Situating Enlightenment theories of rights in a broader arc extending back to the Scientific Revolution, this chapter focuses on the Italian jurists and philosophers who incorporated these theories into constitutional thought. Drawing on the works of Montesquieu and Rousseau, in particular, Gaetano Filangieri sought to reformulate arguments about natural rights in terms of a legislative “science.” This science, which would be eagerly received across Europe and Spanish America, sought to incorporate rights and popular sovereignty into constitutional law. Filangieri also drew on Italian intellectual traditions, which (in the case of Antonio Genovesi) insisted on social, alongside individual, rights. Following the influential example of Cesare Beccaria, Filangieri also paid particular attention to rights in penal matters. His constitutional principles were poignantly, if briefly, embodied in the 1799 Constitution of the Neapolitan Republic, drafted by Francesco Pagano.

The Scienza della legislazione would have been something entirely different without the American Revolution. Less passionate and prophetic, perhaps more traditional and predictable, it would certainly lack those original traits which make it a milestone of Western constitutionalism.

That epochal event gained a ‘strong character of exemplarity’ for Filangieri that in fact marked his most inspired and durable pages, gave vigour and courage to his most radical political positions, and constituted both a subterranean current in, and the tenacious red thread of, his enormous oeuvre. It is well known that the clamorous events across the Atlantic hit the spirit of the young jurist hard also on the human level, seriously influencing the tormented civil and political experience of late eighteenth-century Naples. They were really sincere, in this sense, the words that the young cadet of the ancient house of the Princes of Arianello addressed to Benjamin Franklin on the second of December 1782, asking him to favour his transfer to America:

Cuoco has always occupied an important place in the history of Italian political thought over the past two centuries. Indeed, bitter battles have been fought around his Saggio storico sulla Rivoluzione di Napoli, contributing considerably to the formation of a historical consciousness for generations of Italians. Every now and then, that extraordinary text is read, appreciated or evaluated negatively, in its entirety or in its specific parts, by moderates and by radicals, by Catholics and by laymen, by democrats and liberals, by fascists and communists. Manzoni, Foscolo, Gioberti, Mazzini, Pisacane, and even Croce and Gentile engaged with, and were often willingly charmed by, Cuoco's critique of the 1799 republicans, which he presented as heroes which were generous but devoid of a real and realistic revolutionary culture. Through the Saggio storico, the Republic of 1799, with its terrible conclusion in the bloodbath brought about by the Bourbons and the sanfedisti, has in fact become a crucial and structuring event in the history of modern Italy.

The central place occupied by human rights in Filangieri's constitutional and political thought certainly represents a fundamental vantage point from which to approach the Scienza della legislazione. Though largely unexplored by scholars, this was the avenue of interpretation Filangieri himself gave, with reference to the American colonists’ exercise of their right to resist and thus the legitimacy of their revolution, when explaining his comprehensive thoughts on the matter, underlining the amplitude and absolute importance of the questions involved:

As one of the most suggestive and important elements in the construction of a new enlightened constitutionalism, the polemic against British legal, political, and institutional thought inspired by the lessons of the American Revolution was certainly no isolated current in the rhetorical structure of the Scienza della legislazione. The work was in fact consciously constructed though a scheme that, on the one hand, planned a punctilious and caustic critique of Old Regime Europe, of its unfair social and political order, and of its traditional corporative constitutionalism. On the other, it formulated precise proposals for constructing a new society on the basis of legislation re-founded on the values and principles of the fin-de-siècle Enlightenment. In this sense, Montesquieu, always careful to reason ‘rather about what has been done than about what should be done’ [I, 41], remained a central interlocutor. Similarly, a confrontation with the Esprit des lois was inevitable in terms of the historical function of liberty and the guarantee offered by so-called intermediary powers against the despotic temptations of monarchies after Louis XIV, a fundamental issue for the juridical and political debates of eighteenth-century Europe. It represents the veritable keystone of that which recent literature has defined ‘Old Regime constitutionalism.’ Especially in Naples, where sensibilities to the legal and institutional dimensions of politics were strong, one of the highest magistrates of the kingdom, the Delegato della Real Giurisdizione Niccolò Fraggianni, developed an effective constitutional ideology for the ministero togato, the ministry of the robe, capable of defending magistrate class interests against the crown's project of constructing a great national monarchy.

What did politics mean to the men of the late Enlightenment? Was theirs a singular and independent conception? Did it differ in practices, discourses, representations, and language from what would be developed in the revolutionary period to come? What forms of struggle, what tasks and, above all, what limitations in their way of conceiving politics confronted them in those last, tormented years of the Old Regime? What shape did the newfangled republican and constitutional patriotism take between the American and French Revolutions, between 1776 and 1789, in those enlightened circles which presciently warned of the threat of that despotism which, as the freedoms of antiquity were reasserted for modern times by Rousseau and his many followers, was seen lurking in the eighteenth-century revival of so-called classical republicanism? Through which paths and what struggles were the language of the rights of man, a form of republicanism apt for the modern world, and Enlightenment constitutionalism created, and developed, in Italy? Is there a relationship between the political culture of the late Enlightenment and the genesis of the Italian democratic and republican tradition? This book endeavours to answer these and other questions by formulating some working hypotheses based on the achievements of the new cultural history of the Enlightenment and by developing themes and issues that I have tackled in the past. The entire work, however, centres first and foremost on the analysis and study of a personal history and an important publishing event (together providing the unifying thread guiding this investigation through the labyrinthine politics of the late Enlightenment) which caused a sensation in Europe at the end of the eighteenth century: Gaetano Filangieri's publication of the Scienza della legislazione (The Science of Legislation) in Naples, in the spring of 1780.

Between 1822 and 1824, a strong, unexpected attack on Filangieri appeared in Paris. It was a veritable public trial, masterfully studied and successfully concluded through the publication of two dense, caustic volumes, which culminated with the bitter banishment to oblivion of the entire Enlightenment school of natural law that had emerged in Naples in the second half of the eighteenth century.

In over four hundred printed pages entitled Commentaire sur l'ouvrage de Filangieri, Benjamin Constant, the spiritual father of European liberalism and author of this implacable condemnation, denounced the dangers, the anachronisms, and the possible misunderstandings hidden in the work of the Italian jurist and philosopher.

What did it mean to be a republican thinker in the eighteenth century?

Our knowledge of the developments of the republican tradition in the political history of the Enlightenment has not made great advances in recent decades. Paradoxically, the recent explosion of interest in these issues among philosophers and historians of political thought has probably not furthered our understanding of them, for they have ended up privileging a sort of imagined republicanism, divorced from its context, made up of arbitrary metahistorical reconstructions, the paradigmatic nature of which systematically gives ample concessions to anachronism: the true mortal sin of the professional historian.

Why, beyond the reasons we rapidly sketched out in the previous chapter, did the Scienza della legislazione enjoy such great international success, not only at the end of the eighteenth century, but also in the years of the continent's widespread liberal and democratic struggles, fuelling hopes and simultaneously attracting sharp criticisms? What are the constitutive and characterizing elements, from a political, philosophical, and legal point of view, of the new constitutionalism delineated in Filangieri's work? What dangerous innovation, in other words, lurked in the Neapolitan jurist's framework that was able to generate such durable interest as well as heated diatribes? In answering these questions, one must never forget that those volumes were written in a very particular period in the history of western constitutionalism: between two revolutions, the American and the French, in an era of crisis, of transition, and of rapid changes. Those pages, to which the author, due to his precocious death, would never return, remain precious to this day, the equivalent of a sensitive seismograph, able to register tiny governmental changes, every innovation in the reigning conceptions of law and politics. And, importantly, Filangieri registered the minutest oscillations in the significance of the key term ‘constitution,’ destined, as it was, to dominate the political battles of the nineteenth century. Compared to most European dictionaries, which on the eve of 1789 fully revealed the uncertain and polyvalent character of the term, Filangieri's reflections contributed considerably to clarifying once and for all the modern sense of a constitution as a ‘small code, kept apart, of real fundamental laws.’

The time was ripe for a comprehensive reconsideration of the traditional way of conceptualizing the political. The Old Regime was creaking everywhere, clearly revealing the epochal changes that were taking place not only in terms of society, politics, and institutions, but in terms of the very way in which people thought. In the old Europe of the eighteenth century, Filangieri was certain, ‘a peaceful revolution is brewing.’ He explained its causes and motives in his usual prophetic and optimistically visionary tone in the Introduzione to the Scienza della legislazione. For centuries, princes had privileged the solution to a single obsessive problem: how to win wars and extend their dominions. ‘To find the way to kill the greatest number of men in the shortest time’ was the constant preoccupation of those participating in that veritable ‘military mania’ which, in the seventeenth and eighteenth centuries, had led the absolutist powers of the continent to favour the creation of huge standing armies, and the construction of formidable arsenals, while neglecting public happiness. Finally, after decades of preaching by philosophers like Grotius, Pufendorf, Locke, and Montesquieu, things seemed to be changing rapidly.

Why did discussions concerning the right to punish, rather than reflections on different forms of government, imbue and mark large parts of the political debate of the Italian Enlightenment, characterizing it so profoundly in relation to other European milieus? For what reason, for example, did the most original aspects of eighteenth-century discourse on political philosophy – first of all with regards to meditations upon justice and the formulation of a new science of legislation rather than the detailed analysis of governmental institutions or the nature of power – emerge in a historical context like that of the Kingdom of Naples? What lay behind the sudden attention paid by Neapolitan thinkers to the ancient theme of the Diceosina and the concept of a just and fair society? We know that the myth of the noble savage, the primitivist utopias of hypothetical states of nature, and of perfect republics never enjoyed great success in Italy. The homeland of Dante and of Machiavelli, of the most refined humanism and of the most ruthless political realism, did not entertain itself with daydreaming when it came to making headway in the art of government.

It is well known that the expression and concept of ‘Enlightenment constitutionalism’ does not exist in current historiography. Given that the language of historiography until recently also lacked the concept of Old Regime constitutionalism, this should not be particularly surprising. Still, it seems very difficult not to employ it, or some similar term, if one really wishes to understand the deeper structures, nature, and true message of the Scienza della legislazione. The concept of Enlightenment constitutionalism of course has to be explained and its meaning specified beginning from its historical context, that is the crucial period between the two great revolutions, the American and the French, as well as the novel elements which characterized the most important parts of that grandiose project. This is what the previous chapters tried to do, examining decisive questions like the umpteenth metamorphosis of natural law brought about by Enlightenment thinkers who put the question of human rights at the core of the political debate of the late eighteenth century, and by exploring the unexpected consequences of that increasingly tangled nexus between rights to liberty and the principle of equality for ways of thinking about politics, morality, and religion.

When Johann Wolfgang von Goethe visited Naples on his Grand Tour of Italy in 1786–1788, he was above all struck by his meetings with the ‘remarkable’ Gaetano Filangieri, heir of the Princes of Arianello, ‘one of those noble-hearted young men to whom the happiness and freedom of mankind is a goal they never lose sight of.’ Baffled, he could only admit that he had ‘never heard Filangieri say anything commonplace.’ From Goethe, this was quite a compliment. At the time, the young Neapolitan he frequented was principally lionized for his massive Science of Legislation, one of the most influential works of eighteenth century legal, political, and economic thought, translated into every major language in the European world and published in at least seventy different editions. Luminaries like Benjamin Franklin, who upheld a lengthy epistolary with Filangieri, found the Science of Legislation an ‘invaluable work,’ wishing for more volumes of it in the wake of the 1787 Constitutional Convention, but it also had popular appeal enough to be included in circulating libraries. In 1806, the Edinburgh Review called Filangieri's magnum opus ‘a work of philosophical excellence, which bears the traces of much learned research, and breathes, in every page, sentiments of the purest virtue, mingled with an undaunted spirit of liberty, and zeal for the improvement of mankind.’ Indeed, Filangieri was a man it was ‘impossible to venerate too much.’