The role of the Precedent in the English and the Italian Judicial system – Stare Decisis and Constant Jurisprudence (Part I)

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1. Introduction

The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. According to reliable statistics,[1] about 70% of the world finds itself under a legal system identified in Civil Law or Common Law (around 44% of the States are under Civil law, around 27% are under Common law).

The differences between them are several and significant, so that one might think that they should be referred as the “antipodes” of the legal system conception, with no chance of commixture from one to the other.
The intent of this paper is to analyze the legal system of two countries, England and Italy, which historically have a very strong tradition of Common and Civil law in order to assess whether effectively those two systems are diametrically opposite or they might be running together.

I will approach the argument firstly giving a broad overview of the difference between Common Law and Civil Law, looking at the historical of the two countries. Then, I analyze the English and Italian Judicial systems, in particular focusing on the different role that Precedents assume in each State, going through the meaning of concepts such as Stare decisis and Constant Jurisprudence.

The fact that English system is not broadly codified influences the task that their Courts have to carry out: not only deciding the case at issue, but creating and developing new law if necessary.
Thus, precedents are all those decisions that are binding for future judges called to adjudicate similar cases, and that become law themselves: the case-law.

In Italy, this scenario cannot be allowed, since the Courts have the specific duty to speak for the law as it is stated in the codes. Therefore, in Italy judges just look at the law and decide the case without being bound by previous decisions, which therefore are only persuasive (in particular the decisions of the Suprema Corte di Cassazione).

The purpose of this paper is therefore to analyze the different role of judicial precedents in each jurisdiction, taking a closer look to their relation to the other legislative sources in those countries, in order to find out what kind of influence they might have in the law development process.

2. Method

I will conduct my research applying the Reitz Comparative Method[2], which consists in an explicit comparison of the two systems, establishing the law of each jurisdiction, giving legal concepts in a broader level of abstraction and seeing whether and how law changes in practice. Furthermore, similarities and differences will explained also from a historical point of view; eventually, the result of the comparison will be presented

3. Contextual background for the comparison

As aforementioned, Common and Civil law may be referred as the “antipodes” of the legal system conception.
Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. In fact, while the Civil law system stemmed from Roman law and is referred as “a system of rules prescribed in authoritative texts”, the Common law system is defined as “a body of immemorial customary law discovered by the courts”,[3] and it finds its origin in 11th century in England, precisely after the Norman conquest of 1066.
Before this occurrence, in fact, each part of England had different local rules, an unpleasant situation which rendered very complex the relations between traders due to the halo of uncertainty surrounding the law which was to be applied.
Therefore, the Normans, under command of Henry II, wishing to establish a unified legal system that would become “common” throughout the country, sent out itinerant judges with the task of ensuring a standardized system of law across the country,[4] issuing uniform decisions based upon a set of common principles which begun to be crystalized in those decisions. These are the first examples of case-law, the beginning of the Common law, a law common to all English people, in England and all over its colonies.

On the other hand, similar difficulties went arising in Continental Europe: around the 6th century, Roman law was the wide legal basis for everyone in the land, but due to its vastness it was impossible to reach uniformity of application. The law used to change depending on the people to whom it was to be applied, the phenomenon of personalità del diritto[5] was wide spread.
Thus, despite the need of legal certainty was the same, the solution that Romans adopted pointed in the opposite direction: Justinian, Eastern Roman Emperor, commissioned an encyclopedic work, called Corpus Iuris Civilis, which gathered and harmonized all the Roman law in one single, complete Code. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. This was the beginning of the Civil law, and the first step of a process of codification that will continue after the French Revolution with the Code Napoléon, the source of inspiration of the modern codes.

It is now clear how the main features of these two systems are strictly linked to their historical genesis.
The Civil law system, indeed, entirely relies on the legislative source of law. Its core principles are codified into a referable system, which considers these codes as the primary source of law. Civil law proceeds, with a deductive method of reasoning, from abstraction (codes[6]contain general principles) to factually specific scenarios, in which judges apply the principles stemmed from the code to the concrete dispute. Therefore, while codified law is the cornerstone of the system, judges are reduced to a subordinated role of applying the law already stated in the codes, just choosing time to time the rule that best fits the case at stake.

Common law, instead, is a system in which law is made by judges[7]: there are not written codes to rely on, therefore law is developed directly by the Courts and stated in decisions issued when judges come to adjudicate individual cases, so after the dispute arises. Thus, here we have an inductive method of reasoning, in which law arises from specific cases to become an abstract rule of general application, crystalized in the judicial precedents. In fact, these decisions will have precedential authority on future cases with similar features,[8] binding judges who are to make future decision just as any other law does: decisions become law itself.
In this system, statutory law[9] assumes a secondary role, very often just reflecting the rules of law enunciated in judicial decisions (i.e., they are the statutory embodiment of rules developed through the judicial decision-making process)[10].

Mario Paolini

Con amicizia letto da Arnaldo Mitola

[1] Elaborated by the italian Notaries on datas of 2003 and provided by the University of Ottawa.

[2] How To Do Comparative Law, John C. Reitz.

[3]American Business Law For Civil Law Lawyers, Laura Carlson.

[4] Elliott and Quinn, English Legal System.

[5] From Italian, litterally: “law’s personality”.

[6] The codes are entire bodies of general statutes which deal with generalities and guide the legislator in creating new statutes (written law) outside the code, dealing with more specific matters following the codified principles.

[7] “The common law is judicially created law that is developed on a case by case basis,” wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State.

[8] Lloyd Duhaime. Legal Dictionary, “Common Law Legal Definition”.

[9] Written law made by the parliament complying with the constitutional principles.

[10]A Primer on the Civil-Law System, James G. Apple and Robert P. Deyling.

Bibliography

Articles:
– Apple James G., A Primer on the Civil-Law System, and  Deyling Robert P. , Chief, Interjudicial Affairs Office Federal Judicial Center, Judicial Fellow, Administrative Office of the U.S. Courts, 1994–1995
Avery, The English Legal System
Carlson Laura, American Business Law For Civil Law Lawyers
– Reitz John C., HOW TO DO COMPARATIVE LAW, American Journal of Comparative Law Fall, 1998, Symposium: “New Directions in Comparative Law”, Comparative Law in the United States Today: Distinctiveness, Quality, and Tradition , Lloyd Duhaime. “Common Law Legal Definition”. duhaime.org
Professor Richards Edward, The Importance of Precedent, LSU Law Center

Books:
– Black’s Law Dictionary (5th ed. 1979)
Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman
– Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010)
– Tetley William, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I) Q.C.

Case law:

– C 6/64 Costa v Enel, ECLI:EU:C:1964:66
London Street Tramways Co. Ldt v. London County Council, 1898

Mason v State. 2005, Court of Arkansas
McFarlane v Tayside Health Board [2000], House of Lords
Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER
Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords
Young v. Bristol Airplane co., 1944, Court of Appeal

Wason v Walter (1868), All ER

Legislation:
– Codice Civile, (Regio Decreto 16 marzo 1942, n. 262)
– Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 28 ottobre 1940)
– Constitutional Reform Act, 2005
– Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298].
– Practice Statement, 1966
– Regio Decreto n. 12 del 1941

 

 

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