STARE DECISIS, CASE LAW AND ITALIAN GIURISPRUDENZA

What is the difference?                              

Stare decisis or case law is a fundamental rule of common law systems on the basis of which a Judge will comply with a decision taken in previous cases if the new case is the same as those already examined. Therefore, previous verdicts are a source of law and to date; most of the laws have been made via this source.

This does not happen in the Italian system. In Italy there are numerous specific laws for different fields and rights/obligations as well as decrees and legislative decrees. Very briefly we can say that  the Civil Code is a milestone;  it is  subdivided into six parts (“People and Family”-“Successions and Inheritance”-“Real Estate”-“Obligations”-“Labour”-“Rights Protection”) and is composed of 2969 articles. Apart from the Civil Code, in Italy there is also the Constitution that governs the legal system.  All laws must abide with the constitution and never be in conflict with it.

When a case ends up in an Italian Court both parties’ lawyers will submit briefs to the Judge, emphasising the pertinent aspects of the law in their client’s interest. What will happen if a case is identical to one previously examined? Will the Judge be bound to rule in accordance with that decision?

The answer is no, each case will be decided by the Judge handling the matter on the basis of the law s/he deems applicable.  Judges always have to clarify the reasons for their decision in a specific part of the verdict named “parte motiva”, but one might very well find that two identical cases have a completely different outcome. Is this legal?

Yes. Although the most important Courts in Italy, such as the ones in  Milan and Rome and the Supreme Court of Justice in Rome, do establish guidelines with their jurisprudence, the final decision is actually taken by the Judge in charge of the matter in hand.

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