1 First Steps in Semantics

Since writing his final Law degree dissertation, Rodolfo Sacco devoted much of his attention to the issue of interpretation. The message he emphasized, on several occasions, was that there is no direct communication between written (or spoken) words and their meaning for the receiver of the message. In a clairvoyant manner for the times in which his first study appeared, Rodolfo Sacco demonstrated a particular sensitivity to the difficulties of unambiguous communication, to the interference of individual experience in the understanding of messages, to the relative incommunicability with which one has to reckon when designing a text that plans a future conduct: be it contracts, wills or legislation.

The conclusion of his 1947 study is significant: “Every interpretation of law is without exception accurate, provided it is not inherently contradictory”, and therefore: “every interpreter can create […] law in his or her way” [1, p.164].Footnote 1 The notion of an “objective meaning of words”, of “an intrinsic semantic”, was contested as much as it was later admitted by judges who would –as part of their tradition – incline to a rather literal reading of legal texts. In a decision of the English House of Lords, Lord Hoffmann, expressed his appreciation of the “parol evidence rule” (preventing access to evidence extrinsic to the written contract) as “based upon an ancient fallacy which assumes that descriptions and proper names can somehow inherently refer to people or things.

[…] of course, words do not in themselves refer to anything; it is people who use words to refer to things” with the consequence that nowadays “commercial contracts are construed in the light of all the background which could reasonably have been expected to have been available to the parties”.Footnote 2

International contacts with foreign scholars were facilitated for Sacco when the Istituto Universitario di Studi Europei (IUSE) was founded in Turin, in 1952. For a brief moment, Turin seemed to be destined to host one of the institutions of the Common market that was coming to life. Jean Monnet recalls in his mémoires “Une conférence des Six fut enfin réunie à Paris le 23 juillet [1952] avec, comme ordre du jour, le choix du siège des institutions, des hommes, des langues et l’Europe politique. […] La discussion sur le siège fut une ultime et dérisoire parade du droit de veto. Elle débuta un mardi matin et se termina le jeudi à l’aube sur un arrangement équivoque que seule la force des choses devait entériner avec le temps. Comment la Haute Autorité se trouva-t-elle à Luxembourg après dix-huit heures de marchandages, c’est une histoire peu glorieuse. […] La course à la capitale reprit, pour ne s’arrêter qu’au bénéfice de la lassitude. A trois heures du matin, nous étions à Turin et à Strasbourg à la fois. Je déclarai qu’il ne fallait plus alors compter sur moi comme président de la C.E.C.A. – l’offre venait de m’en être faite par les six gouvernements. […] Paris ou ses environs, qui tentait certains, fut écarté par Schuman: Pflimlin, maire de Strasbourg, eût fait un malheur. Alors, on entendit la voix de Bech qui semblait jusque-là somnoler: ‘Je propose que le travail commence aussitôt à Luxembourg, cela nous donnera le temps de réfléchir à la suite’. Tout le monde fut soulagé, et c’est ainsi que la C.E.C.A. eut son siège précaire dans une petite ville qui est devenue un carrefour de l’Europe. ….” [2]. The local hopes in Turin were disappointed, even though the city, situated at a corner of Italy, close to the French border, could have successfully taken the role assigned to Luxembourg. And never revoked.

In connection with the activities taking place at the IUSE, in his personal notes [3, p. XI] Sacco records his conversations with Joseph Esser and gives an account of how the idea of “pre-comprehension” was already hovering in his mind, when the German author was putting his considerations into writing later printing them in the volumeVorverständnis und Methodenwahl in der Rechtsfindung: Rationalitätsgrundlagen richterlicher Entscheidungspraxis [4]. At times, in the conversations one had with Sacco over the years, it was possible to hear an echo of regret for not having given more resonance to his own thoughts on the subject, reflected in a more stentorian manner in the publication of this German colleague that attracted much attention. In fact, Sacco himself wrote “the dissertation [of 1947] … forgot to emphasize, in a prominent way, the central consideration: that is, that the ‘hermeneutic means’ are simply the idea that pre-exists in the mind of the interpreter when s/he is confronted with the legislator’s declaration”.Footnote 3

Recognition of Sacco’s thoughts is rather to be found in another work by his older German colleague: in Grundsatz und Norm (1956) there are indeed references to his considerations, shared in Turin [5, quotes at: pp. 102, 254, 257]. In Italy, at the time, the persuasion that even statutes were subject to semantic uncertainties was not so well established: the faith in legal science still had a strong hold in the academic sphere and the admission that – despite all efforts at coherence and systematic structure –, a margin of insecurity always remained, seemed like a failure, rather than the acceptance of what psychology and cognitive science were documenting with reliable evidence.

A full connection failed to flourish with the studies conducted in Genoa, especially under the guidance of Giovanni Tarello: the philosopher was more than ten years younger than Sacco.Footnote 4 The distance was significant, especially for the “war generation”. A gap existed: Sacco’s reflections on language belong to the 1950s, while the Genoese school of philosophy of language was established almost two decades later [6,7,8]. In the meantime, Sacco had focused his attention more on civil law, especially on contracts (the first volume of his well-known study on this subject appeared in 1975) [9].

Sacco’s engagement moved in directions other than analytic philosophy, partly because the two vehicular languages of his generation were French and German: none of which enabled a reader to access John Langshaw Austin or Herbert Lionel Adolphus Hart’s production in the original form. Later on, Sacco had to become a practitioner of law (to support his young family) and his time was drastically reduced, making it difficult to perfect a third foreign language which he could read but not speak fluently.

2 A World of Opportunities: The Choice of Law and a Natural Inclination for Linguistics

Sacco’s curiosity about Noam Chomsky, about essays pertinent to deconstructionism and the theories inspired by Ronald Dworkin, have always accompanied his cultural journey: sometimes as collateral strands, as explorations in fields not entirely integrated to his main strand of study, more strictly legal or anthropological. On occasion, when reading Sacco’s writings, one gets the impression that the horizon of his interests is so wide that certain themes are observed “out of the corner” of his eyes, almost with a kind of regret at not being able to investigate the entire panoply of tools that culture offers curious minds. Linguistic intuitions also had a sentimental element as they were linked to the studies of his brother Giorgio with whom, as a student, he shared a room (nicknamed “the Siberia”, due to the rigid temperature of the radiators).

Giorgio wrote a thesis in linguistics, often discussed in the family between brothers enjoying intellectual challenges. We cannot say that Rodolfo’s linguistic experience was superficial, even if it was parallel to his legal studies: his ability to grasp the essence of a new discovery, of an innovative line of enquiry, was extraordinary and the notion, captured on the fly, settled permanently in his memory form where he was able to retrieve what he was interested in, on any occasion, even if it was a purely discursive context. Evidence of the frequentations with linguistics are certain terminological choices in the theory of legal comparison [10].Footnote 5 The “divergence” (“dissociazione”) of components of law, initially referred to as “composantes”Footnote 6 [11, 12] and later renamed “formants”, draws on De Saussure’s lexicon. The expression of “cryptotype”, which appeared later in the reflections about the role of comparative law, in turn derives from the acquisitions of linguistics [13, 14, p. 273]. As Sacco himself stated, he borrowed the term "cryptotype" from Benjamin L. Whorf, Language, Thought and Reality” (1956) [10, p. 376]Footnote 7; term used to indicate among legal formants, those that are not born explicitly [10, p.384].

3 A Masterstroke

The wide range of interests, and the awareness of Stalin’s study on the subject of language, allowed Sacco to convincingly argue on the relative autonomy of law with respect to other cultural components: its evolution may occur regardless of religion, politics, economics. The “circulation of models” – according to his Introduction to comparative law – takes place for various cultural phenomena such as fashion, language … and law, regardless of economic convenience or of the specific suitability of the “model” to local needs. The engine of imitation may often be identified in the “prestige” attached to the model. The impression of gaining a promotion, a social advantage from imitation, induces one to choose solutions that may even seem out of tune with the surrounding context, overestimating the “aura” of progress, of advancement, linked to the foreign rule or concept. Thus, it was possible for the French Civil Code to take root in Egypt, it was conceivable for the Soviet socialist republics to codify in the 1960s, in harmony with the Basis of codification (1961 osnovy of civil law for the USSR), following the structure of the German BGB of 1900 [15].Footnote 8

Stalin’s considerations on language, originally in form of an interview published on the periodic Pravda were articulated as answers to a series of questions put by a group of young people interested in language. So, we read: Question “Is it true that language is a superstructure in relation to the base? Answer: “no, it is not true. The base is the economic structure of society at the given stage of its development. The superstructure is the political, legal, religious, artistic, philosophical views of society and the political, legal and other institutions corresponding to them.

Every base has its own corresponding superstructure. […] In this respect language radically differs from the superstructure. Take, for example, Russian society and the Russian language. In the course of the past thirty years the old, capitalist base has been eliminated in Russia and a new, socialist base has been built. Correspondingly, the superstructure on the capitalist base has been eliminated and a new superstructure has been created, corresponding to the socialist base. The old political, legal and other institutions, consequently, have been supplanted by new, socialist institutions. However, in spite of this, the Russian language has remained basically what it was before the October Revolution.

What has changed in the Russian language in this period? To a certain extent the vocabulary of the Russian language, in the sense that it has been replenished with a considerable number of new words and expressions, which have arisen in connection with the rise of the new socialist production, the appearance of a new state, a new socialist culture, new social relations and morals, and, lastly, in connection with the development of technology and science; a number of words and expressions have changed their meaning, have acquired a new signification; a number of obsolete words are no longer included in the dictionary. As to the basic stock of words and the grammatical system of the Russian language, which constitute the foundation of a language, after the elimination of the capitalist base and far from having been eliminated and supplanted by a new basic word stock and a new grammatical system of the language, they have been preserved in their entirety and have not undergone any serious changes – they have been preserved precisely as the foundation of the modern Russian language”.

Arguing on the basis of Stalin’s admission, Sacco could participate in the debate about the causes of the evolution of law rather well-equipped: some scholars linked this phenomenon to economic needs, to the changing balance of power of the social classes (Otto Kahn-Freund), while others favoured an element of unpredictability, of randomness of the diffusion of legal models that may – at a certain moment in time – be available on the “market of ideas”. Sacco brings into the discussion an analogy with the transformation and diffusion of language: rather autonomous from economic needs, planned economy, political choices. The argument is all the more effective as it draws elements from the ideas certified in the Marxist trend of thought by Stalin himself [18].

Sacco’s well-known metaphor about driving a car on the right or left side of the road, or about the fashion rules that recommend men wear a three-button jacket fastening on the front (rather than on the back) or a tie rather than a bow tie (rules that apply regardless of economic dynamics or political beliefs), has remained famous in comparative law classes at university [15; see also 10, p. 393].

In the English version, published in 1991 we read: “No society will ever be free to allow motor vehicles to drive on the left or right as they please. Any society, however, will be free to choose left or right as the side upon which to drive. The choice of class, ideology and value do not free the society from the organizational necessities that stand over it and do not influence its choice of one solution or another. We will be surprised only if we fall to reflect upon a more general truth. If we wish to classify all facts about society as either economic (and therefore structural), or as non-economic (and therefore superstructural) we must place law in the second subdivision along with language, fashion and so forth”.

As a conclusion “There are, then, legal models which, in proportion to the values which inspire them, survive through historic change. Moreover, I believe that many legal rules survive revolutions precisely because they do not represent any value, do not correspond to any ideology, are foreign to any moral system and respond to an elementary necessity of social organization”.

A consonance with this perspective can be found in the writings by Alan Watson for whom: “the failure to take into account the power and autonomy of legal culture can lead scholars to interesting and illuminating errors …. The claim that culture is fundamentally autonomous would, I believe, be challenged by Marxists … No theory of economic materialism will explain why people do not eat dove meat in the USA … why women wear or should wear ribbons in their hair. If one were to offer an answer to the latter question that – due to their economic dependence – women had to appear ‘feminine’, the specific choice of ribbons in the hair rather than ties around the neck would still remain unexplained” [19; for a more detailed parallel between the two authors see: 20].

In these arguments one can perceive the trace of a disagreement with what was a prevailing approach at the time, linking legal forms and economic/social trends, as it eminently occurred in a collection of writings published by Feltrinelli in 1978 discussing the “negozio giuridico” (EN: jural act). Discussing that publication, Sacco wrote: “each author brought arguments … in favour of the idea that not only the operational legal solution, but also the apparatus of legal knowledge – that is, the framework of concepts – is a function of the class position of those who elaborate it, and the legal notion [Rechtsgeschäft], presented as a typical product of capitalism in its mature age, was chosen as the specific area of verification.

The conclusion had not been verified. Rodolfo Sacco replied in a “’subdued’/low key” (it: “dimesso”) article concerning ‘invalidity’; there, he wrote a few notes to illustrate how the Soviet law had inherited from tsarist doctrine—… the notion of the Rechtsgeschäft (En: jural act) and had re-imported it to China … No one replied to his intervention” [3, p. XXVII ss].Footnote 9

The author’s annoyance with hypotheses published without proper scientific verification can be detected between the lines: a vocation to anti-conformism marks much of Sacco’s literary production.

4 Some Sparce, Relevant Anecdotes

Rethinking about shared experiences, in informal conversations held in Québec during a trip related to the activities of the Association Capitant des amis de la culture juridique français, additional observations come back. Distracted by the content of the reports of local colleagues, partly because of the specific pronunciation of that French-speaking “enclave”, Rodolfo began to talk about the phenomenon whereby the language exported from the mother country to more isolated areas, tends to preserve ancient inflections and vocabularies, while, e.g. in metropolitan France, the evolution distances the speaker from the older forms. In the legal field, examples include words such as dispendieux in the Civil Code du Québec (rather than “couteux”), or the indication “habile” (“habile à tester”) instead of “habilité” [22].Footnote 10

Obviously, Sacco had a scientific approach to the problem, and he knew perfectly well how to decline all phenomena by their proper name according to specialists of the matter. In his Introduction to comparative Law, Sacco makes reference to “aree laterali”, while considering the « circulation of models» [15, p. 130].Footnote 11

Another significant episode concerns the fact that, until adulthood, our “Maestro” pronounced the “s” sound incorrectly, producing a sort of “f” instead, a situation particularly annoying for someone called “Sacco”. Obviously, the desire to get to the bottom of the matter and an iron determination led to the correction of the pronunciation (with some impatience at the fact that “it had not been explained earlier that it was sufficient to move the tongue to the root of the lower teeth” to avoid the inconvenience).

His passion for correct pronunciation never ceased to grip him, making him suffer due to the Piedmontese vowels of some of his pupils or the difficulty of remembering exactly when to use the “raddoppiamento sintattico” (“aRRoma”; “andiamo a casa [anˈdjaːmo a‿kˈkaːsa]) (syntactic gemination, or syntactic doubling) that a person from central Italy would find natural to employ in order to ligate words in succession.

A similar experience concerns the reconstruction of how Benjamin Lee Whorf (1897–1941) had attempted an explanation of the connection between words and concepts, starting from the observation of the curious definitions of ancient Greek poetry that qualified, for instance, the colour of the sea as “colour of wine”. The principle of “linguistic relativity” (so called: Sapir–Whorf o Whorf hypothesis) mentioned above, “is a principle suggesting that the structure of a language influences its speakers' worldview or cognition, and thus people's perceptions are relative to their spoken language” [23].Footnote 12

From this circumstance, among others, Whorf moved to investigate whether the absence of the verbal expression, e.g., blue, affected the possibility of expressing a quality, a perception and if it limited the variety of concepts belonging to people speaking a certain language. It has been said that “Come, per esempio, la zona dei colori e le zone dei morfemi sono suddivise diversamente in lingue diverse, poiché ogni lingua ha un suo numero di designazioni di colori, il suo numero di numeri grammaticali, il suo numero di tempi, ecc., così si possono anche scoprire, confrontando lingue diverse, zone nella sfera fonetica suddivise in maniera diversa in lingue diverse” [24].

While discoursing about a book recently translated into Italian (Guy Deutscher, La lingua colora il mondo) [25] that had just been published, Sacco immediately showed that he was fully aware of the discussions and disagreements about past theories and related experiments. Once more, on this occasion, he hinted at a sort of regret at not being able to follow with sufficient diligence and competence the contributions of magnetic resonance imaging, “brain imaging” techniques, the soundness of scientific experiments on the areas of the brain activated in coincidence with the perception of colour images. Time was scarce, one could not follow every new acquisition.

5 Ethnolanguages

Within the framework of his curiosity about language we must consider his passion for “ethnolanguages”, once called “dialects”, especially Occitan (spoken also in some mountain areas of his native Piedmont). He could recite long poems and dramas by heart in that idiom.Footnote 13 In general, it was dialects or minority languages that triggered the scholar’s interest: because of the historical data, as well, that could be drawn from the survival of idioms, forms of expression that had lived it through contexts that had changed over time. A piece of bravura, engaged in moments of relaxation, during long journeys, consisted of tracing all the border shifts in Central and Eastern Europe between Wallachia, Moldavia, Posnania, Galicia, Lodomiria, Transylvania and the substrate legacies in Bohemia, Moravia and Slovenia: each reflection accompanied by various excursus on the linguistic implications of the ethnic mixing.

As always, the phenomena of circulation of cultural models constituted the focus of curiosity, of investigation. On the whole, it was the richness of the forms of sociality that attracted attention: in the profound persuasion that variety is opportunity, advantage, wealth. The recurring refrain was: “Italian would be a very poor language indeed if it had not drawn on all other languages which we have come in contact with over time”, whether French, Spanish, Arabic, Greek and so on, depending on the historical events of the different area of the peninsula. In this sense, it seems foolish to hinder the osmosis of languages, just as it is foolish to artificially keep alive forms of expression that live if spontaneously used, if increased by exchange, by constant practice. Necessarily, a dialect like Piedmontese will be lacking in terms for surgery or computer science [26]:Footnote 14 its scope remains restricted to actual use, for everyday and familiar relations. In a dialect, said Raffaello Baldini (a dialect poet), “you can talk to God, you cannot talk about God” [27].

In the list of diseases that the Piedmontese dialect includes, Sacco recalled, “only freu (fever/flu), punta (inflammation of the pleura), pica (stroke), amphreidor (cold)”, and few more, find appropriate definition. For all other diagnoses, recourse is made to Italian, a vehicular language to which the kings of Sardinia (predecessors to the Kings of Italy, in the XIX century), attributed a higher rank, even before the official unification of the kingdom in 1861. As evidence of this consideration for the literary language we may recall that pupils in military schools underwent mandatory language lessons, in order to be able to communicate with soldiers who were non-natives of Piedmont.Footnote 15 As indeed documented by Michel de Montaigne in 1581 during a visit to Turin, “la langue vulgaire n’a presque rien de la langue italienne que la prononciation, et n’est au fond que composée que de nos propres mots” [29].

The firm conviction of the variety of human forms of expression, and of their equal dignity, was also at the root of the passion for anthropology, which in turn, intertwined with genetics towards which Sacco turned his gaze in later life, with a more cautious approach, due to the extreme specialization of the subject, difficult to approach superficially. What certainly did not escape his discerning eye, however, were the connections, the interdisciplinarity between the strands of investigation: anthropology, genetics and language.

Also linked to the reconstruction of communication is the history of the “silent law” (diritto muto) [30].Footnote 16 Since the 1990s Sacco devoted research to the origin of behaviours that we can qualify as “legal” and to the evolution of language, without overemphasizing the separation between animal and human (hence the passion for ethology): he dedicated his speech for the honorary degree assigned at McGill University in Canada [31] to the chimpanzee and the wand.

6 The Frontiers of Legal Comparison

Curiosity towards anthropology was probably prompted by Sacco’s prolonged stay at the University of Mogadishu (he was the dean of the law faculty from 1969 onwards, for several years).

Attending students capable of memorizing, verbatim and easily, an entire lecture (including digressions and jokes), activated his attention towards oral cultures, customary rules, the kaleidoscopic variety of sometimes minute interweaving of rules, related to people’s status, blood ties, relations between ethnic (at the time “tribal”) links. The artificial subdivision of communities that found themselves – under the colonization – on different sides of an imposed border, became evident when the language communication was the same on the opposite side of the line drawn on the maps. The Tigrinya spoken in Eritrea and Ethiopia allows communication, despite the population being assigned to different governments.

In the words of the protagonist of these lines: “the events of life had made me realize how attractive linguistic comparison was and from linguistic comparison it was not so difficult to move on to anthropology, let’s say, from De Saussure it is not difficult to move on to Lévy Strauss. And so, the circle closed …” [32].Footnote 17

The non-coincidence of official and underlying culture was a recurring theme of Sacco’s research. Genetics, made more accessible to the uninitiated by Luca Cavalli Sforza, came – somewhat belatedly – to complete the panoply of tools for reading the human landscape. Linguistic transmission and migration linked to the heritage of the mitochondrial genome became a topic of conversation during the meetings at the Accademia delle Scienze in Turin [32, 33] with Alberto Piazza, a co-researcher of Cavalli Sforza. If the scientific complexity was daunting (and insurmountable if one meant to grasp the details), Sacco would find a way to identify the core or glimmer that allowed him to follow the discourse and profit from it for his own investigation, with an inexhaustible voracity of knowledge, even at a very advanced age (he died in 2022 at 99 years of age).

In conclusion, language was an important component of scientific history, but in large company of other interests that spanned a truly boundless horizon.