Legal history of Italy

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The legal history of Italy , apart from the ancient Roman law , from about the year 1000 n. Chr. Comprehensible.

middle Ages

Bologna Law School

In legal history, the rediscovery of the digests , specifically the manuscript of the Littera Florentina , in the 12th century is considered to be a significant event for Italian law . The find was namely one of the books of the late antique Corpus iuris civilis , as the Justinian codification was called since the early modern period . Pavia and Bologna rose to be the scientific centers of this period . Longobard law has been taught in Pavia using the Liber Papiensis since 1050 . At the same time, a little later a law school was established in Bologna, in which Irnerius of Bologna was the first - starting with the Digest - to systematically research the complete works of Justinian in the scholastic style. On the basis of the institutions and the Codex , Magister Pepo even prepared for a career as a civil servant.

The dissemination of the work of the powerful Irnerius, known as the glossary teaching method, by the quatuor doctores (Bulgarus, Martinus, Jacobus and Hugo), led from the 1230s to Bologna becoming the center of European law. At times up to 1,000 foreigners studied in Bologna and spread the teaching throughout Europe. As a studia generalia , the Bologna School of Law and the University of Salerno, which is distinguished for the discipline of medicine, awarded academic degrees that were widely recognized at home and abroad. It was also decisive that the teachers “wandered” between the teaching establishments within Europe, which led to an increasing interest in their work in lay circles.

The third generation of glossators were Johannes Bassianus, Azo and Accursius . They summarized the previous marginal comments on the work, the so-called glosses , to form the Glossa ordinaria . Between 1150 and 1250, scholarly attention also turned to medieval feudal law, which resulted in the libri feudorum . They were particularly researched in Naples by Carolus de Tocco and Matthaeus de Afflictis.

The predominantly scientifically oriented activity of the glossators, which was still far removed from the methodology of the empirical-critical approach of later science, is also conceptually captured in the field of law by the Renaissance of the 12th century . The legal system was still subject to the scholastic traits that were bound by authority and manifested in theology , but with the advantage that the search for rules and truths led to the establishment of a system.

The commentators followed Accursius and the glossators in Bologna . Your explanations of the corpus iuris were no longer given in glosses in the margins of the original text, but in the form of continuous texts. The main commentators are Cinus da Pistoia , Bartolus de Saxoferrato and Baldus de Ubaldis . The commentators also wrote numerous published legal opinions, so-called consilia, which is why they are referred to as consultants in the literature .

The law lessons of the Bolognese School spread first in Italy (Modena 1175, Padua 1222, Naples 1224) and soon throughout Europe (Salamanca 1239, Paris 1200, Oxford 1170, Prague 1348, Vienna 1365, Heidelberg 1386, Cologne 1388 and Erfurt 1392) . The spread of the mos italicus is considered the first phase of Roman legal reception .

City law and conflict of laws

In addition to Roman law, there were numerous city rights (statutes) and unwritten legal rules (consuetudines) . These were tailored to the business dealings of the northern Italian cities and therefore more practicable than the static Roman law. Roman law was therefore only S subsidiary as ius commune . The earliest statute originated in Genoa in the 10th century, followed by the Constitutum usus in Pisa in 1160, the Consuetudines in Milan in 1216 , the laws of Doge Tiepolo in 1242 and the Neapolitan city charter in 1546. City law was basically interpreted narrowly, so that Roman law could play an important role. An important contribution of the commentators in the history of private international law was the development of conflict of laws for the statutes. The close economic interdependence of the northern Italian cities required a solution when various city rights collide. The commentators therefore divided the city rights into different classes, each of which was used for a specific subject area: the statuta personalia for personal law, the statuta personalia for immovable property and the statuta mixta for contract and offense.

humanism

Usus modernus

In the time of humanism, Italy's scientific influence waned and the focus of humanistic jurisprudence shifted to Bourges in France, where the so-called mos gallicus was established. In Italy, the legal literature shifted to dealing with practice: the court decisions of the higher courts (decisiones) and expert opinions (consilia) were collected, discussed and systematized in large monographs . Under the influence of Giovanni Battista de Luca ( Il dottor volgare, 1673), the national language prevailed over Latin as the language of law, not only in Italy.

While in the rest of Europe the Enlightenment and natural law took the place of humanism in the 17th and 18th centuries and the new centers of the natural law movement were mainly in the Netherlands and Germany (with its special style of usus modernus ), Italian jurisprudence remained on the reception and criticism of these theories is limited. The Counter-Reformation in particular prevented the theories of Grotius , Pufendorf , Thomasius and Wolff from gaining a foothold in Italy. During this time, however, Italy was able to assert itself in the field of commercial law. Benvenuto Stracca (Tractatus de mercatura et de mercatore, 1553) and Sigismondo Scaccia are considered the founders of modern commercial law . Other important contributions come from Raffaele della Torre in bill of exchange law and Giuseppe Lorenzo Maria Casaregi in maritime trade law. The science of criminal law began to emancipate itself and received impulses throughout Europe from Julius Clarus , Tiberio Deciani and Prospero Farinacci (Praxis et theorica criminalis). In contrast, public law as a whole was still in the shadows; however, Niccolò Machiavelli (Il Principe) and Giovanni Botero (Della ragione di stato) laid the foundations of modern state theory .

National Law and Codification Movement

From the time of humanism onwards, legislation became increasingly important across Europe. Examples of this are the Nouve Costitzioni del Dominio di Milan (1541) under Charles V in Italy or the Nouvi Ordini (1561) in Piedmont. Jurisprudence also dealt with these territorially limited norms and thus started the nationalization of jurisprudence. Even before the French codifications , efforts were made to summarize the growing number of territorial law, as the Codice Estense (1771) and the Venetian criminal law of 1751 show. With the introduction of the Cinque Codes in France, they were soon adopted in numerous Italian countries. The Civil Code 1804 in Piedmont, 1805 in Parma, 1806 in the Kingdom of Italy, 1808 in Tuscany and 1809 in Rome and Naples. The Code pénal came into force in 1810 in the Kingdom of Italy and in Naples. The Code de Procédure Civil and the Code de Commerce were in force in all states . However, the validity of these laws was short-lived. Soon after the end of Napoleon's rule, they were replaced by their own laws and codifications, although the French model remained clearly recognizable.

Kingdom of Italy

The regional civil codes remained in force until the Codice civile came into force in 1866. The Codice civile was of a secular-liberal character, as the introduction of compulsory civil marriage shows. Like the Codice civile , largely developed by Giuseppe Pisanelli , other reforms of this period were also under French influence: a commercial code (which was replaced again in 1882), a Codice di procedura civile , a code of criminal procedure and a law on the constitution of courts. A little later, in 1889, a penal code was introduced after preliminary work by Enrico Pessina . The jurisprudence of the 19th century in Italy was not very innovative and was in the first half under French influence, in the second half under the influence of German Pandect science in the tradition of Friedrich Carl von Savigny . Most important representatives of civil law are Frederico Paolo Sclopis de Salerano , Carlo Fadda and Vittorio Scialoja , who translated Savigny's system into Italian (Sistema di diritto Romano attuale, 1886–1898). The foundations of modern procedural law in Italy were laid by Giuseppe Pisanelli, Stanislao Pasquale Mancini and Antonio Scialoja (Commentario al Codice di Procedura Civile degli Stati Sardi). Ludovico Barassi is widely regarded as the father of Italian labor law. Arturo Rocco and Vincenzo Manzini should be mentioned in the field of criminal law, and Gian Domenico Romagnosi , Santi Romano , Vitorio Emanuele Orlando and Costantino Mortati in the field of public law . In methodological terms, the origins of modern comparative law (especially in Emerico Amari ) and anthropological criminal law (in Cesare Lombroso ) lie in the time of the kingdom .

With the unification of Italy in 1860, the history of Italian tax law began. At this point in time, property taxes and consumption taxes dominated. In doing so, regulations from the pre-university period were first adopted, and then gradually worked on developing a separate tax law system. The model was primarily the French tax law system. The influence from France was to remain formative for the Italian tax system for a long time. From the very beginning, Italian tax law was characterized by a very strong tendency towards generalization and a wide range of assumptions. These features are still characteristic of Italian tax law today.

fascism

Leading Italian legal scholars hailed anti-liberal and anti-capitalist Italian fascism . The new corporatism found its expression in the Charter of Labor of 1927. In 1942, after preliminary work by Vittorio Scialoja, a new version of the Codice civile came into force, which, following the Swiss model, also included commercial and company law and also labor law. Ideologically, through Emilio Betti's mediation, a compromise was reached between fascist-corporatist reform and purely technical revision. Also in 1942 the new code of civil procedure came into force, based on the work of Giuseppe Chiovendas , Piero Calamandreis , Enrico Redentis and Antonio Segnis .

Younger story

In 1948 a new constitution replaced the (never formally repealed) constitution of the Kingdom of Italy. According to this constitution, Italy is a “Repubblica democratica fondata sul lavoro”. Private law was not unaffected by this constitution: in 1975 the family and inheritance law of the Codice civile was reformed in accordance with the requirements of the new constitution and unequal treatment of spouses and illegitimate children was eliminated. The possibility of divorce had existed since 1970. The importance of the codifications has decreased overall. Numerous individual laws were put to their side. Natalino Irti called the Decodificazione. The reasons for this lie in the growing influence of philosophical and sociological currents on the law in the wake of Norberto Bobbio .

The entry into force of the constitution also provided an impetus for far-reaching reforms in tax law, but these were very slow. Until well into the second half of the 20th century, Italian tax law was shaped by the tax law concepts of the 19th century. With the law 825/1971 a new era was introduced. It was an enabling law (so-called legge delega), which gave the government the task of redesigning the Italian tax system over large areas. This essentially happened in 1972 and 1973. Thus, in 1972 DPR 633/1972 (regarding VAT) and DPR 636/1972 (regarding tax dispute proceedings) were passed. In 1973 there followed the new regulation of income tax (with DPR 597, 598 and 599), regulation of the assessment procedure (accertamento, with DPR 600/1973), provisions on tax relief (DPR 601), on tax collection (DPR 602) and via the tax register (anagrafe tributaria, DPR 605).

The core area of ​​these provisions is still in force, albeit in significantly modified form in many cases. In 1986 a standard text for direct taxes was issued (DPR 917/1986). In 1992 the tax process was completely reorganized (with DPR 545/1992 and with DPR 546/1992, both of which came into force on April 1, 1994). Important innovations were initiated by Finance Minister Vincenzo Visco in the 1990s, in particular the introduction of the IRAP and the reform of administrative penalties (sanzioni amministrative, with DPR 471, 472 and 4731997). In 2000 there was a fundamental reform of criminal tax law (i.e. 74/2000). Important impulses were also given by his political rival Giulio Tremoni, who passed the Enabling Act No. 80 BC. April 7, 2003, which was supposed to set a fundamental new course, but which was only partially implemented. Another Enabling Act was passed in 2014 (11/2014), but its scope did not come close to that of 1971.

The Italian tax law is currently in the process of extensive restructuring, with attempts being made in particular to establish a cooperative relationship with taxpayers and thus to encourage them to comply with tax law obligations (so-called "cooperative compliance"). In addition, more and more international requirements must be taken into account.

literature

Individual evidence

  1. ↑ The digests researched as a complete manuscript in Bologna in the last third of the 11th century became known as litera bononiensis ; see. on this also Hermann Kantorowicz : About the origin of the Digestenvulgata (1910) = SZ , Romance Department (RA, ISSN  0323-4096 ) 30 (1909), p. 183 f., 31 (1910). P. 14 f.
  2. ↑ a b Paul Koschaker : Europe and Roman law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966 p. 55 ff. (60 f.).
  3. ↑ a b c d e f g h i j Klaus Luig: Italian legal history - an overview . In: Stefan Grundmann and Alessio Zaccaria (eds.): Introduction to Italian law . Law and Economics, Frankfurt am Main 2007, ISBN 978-3-8005-1331-4 , p. 1-20 .
  4. ↑ In detail on these developments Hilpold, Peter: Italian Tax Law, General Part . 1st edition. Nomos, Dike, facultas, Baden-Baden, Zurich, Vienna 2016, ISBN 978-3-7089-1258-5 .