An Introduction to Italian Legal Culture

Italy’s contribution to legal cultures in Europe and beyond is phenomenal as the country is often viewed as the source of the civil law tradition. Given the country’s kaleidoscopic history and relatively short unitary experience, however, the very quandary to confront head-on is whether the Italian legal culture exists, or is rather a conceptual artefact. After examining Italy’s socio-cultural context and legal history, this chapter establishes that the enabling conditions for the emergence of an Italian legal culture have not surfaced before 1861. To establish whether the Italian legal culture has formed after 1861, this analysis sheds thus light on the elements of the legal cultural model and their interaction. This chapter finds that the legal cultural model enables the articulation of significative and surprising aspects of what we can safely hold to be the Italian legal culture. Notably, to bring some order to the hyperlegalization of social life, courts have emerged as crucial enablers of legal-cultural unity in Italy. Particularly, Italian courts have devised substantive and institutional strategies drifting Italy toward new legal-cultural shores, notably a system that we call “attenuated stare decisis,” and judicial lawmaking confrontations even with the International Court of Justice. Overall, rather than a “majoritarian” model of power-sharing, courts have tried to secure a “Madisonian” model where justices, professionals, and doctrine are interpreters of societal changes and needs, often in opposition to a fragmented political system.