The Italian Legal System
European legal systems have various origins, but in particular, they have descended from classical Roman Law, which became with time “jus civile ”, and can be distinguished in many ways from the “Common Law”. The Italian legal order has two fundamental origins, “jus privatorum ” and “ jus publicum ”; this traditional division of law does not exist in “Common Law” countries with an English tradition.
Private Law in Italy draws its sources from ancient Roman law (the “ Institutiones ”, “ Digesta ”, “ Codex ” and “ Novellae ”) and substantially still mirrors those ancient principles today, albeit filtered through the experience of the Medieval and Renaissance jurists (the Glossators and Commentators), and later summarized in the French Napoleonic codification of 1805.
It was strongly influenced by the political experience of the Italian Risorgimento, partially incorporated in the Constitution of the State of Piedmont, promulgated on 4 March 1848 by Carlo Alberto of Savoy (Statuto Albertino), and finally fully expressed in the Republican Constitution in force today.
The 1947 Italian Constitution which imposed a new interpretation of the old rules, influencing the order of the powers of the individual and of the State and the relationship between the citizen and the State. It also forced the State to intervene in the economics of the nation.
The Italian legal system, as founded on Roman and Germanic traditions and based on the written laws value, is a “Civil Law system” and therefore different from the legal system of the English-speaking countries ( “Common Law systems”), developed by royal courts of justice and basically structured as a “Jurisprudencial Law”, in which just the judges make law, binding by means of their sentences the following judicial decisions.
Legislative Power in Italy is exercised by the “Parlamento” [Parliament]: that is the “Camera dei Deputati” [Chamber of Deputies] and the “Senato della Repubblica” [Senate of the Republic]. Legislative initiative belongs also to the “Consiglio Nazionale dell’Economia e del Lavoro” [National Council of Economy and Labour] and the People. The “Corte Costituzionale” [Constitutional Court] exercises control over the constitutional legitimacy of laws.
Executive Power is attributed to the “ Governo ” [Government], while the “ Consiglio di Stato ” [Council of State] and the “ Corte dei Conti ” [State Audit Court] have a measure of control and advisory role over the Executive.
Judicial Power is exercised by magistrates distinguished in functions and competencies as follows. “ Corte costituzionale ” [Constitutional Court]:
judicial review of constitutionality;
“Corte di Cassazione ” [Supreme Court of Cassation]: control of the legality of the decisions.
Civil Jurisdiction: a) First instance: “ Giudice di Pace ” [Judge of the Peace],
“Pretura” [Magistrates Court]
- b) Second Instance
“ Pretura ” [Magistrates Court],
“Tribunale ” [Tribunal]
“Corte d’Appello” [Court of Appeal].
First Instance: “ retura ” [Magistrates’ Court]
“Tribunale ” [Tribunal]
“Corte d’Assise ”[Court of Assize];
- b) Second Instance:
“Tribunale ” [Tribunal]
“Corte d’Appello”” [Court of Appeal]
“Corte d’Assise d’Appello ”[Appeal Court of Assize]
First instance: “Tribunali Amministrativi Regionali
[Regional Administrative Tribunals];
Second Instance: “Consiglio di Stato ”[Council of State].
Taxation Jurisdiction: a) First instance:
“Commissioni Tributarie Provinciali ”[Provincial Taxation Commissions];
- b) Second Instance: “Commissioni Tributarie Regionali” [[Regiona taxation Commissions]
First instance: “Corte dei Conti – Sigola Sezione ” [State Audit Court – Single Session]; b) Second Instance: “ Corte dei Conti – Sezioni Unite ” [State Audit Court – Joint Sitting].
Military Jurisdiction: a) First instance: “ Tribunale Militare ” [Military Tribunal]; b) Second Instance: “ Corte Militare d’Appello ” [Military Court of Appeal]. Any Judge can refer a case to the Constitutional Court.
Printed Sources of Italian Law
Official publications: “Gazzetta Ufficiale della Repubblica Italiana”, the “Raccolta Ufficiale degli atti normativi della Repubblica Italiana” and the “Bollettini ufficiali regionali”. The legislative acts of the European Union are published in the Gazzetta Ufficiale delle Comunità Europee .
The “Raccolta Ufficiale degli atti normativi della Repubblica Italiana”, again published by the Poligrafico dello Stato, contains the texts of Italian legislative measures (set out in order of the number of their insertion in the collection) and it is provided with annual indexes.
The “Bollettini ufficiali regionali” constitute a collection of legislative acts passed by the legislative bodies of the twenty Italian Regions (in Sicily, a region under a special statute, the collection is called the “Gazzetta Ufficiale”).
Private publications are made up of special periodical journals which publish legislative material in various forms. They have chronological, numeric and subject indexes and more user-friendly tools compared to the “Gazzette” and the “Bollettini ufficiali”. Within this category, we shall only mention the following as the main works of this kind:
- a) Lex , edited by the UTET publishing house of Turin, contains State legislative acts, parliamentary reports, ministerial instructions, Regional laws and the legislative acts of the European Communities.
- b) Le leggi d’Italia , a fortnightly journal published by Zanichelli of Bologna, collects together the laws, decrees and all the other legislative measures found in the “Gazzetta Ufficiale”, following its order of publication. The journal also includes the laws and regulations enacted by the legislative bodies of the Regions, as well as the provisions of the European Union and the rulings of the Constitutional Court. The material is provided with a classification system and indexing common to the other publications of “Il Foro Italiano”.
- c) La legislazione italiana , edited by Giuffré of Milan, collects together the legislative acts of the State, Regions and the autonomous Provinces, as well as the European Community, bills, decisions of the Constitutional Court, appeals and remissions of actions of the same Court.
- d) Le leggi d’Italia , edited by V. De Martino (De Agostini, Novara), publishes the text in force of the primary laws of the State, excluding, therefore, secondary sources of the Italian State, but also primary sources of the Regions and the EU. It is a loose-leaf work, divided into headings and sub-headings, continually updated and also available on CD-ROM.
Public Law Legislation
The Italian Constitution
Among the other more recent innovations:
- a) Constitutional Law 30 May 2003, No. 1, which amended article 51 of the Constitution and provided the necessary constitutional cover for the enactment of legislative acts aimed at stimulating the participation of women in political life;
- b) Law 20 June 2003, No. 140, under which immunity from criminal proceedings was introduced for the highest offices of the State (President of the Republic, of the Chamber of Deputies, Senate, Council of Ministers and the Constitutional Court);
- c) Comments on the Draft European Constitution.
Civil Law Legislation
The Civil Code
Civil Law Jurisprudence
Criminal Law Legislation
The Criminal Code and the Penitentiary Legal System
The main source of criminal law currently in force is the Criminal Code , which was passed under the R.D. (Royal Decree) of 19 October 1930, No. 1398, and came into force on 1 July 1931. It was integrated then by the Co-ordinating and Transitory Provisions (R.D. of 28 May 1931, No. 601) and amended by various legislative measures, among which those introduced (above all in the period between 1975 and 1987) for combating terrorism, subversive activities and the various forms of organised crime.
Criminal Law Jurisprudence