The Italian Legal System

An Introduction, Second Edition

Michael A. Livingston, Pier Giuseppe Monateri, Francesco Parisi

• Publisher: Stanford Law Books
• Year: 2015
• Print ISBN: 9780804774956
• eBook ISBN: 9780804796552
• Edition: 2
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

For fifty years, the first edition of The Italian Legal System has been the gold standard among English-language works on the Italian legal system. The book's original authors, Mauro Cappelletti, John Henry Merryman, and Joseph M. Perillo, provided not only an overview of Italian law, but a definition of the field, together with an important contribution to the general literature on comparative law. The book explains the unique "Italian style" in doctrine, law, and interpretation and includes an extremely well-written introduction to Italian legal history, government, the legal profession, and civil procedure and evidence.

In this fully-updated and revised second edition, authors Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi describe the substantial changes in Italian law and society in the intervening five decades—including the creation and impact of the European Union, as well as important advances in comparative law methodology. The second edition poses timely, relevant questions of whether and to what extent the unique Italian style of law has survived the pressures of European unification, American influence, and the globalization of law and society in the intervening period. The Italian Legal System, Second Edition is an important and stimulating resource for those with specific interest in Italy and those with a more general interest in comparative law and the globalization process.

CHAPTER ONE

History of Italian Law

1.01 Introduction. Even a summary exposition of the history of Italian law must begin with its matrix: Roman law.¹ Roman law had a thousand-year history, from the primitive XII Tables in the fifth century B.C. to the Codification of Justinian in the sixth century A.D. In the course of this millennium, radical changes occurred in legal institutions.²

Justinian’s Codification, as it was interpreted and developed by Italian jurists from the twelfth century onward, is the direct source of the Italian legal system. However, it is necessary to turn to the law of the late Roman Empire in order to understand the materials with which the juridical schools of the twelfth and succeeding centuries began the remarkable process of developing a legal system that marked the renaissance of juridical civilization in continental Europe.

1.02 The Principal Periods of Italian History. The history of Italian law can best be understood in relation to the cultural, political, social, and economic histories of Italy. This is, of course, a very large subject which can only be touched upon here. The interested reader will find it valuable to supplement this chapter with other readings³ on Italian history.

Italy’s period of greatness began early in the eleventh century, rising on foundations created by the blending of two cultures: Roman and Germanic. This period was marked by the birth of Italian law and the Italian language⁴ and the rebirth (Renaissance) of the arts, commerce, and the liberties of the townspeople. For four centuries, Italy was the principal center of European civilization. In a great burst of creativity, Italians of genius transformed the worlds of art, thought, and action.⁵

The creative ferment in Italy in the eleventh through the sixteenth centuries had been preceded by centuries of barbarian invasions and was followed by centuries of economic, political, and moral decadence. The liberties enjoyed by the Italian cities degenerated into the pomp, plots, and despotism of the new nobility. New invasions by the French, Spanish (the most devastating, both materially and morally), and Austrians began at the end of the fifteenth century; foreign domination lasted until liberation and unification in the nineteenth. The scars of this period remain, especially in the South, where the wounds inflicted by foreign rule were deeper. Indeed, the fascist dictatorship, with its nationalistic rhetoric, its resentment of the outside world, and its isolationism, may have been a kind of ultimate consequence of this period.

Despite the relative decline in creativity, “none of the successive epochs of Italian history has failed to leave its mark. . . . As opposed to a country like Greece, which lived for centuries in the backwaters of history, in Italy the record is continuous, the stream of civilized activity has never been interrupted.”⁶ Even in the darkest centuries, creative figures appeared. The sixteenth and seventeenth centuries produced the painter Caravaggio and the sculptor Bernini, whose baroque architecture changed the face of Rome. Galileo (1564–1642) “built the foundations of modern science and led the struggle against the Aristotelians and their narrowmindedness.”⁷ The eighteenth century had its geniuses: the historian-philosopher Giambattista Vico and the legal scholars Beccaria and Filangieri.⁸ The eighteenth century also had the art of Tiepolo, the comedy of characters and costumes of Goldoni, and above all the sublime music of Antonio Vivaldi, the “red priest” who inspired Johann Sebastian Bach.⁹ In the following centuries came the poetic grandeur of Leopardi, Foscolo, Manzoni, and Carducci; the strong realistic novels of Verga; the ante litteram “existential” works of Pirandello; and the operas of Bellini, Donizetti, Rossini, Verdi, and Puccini.

The history of Italian law during these great periods is intricately involved with, and consequently tends to reflect, the cultural, social, political, and economic histories of Italy. It begins with the great creative achievement of the Glossators and the University of Bologna in the twelfth century, dominates the legal life of Europe for several hundred years, and then subsides in the sixteenth century. In the years that follow there are substantial, sometimes brilliant, legal achievements, but they stand out as unusual. In the early 1500s, the center of legal creativity shifted, first to France and Holland and then to Germany, and Italy received the ideology of the French Revolution and the French codes, and later in the nineteenth century German legal scholarship.

With the fall of fascism and the end of World War II, Italy entered a new period. The new Constitution of 1948 came into force, and Italy experienced an economic miracle of industrial and commercial development, as well as drastic changes in the patterns of rural and urban life throughout the peninsula. Many aspects of Italian law were successfully reformed, and the project of European integration brought further changes to the Italian legal system.

1.03 The Pre-Justinian Compilations and Justinian’s Corpus Juris. The sources of the Roman law at the end of the third century A.D. may be divided into two categories: leges and iura. In the late Empire, the term leges¹⁰ included all general enactments of the emperors, particularly in public law. The entire complex of opinions of those juris-consults endowed with ius respondendi ex auctoritate principis¹¹ was known as iura, and may be crudely analogized to case law in the common law systems. By the middle of the third century A.D., this kind of authoritative source lost the creativity it had enjoyed in the preceding centuries, and the decay of juridical culture had become, in the West, an irreversible phenomenon. During this same period, it became apparent that the bulk of imperial legislation, which was both massive and disorganized, needed systematic reorganization. This necessity gave birth to two private collections: the Codex Gregorianus,¹² compiled about 292 A.D.; and the Codex Hermogenianus,¹³ the continuation of its predecessor, of which we possess but a small part of the text. As private collections, they had no official authority.

Of much greater importance was the Codex Theodosianus,¹⁴ compiled, like the others, in the East. This was the product of a commission of jurists named by the Emperor Theodosius II. The Code was divided into sixteen books and contained only the enactments (constitutiones) dating from Constantine’s reign, with certain nonradical modifications made by the compilers. It was extended to the West on January 1, 439, by solemn vote of the Roman Senate. During the early Middle Ages, it was widely known and used in the West, especially in the transalpine regions, which, unlike Italy, did not receive the compilation of Justinian.

In 527, Justinian took the throne of the Eastern Empire. His first work as legislator was the drafting of a new Codex, the Novus Justinianus Codex.¹⁵ This work, which was based on three preceding compilations, was published in 529. The following year, Justinian began the compilation of the iura, entrusting this labor to a commission presided over by the jurist Tribonian. After ransacking 1,625 works by 39 ancient jurisconsults, almost all of whom had been endowed with ius respondendi, the commission produced fifty books of widely differing sizes. This work, known as the Digesta or Pandectae,¹⁶ became effective on December 30, 533. In the same year, the Institutiones, an elementary manual of four books modeled on the Institutiones of Gaius,¹⁷ was promulgated.

The publication of the Digest made necessary a second edition of the Code in order to unify and harmonize the parts of the legislative system and to add the enactments of Justinian made after 529. The result was a revised edition, the Codex repetitae praelectionis, in twelve books. The revised edition, effective from December 29, 534, replaced its predecessor.¹⁸ All of Justinian’s legislation, including the Novellae Constitutiones,¹⁹ his enactments from 535 to 565, was extended to Italy after he reconquered the peninsula from the Ostrogoths, who had ruled there since the end of the fifth century.

Justinian’s goal was to compose a body of practical law that would meet the needs of the times. By innovating and reforming in accordance with new exigencies, he hoped to eliminate antiquated institutions, academic controversies, and scholarly differences. In addition, however, he wanted to salvage the treasures of ancient learning and to restore the level of legal culture. Thus, Justinian pursued two mutually contradictory goals; while he attempted to restore faithfully the Roman legal tradition by reorganizing an enormous body of materials that already had normative force (the compilation), he also enacted new legislation, repealing all acts not contained in the compilation and forbidding any manner of interpretation.²⁰ His efforts and those of his staff of jurists reached the limits of the possible in reconciling these opposing goals.

1.04 The Langobard Period. Justinian’s war to reconquer Italy had barely ended when, in 568, the Langobards, a Germanic people of the Saxon group, invaded. Their conquest, which took place slowly and in a disorganized manner, eventually extended to a great part of the peninsula. Byzantium continued to dominate the Venetian lagoons; Ravenna and the Exarchate;²¹ the Pentapolis;²² Latium (the area around Rome) and a series of fortified Umbrian castles connecting Latium with the Pentapolis; the cities of Gaeta, Naples, and Amalfi; the areas of Puglia and Calabria; and the islands of Sicily and Sardinia.²³

The Italian territories remaining under the Eastern Empire were the only ones in Italy in which the Roman legal tradition continued in relatively genuine form. Roman law continued to be the territorial law binding everyone living on imperial soil. The Byzantine areas continued to receive the legislation emanating from the imperial court, and the study of Roman sources survived, bridging the ancient imperial schools of law and the Italian schools which, beginning in the twelfth century, diffused Roman law throughout Europe.

The Langobards introduced into Italy the principle of the personality of law, the norm among the Germanic peoples. In accordance with this principle, subjects of the same legal system were governed in their private relationships by the law of their tribe (natio).²⁴ This was in contrast to the principle of the territoriality of law in Byzantine Italy. In Langobard Italy, therefore, a large part of the subject population, and the Church, continued to live under Roman law. However, in the absence of any authority capable of applying it correctly, what passed for Roman law often involved customary practices of diverse origins and structures.

The Langobards, like the rest of their Germanic kin, had no written law. It was not until 643, seventy-five years after their invasion of Italy, that the Langobard king Rothari gave his people a complex of laws. Written in incredibly coarse Latin, this work, known as the Edictum, was divided into 388 chapters. It is considered to be the most complete statement of the customary law of any of the Germanic tribes. The legislative efforts of Rothari were pursued by his successors. The body of Langobard legislation, consisting of the Edict of Rothari and the additions made by his successors, goes under the n...

Table of contents

• Cover
• Copyright
• Title Page
• Contents
• Preface to the Second Edition
• Preface to the First Edition
• 1. History of Italian Law
• 2. Italian Government
• 3. The Law Professionals
• 4. Civil Procedure and Evidence
• 5. The Italian Style: Doctrine
• 6. The Italian Style: Law
• 7. The Italian Style: Interpretation
• Appendix: A Note on Italian Source Materials
• Index