Foundations of Italian law: Roman heritage, codification, the Constitution, the sources and hierarchy of norms, the role of case law, and European integration

Roman law and the ius commune. Roman law began with the Twelve Tables (about 450 BC) and reached its summit in the Corpus Iuris Civilis compiled for the Emperor Justinian in the sixth century. After centuries of decline, scholars at the University of Bologna (the glossators, from the eleventh century, and later the commentators) rediscovered it and taught it to students from all over Europe. Combined with canon law, it formed the ius commune, the common legal science of medieval and early modern Europe, and gave Italian law its concepts, vocabulary and method, which still shape the civil-law systems of Europe and Latin America.

Codification and unification. Until the nineteenth century Italy was divided into many states, each with its own law. Napoleon’s codes were introduced in many of them. After unification in 1861 the new kingdom adopted a Civil Code in 1865, modelled on the French code. A second, more original Civil Code was enacted in 1942, which joined civil and commercial law in one code and added labour, enterprise and company law. Alongside it came the Code of Civil Procedure (1940), the Penal Code of 1930 (the *Rocco Code*) and, after a major reform in 1988, a new Code of Criminal Procedure.

The hierarchy. At the top stands the Constitution, then EU law in the areas where it applies, then statutes and acts with the force of statute, then regulations, and last custom. A statute that conflicts with the Constitution can be struck down by the Constitutional Court (Module 3). A regulation that conflicts with a statute is unlawful, and an ordinary court or administrative judge may disapply it. Under the EU treaties, a national court must disapply a statute that conflicts with directly applicable EU law, because EU law has primacy; the Constitutional Court has accepted this, with a reserved right to protect the fundamental principles of the Constitution.

Case law and doctrine. Italy has no doctrine of binding precedent: judges are subject only to the law (Article 101). But the Court of Cassation has the task of ensuring the uniform interpretation of the law (*nomofilachia*), and its United Sections resolve conflicts between its own decisions, so a lower court that departs from a settled line of Cassation decisions risks being reversed. Legal doctrine (*dottrina*), the writing of professors, is highly influential in interpretation, though it is not a formal source. Statutory interpretation begins with the words and the legislator’s intention (Article 12 of the introductory provisions to the Civil Code), and uses the system of the code and the purpose of the rule.