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Article

Codification in a Civil Law Jurisdiction: An Italian Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords civil law jurisdictions, codification, consolidation, legislative drafting, judicial review
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here.
    In Italy codification is called riassetto, it is normally carried out by the government but the changes to existing law must be within the strict boundaries of the principles and criteria set out by the parliament. By contrast, the mechanism to amalgamate existing texts dealing with a single topic without radical changes is called consolidamento. It is carried out by the government as delegated by parliament. However, as the tools to carry out riassetto and consolidamento are the same (decreto legislativo: a decree issued by the government, which is delegated by the parliament), it is not always easy to understand when the government is allowed to carry out consolidamento only or riassetto too. Actually, how fundamentally the government is allowed to change existing legislation depends on what the principles and criteria of the enabling Act of Parliament allows.
    A decreto legislativo that is not in compliance with the principles and criteria established by the Act of Parliament, could be declared void by the Corte costituzionale (the Italian Constitutional Court). Therefore, if the government exceeds the boundaries of consolidamento or riassetto, the decreto legislativo could be declared void.
    This essay will also focus on the different drafting techniques of consolidamento and riassetto from a theoretical perspective and from the point of view of the jurisprudence of the Consiglio di Stato and the Corte costituzionale. Finally, it will look at the drafting process for codes in Italy, underlying the differences with systems where law reform agencies have been established.


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
Article

The Mechanisms Used to Review Existing Legislation in the Civil Law System

Case Study – Italy

Journal European Journal of Law Reform, Issue 3 2016
Keywords codification, consolidation, law revision, legal restatement, legislative scrutiny
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people).


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
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