BENI SEQUESTRATI E COMPATIBILITÀ ECONOMICA

UNIVERSITY OF MESSINA
Department of Political
(SCIPOG) and Legal Sciences

PROF. ILENIA RAPISARDA

(ilenia.rapisarda@unime.it)
ITALIAN SOURCES OF
LAW
 NOTION

 As already seen, a legal rule is a rule which

comes into existence pursuant to the sources
of law set by the State.
 A source of law is any act or fact apt at
producing legal rules pursuant to the legal
system.
 We will consider first the sources of the Italian
legal system.
 The sources of the EC legal system and of the
international legal system will be dealt with 4/12
later on.
 SOURCES OF THE ITALIAN SYSTEM

• See Art. 1 of the Preliminary Provisions of the

Civil Code, whose discipline has to be adjusted
to the one embodied in the Constitution.
• The main Sources of Italian Law are:

1) The Constitution;

2) Ordinary Laws and other acts having the

“same strength and value” (hereinafter “same
weight”);
3) Regulations of the Board of Ministers;
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4) Customs.
 THE ITALIAN CONSTITUTION
 The Constitution of the Italian Republic was promulgated on December 27,
1947 and became effective on January 1, 1948. Since then, the Constitution
has stood as the primary source of law in Italy.

 The reason for this is that the Italian Constitution goes beyond delineating
the structure of the State and the functions and powers of the main
constitutional bodies.
 Its first section lays down the fundamental rights and duties of citizens
towards not only the Republic but also towards one another.
 Following the statement of fundamental principles (Arts. 1-12 Const.), Part
I of the Constitution lays down the rights and duties of citizens as regards
civil relations (personal rights and freedoms: Arts. 13-28 Const.), ethical
and social relations (family, maternity, school, art, and research: Arts. 29-34
Const.), economic relations (ownership, enterprise, labour, and saving: Arts.
35-47 Const.) and, lastly, political relations (constituents, defence: Arts. 48-
54 Const.).
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 THE ITALIAN CONSTITUTION

 Our Constitution has three main features:

(a) it is written;
(b) it is “long”, as is not limited to the organization
of the State and the establishment of basic
liberties, but encompasses economic rights
(art. 35 ff.) and sets principles that the Public
Administration must follow (art. 97);
(c) it is “rigid”, as can be modified only through a
constitutional law enacted pursuant to art. 138.
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ORDINARY AND MATERIAL LAWS
 Ordinary Laws are enacted by the two Houses of
the Parliament pursuant to art. 70 and seq. Const.
 They are also called “formal laws” to be
distinguished from “material laws”, i.e. other
sources with the “same weight”.
 Law-Decrees and Delegated Decrees are material
laws.
 At the same level there are also Regional Laws,
covering matters other than the ones dealt with by
formal and material laws. 8/23
 LEGISLATIVE DELEGATED DECREES

• Legislative Decrees (art. 76 Const.) are

enacted by the Government pursuant to a law
of delegation of the Parliament.
• The (previous) law of delegation has to
establish:
i. one or more specific subject matter(s) that
the decree will have to deal with;
ii. a final term for the enactment of the decree;

iii. the principles and guide-lines the decree

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has to be consistent with.
 LAW-DECREES
 Law-decrees (art. 77 Const.) are enacted by the
Government “only in case of necessity and to cope
with extraordinary and urgent situations”.
 They have to be submitted to the Houses the very
same day of their publication on the Official
Journal.
 They are ineffective “ex tunc” if not “converted”
into an ordinary law by the Parliament within 60
days (that is, they are only effective only in a
provisional way). 10/
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 MAIN FEATURES
 Features of formal and material laws:
a) they can repeal, and resist to repeal by, all other
sources under the Constitution (see art. 15 of
Preliminary Provisions of the Civil Code);
b) they can undergo the Constitutional Court
control;
c) they can be repealed by referendum (art. 75
Const.);
d) they are given exclusive power to cover certain
matters, according the so-called “riserva di
legge” (see art. 13 Const.). 11/
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 REGIONAL LAWS

 Regional Laws have been given a greater

importance with the reform of the year 2001.
 Before the reform only Regions with Special
Autonomy and the Provinces of Trento and
Bolzano had an exclusive legislative power in
certain areas.
 All other Regions had only a concurrent
legislative power in the subjects listed by art.
117, having a delegated or integrative legislative
power only where a law of the State established
so. 12/12
 REGIONAL LAWS (II)

 Now any Region can enact laws (effective only

in their respective territory and) in the subjects
NOT reserved to the State by the new text of
art. 117 Const.
 Then, there are two types of law, related to:

1) a concurrent legislative power, as regional

laws have to comply with the general
principles established by the State with a
specific law;
2) an exclusive legislative power, in all subject
not reserved to the State or to the concurrent 13/12

legislative power.
 REGULATIONS
 Regulationsof the Board of Ministers are
resolved on by the Government and enacted
through a decree of the President of the
Republic (D.P.R.).

 There are regulations enacted by single

Ministers and other public authorities.

 As the P.A. has (in principle) a hierarchical

structure, regulations of lower bodies cannot
derogate regulations of higher bodies. 14/12
 CUSTOMS

 Customs must be:

(a) general, repeated, and constant within a certain
community
(b) (b) members of that community must observe
it in the belief that they are bound by that “rule
of behaviour”, i.e., as if it were a rule of law..
 Very often customs have only a local sphere of
application.
15/12
 CUSTOMS
 A distinction is drawn between customs in areas not regulated by
other sources of law (so called customs praeter legem) and
customs explicitly referred to by higher sources of law (so-called
customs secundum legem).

 An example of a custom in an area not regulated by other sources is,

according to Italian jurisprudence, the duty of winners to leave a tip
to a croupier in an authorized gambling house
 An example of a custom explicitly referred to by a higher source, in
this case the Civil Code, is Art. 1498 CC, which states that in a sale,
in “the absence of agreement and where no other customs apply,
payment must be made at the time of delivery and where such
delivery is performed

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 RELATIONSHIP BETWEEN SOURCES OF
LAW
 The presence of several sources of law may give rise to
competition between legal rules concerning the same
subject matter.
 In such a case, it is necessary to examine the rank and
competence of the respective sources.
 If sources are different, but of equal rank (for instance, a
law and a legislative decree or a law and a provision of
the Civil Code), then the conflict between them will be
determined by referring to chronology: indeed, the law
which has been last enacted prevails over the previous
one
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RELATIONSHIP BETWEEN SOURCES OF
LAW
 Where sources of law are not of homogeneous rank, i.e.,
they are not of equal weight (e.g., a statute/law in
conflict with the Constitution or a [domestic] regulation
in conflict with a statute/law), the principle of
hierarchy applies, which holds that the law superior in
rank, and not the last enacted, prevails.

 Hence, the legal rule drafted by a subordinate body (and

hence of subordinate source) though enacted more
recently than the one originating from a higher source,
shall not be applied.
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 CONFLICT WITH CONSTITUTION
 In the case of a suspected conflict between ordinary law and the
Constitution, the question of whether the statutory provision (or any
law of equal weight) is “unconstitutional” will have to be raised by
the court called upon to apply the provision which prima facie
appears “unconstitutional”.

 However, such court does not have the authority to decide upon its
nature. Indeed, the question of whether a statutory provision (or any
law of equal weight) conflicts with the Constitution will have to be
submitted to the Constitutional Court, which is the only body
vested with the power to evaluate the conformity of ordinary law
and other sources of the same rank to the Constitution.

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RELATIONSHIP BETWEEN SOURCES OF
LAW
 On the contrary, in the case of a conflict between any other
source lower than ordinary law, any court may assess the
validity of the higher source on a case-by-case basis.

 For instance, in the case of a conflict between a domestic

regulation and ordinary law or a custom and the
Constitution, the court to which the case has been
submitted will directly decide that - in both cases - the
latter will prevail.

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 REPEAL OF LAWS
 Art. 15 Preliminary Provisions to the Civil Code
provides the situations where a law is repealed:
• upon express statement of lawmakers;
• upon incompatibility between new provisions and
previous ones;
• where the new law applies to the entirety of the subject-
matter ruled by the previous law.

 The first case is known as express repeal; the second

and the third are two separate types of implicit repeal.
Both constitute a different regulation of the same subject.

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 Laws may also be repealed by referendums
 NON-RETROACTIVITY AND
RETROACTIVITY OF LAW
 This practice flows directly from the principle of non-retroactivity of laws,
provided by Art. 11 Preliminary Provisions to the Civil Code: “the law
applies to future incidents only”.

 In criminal law, the principle of non-retroactivity is sanctioned by the

Constitution, which states that there is no crime where there is no law (Art.
25 Const. and Art. 2 Criminal Code).

 Outside criminal law, this restriction may be lifted by lawmakers and a law
may be declared retroactive by an express provision to that effect. This
flows from the consideration that, being contained in the Civil Code, the
rule providing for non-retroactivity of laws (i.e., Art. 11 Preliminary
Provisions to the Civil Code) may be modified by a subsequent measure of
equal rank (cf. § 6 above); for instance, a statute providing for its
retroactive application. 22
 FINAL QUESTIONS
1. Why is the Constitution the primary source of italian
law?

2. What does it mean that law decrees and legislative

decrees are material laws?

3. Can Regulations derogate to, or conflict with, ordinary

laws and other acts having the same strength and value
of the law?

4. Whar happens if rules of different rank regulate the same

matter? 23