Social progress and the reformist tradition in civil procedural law

To retrace the evolution of Piero Calamandrei’s thought on the key concept of legality (legalità) it is necessary to begin from the interwar years, when Italy was ruled by the Fascist regime. While his friends and collaborators suffered the persecution of the regime,Footnote ¹² Calamandrei focused on his professional activity, under the conviction that retaining his chair in civil procedure at the University of FlorenceFootnote ¹³ and the influence to shape young minds was the most useful he could be towards the eventual return to democracy.Footnote ¹⁴

While his attitude ultimately responded to a moral and political goal, it was predicated on a division between his lawyerly and political persona that Calamandrei hung on to during the Fascist years. A patent example of this is the 1939 dialogue between Calamandrei and the Minister of Justice, Dino Grandi, who offered him the leading role in the drafting of the new Codice di Procedura Civile. Calamandrei accepted only after he made sure that the Minister understood that he would participate in his capacity as technical expert, without any implication of political approval or collaboration with the regime.Footnote ¹⁵

Nonetheless, for Calamandrei the division between law as formal technique and its political implications was never too rigid, as evident from his publications during the Fascist period. His texts revolved around seemingly technical or legal-philosophical topics such as the concept of action in trial lawFootnote ¹⁶ or the relation between historical investigation and the activity of judging.Footnote ¹⁷ The gist of this body of work was an indictment of the barbarism of free law in Soviet Russia and Nazi Germany, an approach embodying the full arbitrariness of state power.Footnote ¹⁸ Calamandrei’s juxtaposition of free law with the certainty and soundness of positive legality might have appeased the Fascist regime, which had not revolutionised the fundamental structures of the pre-existing legal system. However, his disguised tribute was to formal legality as the last bastion of the stato di diritto which the Fascist government had hollowed out from the inside.

The overarching theme transpiring is the crucial connection between even the most technical legal-theoretical reflections and social life to uphold individuals’ sense of freedom and participation. This point was particularly sensitive to Calamandrei and would later be to Cappelletti. As experts of the law of civil procedure, they consistently argued that the system of trial law was not simply an instrumental machinery, but itself a motor of social progress, in tune with contemporaneous socio-political movements. Italian experts of civil procedure, from the early twentieth century up to Cappelletti and to this day, have routinely traced back this attitude and vision to Austrian jurist Franz Klein (1854–1926).Footnote ¹⁹

Starting in the 1880s, Klein wrote a series of works calling for civil procedure reform, culminating in the 1891 essay Pro futuro.Footnote ²⁰ This led to Klein’s appointment at the Ministry of Justice with the task of drafting the new Austrian Code of Civil Procedure. Klein’s brainchild, the Zivilprocessordnung, entered into force in 1895. This new trial system was built around principles such as orality, immediacy and concentration of proceedings, which became banners for reform-minded scholars of procedure. The philosophy behind the reform was an overcoming of the 19^th century liberal vision of civil trial as an all-out confrontation between the parties, who held significant control over the proceedings and the fact-gathering, with their interests prevailing over considerations of efficiency and the pursuit of factual truth. Klein’s system, instead, sought a more balanced distribution of powers between the judge and the parties to ensure what he called the trial’s social function. As legal disputes, Klein argued, were a social negative, procedure should aim at making their solution cheaper and quicker by favouring direct collaboration between the judge and the parties. The collaborative principle would also enhance the accuracy of fact-finding, making civil trials more efficient and more just.Footnote ²¹

The principles of the Austrian model were introduced and championed in Italy by Giuseppe Chiovenda (1872–1934), most famously in his inaugural lectures at the universities of Parma in 1902 and Bologna in 1903.Footnote ²² It became routine to associate reform banners such as the principle of orality to the authority of Chiovenda’s scholarship.Footnote ²³ However, in Italy, the process of reforming civil trial law would not be as quick and straightforward as in Klein’s Austria. After several failed attempts, the new Code of Civil Procedure was approved only in 1940,Footnote ²⁴ under the Fascist regime and shortly after Italy had entered World War II alongside the Axis. Calamandrei, a member of the ministerial commission which included other luminaries far from aligned with the regime like Francesco Carnelutti and Enrico Redenti, had the leading role in the project’s preparation and exposition.

The Code’s Fascist-era origins became controversial after Mussolini’s fall in 1943. Critics denounced it as a product of authoritarianism, while Calamandrei defended it as the culmination of pre-Fascist scholarly traditions, notably Chiovenda’s reformist vision.Footnote ²⁵ The debate centred on whether its expanded judicial powers served authoritarian control or procedural efficiency in the public interest.

For the purposes of this article, the key point I aim to convey with this section is that the academic milieu that Cappelletti would join as a young student in the early 1950s was pervaded by a long-standing pedigree and repertoire of concepts. True, the politico-legal landscape had dramatically changed with the post-war establishment of the new republican and democratic order, anchored around the Italian Constitution of 1948. Legal scholarship, sometimes reluctant and striving to retain continuity with the past, had participated both in the establishment of the new constitutional order and in the development of reforms and doctrines deriving from it. For instance, the idea of judicial review of legislation could realistically be championed and enacted only once the authoritarian state form implemented by Fascism and the surviving thin veneer of the 1848 Statuto Albertino, a flexible constitution, were both gone.

Cappelletti would embrace the post-war climate of innovation, challenging the conservative bent of Italian legal academia. But he also took on the torch of the storied mission that reformist scholars of civil procedure had passed on for decades. It came ingrained in the teachings of his mentor Calamandrei, who in turn relied on the by-then almost mythical figures of Chiovenda and Klein.Footnote ²⁶ The mission was articulating and extolling through academic reflection and the devising of reforms the intimate connection between trial procedure, politics and social change. This vision formed the bedrock of Cappelletti’s career, from his early comparative studies on judicial review up to his late work on integration through law and the converging dimensions of justice.

Indeed, in 1999, when Cappelletti had recently retired, the International Association of Procedural Law held its congress in Vienna and celebrated the centennial legacy of Klein’s Austrian Zivilprocessordnung. The opening lectureFootnote ²⁷ was entrusted to Bryant Garth, a doctoral student of Cappelletti at the European University Institute starting in 1975 and a frequent collaborator since. His intervention highlighted the commonalities between the figures of Klein and Cappelletti: innovators who employed sophisticated scholarly thinking to secure meaningful legislative and societal change.

Garth also recounted a personal anecdote. On becoming Cappelletti’s student, one of the first things he learned about him was his ‘favourite procedural quotation’, authored by none other than Klein. Garth remarked that ‘it was not just a quotation for Cappelletti, but rather a problem that defined his career’:Footnote ²⁸ ‘The squalid, arid, neglected phenomenon of civil procedure is in fact strictly connected with the great intellectual movement of peoples; and its varied manifestations are among the most important documents of mankind’s culture.’Footnote ²⁹

Building post-war legality on social rights

The events of 25 July 1943, when Mussolini was removed from power and arrested in consequence of the catastrophic performance of the Italian army in the war, left Italians in a situation of uncertainty and almost disbelief. For the time being, the country would continue to fight alongside the Axis, while the new government led by the Marshal Pietro Badoglio would seek an armistice with the Allies.

These events immediately opened new possibilities. The rector of the University of Florence, Arrigo Serpieri, was too compromised with the Fascist regime to continue in his position. Calamandrei, recently forced to resign his chair by Serpieri on accusations of defeatism, would be named his successor.Footnote ³⁰ Calamandrei would not be able to fully take up his functions. The announcement of the armistice with the Allies on 8 September would trigger Germany’s occupation of northern and central Italy. Calamandrei, exposed to persecution and arrest as one of the few remaining unscathed figures from the latest local resistance to Fascism in 1925 and as the University’s rector, was forced to flee Florence.

He would spend eight months in hiding in the village of Colcello, on the hills of Umbria. During that time, he was mostly cut off from the world, receiving only infrequent and disjointed news on the military developments and on his son Franco, then resisting the Nazi occupiers in Rome as a member of the Communist Gruppi di Azione Patriottica.

In this state of isolation and anguish, Calamandrei busied himself with preparations in the hope of a better future.Footnote ³¹ He set his focus on a deep reconsideration of the function of law in society, revolving around the concept of legality. The main texts he worked on in Colcello were a preface to Cesare Beccaria’s 1764 Dei delitti e delle pene,Footnote ³² the pioneering Enlightenment pamphlet on the abolition of state-sanctioned torture and death penalty, and an early version of Appunti sul concetto di legalità.Footnote ³³

In the preface, Calamandrei remarked how the atrocities and violations of basic legality described by Beccaria, which had seemed to be relegated to a far past, had once again occurred in Italy under the Fascist regime and Nazi occupation. Dei delitti e delle pene could no longer be considered a description of historical curiosity. Instead, it showed that by ‘just slightly removing the ruins we see reappear among the dust … these old, trusted books’ providing once again ‘the word apt to lead us to find faith again’. The faith Calamandrei sought was in the resurfacing of the Italian culture of legality, built on a sense of universal humanity and running from the tradition of jus gentium through Beccaria and again in the Risorgimento cornerstone text Dei doveri dell’uomo by Giuseppe Mazzini.Footnote ³⁴

In the Appunti, Calamandrei sought to articulate, in the clearest possible form, the relationship between liberty and legality under present historical conditions. He began from the consideration that, all over Western Europe, the re-establishment of legality was invoked as the condition for any social reconstruction beyond the devastation of totalitarianism and war. At the outset, Calamandrei explained that, while legality could be defined as respect for the law, it could not be reduced to the obeying of formal rules. After all, even the 1938 racial laws persecuting Italian Jews had had a veneer of formal legality. For legality to be the foundation of a rebuilt Europe, it had to respond to the ‘eternal moral needs around which political struggle revolves in decisive moments for humanity: liberty, justice and egality’.Footnote ³⁵ Indeed, legality is the formulation of this triad in legal terms and these ideals, in turn, were bound to be frustrated under despotic rule, as the previous twenty years had shown. Thus, he concluded, legality and political liberty are symbiotic.

Having established these foundations, the text detailed legality’s two components: formal and substantive. Formal legality entails the certainty for individuals of the legal consequences of their behaviour through the a priori establishment of legal rules that are both general and abstract. Notwithstanding fallbacks and various forms of criticism,Footnote ³⁶ since the Enlightenment, formal ‘legality had become the natural expression of European legal rationalism’.Footnote ³⁷

The novel topic which Calamandrei was now finally able to investigate was that of substantive legality. From this angle, legality goes beyond considerations of form and authority. Calamandrei found substantive legality expressed in the rise since the nineteenth century of the concept of Stato di diritto, Italian translation from the German Rechtsstaat, whereby the authority of legislative, executive and judicial organs derives from the law itself. This represented, in Calamandrei’s vision, the gradual ‘putting into practice of the connection of legality and liberty, the legal ideal towards which the most genuine thought of European civilization has aimed for centuries’.Footnote ³⁸

Calamandrei identified the core of substantive legality in the appearance and affirmation of three concepts: the democratic principle, popular sovereignty, and what he called diritti di libertà, a formula signifying the inseparable unity of political and social rights. As legality represents the limits to the exercise of liberty, for it to be itself an expression of liberty each individual needs to be able to concur, directly or indirectly, with the determination of legal rules. Similarly, Calamandrei explained, popular sovereignty as a constitutional principle derives from the philosophical postulate of individual liberty and equality. Nonetheless, a legality based only on democratic participation and popular sovereignty would be incomplete as it would not guarantee the liberty of minorities. This is where rights come in, as practical expressions of the moral liberty of each individual at the basis of substantive legality. In other words, legality limits liberty, but liberty also limits legality.

As with formal legality, Calamandrei addressed the most common forms of criticism to substantive legality. The rebuking of the Marxist critique to liberty rights as privileges of the bourgeoisie perpetuating class inequalities, gave him the chance to articulate the key forward-looking point of his argument. Calamandrei remarked how the juxtaposition of the bourgeois ideal of liberty with the proletarian ideal of justice had been proved misguided by the tragic interwar experience of totalitarianism. On one hand, the working class had learned again the value of liberty. On the other, parties of liberal inspiration had accepted that the social question was itself a question of liberty. The guarantee of a minimum of economic welfare had come to be understood as the condition for every individual to express their human liberty and effectively participate in society. ‘Thus’, Calamandrei concludes, ‘liberty rights are … enriched and completed: economic liberties align themselves alongside civic and political liberties with the same constitutional function to ensure to every citizen their place within the State’.Footnote ³⁹

Calamandrei’s nuanced articulation of legality in the Appunti, culminating in the identification of social justice as a matter of liberty and of social rights as an organic completion of civil and political rights, is clearly inspired by the politics of Carlo Rosselli. While Calamandrei and Rosselli had been friends and collaborators at least up to 1925, this obvious closeness of thought is nonetheless curious. This is because, while he was drafting the Appunti in 1943–1944, Calamandrei had still not been able to read the most complete and mature formulation of Rosselli’s ideas and his only book-length published work, Socialismo liberale.

Rosselli had gone to France in 1929, escaping the internal exile to which he had been condemned by the Fascist regime. There he founded the anti-fascist movement Giustizia e libertà and published his book for the first time in French translation.Footnote ⁴⁰ In 1936, Rosselli joined the fight on the republican side in the Spanish civil war but was wounded. Returned to France to convalesce, in 1937 he was assassinated together with his brother Nello by French fascists, directed and financed by the Italian government.

Originally a reformist socialist follower of Filippo Turati, Rosselli’s revising of Marxism stemmed from an instinctive rejection of dogmatism and determinism alongside a nuanced scepticism of the idea of class struggle. Rosselli believed in the importance of participation and political action whereby, in the pursuit of meaningful freedom, the liberal method could favour class alliances and an increasing measure of social justice. Indeed, in his analysis, Fascism had triumphed in Italy not only through sheer violence but also by exploiting political apathy and the lack of habits of democratic engagement. The way beyond was the conceiving, campaigning and fighting for the implementation of a modern social democracy. A more just society had to be willed and created; it would not appear from an inevitable historical process. In Rosselli’s synthesis, genuine ‘socialism is the logical development of liberalism’, as the means of the democratic method is inextricably linked with the expansion of liberty to the working classes. In other words, in Rosselli’s vision of post-totalitarian Europe, ‘liberalism would be the ideal, inspirational force; socialism the practical realising force’.Footnote ⁴¹

Calamandrei’s reliance on Rosselli’s ideas as the foundation for his legal articulation of the diritti di libertà became explicit in 1945, once he read Socialismo liberale, finally published in ItalyFootnote ⁴² – thanks, in part, to his urging. In L’Avvenire dei diritti di libertà,Footnote ⁴³ Calamandrei discussed in further detail the difficulties of turning the socialist liberal vision into a legal reality. This primarily hinged on the fact that while they were complementary and interdependent, civil and political rights, on one hand, and social rights, on the other, required different types of state activity for their effective implementation. While the former required public power to abstain from impeding their exercise, the latter entailed a different, active approach.Footnote ⁴⁴

The goal, Calamandrei continued, was that of a social democracy holding political and social rights on the same footing. The functioning of this formula depended once again on a synthetic equilibrium. Calamandrei offered the example of the 1936 Constitution of the Soviet Union, which included the most advanced affirmation and guarantee of social rights. However, the Soviet Constitution did not guarantee the right to political opposition and to the constitution of a political party in competition with the ruling one. ‘Here the balance between political and social rights, which is the ideal of democratic rule whereby social justice is posited as the condition of liberty, is broken in favour of social rights, to the contrary of … so-called “bourgeois” legal orders, where social rights were sacrificed to political ones.’Footnote ⁴⁶ Also the Soviet Constitution offered an incomplete model of democracy, only social but not political.

The spiritual guidance of Rosselli’s social democratic synthesis did not remain confined to analysis but inspired direct action. Giustizia e libertà organised partisans’ brigades, providing a substantial contribution to the efforts of the Resistenza. These common endeavours led to the foundation in 1943 of the Partito d’Azione, uniting a variety of political cultures under the shared acceptance of republicanism, the liberal method, amelioration of the working classes’ living conditions, respect for local autonomies and the championing of European federalism. It was as a member of this party that Calamandrei would be elected to the Constitutional Assembly of the newborn Italian Republic in 1946. It was towards the study of the new Constitution he had helped to create that Calamandrei would direct his student Mauro Cappelletti in the early 1950s.

Judicial review and social rights in the new Constitution

Calamandrei championed his ideal vision of legality in the Constitutional Assembly with a healthy dose of pragmatism and awareness of political realities. He rose to a central role in the conception and development of key areas of Italy’s new constitutional system despite his representing a party of little political weight.Footnote ⁴⁷ His personal contribution was made possible not just by his renown as a legal scholar and anti-fascist intellectual, but also by how precious his expertise was in the given circumstances, especially with regard to constitutional adjudication and judicial review.

Indeed, the costituenti seemed to have little to build on and lack a clear vision.Footnote ⁴⁸ Since before the full liberation from German occupation, there was general agreement among the Italian political class that the supremacy of the new Constitution would be protected by some form of constitutionality control. This was to check the power of parliament and curb the chances of democratic institutions functioning as springboards for authoritarian takeovers as they had in Italy, Germany and elsewhere in Europe.Footnote ⁴⁹ However, initially there were few and rather confused ideas on how constitutionality control would operate in practice.

Even though the eventual system of constitutional review in Italy could be more accurately described as the result of collective effort, it is widely recognised that Calamandrei took a leading role in envisioning its design.Footnote ⁵⁰ Some credit him with steering the Forti Commission,Footnote ⁵¹ which preceded and prepared the work of the Constitutional Assembly, toward the institution of a single judicial organ entrusted with the constitutional review of legislation,Footnote ⁵² the solution that eventually came to be adopted in the new Constitution and has characterised the Italian legal system since.

However, Calamandrei had initially proposed a hybrid system, whereby centralised review would operate alongside a decentralised one operated by ordinary judges through the disapplication of unconstitutional norms,Footnote ⁵³ a proposal he reiterated as a member of the Commissione dei 75, the sub-commission tasked with the first drafting of the constitutional text within the Constitutional Assembly.Footnote ⁵⁴ While the diffuse model was rejected, it paved the way for the adoption of incidental access, whereby the review of constitutionality of legislated rules is triggered by ordinary judges applying them in concrete cases. This led to the now routine metaphor, coined by Calamandrei himself, of ordinary judges as the ‘gatekeepers’ of constitutional adjudication.

What matters here is that, even in this still transitional phase, Calamandrei sought to build a procedure of constitutional review as accessible to individuals as political realities allowed. True, his technical solutions were still responsive to a traditional understanding of formal legality, whereby the systemic function of judicial review was one of objective protection of the constitutional coherence of the legal order.Footnote ⁵⁵ However, from the point of view of political foundations and social practice, Calamandrei immediately understood constitutional adjudication as the ‘keystone’Footnote ⁵⁶ of the ‘new legality promised by the Constitution’.Footnote ⁵⁷ Indeed, its fundamental feature was the judicial defence of liberty rights (diritti di libertà) by upholding the rigidity of the Constitution and its founding values against the potential abuse of legislative power.

As such, in Calamandrei’s vision, the procedural definition of constitutional adjudication was profoundly linked to the debate over the enshrining of the new legality, harmonising individual liberty and social justice and, more particularly, of social rights in the new constitutional text.Footnote ⁵⁸ However, his positions on the issue would famously change over time.Footnote ⁵⁹ This derived from the legal-theoretical challenge of turning aspirations of solidarity and wealth redistribution into actionable and justiciable rights. Indeed, while believing that the Costituente could not avoid the social question,Footnote ⁶⁰ he feared that the inclusion of social rights, bound to remain ‘dead letter’ without stringent formulations and transformations in the economic system allowing the means to satisfy them, would only defeat the purpose. Legality in Italy had already been fundamentally undermined by the Fascist regime. To rebuild the people’s faith in the legal system, the new legality of the Constitution could not be based on potentially empty promises. This is why he initially rejected and opposed the distinction, most famously articulated and championed by the constitutional law scholar Costantino Mortati, between prescriptive rules and programmatic rules (norme programmatiche). The latter category, to which formulations of social rights in the constitutional draft were considered to belong, was defined as indicating general directions of value for legislative action yet lacked the necessary concreteness to bind it in more specific terms.

In the Forti Commission and again in the Constitutional Assembly, Calamandrei argued that social rights, being aspirational statements and thereby not justiciable, belonged in the Preamble rather than in the main text of the Constitution. Eventually, though, he came around to the idea that ‘the Constitution has to be far-sighted’,Footnote ⁶¹ looking to the future for its gradual and transformative implementation. Indeed, Article 3 paragraph 2, containing the formulation of the fundamental principle of substantive equality that Calamandrei contributed to draft, assigns to the ‘Republic … the task … of removing the obstacles of economic and social nature … impeding the full development of the human person and the actual participation of all workers to the political, social and economic organisation of the Country’.

This tension reflected wider post-war controversies surrounding judicial review’s capacity to drive social change. Both Calamandrei and Cappelletti recognised constitutional courts as bulwarks against authoritarian regression, yet they remained mindful of influential arguments warning that judicial intervention might obstruct legislative reform efforts. The US Supreme Court of the Lochner era stood as the most prominent example of such kind of judicial overreach. Calamandrei’s gradual acceptance of the Italian Constitutional Court as designed in the constitutional text, notwithstanding his early doubts about enforcing social rights through adjudication, demonstrated his practical approach to constitutional governance. When political processes failed to realise the Constitution’s social promises, he came to view judicial review as an essential mechanism for breathing life into substantive legality. More than a mere substitute for political implementation, judicial review was increasingly understood as a means to give authoritative legal expression to the Constitution’s social principles, anchoring progressive developments in constitutional judgments and protecting them from political erosion. Cappelletti subsequently adapted this reasoning to the European context, maintaining that courts offered the most viable means to protect fundamental rights in a political landscape fractured by competing sovereignties, even acknowledging their inherent democratic limitations.

Ensuring that the promise of the new legality inscribed in the Republican Constitution of 1948 would be fulfilled was the mission to which Piero Calamandrei would dedicate the remaining years of his life.

Cappelletti as a young scholar: comparative procedure of judicial review and liberty rights

Calamandrei’s promotion of the new constitutional culture would permeate all facets of his work until his death in 1956. This was reflected in his action as a politician, a legal practitioner, a scholar and as an indefatigable populariser of the Constitution and of its foundations in the values of the Resistenza, especially among the younger generations. These various facets of the 12 yearsFootnote ⁶² in which he could freely contribute to the political life of the new Republic have been studied in depth in Italian scholarship. However, there are two aspects of Calamandrei’s activity in this period that remain understudied and represent crucial elements of his influence on Mauro Cappelletti: the new direction of his academic mentorship and his advocacy of European integration.

Regarding the first aspect, while his permanent chair and main expertise were in civil procedural law, Calamandrei began directing his students towards the study of constitutional legal mattersFootnote ⁶³ and, in particular, to the study of constitutional adjudication in a comparative vein. His closest students, in most cases both academic mentees and collaborators in his legal practice, had all been part of the partisan Resistance. Calamandrei believed that the intellectual development of the new constitutional legality was the task of this younger generation, directly involved in the fight to regain a free and democratic society yet uncompromised with the older ways of legal academia under the Fascist regime. Indeed, while Carlo Furno (1913–1970) went on to become a professor of civil procedural law like his mentor, Mario Galizia (1921–2013) and Paolo Barile (1917–2000) became constitutional law scholars. Cappelletti, the youngest of the group, would pursue the most innovative and eclectic intuitions in Calamandrei’s late-life research agenda. Cappelletti’s prolific research career would be characterised by the study of the social function of procedural systems in comparative and European perspective.

Cappelletti was born in 1927 in the northern mountain town of Folgaria in the Trento province. As a teenager he took part in the Resistenza, acting as a messenger for the partisan brigade La Pasubiana in his home area.

He obtained his law degree at the University of Florence, under Calamandrei’s supervision, in 1952 and was admitted to the Italian Bar in the same year. He would then work as assistant to Calamandrei’s chair in civil procedural law until his death. Between his graduation and 1955, Cappelletti also worked as a collaborator in Calamandrei’s law practice. He would spend the next two years at the University of Freiburg as Humboldt Research Fellow. This period between 1955 and 1957 would prove to be eventful and formative for Cappelletti.

In 1955, he published his first monograph,Footnote ⁶⁴ bearing a title and a subtitle that were both highly meaningful. The title La giuridizione costituzionale delle libertà signalled Cappelletti’s intention to address constitutional adjudication primarily from the point of view of protection of fundamental rights; the use of libertà to define such rights recalled Calamandrei’s usage of the expression diritti di libertà to denote the integration of political rights with social rights in the new post-war legality.

The subtitle, Primo studio sul ricorso costituzionale (con particolare riguardo agli ordinamenti Tedesco, Svizzero e Austriaco), signalled his taking up of the trailblazing role Calamandrei had envisioned for the up-and-coming generation of legal scholars Cappelletti belonged to. The book was indeed the first to analyse the theory and practice of constitutional complaints even before the Italian Constitutional Court began to function. Moreover, it did so with deep knowledge of the storied experience of the institute in other jurisdictions. Cappelletti’s primary focus was on direct constitutional recourse as developed in three legal systems of the German-speaking world but also incorporated further legal solutions such as the regulation of amparo constitucional in Mexico, thereby opening Italian scholarship to a wider comparative and European perspective.

1956 finally saw the initial activity of the Italian Constitutional Court take place, with Calamandrei meaningfully pleading in its very first case.Footnote ⁶⁵ A few months later, on 27 September, Calamandrei died of surgery complications. In the following year Cappelletti published two books which, in different ways, celebrated the legacy of his Maestro.

One was a monograph titled La pregiudizialità costituzionale nel processo civile.Footnote ⁶⁶ This work was the first published in a planned series by the newly established Calamandrei Foundation. The series aimed at pursuing ‘the research agenda set by Piero Calamandrei … before his premature demise: … uniting forces towards … comparative, civil and constitutional … scientific investigation on trial and procedure intended as essential means for the protection of freedoms’.Footnote ⁶⁷ The content of the book offered a thorough technical and theoretical analysis of the requirements for incidental constitutional review of legislation in the Italian legal system, once again read within a rich comparative context. Pregiudizialità requires that, for constitutional review to be triggered, the solution of a question of compatibility of a legislative norm with the constitutional text is necessary to decide the underlying legal dispute. As such, it was a crucial theme for both Calamandrei and Cappelletti. Indeed, lacking a direct action for the protection of fundamental rights in the Italian system of constitutional adjudication, pregiudizialità provides the legal-conceptual link between the concrete protection of subjective rights and the judicial review of legislation.

The other 1957 book, In memoria di Piero Calamandrei,Footnote ⁶⁸ was a more explicit and direct homage to the Maestro’s legacy. In it, Cappelletti collected three texts he authored following Calamandrei’s death. The book is closed by a short text focusing on personal memories: the everyday relationship between student and mentor, the sense of loss tempered by the enduring memory of his example. The other two texts, which combined occupy the bulk of the book, engage with Calamandrei’s lifework and intellectual reflections over the most pressing legal and political problems of the day. In the process of outlining his mentor’s teachings, Cappelletti seems to also be setting a scholarly agenda for his own career to come. The texts, titled ‘Piero Calamandrei e la difesa giuridica della libertà’ and ‘I diritti sociali di libertà nella concezione di Piero Calamandrei’, recall the key events of Calamandrei’s professional and political journey to sketch the evolution of his legal and political thought in context.

Cappelletti illustrated the deep tradition founding Calamandrei’s association of freedom with solidarity:

Cappelletti also remarked how Calamandrei believed that concretising the historical unfolding of these values in institutional culture by promoting constitutional and procedural harmonisation and advancement could not be a process operating merely within national boundaries. Once again inspired by Mazzini, Calamandrei saw the new ‘Italian Republic as part of a wider structure, a united Europe’.Footnote ⁷⁰

‘Questa nostra Europa’: Calamandrei and Cappelletti’s early vision for European legal integration

While it is undoubtedly one of the most understudiedFootnote ⁷¹ aspects of his public activity in the last years of his life, Calamandrei’s championing of European integration is widely known and documented. His first chance to freely express his vision came few months after his return to a liberated Florence. At the inaugural event of the Associazione Federalisti Europei on 27 January 1944, Calamandrei gave a speech titled ‘Il federalismo non è un’utopia’. The speech not only made the case for European federalism as a realistic, almost inevitable policy for Italy, it also already contained the key elements of Calamandrei’s federalist vision: first, the Mazzini-inspired idea that the aggregation of the peoples of Europe would, over time, happen spontaneously, favoured by the brotherhood forged in the shared fight against oppression and totalitarianism and, thereby, profoundly linked to the values of the Resistenza; second, the belief that the federal plan could function effectively only if legally sound, built in harmony with the constitutional systems that were being created as an expression of the new socially-oriented post-war legality and requiring a voluntary limitation of national sovereignty.

Essentially, Calamandrei was looking at European integration through the same intellectual lens we have already encountered, and which coloured all his thinking on the fundamental issues of the day: the search for the best institutional architecture and legal arrangements to protect democratic freedom and avoid the return of authoritarian government. Accordingly, in his view, federalism had to operate both within and beyond the state.Footnote ⁷² Indeed, in the Constitutional Assembly, Calamandrei supported the establishment of regions, intended not as mere administrative divisions but as spaces of local autonomy, protecting individual liberty by providing a counterbalance to central institutions and a level of government closer to citizens. In turn, European federalism was predicated on the mutual and coordinated limitation of sovereignty to institutionalise a shared protection of democratic freedom and fundamental rights. Calamandrei’s federalist vision required balancing interconnected levels of solidaristic autonomy.

The key example of how Calamandrei conceived the formulation within national constitutions of the limitation of sovereignty necessary to prepare for European institutional integration is Article 11 of the Italian Constitution. In a 1945 article, he used an effective image to explain how national constitutions could establish the foundations of a united Europe: ‘like architects building the wing of a building to be completed in the future leave on a wall destined to become load-bearing certain protruding stones, which they call “ammorzature”, so it is conceivable that in the Italian Constitution will be included, in view of the yet unborn federation, similarly made legal “ammorzature” which could tomorrow serve as connection and coordination with a larger international construction’.Footnote ⁷³ The eventual result of this idea would be the formulation of Article 11, to which Calamandrei directly contributed,Footnote ⁷⁴ with ‘Italy consent[ing], in conditions of parity with other States, to the limitations of sovereignty necessary to an order ensuring peace and justice among Nations; it favours and promotes international organisations aiming at these goals’. The article represents to this day the legal basis for Italian membership not only of the EU, but generally of international organisations.

The ensuing initiatives by Calamandrei to promote and shape European integration, including proposals for a European constitutional assembly and a political union, are too numerous and varied to be satisfactorily outlined here.Footnote ⁷⁵ What I find important to note is that Calamandrei’s vision for Europe was not a mere product of idealism and legal doctrine. His belief in European integration was founded also on concrete geopolitical considerations. In the Cold War scenario that was clearly emerging and soon became a lived reality, Europe could forge an independent political path only if united. He explained his reasoning in clear terms in March 1949 while announcing in Parliament his vote against Italy joining NATO.Footnote ⁷⁶ Calamandrei refused the idea of joining a military pact that would force European nations to be satellites of either the United States or the Soviet Union and turn Europe into a frontline. The best guarantee for peace was a Europe politically and militarily united that could act in a mediating function between the two superpowers and their respective ideologies. Choosing a side would not only have consequences on foreign policy but on internal politics too. The resulting polarisation would favour authoritarian solutions and jeopardise the taking root and development of post-war democratic constitutional systems. In this sense, a united and independent Europe was also the best vehicle of the new legality, integrating social justice and political liberty.

Almost nine years later and a few months after Calamandrei’s death, with Italy now firmly a member of the Atlantic Pact, Cappelletti would remember the speech.Footnote ⁷⁷ In a phase of heightened tensions, Cappelletti recalled his mentor’s foreseeing warning against the logic of power politics and its detrimental effects on Europe. Instead, according to Cappelletti, Calamandrei believed that ‘the necessary premise for an international society of peoples’ was ‘democracy, intended as civil coexistence and the extirpation of privilege, that is … freedom for the individual in society, for society’.Footnote ⁷⁸ Cappelletti summed up the fundamental principles of Calamandrei’s thought as solidaristic autonomy and interdependence of liberties. Quoting him, he explained ‘the idea that autonomy cannot but be insured by mutual respect of the autonomy of others’ and it should ‘equally’ shape ‘relationships between citizens in the same State, between regions in the same country, nations in the same international community’. Therefore, to foster a ‘democratic internal order’ means ‘also to have created an internationally sociable organism [which] for natural development of the principles that found it, rejects nationalism and feels that solidarity between peoples which pushes to search for endeavours and links in an international community larger than the nation’. In turn, Cappelletti continued with his account of Calamandrei’s vision; this aggregation would favour the transfer of the protection of fundamental rights to the European stage, an ‘elevation of individual liberty from the internal level to the international[,] the most solemn recognition of that “interdependence of liberties” which is the essential condition of the success of federalism’.Footnote ⁷⁹

In restating Calamandrei’s principles and teachings in 1957, Cappelletti was delineating the future of European integration as a matter revolving around the complex relation of authority, freedom and democracy whereby the ultimate measure of success was the attainment of social cohesion through the guarantee of rights-based social justice. It was an approach that would characterise his whole career, including the conceiving of the Integration through Law project.

Judicial review and Social Europe

The preceding and necessarily limited account of the key tenets of Calamandrei’s concept of legality and of its immediate influence on Mauro Cappelletti might appear abstract and idealistic. However, as Cappelletti well understood, Calamandrei ‘had been not a builder of dogmas, … nor of airy systematics of ideas’, acting ‘in contrast with the prevailing formalistic-dogmatic approach of [Italian] legal scholarship’.Footnote ⁸⁰ And indeed, in articulating the new post-war legality, building on his expertise of procedural law and as court practitioner, Calamandrei sought to express the crucial role of the judicial interpreter in delivering concrete justice. In a renewed constitutional environment in which – to use the formula of Article 3(2) of the Italian Constitution – the state had ‘the task … of removing the obstacles of economic and social nature … impeding the full development of the human person’, judges, and especially constitutional judges, had the duty to take a more active role to implement the transformative values and the imperative of addressing the social question embedded in fundamental constitutional principles.Footnote ⁸¹

Witnessing the resistance of judges trained under the Fascist regime to give effect to the Constitution and of the ruling political class to promulgate the necessary implementing norms to finally activate the Constitutional Court, Calamandrei’s thought kept evolving towards a more substantive understanding of legality. Seeking to renew a scholarly environment where for decades civil procedure had been prevailingly conceived as a process detached from social life and even the substantive legal norms it aimed to enforce, Calamandrei sought to reinterpret trial and procedure in deep connection with the Constitution. The culmination of his reflections can be found in a series of lectures he gave in Mexico in 1952 which, collected in book form, received the meaningful title of Processo e Democrazia. For instance, in the lectures he argued that constitutional legality demanded not only ‘a technical parity’ between the parties of a trial ‘but also an economic one’.Footnote ⁸² Towards this goal he called for the institution of State legal aid, paying for those who could not afford representation of a legal counsel of their choice, a political goal for which Cappelletti would forcefully advocate in the following decades.

The vision of Calamandrei and Cappelletti has not come to pass within the EU legal system. What they delineated in the 1950s was a highly democratic institutional machinery, the expression of the new post-war legality and of its solidaristic founding values built together by the peoples of Europe. Their Europe was predicated on the central role of legal procedure and the judiciary to give fundamental rights practical and effective protection, determining a balanced and integrated realisation of social justice and political freedom. This does not resemble the EU that exists today.

Rather than evolving into the genuine – social – constitutional system that Calamandrei and Cappelletti envisioned in this early phase, the EU has over time supplemented the functionalist nature of the initial European integration with what Peter Lindseth describes as an ‘as if’ kind of constitutionalism. This resulted in an administrative governance structure that mimics constitutional forms yet lacks the substantive democratic legitimacy which has essentially remained vested in the member states’ national institutions.Footnote ⁸³ Indeed, this form of constitutionalism has not fundamentally restructured the direction of EU governance but has instead sought to lend legitimacy to its functionalist institutions as they expanded their regulatory reach. In other words, the rise of ‘as if’ constitutionalism has not altered the model of administrative governance characterising European legal integration but provided a discursive veneer of constitutional legitimacy that justifies the increasing scope of intervention by EU institutions without challenging their deep-seated market-driven orientation. This has allowed economic objectives – such as competition and the deepening of the common market – to remain paramount, while social policies have been relegated to the margins.

A crucial node in this process occurred as the Integration through Law project was coming to a close in the mid-1980s. The project of European integration was relaunched with the Single European Act, inaugurating a phase whereby the key ideological task of European institutions is ‘to transmit and manage neoliberalism’Footnote ⁸⁴ and relegating social integration to a subordinate role. In this context, this means that:

Indeed, in the same years that market-driven integration deepened with unprecedented scale and speed under Jacques Delors as President of the European Commission (three terms spanning from 1985 to 1995), the necessity to develop a social model to counteract wildly unequal outcomes and a race to the bottom in working conditions within the newly-established EU became apparent.Footnote ⁸⁶ The balance captured in the tryptich that Delors envisioned to guide the development of European integration – ‘Competition that stimulates, cooperation that strengthens, solidarity that unites’ – was soon sidelined amid an aggressive continent-wide program of liberalisation and deregulation, major international crises exploding at the turn of the century, and the harsh reforms required in the context of the EU’s enlargement to the east in the 2000s.

A renewed impetus for a European social dimension, prompted by the sovereign debt crisis erupted in the Eurozone in 2009 and the draconian austerity measures implemented in its wake, has produced a patchwork of policies operating at the margins of the European legal system and failing to modify the existing political hierarchies privileging market-oriented solutions. EU institutions seek to demonstrate a commitment to both social justice and democracy as fundamental values enshrined in the Treaties.Footnote ⁸⁷ However, globalisation processes and the asymmetry of integration, ‘favouring policy-making by non-political actors [and] negative integration [over] specific policies of positive integration’,Footnote ⁸⁸ have led to a depoliticisation of the social question, lifting it out of democratic political processes and contributing to the increasing popular hostility towards European institutions.Footnote ⁸⁹

The Court of Justice of the European Union has, of course, played a crucial role in these developments. It has taken numerous initiatives that can be considered lato sensu transformative and constitutional. After all, the very idea of integration through law rests on the direct effect and supremacy of EU law, doctrines famously established by the Court with the Van Gend en Loos (1963) and Costa v ENEL (1964) cases respectively.Footnote ⁹⁰ These rulings represented early and foundational expressions of ‘as if’ constitutionalism.

More recently, with the decisions of the Laval quartet of cases (2007–2008),Footnote ⁹¹ which has essentially sacrificed national labour law guarantees on the altar of economic freedoms, the Court has further ingrained an extreme version of market constitutionalism in EU law.Footnote ⁹² In the following years, the Court of Justice has deepened this trajectory and demonstrated how these concerns remain unresolved. In Alemo-Herron (2013),Footnote ⁹³ the Court prioritised employers’ contractual freedom over workers’ acquired collective agreements during business transfers. AGET Iraklis (2016)Footnote ⁹⁴ further constrained national labour protections by subjecting collective dismissal rules to a proportionality test favouring economic flexibility. This orientation was reinforced in Securitas (2017),Footnote ⁹⁵ where the Court interpreted the concept of ‘transfer of undertakings’ narrowly in the context of public procurement, thereby privileging competitive market dynamics over the continuity of employment. The decision exemplifies the Court’s tendency to apply formal legal criteria in ways that weaken the substantive protective function of EU labour law. A similar logic underpins the more recent ruling in MO v SM (2023),Footnote ⁹⁶ in which the Court held that the employer’s duty to notify authorities of collective redundancies does not confer enforceable rights on individual workers. These judgments show the Court’s persistent struggle to balance market freedoms with the ‘social market economy’ of Article 3(3) TEU. By consistently framing social protections as exceptions to market freedoms, the Court inverts Cappelletti’s substantive vision of legality, where courts would integrate and supplement civil liberties with social rights,Footnote ⁹⁷ reducing Article 3(3) TEU’s ‘social market economy’ to an empty promise.

Yet, the issue goes beyond the entrenched ideological choice of the Court to uphold certain – market-driven – fundamental values and principles in the Treaties at the expense of others – socially inspired – without proper legal justification. It also goes beyond the rippling legal and social effects of such choice. Representing the pinnacle of the EU judiciary and the ultimate legal interpreter of the Treaties, the Court is at the centre of the depoliticisation of the social question and EU law. By disguising its ideological choices as the application of formal and objective standards, the Court not only defies the stated foundations of the Treaties that found its jurisdiction and that it is tasked to uphold,Footnote ⁹⁸ it also fails to employ the fundamental intuitions on the nature of post-war legality and judicial review by Calamandrei and Cappelletti discussed in this article.

The ‘mighty problem’ of judicial review lays precisely in the fact that the ultimate interpretation of the founding documents of our communities is in the hands of appointed experts that are democratically unaccountable.Footnote ⁹⁹ Relying on a rhetoric of formalism, whereby the Court’s decisions are presented as neutral and based on the conceptually obligated application of strict legal standards, could be and has been conceived as a solution to the problem. However, as Calamandrei understood early on,Footnote ¹⁰⁰ judicial review, whose function is to give practical expression to foundational values, cannot be reduced to a mere jurisdictional operation. The move from values to norms and decisions in concrete cases necessarily involves a significant ‘legislative’ element. The open expression and recognition of the political moment in judicial review, articulated with a rigorous interpretation of the limits set by formal law, would not undermine the legality of a decision so motivated. Quite the contrary. Rather, it would allow for democratic control, albeit indirect, and societal dialogue based on the genuine evaluation of the role and legitimacy of EU institutions and their actions.

As we have seen, for Calamandrei and Cappelletti procedure and adjudication are a crucial connecting chain between the legal norms expressing the values of a society and the social needs of its constituents. The Court of Justice, however, appears to conceive its role as one where the (appearance of a) sanitisation of the political is paramount. In revisiting the history of the Integration through Law phenomenon and considering the future of the European polity, it is crucial to remember that these two alternative visions of legality have been available and part of the debate since its inception.

It might be the case, as many scholars have argued,Footnote ¹⁰¹ that the EU is by now an entrenched neoliberal dispositif, structurally immunised from the influence of democratic politics and impossible to steer in a different direction through mere reform. Whether this will prove correct or not, the implementation of a substantive form of legality, conceiving social justice as a necessary element of democratic government, should be the starting point towards a new form of European integration better representing the interests and aspirations of European peoples and society as a whole.

Concluding remarks

This study has traced how Cappelletti’s formative period established key principles about law’s role in social transformation that would influence his later work. The relationship between these post-war foundations and his subsequent engagement with European integration presents important questions for further examination.

In my ongoing and future research I will explore how Cappelletti’s early conceptions of judicial review and social rights interacted with the political realities of European integration during the 1970s and 1980s, relying on the wealth of still unstudied information held in the Cappelletti funds at the Historical Archives of the European Union in Florence.

The Integration through Law project emerged during a period of significant transition in European governance, as the Community institutions began expanding into new policy areas while simultaneously confronting growing tensions between market integration and social protection. Examining Cappelletti’s later writings and the Integration through Law project’s theoretical framework may reveal whether these post-war principles were adapted, transformed, or set aside in response to the evolving European legal order. Such investigation could shed new light on both the possibilities and limitations of legal integration as a vehicle for social justice in supranational governance.

The enduring challenge for European constitutionalism lies in addressing what Cappelletti and Calamandrei recognised as law’s dual nature: its capacity to both protect and constrain democratic social transformation. Their post-war project reminds us that legal institutions are never neutral arbiters, but rather sites of continuous negotiation between competing visions of society. As the EU continues to grapple with questions of social rights, democratic legitimacy, and economic governance, this early post-war perspective offers valuable insights for reimagining the relationship between law and social justice in contemporary Europe.