Legal System


Legal System
   Most Italians, legally trained or not, take pride in the fact that the basis of the most widely adopted legal system in the non–Anglo Saxon world is, in fact, Roman law and the medieval glosses prepared by those who systematized it, the glossators. Its crowning modern achievement is the French Civil Code, of which the Italian Codice Civile is a virtual translation.
   Some differences between the civil (or Roman) law and the English common law used in former English colonies are worth explicating. Prosecutors are part of the career magistracy, as are prefects, magistrates, notaries, and praetors. Competitive examinations provide the entrance route. Plea bargaining is out of the question because courts seek the truth rather than an accommodation between contending interests. In response to the Brigate Rosse and to the difficulty of finding evidence against members of the mafia, Italy has recently begun offering lower penalties for pentiti, repentant wrongdoers who turn state’s evidence. Procedure follows the premise of an accusatorial trial (or inquisitorial), perceived as an improvement over vengeance taken with one’s own hands for a wrong.
   Courts use only written evidence, allowing no surprise witnesses. The right to appeal a judgment is guaranteed, the first on both law and facts but the last on law only. The result is slow trials and long waits to appear on a court’s calendar. Thus, by the 1980s, great demand for the modernization of penal procedure led to adopting some elements of Anglo-American procedure, drawn from an entirely different tradition, culture, and set of assumptions. Canon law of the Roman Catholic Church is still studied in all faculties of jurisprudence. A third element of contemporary Italian law (in addition to Roman law and canon law) is the commercial law of the Italian city-states that dominated medieval trade between Europe and the eastern Mediterranean. This is the element in Roman law that is not scholars’law but is pragmatic, drawn by businessmen who had formed guilds and had devised appropriate rules. Commercial law, applied by merchants rather than ecclesiastics or royally appointed temporal judges, spread to all of Europe.
   Civil law studies address a civil code, commercial code, code of civil procedure, penal code, and code of penal procedure. All were meant to be complete and coherent, accessible to all literate persons without regard to specialized legal training. The modern nation-state gave rise to the view that the highest source of law was statutory, followed by administrative regulations, then customary usage and such general principles of natural law as good faith, public order, and morality.
   Aside from conciliators (for small claims) and praetors (who also hear labor cases), the tribunal of the first instance is followed by an appeals court, then by the Court of Cassation, which can quash a decision and remand to a lower court for a new hearing on points of law. Since World War II, an added Constitutional Court reflects the need to ensure the constitutionality of new legislation. Most trials are heard by a panel of judges rather than by a jury. The entire system is supervised by the Consiglio Superiore della Magistratura / High Council of the Magistracy (CSM).
   In penal procedure, an accused who has been arrested by the police faces an investigating magistrate, who may call witnesses, effect confrontations and reenactments, and warrant phone taps and mailopening to compile a dossier, which is then examined by both sides. Administrative courts are seated in each regional capital as the Tribunale Administrativo Regionale/Regional Administrative Court (TAR). Appeal may be made to the Consiglio di Stato (Council of State), the highest administrative tribunal.
   Court Number of Courts Number of Judges
   Cassation 1 7
   Appeal 23 5
   Assize 91 2 ( 6 laypeople)
   Tribunals of First Instance 156 3
   Praetors 893 1
   Conciliatori 8,000 1

Historical Dictionary of Modern Italy. . 2007.

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