The Italian Legal Recipe: Basic Ingredients and the Bustle of Time

In: European Journal of Comparative Law and Governance

Many legal systems beyond the classical common/civil law mixed world may show themselves as the result of a historical combination of different paradigms, and of ever changing legal blends. Allegedly ‘pure’ (i.e. unmixed) civilian systems are no exception, as the Italian legal experience demonstrates. The Italian legal system stands as an emblematic illustration of how, in a civilian context, original and foreign (both civil law and common law) inspired legal rules, institutions, and attitudes may interact, develop through time, and synthesize themselves in a complex, yet unified legal culture.

As is well-known, from a comparative perspective Italy is commonly conceived as a member of the civilian legal family, and, more in particular, as a mix of XIX-XXth century French and German influences. This is, however, only one side of the picture. Whatever their current respective zones of influences are, the point is that French and German legal models are no more (as they have never been) the only ingredient of the Italian recipe. As a matter of fact, the origin of many components stretches wider both in time and space. In some cases, it stretches back to the fragmented plurality of normative levels which characterized the peninsula’ legal edifice for centuries before political unification. In other cases, the origin of legal rules stretches up to the more recent borrowings from the United States experience: from the plea bargain to the ‘quasi’ adversary criminal trial, from securitization techniques to financial contracts models, from class action devices to the overarching patterns of judicial review.

Hence, far from being a purely civilian amalgam, the Italian legal framework presents itself as the fruit of an endless interaction of local patterns with foreign-inspired paradigms. This is why the third legal family lenses can prove extremely useful in looking at the Italian allegedly ‘pure’ legal experience, and in highlighting the multiple ingredients of its somewhat mixed recipes. More generally, third legal family’s perspective may help put countries belonging to civilian legal family in context, and lead to a better understanding not only of the dynamic relationships between this family and other legal families, but also of the cross-fertilization phenomena which endlessly take place within and beyond family borders.

  • 8)

    Merryman, “The Italian Style II”, supra at 5, 413. A similar overlapping of French and German legal cultures is evident in codified public law. For instance, the Italian Constitution, adopted in 1948, presaged a state still French in its basic structure, but with some German insertions, such as the legislative referendum, which was intentionally transplanted from the Weimar Constitution. P. Pasquino, “La costituzionalizzazione dei referendum a Weimar e a Roma”, Rivista trimestrale di diritto pubblico at 919 (1998).

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  • 14)

    Padoa Schioppa, “A Sketch of Legal History”, supra at 12, 3-4 (in general, on the rules introduced by barbaric populations on the Italian territory from the seventh century onwards); G. Piola, “Comunione dei beni fra coniugi”, in Digesto Italiano, VII, 751-53 (1899) (on the roots of marital community property, which can be traced back to the customary law of the Southern Russian plains, brought by Visigoths to Western Europe, which then slowly replaced pre-existing customs. Those rules were first adopted in the regions of Sardinia, Sicily and Istria, where the influence of Roman law was less strong; from Sardinia the custom passed into the Albertino code enacted in 1837 by Charles Albert for the Kingdom of Piedmont-Sardinia, and from there it moved to the 1865 Code, the first code of the unified Italy, and then to the 1942 Civil Code).

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  • 42)

     See F. Benatti, “Osservazioni in tema di doveri di protezione”, in Rivista trimestrale di diritto e procedura civile 1342 (1960); C. Castronovo, “Obblighi di protezione e tutela del terzo”, in Jus 168 (1976); A. Di Majo, Delle obbligazioni in generale 121 (1988).

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  • 44)

    Corte di Cassazione, 22 November 1993, no 11503, in Nuova Giurisprudenza Civile Commentata 1994, part I, 690 (contract for medical service).

  • 45)

    Corte di Cassazione, 22 November 1993, no 11503, in Nuova Giurisprudenza Civile Commentata 1994, part I, 690.

  • 46)

    Corte di Cassazione, 29 July 2004, no 14488, in Responsabilità civile e previdenza 2004, p 1348. See also M. Infantino, “European Tort Law: The Game and Its Players”, 18 Cardozo Journal of International & Comparative Law 85 (2010). On the German rule, see H. D. Fisher, The German Legal System and Legal Language at 50 (4th ed.; 2009); R. Zimmermann, “Characteristic Aspects of German Legal Culture”, in M. Reimann and J. Zekoll (eds) Introduction to German Law 48 (2005); C. von Bar and U. Drobnig (eds), The Interaction of Contract Law and Tort and Property Law in Europe at 132-133 (2004).

  • 55)

    M. Taruffo, “Le funzioni delle Corti Supreme: Cenni generali”, in Annuario di diritto comparato 11 (2011).

  • 57)

    Law no 244 of 24 December 2007, which reformed Article 140 bis of legislative decree no 206 of 6 September 2006, the so-called Consumer Code. Article 140 bis entered into force in 2010. Similar reforms have been carried out, in recent years, in other European, Latin American and Asian countries. See, for Europe, K. Oliphant (ed), Aggregation and Divisibility of Damage at 120-24, 163-64, 204-09, 287-88 (2010); D. Fairgrieve and G. Howells, “Collective Redress Procedures-European Debates”, 58 International and Comparative Law Quarterly 389-99 (2009). As to Latin America and Asia, see V. E. Schwartz, “Exporting United States Tort Law: The Importance of Authenticity, Necessity, and Learning from Our Mistakes”, 38 Pepperdine Law Review 570-577 (2011). However, the similarities between the United States class action and the collective redress mechanisms introduced by legislators outside of the United States should not be overstated. For instance, the Italian “azione collettiva risarcitoria”, although generally presented as a modified copy of the American class action, is closer to the collective or associative action of German origin, as set out by the Verbandsklage in the Standard Contract Terms Act of 1976: A. Santa Maria, European Economic Law, at 505-09 (2009).

  • 60)

    R. Pardolesi and G. Bellantuono, (1999) “Law and Economics in Italy”, in B. Bouckaert and G. De Geest (eds), Encyclopedia of Law and Economics 244 (1999); U. Mattei, Comparative Law and Economics 93 (2007).

  • 61)

    V. Varano and V. Barsotti, “Legal Education in Italy”, in Opinio Juris in Comparatione Issue 1, Paper no 3, 15-6 (2010).

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