Foreign Law in International Legal Practice: An Italian Perspective
Alpa, Guido, Texas International Law Journal
I. "FOREIGN LAW" IN THE ITALIAN LEGAL CULTURE: FASHIONS AND
MODELS FROM THE NINETEENTH CENTURY TO NOWADAYS
In the Italian legal culture, the expression "foreign law" has quite a restricted meaning, inasmuch as it refers to the law in force in other countries necessarily applied by the Courts by virtue of the rules on the conflict of laws, or to the law chosen by agreement of the parties to govern the relationship installed between them.1 However, the expression may be used in a wider context, which regards not only the statutory rules applied, but also the other "legal formants," namely "doctrine" (legal literature) and case law, according to the teachings of one of the most eminent Italian scholars of comparative law, Rodolfo Sacco.2 In this perspective, we are to take into consideration the cultural models, the legal institutes, and the judgments emanating from foreign experiences, which are used by individuals and the courts in the solution of domestic legal problems.
In this wider meaning, the use of foreign law in Italy is the subject of a very rich history, still awaiting its narrator.3 Summarily, this history can be subdivided into five periods: (i) the first period comprises the whole of the nineteenth century, (ii) the second, the first half of the twentieth, (iii) the third, the period which spans roughly two decades, 1950 to 1970, (iv) the fourth regards the next two decades, 1970 to 1990, and (v) the fifth, the last years of the twentieth century. Each subdivision is arbitrary and each period cannot be assumed as a monolith in which a sole and consistent approach took hold; however, taking a bird's eye view of the formation of law in Italy, certain hues, which correspond to the periods previously mentioned, appear prevalent, thereby lending scientific credit to this temporal sub-division.4
(i) The first period records a preponderant influence of French Law, which reverberates over all the formants of our legal system; both the statutory formant and legal literature and decisions of the courts.
With regard to the statutory formant, the Code Napoleon constituted, at first, the law imposed by the General's armies in the provinces conquered from the Piedmontese, from the Austrians, the Lorraines and the Bourbons. After the fall of Napoleon, his model of Civil Code was transplanted to several of the States into which Italy was divided,5 and is subsequently chosen as the model for the first Civil Code of unified Italy, which was born in 1865.
As for the legal literature formant, the Ecole de l'Exegese became the method for analysis and application of universal law, so much so that the majority of the treatises and manuals of French law were first translated and then imitated by Italian legal writers. More than six hundred of these works were translated over the whole century, which saw the coming into being of the Italian "scuola dell'Esegesi" (School of Exegesis), which held that law is only the statutory State-enacted law, and the legal writer's work is limited to an analytical commentary of the provisions of the same.
With reference to the case law formant, given the closeness of French Law and Italian Law, the judgments of the Cour de Cassation and of the French tribunals were quoted by the legal writers and employed by the judges with largesse, without regard for the fact that they had been rendered by foreign judges. French Law is not considered by Italian jurists to be a "foreign" law, belonging to a ius alienum, that is to the system of a different State, and applied by judges belonging to the administration of a foreign State.
(ii) The second period records a repudiation of the "Scuola dell'Esegesi," the school of interpretation, and the triumph of the Pandectist model, the historical school of Germanic origin, introduced in Italy by the scholars of Roman Law. Even then Roman Law was not considered, as it is not today, a "foreign" law in a proper sense. …