Judicial Rulings with Prospective Effect in Italy

© Springer International Publishing Switzerland 2015
Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_9

9. Judicial Rulings with Prospective Effect in Italy

Michele Taruffo 

University of Pavia, via Guicciardini n.10, 20129 Milan, Italy



Michele TaruffoProfessor of Civil Procedural Law


In the Italian legal system there are just a few rules concerning precedents, but there is no binding precedent. Even the judgments of the supreme courts are not binding: they have just a weak persuasive force, mainly because of their high and excessive number. However, precedents are frequently quoted, but mainly in the form of short and general statements. In Italy there is no prospective overruling.

1. In the Italian legal system there are no general rules directly concerning precedents in the proper meaning of the word. Only in some rules of the code of civil procedure there are indirect references to precedents. For instance, art.118 disp. att., c.p.c. says that that judge may make a reference to corresponding precedents in the opinion that justifies the decision. Moreover, art.360 bis n.1 of the same code says that the appeal to the supreme court (the Corte di Cassazione) is not admissible when the decision appealed decided legal issue following the case law of the same court, and the appeal does not justify a further decision on the same issues. Notwithstanding the lack of general rules, in the last decades the quotation of precedents has become of a common –and even excessive- use at any level of civil and criminal jurisdiction.

The Italian legal theory is not unanimous about the problem of whether or not precedents should be considered as proper “legal sources” (such as statutes), but the prevailing opinion is positive, mainly because precedents are actually referred to in the legal practice as if they were true legal sources.1 Moreover, the Italian case law includes every year dozens of thousands of decisions, mainly of the supreme court (the Corte di Cassazione), but also of the Constitutional Court and of the most important Appellate courts, and even –several times- of courts of first instance. The Constitutional Court issues just some hundreds of judgments per year, but the Corte di Cassazione produces an impressive flow of judgments: to consider only the civil justice, they are ordinarily more than 30,000 (thirty thousands!) every year. This court has a special office (called Ufficio del Massimario) performing the function of extracting from the court’s opinions the most relevant legal rules (called massime) that are deemed to be published and quoted.

This is the most peculiar and maybe interesting feature of the Italian system of precedents.2

Only gold members can continue reading. Log In or Register to continue