Italian Legal History
Short Legal History of Italy
Italian law is grounded in the civil law, the revived classical Roman law. The civil law, concentrating on private law, owes much of its modern development to other influences, particularly canon and Germanic and feudal law as interpreted and applied in the Middle Ages and Renaissance. It is based and focused on the principle of codification, an innovation introduced by the eastern emperor Justinian in the 6th century. Justinian´s law, or medieval Roman law, experienced its rebirth in northern Italy during the 12th and 13th centuries. By the early modern period, the Italian legal tradition was shaped by universal Roman law, which had influenced and been influenced by the equally universal canon law, all commentated on and interpreted by first the glossators and then the post-glossators and legal scholars in the universities of northern Italy who transformed the early codified Roman law into a jus commune capable of application throughout the western world. A separate legal system also existed alongside the sophisticated and advanced Roman law; this was a combination of customary law (which blended elements of Gothic and Germanic tribal codes) with local statute and city and municipal law. Owing to the disunified condition of the region, legal development stagnated from the 16th to the 18th centuries, along with political and economic progress.
On the eve of the modern period in Italy´s history, its legal system, law and legislation had become a “mélange” of sophisticated and advanced Roman/canon law evolved out of medieval scholarship and combined, where apt or necessary, with customary law and communal statutory compilations. The fragmented social and economic structure of the entire peninsula, combined with determined political and governmental disunity, had produced an additional mass of legislation, unfocused and disparate, that was constantly in process of promulgation and development by a number of entities. Although the enlightenment had penetrated the upper edges of societal and legal development, the condition was far from modern.
From Italian legal system, an introduction. M. Cappelletti [et al.], Stanford, Stanford University Press, 1967. Pgs. 40-41:
“The medieval legal system remained the basis of law in Italy. Numerous laws were promulgated to supplement or modify the inherited mass of legislation, but these changes tended to be fragmentary, unsystematic, and designed to meet the contingencies of the moment. The climate of renewal was evident in much of the legislation that preceded the Napoleonic codes, but an overview of the legislative work of the eighteenth century demonstrates that, important as it was in the simplification and development of the law, it was best a prelude to codification.”
Roman law remained the single most evident and accessible source, bringing a degree of order to an inherently discordant and incoherent legal system. This was, of course, the medieval, post-Justinian Roman law of the 12th-14th century Italian scholars; its compilation, the Corpus juris civilis, vied in actual practice and influence with the elegantly sophisticated and developed body of canon law in its own compilation, the Corpus juris canonici. Customary law, as finally codified by the Germanic conquerors (primarily the Lombard tribes in the north), survived in a tradition of local legislation.
The codification movement that ultimately reformed and restructured modern Italian law reached the region via the normal avenues of legislative expansion in the early 19th century.
From Italian legal system. G.L. Certoma, London, Butterworths, 1985. Pgs. 8-9:
“The influence of the French Revolution spread both because of the prestige of the ideas of 1789 and because of the Napoleonic expansion. The ideals of the Revolution produced a peculiar theory as to what law is, as well determining the form and style of the basic codes. The legislative results of the revolution within France were the Code Napoleon of 1804, the Code of Civil Procedure of 1807, the Commercial Code and the Code of Criminal Procedure, both of 1808, and the Criminal Code of 1810. As it happened, Italy received both the ideology of the revolution and the French Codes. The French occupation from 1796 and its foundation of several Italian Republics and vassal kingdoms, brought the French legislation, which was readily received, both because it satisfied new socio-economic needs, and because of the common legal tradition which, for the most part, had been absorbed into the Napoleonic codes.”
The reaction that set in after the Congress of Vienna was accompanied by a return to the old legal regimes of the 18th century, but only for a few years. The concept of codification had gained enthusiastic acceptance, both as the vehicle for law reform and modernization and the means to further national unification.
The first non-Napoleonic Italian code was promulgated in Lombardy in 1871. It was basically the Austrian civil code, somewhat simplified and translated into Italian. The codification movement was thereafter greatly influenced by the series of codes promulgated in Sardinia between 1837 and 1854, the most notable being the “Albertina,” as the civil code of 1837 was called. By 1860, when the political consolidation of Italy under the House of Savoy had been accomplished, unification and harmonization of legislation continued to elude the central government. Each province of the new kingdom retained and enforced its own set of laws.
Procedural and criminal law had been successfully codified and these were promulgated and in force in the various Italian provinces by 1864, but civil law revision languished. In 1859 two separate commissions had been created to develop a new civil code. One in Lombardy and the Piedmont, basing its work on the French model, was influenced by Austrian modifications; the other in Sardinia started with the “Albertina.”
Eventually the Austrian influence was stripped away, leaving the framework of the French model to be revised and reorganized to meet Italian needs. The first book of the Code Napoleon, dealing with family law, marriage and the authority of the father, required extensive revision to accommodate the views of the Church.
In April 1865, a law mandating legislative uniformity was promulgated, directing the application of basic codes throughout the kingdom. The codification of civil law was expedited, the important points of dispute were quickly resolved, and the new Italian civil code was promulgated in 1865. This code differed considerably from the French model, particularly in its concern with civil marriage and the related matters of status, custody, marital property, children and the termination of the marriage bond. The variations between the relatively anti-clerical French model and the code that evolved from the Austrian version, heavily influenced by the Church, become apparent on analysis.
With the achievement of codification of commercial law in 1882, the structure of Italian law became fixed until the late fascist period, although all spheres of the law (civil, criminal and criminal procedure) were developed and refined under the influence of the flowering of Italian legal scholarship in the period 1860-1915. A new criminal code was adopted in 1889 and a criminal procedure code was enacted in 1913, but otherwise the controlling codes remained in force into the 1930s.
The Concordat of 1929 necessitated a review of certain aspects of Italian law and could be regarded as the prelude to the sweeping legislative revisions of the fascist era. Italian legal scholarship had, by the 1920s, come under the spell of the German Pandectists. Italian law has always been responsive to doctrine and the writings of university professors; these influences drew away from the analytical approach of the French and toward the conceptualism and dogmatism of the German school. The legislation of the fascist period, beginning with the criminal code of 1930 and concluding with the brilliant civil code of 1942, introduced in the middle of the war, were influenced by fascist ideology but only in varying degrees. The penal and criminal codes owed much of their approach to fascist doctrine or a right-wing outlook. The civil and civil procedure codes, also of 1942, were the product of relatively disinterested scholars and contain little that can be attributed to any fascist concepts or a priori approaches. While political conditions may have influenced the development of public law and introduced changes into the criminal codes, there is little evidence of any fascist pressures or theory in the vast recodification of private law.
The 1942 civil code was (for its day) revolutionary, in that it combined in a single compilation of 2,000 articles the regulation of all aspects of private life, both civil and commercial. It abrogated both the 1865 civil code and the commercial code of 1882. The structure of the code was most innovative, introducing a codification of private (non-governmental) aspects of labor law as well as an extensive codification of the rights of citizens and their protection. Unlike the 19th century version, it is strictly technical in its approach, eschewing doctrine and casuistry. Although a product of the fascist era, the Italian civil code has survived, though not without modification, and serves as the model for the new Dutch civil code as well as several new Latin American legislative reforms.
The most recent change in Italian law came with the introduction of a new code of criminal procedure in 1988. This not only swept away the fascist-influenced criminal procedure code of 1930, it also changed the entire approach of Italian criminal procedure law. Hitherto Italian criminal procedure has been modeled on the French Code d´instruction criminelle based on an inquisitorial system followed in most of the countries of Europe, both western and eastern. The new code, in a revolutionary stroke, adopts the adversarial approach found in the Anglo-American system.
From The Italian legal traditions. T.G. Watkin, Aldershot, Dartmouth, 1997. Pg. 43:
“This introduction of Anglo-American and Common Law elements has not been without controversy, particularly as there was much initial confusion resulting from those who were arrested before the introduction of the new code being tried under the old system with the new code operating alongside for those arrested after its introduction. Some feel that the mix of adversarial and inquisitorial methods which the new code involves undermines the integrity of the Italian tradition in criminal procedure.”
Legislation and the Judicial System
The mass of Italian legislation is now more than a little intimidating; the body of national and regional laws and regulations and their accompanying judicial exegesis appears overwhelming. The legislation originates in the national parliament, which is a bicameral legislature with a long history of extensive publications. Parliamentary papers and proceedings are beyond our scope. Each house, the Camara dei Deputati (Chamber of Deputies) and the Senato della Repubblica (Senate), has its own publications series that prints not only full debates but also committee proceedings and debates. Important reports appear in two series covering parliamentary committees of inquiry and investigating committees: Relazioni e documenti delle commissioni di inchiesta parlamentare and Relazioni e documenti delle commissioni di indagine. Both of these would have some use in determining legislative intent.
The 20 regions also have varying degrees of legislative power and take advantage of it, restricted only in that their laws may not conflict with “fundamental national interest.” Five of the regions enjoy a greater degree of autonomy than the other 15. Bibliographic control of legislation is not easy.
From A. Gambaro, “The role of publishing in the Italian legal experience” in Rapports nationaux italiens au XIII Congrés international de droit comparé. Milano, Giuffré, 1990. Pg. 587: [The writer notes that “Most professional people draw on privately published information, which provides a more convenient, coordinated presentation of the text of the law.”]
“The Italian system, like all the others of a substantially social-democratic stamp, has lived and continues to do so, in an “orgy of Statute-Making.” On the basis of initial data collected by a specially appointed ministerial commission, about 96,000 state laws would appear to exist in Italy, although their exact number is still not known. And to these must be added regional laws and regulations.”
The hierarchy of Italian law is not without its own complexity. At the apex is the constitution of 1947. It is a fairly rigid document and not subject to casual amendment. Constitutional laws, which are amendatory must, in effect, be passed twice by both houses, first by simple majority and second by absolute majority. Next are ordinary laws (Leggi), passed by the president. Below these are acts having the force of law (Decreti legislativi [delegati]) or laws decreed by ministers of the government in accord with powers delegated by the parliament in a specific piece of legislation. Decreti legge are decree laws issued by the government, they must be approved by the parliament within 60 days of their issuance or they lose their validity. They then either become Legge or remain, when signed by the president, Decreti della Presidente della Repubblica.
In actual practice, decrees often cannot be successfully converted within 60 days and so the government has adopted the policy of almost automatically reiterating the decrees in unchanged text at regular 60-day periods until they are converted into law. A Constitutional Court judgment of 24 October 1996 censured this legislative detour and strongly suggests that reissuance of an unchanged decree is unconstitutional.
The hierarchy referred to above is not absolute. Laws and acts having the force of law differ in that they result from different procedures; however, substantially they are of the same authority. For example, a decree can repeal a law, or vice versa. Individual ministers issue secondary legislation as Decreti ministeriali and the Council of Ministers issues Decreti. Fortunately, there has developed a tradition of reasonably frequent official subject compilations being published in the form of a testo unico or unified text of all laws and regulations on a specific subject. There is also an unofficial practice of private publication of legislation titled “Codice”. Actually, the only codes that are recognized by law are the civil, civil procedure, penal, criminal procedure and navigation codes. All the rest are unofficial publishers´ compilations.
Frequently one encounters infuriating idiosyncrasies in locating the correct text of an Italian law. Typically, a x-large proportion of even quite important legislation is originally promulgated as a “Decreto legislative” issued by the executive branch, or really the majority party in parliament. In order to have permanent effect it must be formally converted to a law (legge) by a vote of the parliament, at which point minor changes may be introduced. It is common practice to only print the changes, and so, while the proper citation is always to the law, the full text will often only appear in the printing of the decree-law, which may have been published some weeks before. Nor is legislation consistently printed in numerical or even chronological sequence, adding yet another aggravating factor to the mysteries of Italian law promulgation.
The judicial system is equally complex. There is a single court system, as opposed to the bifurcated structure for legislation; however, the mechanism for reporting cases is even more impenetrable. At the base of the court system are individual magistrates or “conciliatori”, who decide matters of “very small claims.” They are lay judges and are located in each of Italy´s more than 8,000 communes. Next higher are the “pretoir”, with jurisdiction over several communes; there are over 900 of these professional magistrates with jurisdiction limited by the amount involved (up to L. 5,000,000) or the type of action (possessory, labor, social security, certain remedies). The superior court of first instance is the “tribunale.” There are 160 of these courts, with judges sitting in benches of three or singly as examining magistrates. The “tribunal” serve as appellate courts from the lower magistracy and also, with the participation of lay judges, as criminal courts. The appellate courts are assigned one to each region, although some-larger regions have two or more. A Corte d´appello also has original jurisdiction in matters concerning the recognition and enforcement of foreign judgments. At the apex is the “Corte di cassazione”, which is the final appellate tribunal in all civil and criminal cases and is the only court empowered to reverse the judgments of lower courts.
There is a separate structure of administrative tribunals, which are really branches of the executive department rather than part of the judiciary system proper. Each region has a “Tribunale regionale amministrativi” with competence to hear a wide range of administrative controversies. The final court of appeal for administrative matters is the “Consiglio di stato”; appeals from this court to the Court of Cassation are rare and would only involve questions of jurisdiction.
The Supreme Constitutional Court, or “Corte costituzionale”, is a separate body, independent of the professional judiciary, and is charged with judicial review of legislation. This can be either direct or indirect, but if coming from a lower court, that body must be satisfied that an appeal is being properly taken before the case can go on to the Constitutional Court.
Since Italian courts function on these three levels, each dispensing civil or criminal justice, but generally within the same hierarchy, any body of separable jurisprudence is difficult to discern. Then, aside from the system or ordinary jurisdictions, there is a separate and distinct administrative jurisdiction. The size of the Italian judiciary and the volume of its judgments is almost beyond the comprehension of a person familiar only with the Anglo-American tradition. Beyond the thousands of magistrates and inferior judges, there is the final appellate body, the Court of Cassation with about 400 judges deciding, each year, close to 50,000 cases (criminal and civil). The final administrative court, the Council of State, with a couple hundred judges decides over 10,000 cases a year. The more clearly defined Supreme Constitutional Court is a modern creation. It has fifteen judges and decides fewer than 400 cases a year. Its judgments, perhaps because of their limited number, are increasingly regarded as important, providing guidance in statutory interpretation, even if a statute is upheld.
The Italian legislation is difficult to manage in the bibliographic sense; case law is a veritable nightmare. As with most continental legal systems, Italian judicial decisions have only persuasive authority, and this only in respect to very similar situations. The exception would be the constitutional court, which is incidentally the only court whose judgments are published officially. Other decisions are published “helter skelter”, in full or only in headnotes or “massima”. Withall, the legal system and the legal profession have increasingly been involved in searching for or developing sequences of judgments that could be viewed as consistently applied norms and then cited as precedents.
As the “magistratature” gradually gained independence [sic] from the executive following a series of reforms of the legal system, judges became aware that they were the protagonists of the living law, and not merely bureaucratic enforcers thereof. Of course, there is widespread awareness that judge-made precedents are only moderately persuasive; for Italian judge made law does not follow the criterion of stare decisis. Even the “Corte di Cassazione” displays a mutability unmatched in other western systems.
From A. Gambaro, “The role of publishing in the Italian legal experience” in Rapports nationaux italiens au XIII Congrés international de droit comparé. Milano, Giuffré, 1990. Pg. 591: [The writer concludes that the “proliferation of specialized reviews has made decisions published in full unknowable for anyone not possessing all the collections, a burden which few Italian lawyers, used to practicing singly or in very small groups, can afford to shoulder.” As a matter of fact, only thex-large st institutions can hope to achieve really comprehensive collections of decisions.
“A clear reason behind the enormous volumes of judgments delivered by Italian courts, and one that clouds the development of precedents is the constitutional condition that neither the Court of Cassation, nor the Council of State, are permitted any discretion in selecting cases. They are obligated to accept and decide on appeal any judgments from courts below which one or the other party wishes to contest. The Supreme Constitutional Court escapes such requirements. In not instances are concurring or dissenting opinions permitted, nor is the vote of the judges (usually in a five or seven judge panel) ever revealed.”
There may be precedent in Italy, it´s just hard to figure out. In both the supreme courts there do exist structures to cast light upon certain decisions that may take on precedential authority. When a chief judge perceives that a case with a particularly important issue, or when there are clearly conflicting judgments on similar matters of law from different panels of the court, a special panel will be appointed to decide on such conflicts and arrive at a uniform judgment or position that is given such authority that it takes on the aura of precedential rule.
A second source of precedent is found in the officially acknowledged “massima” (maxim or rule). The Italian legal system, in an attempt to keep functioning seems to lurch towards a partial solution every 40 or 50 years. As two scholars write:
“[T]here is a rather peculiar institution that was created in 1941 and is annexed to the “Corte di Casazione.” It is called the “Ufficio del Massimario” and is composed of judges. Its main function is to analyze all the judgments delivered by the court in order to extract from them the so-called “massima”. This is a short statement (usually five to ten lines) concerning the legal rule that has been used in the decision considered: it is stated in very general terms, usually without any express reference to the facts of the specific case, and it takes into account only the legal side of the decision. It may contain a restatement of the statutory rule that was applied in the decision, or a statement concerning an interpretation of a rule, or a legal principle used by the court. The massima is extracted from the opinion included in the judgment; it concerns every general statement of law that may be found in the opinion. Therefore several massime can be derived from the same judgments, when it touches several legal problems. Perhaps the most important feature of such a system is that the massime are usually stated without any effective connection with the facts in issue and with the particular aspects of the single case. Correspondingly, it cannot be said that a massima contains the ratio decidendi of the case. It may happen, of course, but it is not certain in every case”.
[M. Taruffo and M. La Torre, “Precedent in Italy,” in Interpreting precedents: a comparative study. Edited by D.N. MacCormick and R.S. Summers, Aldershot, Dartmouth, 1997. Pg. 141 at pg. 148. This is a long quote, but the authors have done an excellent job in describing this unique institution. Their essay contains a wealth of information on Italian jurisprudence. It could not be more highly recommended for their treatment of the role precedent plays in Italian jurisprudence and the entire legal system.]
By the early 1980s, when the reporting system was near collapse, with a backlog of two or more years between date of the decision and unofficial publication, the Court of Cassation determined that there was an immediate need for a form of electronic control of the growing mass of legislation and jurisprudence. The final result, ITALGIUR, is the largest and most sophisticated legal database in Europe, enabling full-text retrieval of all legislation (national and regional) since 1972 and all decisions of the Constitutional Court. Summaries or headnotes are available for a range of other decisions since the 1960s. This is a complex, multifaceted and expanding system, with great potential for more effective administration of justice; however, it is directed primarily at the judiciary and governmental, administrative and prosecutorial agencies, as user groups, rather than public institutions or the practicing bar.
Any system of case reporting, beyond the merely informative value, must be aimed at isolating a describing precedent. The use, the recognition and value of precedent in Italian law has been expanding since the Second World War and it is now an accepted practice, particularly when there are gaps in the statutory law. Nevertheless, precedent is not binding in the Anglo-American sense, but is generally regarded, rather, as persuasive, especially when a judgment is delivered by a special panel and, of course, the highest court in the hierarchy. Perhaps because of the volume of court decisions and their fragmented and often incomplete mode of publication, any actual, hard and fast description of precedential practice and authority in Italy lies beyond our grasp.
As a means of coping with the mandated harmonization of Italian law with the expanding volume of European Union directives and regulations, an enactment, Legge 86 of 9 March 1989 in “Gazzetta ufficiale” 10 March 1989, known as the “La Pergola law,” will enable mass annual enactment of EU law into the body of Italian law. This is “[d]esigned to provide a framework for the future implementation of EU directives and other acts of Union law.”
As the framework was built by a statute which cannot be regarded as higher law than any other statute, the impact of the “La Pergola law” on future practice is uncertain. [G. Gaja, “New developments in a continuing story: the relationship between EEC law and Italian law.” 27 Common market law review 83 (1990) at pg. 85}.
A decision (no. 389) of the Constitutional Court of 11 July 1989, Provinci di Bolzano c. President dei Consiglio di Ministri, clearly asserted that EU law prevails over Italian national law.
In fact, it appears that the approach devised by Antonio La Pergola is now institutionalized with the Italian treatment of EU directives. La Pergola explains that during his tenure as the Italian Minister for European Affairs, the backlog of unimplemented Community directives had become unmanageable.
Author: Ken Pennington