Michael A. Livingston & Pier Giuseppe Monateri 
The Italian Legal System [EPUB ebook] 
An Introduction, Second Edition

This chapter traces the history of Italian law from the Roman period through the beginning of the Italian Republic (1946). It explains the history of Italian law in relation to the cultural, political, social, and economic histories of Italy.

This chapter describes the Italian political system, the principal political parties, and the outlines of the judicial system as they existed in the mid- to late 1960s. There is also a brief discussion of the government’s role in the Italian economy.

This chapter discusses legal education, the legal profession, and the magistratura, as they existed at the time of publication.

This chapter provides an overview of civil procedure, including historical background; constitutional norms; investigation and discovery; appeals and judgments; and trends in procedural scholarship. There are also briefer discussions of the laws of evidence and of criminal and administrative procedures. The differences between Italian and American procedural norms, which flow from the civil–common law distinction but are augmented by various historical differences, are a major theme of this chapter.

This chapter traces the development of a distinct Italian ‘style, ‘ which is characterized by an inclination toward legal positivism; a reluctance to consider nonlegal disciplines, notably philosophy, economics, and the remaining social sciences, in legal scholarship; and a tendency, extreme even by civil law standards, to elevate doctrine over case law. These tendencies result, in turn, from a combination of French and German influences and specifically Italian traits, including the long period in which Italy lacked a central governmental authority and relied on scholars (‘doctors’) of law to maintain continuity.

This chapter continues the themes introduced in Chapter 5, emphasizing characteristic Italian attitudes such as the limited (primarily legislative) sources of law; a sharp division between public and private law; and the centrality of codes (especially the civil code) in the legal firmament. These features were changing by the late 1960s as a result of several developments, including the increased economic role of the state, the rise of the Constitutional Court, and the growth in fields that did not fit easily into existing categories.

This chapter—arguably the grandest in the book—traces the Italian style as it affects legal interpretation. It describes the difference between the ‘folklore’ of interpretation, under which the judge is merely the mouthpiece of the statute, and the actual practice, in which the judge’s values, beliefs, and attitudes inevitably affect the outcome of cases. The core of the chapter is devoted to the work of three scholars—Emilio Betti, Tullio Ascarelli, and Piero Calamandrei—who attempted to resolve this problem, the last with an ambitious theory regarding the need to update interpretation to meet the demands of a democratic society. The chapter concludes with a brief section that summarizes the themes of the book as a whole.