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Santi Romano

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Santi Romano
Santi Romano in c. 1930.
Born(1875-01-31)31 January 1875
Palermo, Italy
Died3 November 1947(1947-11-03) (aged 72)
Rome, Italy
OccupationProfessor
Years active1898–1944
Board member of
Academic background
EducationUniversity of Palermo
Academic work
DisciplinePublic law, Jurisprudence
InstitutionsUniversities of Camerino, Modena, Pisa, Milano, Roma
Notable ideas

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, and as member of the Lincean Academy.

Romano was an exponent of the theory of legal pluralism, and his best-known contribution to jurisprudence is 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][3]

Romano's relationship with Fascism is controversial among scholars.

Biography

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Early life and education

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Santi Romano was born to Salvatore Romano and Carmela Perez in an upper-middle-class family in Palermo.[4] He enrolled at the Faculty of Law in Palermo and while still a student, he began working with Vittorio Emanuele Orlando's law firm. Romano also joined the public law journal that Orlando had founded in 1891, the Archivio di diritto pubblico [it], in which Romano published his first essay in 1894. In 1896, Romano graduated under Orlando's supervision and in 1897, Romano published his dissertation as a monograph on public rights in the first volume of Orlando's Primo trattato completo di diritto amministrativo italiano ("First Complete Treatise on Italian Administrative Law").[5]

Career

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In 1898, Romano obtained a libera docenza in administrative law and the following year, he was appointed as a non-tenured professor in constitutional law at the University of Camerino, where he remained until 1902. In 1900, Romano published two monographs on administrative justice—also as parts of Orlando's series—and in 1901, he published Principii di diritto amministrativo italiano ("Principles of Italian Administrative Law") and the essay "The De Facto Establishment of a Constitutional Legal Order and Its Legitimisation".[5]

In 1902, Romano moved to the University of Modena as a non-tenured professor in international law and in 1906, he became a full professor of constitutional law at Moderna. In 1909, Romano moved to the University of Pisa as professor of administrative law, where he delivered his inaugural lecture "The Modern State and its Crises".[4][6] In 1917–1918, he published the first edition of L'ordinamento giuridico ("The Legal Order"), his most-influential contribution to legal theory.[6] 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.[5]

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.[6][7] Between 1918 and 1926 he published several handbooks in constitutional law, international law, ecclesiastical law, and colonial law.[6]

In October 1928, Romano joined the National Fascist Party and in the same year was appointed as President of the Consiglio di Stato (Council of State), the Italian administrative high court.[7] He resigned as a professor but continued his academic teaching at the Sapienza University of Rome, where he lectured in administrative law and organisation (1929–1931) and constitutional law (1932–1942). In 1931, Romano published the first volume of the Corso di diritto amministrativo ("Administrative Law Course"). In 1934, he was appointed to the Italian Senate. He remained in this post until 1945.[6]

In 1938, Romano wrote a controversial legal opinion on the "First Marshall of the Empire",[6] a newly created military rank and the highest in the Italian military, which 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 the law was not in breach of the Kingdom's constitution; Victor Emmanuel protested against Romano's opinion, calling him a "pusillanimous opportunist", but eventually promulgated the law.[8]

Later career and death

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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 transfer of the State Council to the Fascist-controlled city of Cremona but when he was asked to move there, Romano decided to retire.[6] With the end of the Italian Civil War and the defeat of Fascism, he briefly reassumed his office but in September 1944, he 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.[6] Romano was suspended from service on 3 October 1944 but applied for and was granted retirement on 29 January 1945, and retained his right to a pension.[9] He was also removed from university teaching and deprived of his position as Senator.[9] In 1946, with the casting vote of Benedetto Croce, Romano was dismissed from the Accademia dei Lincei.[6] He spent the last years of his life in solitude working on his book Frammenti di un dizionario giuridico ("Fragments of a Legal Dictionary"), and died in Rome on the 3 November 1947.[citation needed]

Among his disciples are Guido Zanobini, Giovanni Miele, Massimo Severo Giannini and Paolo Biscaretti di Ruffia.[10][11]

Relationship with Fascism

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In October 1928 Romano joined the National Fascist Party and in the same year, he was appointed as President of the Consiglio di Stato, Italy's highest administrative court.[7] Contrary to previous practice, the appointment was made on the initiative of Benito Mussolini, and it was the only case in the court's history in which an academic with no previous experience as a state councillor was chosen for the post.[5]

Scholars are divided on the interpretation of this event. According to some, joining the party was a way of co-opting important figures of the establishment into the regime while for others, it was an attempt to align the Supreme Administrative Court with Fascist doctrine.[12] Scholars also disagree on whether his adherence to Fascism should be understood as technical collaboration, which had the merit of counteracting the regime's most-radical tendencies,[13] or whether it has the significance of a truly committed choice.[14]

During the Fascist dictatorship, Romano maintained a relatively detached and uncommitted public profile. However, he accepted an invitation to join the scientific committee of the antisemitic law journal Il diritto razzista ("Racist Law"), which was founded in 1939 by Stefano Maria Cutelli.[15][16]

Family life

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In 1911, Santi Romano married 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).[17][18]

Doctrine

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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").[3] Any legal order can be relevant to any other to any degree, as well as completely irrelevant. Certain legal orders may be internal to others; for example, both the state and the international community are, according to Romano, "institutions of institutions"—legal orders composed of other orders.[20]

Alongside the state and the international community, Romano focussed on the proliferation of self-regulating legal orders, which he called "unequivocal signs of a social pluralism typical of the dynamic society of the early 20th century".[11] As was his French contemporary Maurice Hauriou, Romano was concerned with the development of organised societal structures such as mass political parties and trade unions, whose normativity depends on their independent capacity to obtain allegiance rather than on state recognition.[21] According to Romano, sanctions are not essential for the existence of a legal order because they can be replaced by other effective means of social pressure.[3]

According to Romano, 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. Beyond the content of the rules, they must analyse and expose what happens as a matter of practice: the "boundless horizon ... of the entire social life".[22]

Romano did not embrace sociological jurisprudence and remained a faithful disciple of his mentor Vittorio Emanuele Orlando, who was the first academic 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. 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".[23][24]

Legacy

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Santi Romano is considered one the leading exponents of legal institutionalism and pluralism in the legal culture of his time. Both of these doctrines 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),[25] and has been described as "the most important Italian legal work of the 20th century".[18][11]

Shortly after the Nazis came to power, Carl Schmitt, a prominent German public lawyer and critic of legal positivism, embraced Romano's institutionalist theory, as he acknowledged in his essay On the Three Types of Juristic Thought (1934). However, Schmitt's reception of Romano was selective. Unlike Romano, who viewed society as comprising multiple, sometimes competing legal orders, Schmitt conceived of this plurality as subordinate to the state. By asserting the state's authority over non-state legal orders, Schmitt implicitly rejected Romano's legal pluralism.[26]

Honours and awards

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Apart from his roles as President of the Council of State (15 December 1928 – 11 October 1944), Senator of the Kingdom of Italy (16 May 1935 – 4 January 1946), and member of the Accademia dei Lincei (16 May 1935 – 4 January 1946), Santi Romano received the following honors and awards:[1]

  • Correspondent member of the Academy of Sciences of Turin [it] (1922)
  • Member of the Consiglio superiore della pubblica istruzione [High Council for Education] and its Board (1917–1921)
  • Member of the Presidential Commission for Constitutional Reforms (1925)
  • Member of the Higher Council of National Education
  • Member of the Diplomatic Litigation Council
  • Correspondent member of the Accademia di scienze, lettere ed arti of Palermo
  • Correspondent member of the Accademia di scienze, lettere ed arti of Modena
  • Knight of the Order of the Crown of Italy (1911)
  • Officer of the Order of the Crown of Italy (1917)
  • Commander of the Order of the Crown of Italy (1921)
  • Grand Officer of the Order of the Crown of Italy (1926)
  • Knight Grand Cross of the Order of the Crown of Italy (1930)
  • Knight of the Order of Saints Maurice and Lazarus (1916)
  • Officer of the Order of Saints Maurice and Lazarus (1921)
  • Grand Officer of the Order of Saints Maurice and Lazarus (1932)
  • Knight Grand Cross of the Order of Saints Maurice and Lazarus (1933)


Publications (selected)

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In English

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  • Romano, Santi (2017). Croce, Mariano (ed.). Legal Order. Routledge. ISBN 9780367180805. OCLC 1057785097.

In Italian

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  • "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

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  • Italienisches Staatsrecht, Milano, Giuffrè, 1988.
  • Die Rechtsordnung, Berlin, Duncker & Humblot, 1975.

In French

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  • L'ordre juridique, Paris, Dalloz, 1975.

Writings in Honour

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

See also

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Notes and references

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Notes

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  1. ^ a b "Scheda senatore ROMANO Santi". www.senato.it. Archived from the original on 29 January 2024. Retrieved 29 January 2024.
  2. ^ Ridolfi 2017, p. 5.
  3. ^ a b c Bartolini 2020, p. 150.
  4. ^ a b Romano 2013, p. 849.
  5. ^ a b c d Sandulli 2009, p. 5.
  6. ^ a b c d e f g h i Sandulli 2009, p. 6.
  7. ^ a b c Ridolfi 2017, pp. 6.
  8. ^ Virga, Giovanni (22 August 2010). "Il Consiglio di Stato alle prese con la spinosa questione del "primo maresciallato dell'Impero"". LexItalia.it weblog (in Italian). Retrieved 31 January 2024.
  9. ^ a b Ridolfi 2017, p. 9.
  10. ^ Romano 2013, pp. 849–851.
  11. ^ a b c Melis 2017.
  12. ^ Ridolfi 2017, pp. 10–11.
  13. ^ 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."
  14. ^ Ridolfi 2017, pp. 5–6.
  15. ^ Ridolfi 2017, p. 7.
  16. ^ De Napoli 2012, pp. 98 and 111.
  17. ^ "Romano, Santi - Treccani". Treccani (in Italian). Retrieved 31 January 2024.
  18. ^ a b Sandulli 2013, p. 1729.
  19. ^ Romano 2017, p. 13.
  20. ^ Sandulli 2013, p. 1730.
  21. ^ Scarcello 2023, p. 37.
  22. ^ Romano, Santi (1947). Frammenti di un dizionario giuridico. Milano: Giuffrè. p. 115.
  23. ^ Croce 2017, pp. 114 and 116.
  24. ^ Fioravanti 1981, p. 174.
  25. ^ Cassese 2015.
  26. ^ De Wilde 2018, p. 13.

References

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Further reading

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