The Italian legal system is governed by the Constitution of the Italian Republic, promulgated in 1948. This is a fixed constitution, meaning that it cannot be amended by ordinary laws; it can be amended or added to solely by means of a special procedure, which is highly complex and is laid down in the Constitution itself (Article 138).
This fixity is safeguarded by monitoring whether laws and enactments having the force of law conform to the Constitution; this is the exclusive responsibility of the Constitutional Court, a special constitutional body.
Some articles of the Constitution may not be changed under any circumstance; this is the case for Italy's status as a republic, which may not be constitutionally revised; in general all points that are essential elements of the constitutional system are also considered to be unchangeable (e.g. the principles of freedom and equality, the parliamentary system, the principle of a fixed Constitution, and constitutional justice).
The Constitution contains the general principles which are considered to be essential values of the life of the State; dictates the principles which must be abided by in the legislation produced by Parliament, the regions and any other public institution with the power to issue decrees and regulations of general or specific validity; it sets out the basis of foreign policy and relations with the legal system of the European Union.
The sources of Italian private law are: laws, regulations, (corporative norms: but the fascist corporative system was repealed in 1943), custom or usage (Articles 1-8 of the preliminary provisions to the civil code).
These sources are arranged on a hierarchical scale, based on the legal force of the sources and the precepts deriving from them.
Apart from constitutional laws, the sources of primary legislation are:
Statutes and regional laws (and provincial laws) have a limited scope in terms of subject matter and territory as specified in Articles 123 and 117 of the Constitution; for the Regions with special autonomy, limits on legislative power are contained in the statutes adopted under constitutional law.
Within the framework of primary sources, delegated laws (legislative decrees) and regional laws are classified as sub-primary, in so far as legislative decrees are limited by the guiding principles and criteria laid down in the delegating law, while regional and provincial laws are bound to comply with the principles that inform State legislation in individual subject areas which are of 'non-exclusive' competence.
In view of their sub-primary nature, if they exceed the bounds assigned to such sources of legislation then this constitutes a defect of constitutional legitimacy.
The main instruments of Italian private law are the 'codes', which are also laws and do not have a scope greater than an individual law, even though they are particularly significant in terms of the greater extent and greater cohesion of their contents. The Italian codes that relate to the area of private law are the civil code and the code of maritime law - but only that part of the latter which is of a private law nature.
These are usually termed 'free' normative provisions, which are adopted by administrative authorities, e.g. governmental, interministerial, ministerial or prefectural provisions setting mandatory prices and tariffs for goods and services, municipal regulations and regulatory plans introducing construction rules in derogation from the system laid down by the civil code.
Such acts are valid and therefore binding only if they comply with all the sources (primary and secondary) that have the force of law.
Custom accepted by the legal order may be classified as custom secundum legem or as custom praeter legem, in accordance with the function it fulfils.
Custom secundum legem adds to the content of a written source (law or regulation), which has in part been left incomplete. Thus the custom is incorporated into the law; but in such a case the custom acquires a force equal to that of the source that refers to it and thus, in seeming conflict with the hierarchy of sources, laid down by Article 1 of the preliminary provisions, it becomes a primary or secondary source.
Custom praeter legem fills the gaps in written law and functions independently of the existence of specific legislative references.
In such a case custom constitutes a parallel source which is, in a certain sense, equivalent to the law, in the sense that the rules thus produced may not be altered by other secondary sources that are not acts with the force of law.
Equity is a source of law only in exceptional cases, namely where, since there are no existing pre-established norms, it is stipulated that the court may have recourse to equity in order to find the principle to be applied.
However, when equity is used as an aid to interpretation, with a view to tempering the rigidity of the written law, it is not a source of law.
Some writers include among unwritten sources the ‘general principles of the legal system’, referred to by Article 12 of the preliminary provisions for the resolution of a dispute that cannot be resolved using interpretation by way of analogy or extension.
On the other hand, it has been observed that unwritten principles (which may be principles informing a particular subject area or general principles of the legal system) do not constitute (autonomous) sources of norms, but are themselves norms, because they are inferred from one or more normative acts that reveal the existence of the principle.
Case law does not create legal rules because it acts within the framework set by the legislator.
The 'rules' created by case law concern a specific case; they are fragile rules that can be amended at any time when a new case is under consideration.
Case law is therefore not bound to the rules which it creates, nor may it invoke them to justify a decision which it intends to adopt. It is always possible for case law to adopt a new approach, since the rule of precedent does not apply.
The recent reform (Legislative Decree 2006, No 40) relating to proceedings before the Court of Cassation stipulated that - if a single section of the Court does not agree with the principle of law pronounced by all sections sitting conjointly - a reasoned order shall refer the decision on appeal to the joint sections. This, however, is an intervention designed to promote and guarantee the Supreme Court's function of ensuring uniformity of the law, while the possibility remains that a new and different approach may be adopted by case law.
Circulars are not sources of legal norms, but consist of instructions given by a higher administrative authority to a lower administrative authority and therefore presuppose a hierarchical link between the two authorities.
The Constitution confers upon Parliament – which is made up of the Senate and the Chamber of Representatives – the task of creating laws, which are the primary sources of the State’s legal order.
A law of the State is created through adoption by the two Chambers of a text complying with the Constitution; it is promulgated by the President of the Republic within a month of adoption; following promulgation it is published in the Official Journal of the Italian Republic and is incorporated into the official collection of laws and decrees. The President of the Republic may, by sending a reasoned memorandum to the Chambers, request a new debate, but if the law is once again adopted by the Chambers, it must be promulgated.
In specific cases the legislative function is delegated to the government, which is authorised to issue legislative decrees, where the guiding principles and criteria have previously been determined, and only for a limited period and for subjects that have been specified (in the delegating law).
If legislative decrees exceed the limits of the delegated powers, the issue of unconstitutionality may be raised.
The twenty Italian regions exercise legislative power in the subject areas which are not exclusively governed by State legislation, in accordance with the provisions of Article 117 of the Constitution, in compliance with the Constitution and the obligations deriving from Community law and international undertakings.
In the areas where they have jurisdiction, the regions and the autonomous provinces of Trento and Bolzano participate in decisions intended to create Community normative acts and apply and implement international agreements and European Union legal acts, while complying with the rules laid down by State laws that also govern the power of replacement in the event of non-fulfilment.
The regions with a special status (Friuli Venezia Giulia, Sardinia, Sicily, Trentino Alto Adige and Valle d’Aosta) have particularly extensive legislative powers.
The municipalities, the provinces and the metropolitan towns have regulatory powers in accordance with the system of organisation and mode of operation that has been granted to them.
For the entry into force of legislative provisions (statutes and regulations) the following is required:
A legal norm loses validity through repeal, whether express or implied (through incompatibility with a new rule or because the legislator has adopted new legislation governing the entire subject area).
Harmonisation of national law with international law is accomplished either through the automatic application of the international provision, as in the case of customary norms, pursuant to Article 10 of the Constitution, or through the ordinary procedure which provides for the issuing of a provision transposing the international provision.
The ranking given to international provisions is that of the provision allowing it to be introduced. Thus, in the first case, even customary norms acquire constitutional ranking. In the second case, the international treaty is given equal ranking with the internal provisions; nonetheless, it is generally considered that the intrinsic special nature of an international provision creates a requirement to give priority to interpretative options that are closest in sense to the international provision.
Regulations are Community acts directly applicable within the national legal system; but all Community provisions capable of having a legal effect on the individuals concerned are considered as having direct effect.
Directives require an act of transposition by the national bodies. However, where they are complete and self-sufficient, directives can also have a direct effect (even if only) in the vertical sense; this means that the provisions of a directive that has not been implemented may be relied upon against the State that has failed to implement them (in a vertical direction), but not against other private individuals (in a horizontal direction).
Decisions are acts with binding effect with regard to the expressly designated or precisely identifiable addressees (the Member States or natural or legal persons).
Recommendations and opinions have no binding effect.
The relation between the Community legal system and the national legal system is characterised by the systematic primacy of Community law over national law, through the instrument of non-applicability of internal provisions (prior and subsequent) that conflict with a Community provision having direct effect.
After a long process of evolution, the Constitutional Court has recognised the concept of non-applicability of internal provisions as a method of resolving conflicts with incompatible Community provisions, eliminating the need for an interlocutory monitoring of the constitutionality of incompatible internal provisions, unless they are expressions of the wish to reject the Treaty.
The fundamental principles of the Constitution also constitute an insurmountable limit on the unassailability of Community provisions, but in such a case the object of monitoring would be not the Community provision but the internal law of accession to the Treaty, pursuant to the principle of separation between legal systems adopted by the Constitutional Court.
The Constitutional Court has also recognised the possibility of inferring a conflict between regional internal provisions and Community provisions through a main application.
The recent insertion into the Constitution of Community obligation (through the amendment of Article 117 of the Constitution) has not, however, affected the mechanism of the non-applicability of incompatible internal provisions, revealing an irreversible trend of transformation of the national legal system into a partial system of a single (Community) legal system.
The provisions of the Constitution prevail over all other provisions since they set out basic principles for public life and the organisation of the State.
These are followed by the primary and secondary sources, as well as custom, in line with the hierarchy set out above.
Legal provisions are not retroactive; in other words, they apply only to the future, unless retroactivity follows from the normative provision itself. A conflict between laws passed at different times is resolved using the principle that the subsequent law supersedes that previously in force (lex posterior derogat prior).
The hierarchy of sources means that primary sources have primacy over secondary sources and, obviously, lesser sources.
Conflicts between acts having the force of law and the Constitution may be brought before the Constitutional Court by means of referral of the matter by the court approached, if it considers that the issue is not manifestly unfounded and has an impact on its decision; unlike repeal, a declaration of the unconstitutionality of a provision that has been challenged makes it ineffective from the outset, except for legal relations already settled by a judgement issued in a trial.
A conflict between a law of the State and a normative act of a region, through an incursion into their respective spheres of jurisdiction, gives rise to an infringement of the bounds placed by the Constitution on the exercise of public powers, with the resulting possibility of a conflict of jurisdictions that may be referred to the Constitutional Court.
For conflicts between domestic laws and Community laws see paragraph 6.
Updated on 30.4.2007Top
Last update: 10-10-2007