Enrico Catellani: the human and intellectual contribution of a great Paduan jurist

Contributed by Mirko Sossai, Roma Tre University

The digitisation of Enrico Catellani’s works presents an opportunity to draw the attention of a wider audience to the writings of a great, and long-forgotten jurist. Successor of the Maestro, Abbot Giambattista Pertile, to the Chair of International Law at the University of Padova, he was a member of the authoritative Institut de droit international. Although initially he had a neutral position, he served in the Supreme Command during the First World War as a consultant on issues of war law. He was named Senator of the Kingdom in 1920. Although he had to retire in 1931 due to his age, he remained deeply attached to teaching and to the University of Padova. He never wrote an international law manual, although there are numerous tomes containing lessons diligently collected by his students preserved in Padova.

He was described as a good, efficient and animated Professor: on the occasion of his 25th year of teaching, the newspaper “Il Veneto” sketched a portrait which showed a modest, reserved person who was dear to his students “for the exquisite courtesy of his ways”. He held courses on the history of treaties in Milan, at the Bocconi, and in Venice.

On the scientific front, he belonged to the “first” generation of internationalists which drew upon Pasquale Stanislao Mancini’s doctrine of nationality. He therefore ended up in an isolated position in the field of international law studies, following the change in Italy led by Dionisio Anzilotti in a sign of the spread of rigorous positivism. In any case, many of Catellani’s writings appeared in the Rivista di diritto internazionale, founded by Anzilotti in 1906 along with Arturo Ricci Busatti and Leone Adolfo Sinigallia. The confrontation between Catellani and Anzilotti was lively, as evidenced by the debate about the “legal nature of Egypt’s mixed tribunals” found in the second year of the magazine, in 1907.

He was described as “the most historic of the internationalists”: this explains, at least partially, the renewed interest today in studying Catellani’s work. It is no coincidence that the lectures he gave at the Academy of International Law at The Hague in 1933 are devoted to a historical reconstruction of Italian doctrine of the nineteenth century. It is possible to consult the typewritten lectures in Italian, later published in French, with handwritten corrections by the author, at the University of Padova's library of international law.

We must not, however, consider him as a scholar just focused on the past: on the contrary, he was able to understand the legal implications of new phenomena. He was responsible for one of the first systematic treatises on Aviation law, which appeared in 1911 and was translated into French the following year. Catellani’s fame went beyond national boundaries: it is astounding, for example, that five of his works were reviewed during the first decade of the American Journal of International Law.
From his vast scientific production – over 260 writings – his ability to reconstruct various theoretical approaches which can be seen in the volume, Il diritto internazionale privato e i suoi recenti progressi, is impressive. At the heart of Catellani’s reflections, there is an awareness that “All international private law history can be summed up in a battle between the principle of legal isolation of States and the territoriality of law and the principle of their legal cooperation.”

Above all, his fundamental works on colonial law have remained timely and Le colonie e la Conferenza di Berlino (1885) should be remembered for its rigorous legal analysis alongside an uncommon sensitivity to historical and political reconstruction. Catellani has been an essential author for scholars such as Luigi Nuzzo, who have recently investigated the relationship between international law and the colonial world. Catellani, as pointed out by others, felt that “the praise of colonisation-civilisation does not erase the perception of the objectively violent nature of colonisation itself; colonisation which led to, as the author does not hesitate to point out, the decimation of entire populations.” Catellani’s studies on legal issues related to European penetration into the Far East, linked to the Italian concession in Tianjin, China, were pioneering.

In recent years, the rediscovery of Catellani’s thoughts beyond national borders is mainly due to research and reflection by the Finnish jurist, Martti Koskenniemi. In his masterpiece, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, published in 2001 with a well-done Italian translation by Lorenzo Gradoni and Paolo Turrini (Il mite civilizzatore delle nazioni, Laterza, 2012), Koskenniemi relies on Catellani’s lucid analysis of the report on the state of international law in the early twentieth century. In fact, in 1901, the Professor from Padua had written in the prestigious review, Revue Générale de Droit International Public, with some concern about the growing trend already in the new century, of the increasing use of force to determine the fate of nations. While law was moving away from the ideals of justice and equality still prevalent in the mid-nineteenth century, the end of the century was instead characterised by a situation of imperial rule, of the methodical enslavement of entire populations, of war. Catellani bitterly concluded: “if in the near future, the international community must live and develop according to the law of struggle for life and survival of the fittest, so far as I am concerned, I hope in particular that my country will not be found on the side of the weak and incapable, destined to succumb and disappear.” In the ominous signs which Catellani saw, there was a concern that violence and oppression would find justification in the sociological theories of the time based on Darwinian evolutionism.

It is not surprising then that the inaugural speech of the 1915-16 academic year given by Prof. Catellani read in the Great Hall of the Royal University of Padova, on a significant date looking back, 4 November 1915, had been notably entitled, Le costruzioni della dottrina e le ricostruzioni della storia. The tragic events of the Great War had driven the public debate about the crisis – if not the bankruptcy – of international law, incapable of preventing a war or ensuring there were rules to keep it humane. Catellani, like other internationalist colleagues, did not avoid the debate: he spoke of the “event of great deception and great disappointment, which alternate in common opinions on international law.” It is a theme which is still relevant today. Here is the “defence” of international law by Catellani. We read: “both the deceived and the disappointed are wrong; the first considering as a society of law built in a way corresponding to the Constitution of a State, a society which is de fact just partly constituted in the form of association; the other letting itself be persuaded by the painful judgment of the non-existence of the State of States in which they hitherto believed, even to deny the inherent sociality which exists… that does not remain entirely without effect even during war, which must resume its prior effectiveness, albeit it in its imperfect associative and conventional form, when peace returns.” Especially with regards to the law of war, Catellani couldn’t help but notice, in another one of his writings of the time, that it did not meet expectations “because that minor part survives which still corresponds to the requirements and needs of practice; while individual arbitration of the single States prevails for all the rest.”

Of Enrico Catellani’s output, his writings on the theme of war and peace deserve more attention, starting with the book, Realtà e Utopie della pace, from 1899. Along with other jurists – including Pasquale Fiore and Guido Fusinato – he had good relations with the Nobel Peace Prize laureate Ernesto Teodoro Moneta, although he remained critical with regards to the enthusiasms of the peace movement, especially with regards to international arbitration as an effective tool to prevent war.
During the World War of 1915-1918, he was active as a legal advisor to the Italian Supreme Command. He published a pamphlet first in Italian and then translated into English and French, entitled, L’Italia e l’Austria in guerra. The anti-Austrian aim of the publication is clear: “to offer accurate knowledge on the contrast between our behaviour and that of our enemy.” Apart from certain passages which are clearly propagandistic, there is nevertheless the impression that an analysis of the facts was conducted in light of a strict application of the rules foreseen by laws of war. In this way, at the end of the conflict, the Royal Commission of Inquiry was to be created to investigate human rights violations committed by the enemy. The final report draws heavily on Catellani’s work.

A number of subsequent writings are thus dedicated to the theme of paths to peace and to the genesis of the League of Nations: there were plenty of criticisms about the difficulties and the imperfections of the organisation, while recognising the ideal of the League of Nations as a “security guarantee for Europe” as well as “a promise of peace for the world.”

At the end of his academic career, he had the honour of being awarded an honorary degree at Cambridge in July 1931, together with the likes of the American jurist, James Brown Scott and the Greek, Nicolas Politis. Affected by the racial laws, he retired to a private life of solitude in his house in Padua where he died “tragically and miserably” a few hours after his wife in January 1945. Anton Maria Bettanini, his pupil, in a commemoration held on 16 May 1947 at the University of Padova, hoped that “the School of everlasting devotion would surround his immaculate memory.” Instead, over the decades, Enrico Catellani fell into oblivion and silence. The digital availability of his works and the growing interest of scholars in the development of the science of international law in Italy is finally shedding light on the life and the extraordinary intellectual contribution of this great Paduan jurist.