“The cause of the malaise is the observation that the dominant dogmatics and formalism were completely unsuitable for a conception of law as a political project. If this awareness is a reason for frustration in the initial phase of "resistance to legal science", in the following phase it transforms into an incentive to restore the nature and purpose of a "practical science" to the study of law, starting from the premise that "labour law it is neither written in book V of the civil code nor in the Constitution»; or not only there. For this reason, he will feel "the need to start over from the origins". A need that Gino Giugni indulges and satisfies by unearthing the roots of labor law even at the cost of burying himself in the less frequented closets of libraries and getting his hands dirty, digging up the immense deposit of resources which, «mostly ignored in university classrooms and in juridical tomes», is the sedimented product of the uninterrupted bricolage of collective bargaining autonomy”. Who writes is Umberto Romagnoli in his essay “Jurists of work in the Italian twentieth century. Profiles” (Ediesse, 2018). It is a passage from the profile of another Master, Gino Giugni, of which October 4th marks the tenth anniversary of his disappearance.
I wanted to quote this passage from a text which describes, with the incomparable style of Romagnoli, the life and works of Giugni and which deserves to be read from the first to the last word, especially by those like myself who knew, worked and was a friend and partner of Gino. The passage, in fact, captures the meaning of turning point that Giugni was able to impart to labor law, conferring scientific dignity to the trade union law, before then confined to no man's land of de jure seasoning.
The Republican Constitution, inArticle 39, had restored trade union freedom, defining the criteria of representation and representativeness of trade unions and establishing the ways in which they, subjects of private law, were able to negotiate contracts - also of common law - applicable erga omnes. Thus, a lot of dust from the fascist regime remained on the overall structure of article 39.
Indeed, the constitutional legislator, having found himself managing the transition from the regime to democracy and having to deal, in the field of work, with a consolidated system made up of rules concretely applied in companies, limited himself to a large extent to reformulating the previous system at the light of the sacred principles of freedom and democracy; and to imagine – it was not easy for those times – a concrete operation inspired by pluralism. But his concern to revisit in other forms the issues that the corporate model, in his own way, had faced and resolved remained visible.
During fascism trade unions were practically a branch of the public administration. In democratic Italy they regained full freedom, but the problem of giving them one continued to exist legal personality (even if) under private law, subject only to the requirement of a democratically based internal statute, in order to define a precise identity, according to what was dictated by the ordinary law which should have applied the constitutional norm. The sphere of the category as a reference for negotiation at that level remained central as it had been in the previous context by virtue of an ideological prejudice which had become the norm (corporatism, precisely, as a form of organization of the state).
Finally, the constitutional legislator was obsessed with the need to identify a mechanism which, even in a context of possible trade union pluralism, would allow conferring an efficacy erga omnes ai collective agreements. But for a variety of reasons – including the breakdown of trade union unity established by the parties in the Pact of Rome following the fall of fascism – the ordinary law – which provided for the formation of unitary representations on the basis of the members of each organization – it was never launched.
Thus the trade union right was confined to some dispensation that explained the draft law of the minister on duty, while in the meantime collective agreements remained confined to the common law, as considered valid only for employers and workers registered with the stipulating organizations. It was Gino Giugni in his seminal essay of the 1960 “Introduction to the study of collective autonomy” to notice that a trade union order existed in reality and to identify its cornerstones, breaking the immobilism of the "disappointed hopes" in the messianic expectation of the implementation of the constitutional norm and thus opening up a new perspective for labor law.
At the time, Giugni wrote about the contractual activity words destined to change history: "An activity that took place in the precarious context of the common law of contracts, was tainted by a thousand insufficiencies, but is nonetheless constitutive of a valid patrimony of experiences of 'living law'” Giugni was not only a distinguished jurist, the founder of the Bari school, in close collaboration with his friend Federico Mancini and his Bolognese school.
In the role of close collaborator of the minister Giacomo Brodolini and Carlo Donat Cattin, after the disappearance of the first, he linked his name to the Statute of workers' rights in 1970, close to the hot autumn. He was the victim of an attack by the BR where he was seriously injured. Of himself he said he didn't know if he was a professor lent to politics or the other way around. He was a PSI senator for several legislatures, president of the Labor Commission; then, Minister of Labor of the Ciampi Government in 1993, when he oversaw and signed (together with the social partners) the Protocol that regulated collective bargaining. But the Master's main merit remains that of having founded the modern trade union law, through an operation of a cultural nature that had the sense of a real Copernican revolution.
