THE ITALIAN LEGAL SYSTEM
Italy,like all the states of continental Europe,belongs to the civil law system.This means that the main law font is the national parliament,judges can only interpretate the statutes,but never create law.
We do not follow the stare decisis principle,so the precedent is not binding.Anyway,everybody agrees that Montesquieu'statement, "judge is the mouth that utters law words" is not true;in fact we can say that today a judge can not decide against the Suprema Corte di Cassazione sentences,and, if he does,he must motivate why,explaining the difference between the old case and the new one.
The real problem is that the Suprema corte often changes its minds,allowing to much freedom to judges,failing its duty to give clear and uniform law interpretation(the so called nomofilattica function,from Greek nomos=law and fulasso= to protect.)
We follow the French model.Our code as well as common law ignore the German Rechtsgeschäft(it is not easy to find an english translation,becouse that institute does not belong to common law culture),even if a lot of lawyers,professors and judges use it as a convention.
On the contrary of both France and Germany,we have only one code that unifies civil and commercial law(before 1942 we had tho different codes too).
Italian civil code,dated 1942,is one of the youngest in Europe(consider that the French code civil give rule to to French people since 1804).Of course a lot of things changed since its pubblication,first of all the political background:after the fall of Fascism it was necessary to abolish the sistema corporativo and to restore democratic freedom.Anyway we have to point tha the codice civile was not one of the most fascist law,becouse it was written by men who joined Fascism but never gave up their liberal culture.
The main changes followed Italian society evolution,specially in family law,with the introduction of divorce,a choice that divided people expecially the catholic world,and caused a referendum in order to abolish the new institute(rejected),ad new rules to give men and women equal opportunities inside and outside the family
We can not forget the importance of European community law in the field of commercial law.
The commission gave up.It came to a dead end
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©Mauro Grassilli 1998.All rights reserved
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