Law and Legal Contamination

Our work is divided in two main sections. In the first half we sketch an outline of the basic stuff of law and politics in Italy. This part is meant to be a general introduction giving basic information to a foreign audience. In the second half we try to unroll more specifically the two main turning points that occurred in Italian legal culture. The first having been a transplant of French legal sources and a general frame of the national law after a French pattern.

The second was a global shift toward German paradigms with dramatic influence on the legal discourse and the way of approaching and using legal sources. In so doing we maintain a critical and comparative view of the law where formal sources are to be seen as authorities to which the legal profession attaches a meaning, which is therefore not rooted in, but which is produced by the legal community. Besides we may see in this process how much a legal system may be not a coherent unit, but a bundle of foreign traits made fit by the lawyers. 

1. The General Background of the Country I. GEOGRAPHY 1. Italy is a 700-mile long peninsula stretching into the North-Central Mediterranean Sea, its territory also consisting of the two large islands of Sardinia and Sicily and smaller islands. Italy covers an area of 301,308 sq. Km (116,289 sq. mi. ) ? slightly smaller than the state of California in the USA. Physically, it is characterized by four major regions: the Alps in the North, the North Italian Plain and Po river basin, the coastal plains of the peninsula, and the Apenines, forming its mountain backbone.

Italy is bounded by France on the North West, Switzerland and Austria on the North, Slovenia on the North East, and the Mediterranean Sea on the East, South and West, or specifically, clockwise from East to West, the Adriatic, Ionian, Tyrrhenian and Ligurian seas. The country had, in 1996, a population of 57,380,894 and a density of about 190 inhabitants per sq. Km. II. CULTURAL COMPOSITION 2. The population of Italy is remarkably homogeneous in religion, culture and language.

The absolute majority of the population is Roman Catholic and speaks Italian or one of its numerous dialects or derived idioms. Linguistic minorities are just a small fraction of the population, and consist of Slovenian, German, French, Romansh, Albanian, Greek and Catalan groups. Slovenians are centered in the Friuli Venezia Giulia Region, German speaking people live mainly in the Upper Adige Valley, on the border with Austria, and French speaking people are concentrated in the Aosta Valley, near the French-Swiss border.

The French and German minorities use their language in schools and official business. III. POLITICAL SYSTEM 3. Italy is a republic according to the Constitution approved by the Constituent Assembly in December, 1946 and promulgated December 27, 1947. Despite its plurisecular history, the country exists as a unified nation from 1861. HISTORICAL BACKGROUND OF THE COUNTRY 4. After the collapse of the Western Roman Empire in AD 476 under the weight of barbaric invasions, Italy suffered cultural decadence for over six centuries.

Starting from the Eleventh century, society evolved politically and economically and Italian city states emerged as separate political entities aside duchies and other feudal powers. In the Age of Absolutism in the 17th and 18th Centuries, Italy was roughly divided into few major political entities such as the Kingdom of Piedmont, the States of Milan and the Republic of Venice in the North, the Papacy and the Grand-Duchy of Tuscany in the Center, and the Kingdom of Naples and Sicily in the South, as well as in smaller principalities.

When the French Revolution broke up, Italy was soon after invaded by Napoleon, who divided the country into few political entities under his control, except for the Papacy. Napoleon's defeat and the Vienna Congress of 1815 reestablished all pre-existing crowns in their respective kingdoms. Starting in the late 1850s, the Kingdom of Savoy, Piedmont and Sardinia carried out the unification process by progressively annexing new states until 1871, when the Papal State capitulated.

Italy's Savoy monarchy survived until World War II, when it was accused of excessive benevolence towards the defeated fascist gime and did not survive the June, 1946 referendum whereby the people voted to abolish the monarchy and establish a republic. The Constitution of the Italian Republic was established 1948. THE CONSTITUTION 5. The Italian Constitution (Costituzione della Repubblica), promulgated December 27, 1947 defines the basic structure and functions of the state granting the legislative power and control over the executive to Parliament.

The Constitutional Court (Corte Costituzionale), composed of fifteen judges appointed by the President, by Parliament and by the highest courts, determines the constitutionality of all laws. For this purpose, it may only be seized by a lower court in the form of a prejudicial question. The Constitutional Court is also empowered to define the powers of the State, of the Regions, to judge disputes between such institutions and to try the President and the Ministers. THE LEGISLATIVE AND EXECUTIVE POWERS 6.

The Parliament (Parlamento) consists of two houses with equal power and position: the Chamber of Deputies (Camera dei Deputati), composed of 630 deputies elected for five-year terms by universal and direct suffrage in a ratio of one representative for every 80,000 inhabitants, and the Senate (Senato della Republica), composed of 315 senators elected for five-year terms on a regional basis in a ratio of one senator every 200,000 inhabitants. Citizens over 18 may vote in all elections except senatorial elections, for which voters must be over 25.

All bills are passed only upon approval by both Houses of Parliament. Recent talks of Constitutional reform towards a federal-based system include diversification of tasks of the two Houses. 7. The President of the Republic (Presidente della Repubblica) is the Chief of the State, represents national unity and ensures respect of the Constitution. The President is elected for a seven-year term by a two thirds majority of a joint session of the two Chambers of Parliament. The President of the Republic has the power to dissolve the Parliament except in his last six months in office.

The President may nominate up to five eminent citizens as life senators, and he himself becomes one at the end of his term. 8. The Executive power is held by the Prime Minister (Presidente del Consiglio dei Ministri) and by a chamber of Ministers. All Ministers including the Prime Minister are appointed by the President of the Republic and must be sustained by the majority of Parliament, although the defeat of a bill initiated by the Executive does not force its resignation, as the cabinet can be removed from office only on a motion of censure voted by Parliament.

D. Local Government 9. For the purposes of local government, Italy is divided into 20 regions, each subdivided into provinces and then into municipalities. Elections laws as recently reformed now provide for each region, province and municipality to have popularly-elected councils and executive committees headed by a chairman. Special constitutional provisions provide for wider powers and local autonomy to five regions and two provinces. MODERN POLITICS

10. Ever since the birth of the Republic in 1948, Italian politics were dominated by three parties, which constituted the expression of the christian, communist and socialist ideologies. Since then, a succession of weak governments followed, all headed by the Christian Democrat party, often allied with the socialists and other minor moderate left-wing entities (liberals, republicans, etc. ) in order to barely achieve majority governments.

The weakness of the cabinets, due to such varied composition, determined a chronic political instability which never achieved to balance the economic disparity between the rich, industrialized North of the country and its poor, depressed Southern pArt. Nevertheless, Italy's post-war rapid economic progress culminated in the 1960s and, after a long crisis, grew in the mid 1980s, making it the seventh most industrialized country in the world.

Internationally, Italy, which has been a member of the European Coal and Steel Community since 1951 and of the United Nations since 1955, joined the European Common Market in 1957, which later became the European Union. In the late Eighties, major bribery and corruption scandals involving most government and opposition parties determined a virtual collapse of the political system, leading into a new scenario comprising two opposite factions, a right-wing and a left-wing coalition.

Formally non-aligned parties include the communists and the Lega Nord separatists, seeking independence of the Northern part of the country. This dual coalition situation, although far from crowning a so-much-desired "Second Republic", has led to the formation of more stable cabinets, thus achieving long-term political and economic results such as entry into the European Monetary Union in 1998.