Italy and the U.S.: Two Different Legal Worlds
- WULR Team
- Apr 20, 2025
- 5 min read
Common Law and Civil Law, across the Atlantic
Published April 20 2025
Analysis by Abby Miller
As I approach the two-month mark of my semester abroad in Florence, I arrive at a profound, surprising realization: life in Italy is different from life in America. Shocking, I know. These vast differences are evident in every facet of life here — eating, walking, shopping, and more — but one often overlooked difference lies with the law. And no, I am not referring to the fact that Italian laws can be more lax, i.e. the authorization of public alcohol consumption (which, if any future employers ask, I am strongly against). Rather, I am referring to Italy’s differently structured legal system.
An inheritance from Britain, the U.S.’s common law system dictates how legal decisions are made. Instead of deriving answers to legal questions solely from explicit legal text, courts use precedent cases to inform decisions. The epitome of this practice is stare decisis, a legal principle obliging courts to consider past case rulings when deciding new cases, according to a chapter by the American Bar Association. Stare decisis is not a hard-and-fast rule — there are bounds to precedent cases’ binding power — but to understand the U.S. legal system, we must recognize the essential role of precedent in forming legal decisions.
Much like the U.S., Italy’s legal system is not purely original but an endowment from its history. Italy uses a civil law system based on Roman law, the Napoleonic civil code, and other historical rules of law, according to Lexia’s Lawyers Italy. As an American, it can be easy to subconsciously believe the whole world operates like the U.S., but common law systems are (ironically) less common than civil law systems. Civil law systems cover about 60% of the world’s jurisdictions, according to LSU Law. To understand civil law in the context of common law, it may help to view it as concrete versus abstract thinking. In decision-making under a common law system, the word of the law is highly considered, but there are broader considerations — mainly, applicable precedent cases. There are fewer concrete, codified rules telling judges to rule a certain way; judicial decisions are guided by generally accepted, abstract practices and principles that hold similar weight to codified law. Civil law takes an ostensibly simpler approach: judges are instructed to rule based on applications of legal code alone. No precedent, no vague principles, no wiggle room. Common law statutes are intentionally left open to interpretation, whereas civil law statutes are drafted with the opposite intent. The goal is for there to be no gaps in the law so that statutes alone give a clear, unambiguous answer to any legal dispute, as explained by Berkeley Law.
I am sure you would love to hear more about the different levels of rigidity between the two legal systems, but unfortunately, it is time to move on to a new topic: how do common law and civil law systems reflect the societies they are employed in? In America’s case, it is not difficult to draw parallels between the use of common law and a desire for efficiency — a core tenet of capitalistic culture. Some legal economists posit that common law promotes efficient behavior, a concept easily understood in a financial context. Common law can reduce business costs due to accepted practices that streamline financial processes rather than requiring a rigid set of rules, according to the Wisconsin International Law Journal. For instance, accepted practices guide contract law more than tedious, time-consuming required steps. If this theory of common law’s efficiency is correct, then common law acts as both an expression and reinforcement of the U.S.’s capitalist system. Another theory is that common law is more conducive to progressivism and social change than civil law. A dissenting view of this proposal is Oliver Wendell Holmes’s legal realist view, which conceives the law as an expression of social change after it has already occurred rather than a medium for its occurrence, a concept called “social lag.” Regardless of how common law actually operates in practice, what is important is how people believe it operates and how this reflects their society’s values and priorities.
Given the supposed advantages of a common law system — efficiency and a role in social change that is, at worst, neutral — one may wonder why some cultures hold on so tightly to their civil law systems. An answer proposed by Professors Nuno Garoupa and Carlos Gomez Liguerre is that the longstanding nature of civil law systems makes it difficult for people to imagine existing under a different system; their preference for civil law is so strong that the potential increases in efficiency under a common law system are outweighed.3 Another possibility proposed by Harvard Law School Professor Holger Spamann is that the public’s perception of common and civil laws’ differences is inaccurate. He claims that there are misconceptions on both fronts in that civil law does include precedent and that common law is not as flexible as some believe. His main support is twofold: research shows German courts (which employ a civil law system) overrule precedents approximately as often as English courts.6 An English decision, Salomon v. Salomon (1896), states “the sole guide must be the statute itself” rather than precedent. Both of these sources support Spamann’s argument that the two systems exhibit aspects of the other in major ways.
It is possible that common and civil law systems are wholly different systems that are employed solely based on people’s preferences. Another more plausible and pragmatic theory is that both systems are not as dissimilar as they seem and may display qualities of each other in practice. If this latter explanation is correct, then perhaps the goal of comparing the different countries’ legal systems is somewhat misdirected. Despite this demoralizing conclusion, I firmly believe there is still good reason to understand the Italian and American legal systems. Both systems are indispensable symbols of their countries’ histories that dictate how major legal decisions are made, and that is something worth appreciating.
The American legal system made easy. The American Bar Association. (n.d.). https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/131991070/Chapter%202.pdf
The common law and civil law traditions. Berkeley Law. (n.d.). https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf
Garoupa, N., & Gómez Ligüerre, C. (2011, August 25). The efficiency of the common law: The puzzle of mixed legal families. SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1916766
Levy, B. H. (1955). The common law and individual freedom. Social Research, 22(2), 163–182. http://www.jstor.org/stable/40982415
Lexia. (2023, March 2). Civil law in Italy. Lawyers Italy. https://lawyersitaly.eu/civil-law-in-italy/
The myths and reality of common and civil law. Harvard Law School. (2023, October 20). https://hls.harvard.edu/today/the-myths-and-reality-of-common-and-civil-law/
What is the civil law?. LSU Law. (n.d.). https://law.lsu.edu/clo/civil-law-online/what-is-the-civil-law/
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