Preface to the Second Edition for The Italian Legal System
Preface to the Second Edition
When I first became interested in Italian Law more than a decade ago, I naturally asked if there was an English-language treatise that summarized the topic for a curious but otherwise novice reader. It didn’t take long until I learned that there was only one truly serious contender for the title. “The Cappelletti,” as people called it, is not only the single best book on the Italian legal system in a foreign (and perhaps in any) language but a classic work in the field of comparative law as a whole. With its identification and description of a peculiarly “Italian style” of law and legal thinking—a background music, as it were, that makes even the same words and concepts take on a different meaning—it captures the tension between sameness and difference that defines the comparative field. The question implicit in the book, whether the special Italian style can survive in a world of shrinking distances and converging norms, remains as relevant today as it was when the book was first published. While questions remain the same, answers change with time.
When the First Edition was published in 1967, the Italian Republic was barely two decades old; the European Union (EEC) was a purely economic arrangement; and globalization was a term used only by a few futuristic thinkers. Few Italian lawyers or law professors spoke English, even as a second language; it is safe to say that none used a computer or knew anyone who did. The Constitutional Court was in its infancy, and the idea that democratic or constitutional values should inform legal interpretation, at both the judicial and scholarly levels, remained a novelty. Changes of this magnitude affect not only the substance of legal rules but the way of thinking about them: the music of the law, to follow the previous analogy, as well as the lyrics. Yet, through all of this, something of the original Italian style remains in force, buffeted by global phenomena but stubbornly refusing to give way altogether.
Out of respect for the original work—and a justified modesty regarding our own ability to improve it—we have taken as light an editing approach as possible, making only those changes that are necessary to keep the book factually accurate and useful for contemporary readers. Thus, while certain materials regarding Italian law and institutions have been updated, the essential core of the book remains largely as it was in the previous edition. At times the combination may prove jarring: discussions of globalization or the EU are followed by citations from the 1950s or observations about the passage from fascism to the democratic era. It is hoped that these superficial incongruities will be compensated by the overall flow and cadence of the book and the recognition that its principal themes remain as relevant today as they were forty years ago.
Although this book remains a vital source on Italian law, it is also a case study in the persistence of national styles and ways of thinking about law in an increasingly interconnected world. Indeed, it is not an exaggeration to say that the question of “convergence” and “divergence” of national legal systems—which aspects of national legal systems become more similar and which remain or even become more different with the passage of time—has become the predominant theme of modern comparative law. While continuing to be a vital source for understanding Italian law, it is hoped that this work may prove part of this broader, continuing conversation.
I wish to thank my coauthors, whose knowledge of Italian law essentially contains my own, for their patience and perseverance in bringing this project to fruition. Special thanks are due to the original authors, Professors Merryman and Perillo, for their assistance, advice, and encouragement. Professor Merryman’s death, as this book was headed to publication, was an incalculable loss to the comparative law and the broader academic community. Extra special thanks to Professor Cristina Costantini for help with Chapters 2, 3, and 4, and to Mauro Balestrieri and Davide Gianti for reading the manuscript and preparing the index: without them, it would have been quite impossible to finish the book on schedule. Thanks also to Rebecca Mamone and Sara Gattazzo for outstanding research assistance, and to Diego Corapi, Vincenzo Varano, and the participants at a symposium at the Roma Tre Law Faculty for insightful and helpful comments. Finally, I wish to thank my wife, Anne F. Weiss, without whose support and encouragement I would remain quite lost (perduto) in this and other endeavors.
Michael Livingston