NCJ Number
220584
Journal
International Journal of Comparative and Applied Criminal Justice Volume: 31 Issue: 1 Dated: Spring 2007 Pages: 101-118
Date Published
2007
Length
18 pages
Annotation
This paper discusses how the interpretation and application of the mandates of the European Union as well as the process of interpreting and applying national law has evolved into Italian judges becoming policy-shapers and policy-makers in innovative ways.
Abstract
Although judges must base all of their decisions on laws that have been initiated and composed by legislators, they are charged with interpreting how various laws apply to the circumstances and actions in each case that comes before them. In this process, senior Italian judges have extensive powers to shape laws and policies. Judges have been creative in the selection of legal sources and in the application of legal rules by considering societal value prominent in the circumstances of particular cases. Italian judges can set aside a norm that they deem contrary to a more recent law, including a European law. In the case of the Constitutional Court, which is the highest authority in the Italian domestic hierarchical court system, a law can be assessed in context and be determined to violate the rules and principles of the Italian Constitution, effectively annulling the law. In addition, lower courts have been promoting particular interpretations of various laws, which are eventually confirmed or refuted by the Constitutional Court. The judiciary can thus shape the application of law to reflect societal change. This process in Italy is occurring in a scenario that is perhaps unique to Italy. Senior judges and members of the Constitutional Court have found themselves in the position of annulling national laws inconsistent with the European Union as well as those that violate the Italian Constitution. This review power has had extensive consequences in providing uniform interpretation to legal provisions of mixed origin. 49 references