Comparing the Italian and US Legal Systems

The Italian legal system is not quite different from the United States’ legal system. Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems.

 In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. In contrast, civil law decisions usually do not consist of explanatory opinions.  Under stare decisis, a single case that has been decided upon is binding law to the same extent as a statute or regulation in common law systems.  What differs between civil law systems, is that individual case decisions do not have a binding effect but are only used for advisory purposes (Baum, 2013).

The Italian legal system is based on rules set in place by the Italian Civil Code which define the powers in the state and the main Italian rules of law.  The main source of law in Italy is the Italian Constitution followed by the constitutional laws which happen to be the same for the United States where the United States Constitution is the highest form of law (Lawyersitaly, 2020).  However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020).  The Italian Civil Code then proceeds to state that the ordinary law, the legislative decrees, and the regional legislation are the next main sources of law for Italy (Lawyersitaly, 2020).  This differs from the United States where the second-highest form of law are the statutes which are laws enacted by legislatures and then the third would be executive orders (Baum, 2013).  The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italy’s twenty regions, in civil and penal affairs are from the Napoleonic Code which extended to all of Italy when it was unified in the mid-19th century (Wickham & Clark, N.d.).  The United States laws were derived from the common law system of English which was in place at the time of the Revolutionary war at both the federal and state levels.  However, the United States law has now diverged from its English ancestor in both substance and procedure (Boundless, N.d).

In Italy, there is nothing similar to the Federal courts in the United States. Instead, Italy has various tribunali which are located in several districts and several corti d’appello which are located in different Italian provinces.  In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010).  Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts.  There is one Corte Costitutzionale which deals with making sure that any law provision complies with the Constitution and is met accordingly, similar to the Supreme Court of the United States (Grossi, 2010). If a party believes that law is unconstitutional or breaches any part of the Constitution, the party can file a motion before Corte Costitutzionale through the judge of the pending proceeding where the issue is raised (Grossi, 2010). The court systems are different from the United States in where our courts are divided into the trial courts (district courts), circuit courts (the first level of appeal), and the Supreme Court of the United States (or on the state level, the state supreme court) (Baum, 2013).                        

Both the United States and Italy have an appellate system, they both have a court of appeals. The Italian civil judicial system is based on a two-tier justice system that allows for the reconsideration of a case that had been decided (Mondials, N.d.). The first decision is when the court considers a case based on its merits and the second tier is the appeal that challenges the court’s decision, requesting a change to the decision made by the court of first instance either in its entirety or partially. A further decision on the legitimacy of a case is allowed on appeal to the Court of Cassation which only considers the legality of the proceedings that the lower courts conducted. In the United States, appellate courts are also responsible for hearing and reviewing appeals from legal cases that have been heard before in the lower courts and these appellate courts do not include a jury.

The judges in Italy of first instance courts are appointed by public examination which requires a law degree. Once the applicants have earned a law degree, they can take the exam to become judges without having to have practiced as a lawyer (Grossi, 2010). The judges are represented by the Consiglio Superiore della Magistratura which is a body chaired by the President of the Republic and includes the public prosecutor of Corte di Cassazione, and university law professors and attorneys with fifteen years of experience (Grossi, 2010). The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. Unlike the United States’ appointment process, the Italian executive branch does not have any part in selecting judges (Grossi, 2010).

The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). The federal courts and the majority of the state court systems are organized into trial courts (The United States district courts in the federal system), intermediate appellate courts, and a Supreme Court. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). State courts can hear almost any kind of case including federal issues as well as constitutional ones, but they are subject to the oversight of the United States (Baum, 2013). Unlike the examination to become a judge in Italy, the Justices of the Supreme Court, the district courts, and the circuit courts of appeals are appointed by the President of the United States with the help and approval of the Senate. These judges are appointed for life and can only be removed through impeachment and a new judge is appointed when there is a vacancy through impeachment, a judge dies, or a judge resigns (Baum, 2013). Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. American judges are lawyers who have been appointed to the bench and many of them still consider themselves to be lawyers unlike the judges in Italy.

In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). Facts and evidence are gathered by both the defense and prosecutor and judged by a jury which is a group of regular citizens that are instructed by the judge to make a judgment based on the laws, evidence, and facts that the judge will then make a verdict. However, not all cases are tried through a jury trial. Some cases are decided solely by judges because the case may be one where there is no right to a jury trial or because the parties waived their right to a jury trial. In these cases, the judge’s role is still much more passive than it would be under the inquisitorial system. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. The courts are not only involved in the court proceedings but are also involved in the investigation which means that the prosecutor and the judge work together when finding out the facts of the case. This is important in noting that the judge will often know the evidence before the defense and by the time the trial is in place, the judge will have already concluded whether the defendant is guilty or innocent (Ogg, 2012).

References

• Baum, L. (2013). American courts process and policy. México, D.F.: Wadsworth Cengage Learning.
• Boundless. (n.d.). Boundless Political Science. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/
• Grossi, S. (2010). A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. Indiana International & Comparative Law Review, 20(2), 213–280. doi: 10.18060/17627
• Lawyersitaly. (2020). Civil Law in Italy. Retrieved from https://www.lawyersitaly.eu/civil-law-in-italy
• Mondials. (N.d.). Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system
• Ogg, J. T. (2012). Italian criminal trials: Lost in transition? Differing degrees of criminal justice convergence in Italy and Australia. International Journal of Comparative and Applied Criminal Justice, 36(3), 229–244. doi: 10.1080/01924036.2012.667624
• Wickham, C. J., & Clark, M. (N.d.). Justice. Retrieved from https://www.britannica.com/place/Italy/Justice