L’Italia e il resto del mondo nel pensiero di Pasquale Stanislao Mancini

Abstract

Celebrating the 150th anniversary of the Kingdom of Italy’s foundation also offers the occasion to recoconsider the first civil code of the new unified State (1865) and its rules concerning conflicts of laws and recognition of foreign judgments, that were drafted by a famous Jurist, Pasquale Stanislao Mancini (1817 – 1888), one of the founders of the Italian unity, and many times Minister of Justice and Minister of Foreign Affairs. Pasquale Stanislao Mancini laid the basis of the so called “Italian School of International Law”, whose leading ideas were exposed in his inaugural Lecture at Turin University in 1851, with the title “Nationality as foundation of the Law of  Peoples”; Mancini argued that nationality is the fundament of international law. This proposition, made for the law of nations, was susceptible of application also in the field of private international law. As a consequence of the assumption that the Nation, based upon a unity of culture and will, is the unique, legitimate foundation of any independent State, Mancini maintains that every national system of conflict of laws must respect the Law of nationality, as a tribute to the Nations’ equal sovereigty, in the fields of civil law strictly connected with the national identity (personal condition, marriage, family relations, succession in movables and immovables) - that he defines as “necessary Law” not being subject to the parties’ autonomy. In the fields where the parties’ autonomy prevail (e.g. in contractual obligations), the few provisions of the choice of law could be instead accepted. In any case, the fundamental rules established in the interest of the Nation – State must prevail. The application of such rules, derived from general principles of equal dignity of national States, is to be made without any discrimination based on nationality. Citizens and foreigners must be treated on equal grounds, without any requirement of reciprocity. Such open-minded, internationalistic approach also inspires the rule concerning direct recognition and full credit to be given to foreign judgments. Mancini’s ideas undoubtely have still some influence on the solution adopted by the recent Italian Reform of Private International Law (1995), where some restrictions of the former regime (1942) of positivistic inspiration were abandoned. Some hints of Mancini’s thought could also be found in the present trends of the EU uniform private International Law, where any discrimination is banned on national basis and prevalence is given, within the European Citizenship, to the national link that corresponds to the parties self – identification.