Halbwachs, Betti e Superga

This paper aims to analyze the first instance judgment of the Superga case (1950) and the related commentary of Emilio Betti, employing as hermeneutic paradigm the theory of collective memory developed by Maurice Halbwachs. Through an analogical transposition operation, it is postulated that the legal tradition operates according to methods structurally similar to the dominant historiography, maintaining a substantial primacy with respect to normative innovations. The investigation highlights how, despite the provisions of Art. 2043 of the Italian Civil Code introducing a broad concept of unjust damages, both the Court of Turin and Emilio Betti perpetuated a restrictive interpretation of lex Aquilia's liability, anchored in the protection of absolute rights only. Particularly significant is the hermeneutic removal of the second caput of the lex Aquilia – which emerged from Gaius Veronese and attests to the original protection of credit rights – from contemporary legal reflection. The research demonstrates how the legal tradition is configured as an autonomous and prevalent formant, capable of neutralizing both the voluntas legislators and the outcomes of scientific Roman research, confirming the crisis of the dialogue between Roman law and the positive order in modern Italy.