Italian Judicial Precedents vs. Case-Law
When considering the substantial differences that exist between the “case law” of a common law court decision or the “precedent” of an Italian court, it is instructive to examine how the differing courts function. A common law court relies on existing precedents for decisions, but may alter or diverge from precedents which are outdated or where facts of the current case significantly differ from precedent cases. These deviations may lead to changes in law or even inspire new legislation. The Italian legal system, meanwhile, operates within a framework where the legislative, executive and judicial branches are completely separate, and consequently only legislative bodies may create new laws. While Italian judicial precedents do exist (usually as a result of legal interpretation by a higher court), due to the separation of powers, they are not a source of law and do not bind judges in the decision of similar subsequent cases.
Taking a closer look at the Italian judicial system, it is worth noting that greater authority is given to Italian judicial precedents that come out of the Italian Supreme Court of Cassation (Corte di Cassazione), Italy’s highest court in civil and criminal matters. The Italian Court of Cassation also has a role in giving uniformity to the legal system, and therefore appeals against decisions of lower courts will automatically be dismissed (without a hearing) when a decision of the lower court has been grounded in a principle “in line with” the current jurisprudence of the Italian Court of Cassation (art. 360-bis c.p.c.). However, as frequently happens, the various sections of the Italian Court of Cassation may adhere to opposing legal principles. In this event, future cases are decided by a panel of judges from the six different sections. This panel, called the United Sections of the Italian Court of Cassation (SS.UU.), creates precedents which sit atop the legal hierarchy in Italy; in cases where the Italian Court of Cassation does not apply SS.UU. precedent, the section must forward the case to SS.UU. and explain their reason for disagreement.
As one can see from this, Italian legal precedents are not like those created under a common law system. Lawyers under the Italian Judicial system formulate and sustain their arguments based largely on precedents created by the SS.UU. or the standard sections of the Italian Court of Cassation. If these are not available, they turn to precedents from an appellate court. First instance court precedents are the very last resort. Likewise, most lower court judges will rely on a higher court’s decision. That said, there is no guarantee that a judge will follow precedent, as each judge is autonomous and can interpret the law as he or she sees fit. Judges must, however, provide sufficient legal motivation, which is subject to evaluation by higher court judges and, ultimately, the I.C.C. (standard section or SS.UU.).