the reconstruction of the origins of the conflict between the judiciary and the political power, developed from the dual point of view of theoretical and doctrinal analysis and political-institutional practice. The subject is dealt with in a long-term historical perspective (the historical analysis undertaken here runs from the Middle Ages to the twentieth century) and conducted with rigorous archival and philological research tools (retrieval and first-hand analysis of many manuscripts never studied before, found especially in the French archives). Through this method of investigation, this research aims to contribute to the deepening of a main problem that has arisen in the life of the modern state: the institutional conflict between the major powers of the state and its impact on the structure of society. The basic idea that comes out from this research is that the conflict has been overcome or at least managed only in those contexts where it has established the prospect of a socio-institutional civilization, which has involved a conception of the state and especially of the statuality (i.e. the spirit of the institutions and the "interest in disinterestedness" widely shared within the social body). Unlike in Italy, torn by the “microfeudal” spirit of faction, legal formalism, elusive verbalisms, and a thousand tricks of “practical reason” covered by the exaltation of abstract and formal values and reassured by the rhetoric of "Moral pre-eminence", the dimension of the widespread trust (horizontal and vertical), which is the basis of the civilization and at the same time is a socio-cultural, legal, political and institutional phenomenon, has been and remains in many ways still largely unknown. This research investigates with the comparative method on the deep causes of this difference between the Italian situation and some of the fundamental European contexts (especially France and United Kingdom). After some preliminary considerations on fundamental concepts such as 'state','statuality','socioinstitutional civilization’, ‘spirit of the institutions,’ the study is divided into two parts: the first is devoted to the investigation on the relationship between 'legal ideology' (that is, the world view that characterizes the mindset of lawyers from its medieval origins) and the conflict between political sovereignty and jurisdiction; the second is dedicated to the important moments of the statual turning point, since the decisive theoretical elaboration of the Machiavellian moment until the great Weberian synthesis. In this perspective – both in the first and the second part of the book – many issues related to the reconstruction of the genetic factors of the modern state intermingle: the birth and development of the state in the French and English experiences, the political-instrumental use of the legitimation of the monarchy by divine right, the expansion of judicial apparatus with increasing political tasks; the social policies of the modern state and the long preparation of the contemporary welfare state; the organization and the practical operation of the ordo juris with the hierarchy of laws; the subtle play of the occult sovereignty of the gown. The volume ends with two chapters of critical historiography: one devoted to the issues raised by Italian students of the state (mainly, but not only, legal historians and historians of the political institutions), of which many assumptions are discussed; and the other in which the new forms of the patriarchal mediation of the jurists are outlined and opens the door to new research paths for further discussion of the topic (firstly the underground epistemic link between female identity, ecclesiastical theology, and legal ideology).