The research project is in the field of legal argumentation and focuses on the argument from legislative intent. The research seeks to examine how legislative intent is conceived by Italian courts, the different forms that this argument takes in judicial reasoning, to what extent these forms are respectively employed, and the theoretical implications of these findings. The research is highly innovative because it has an empirical character. An empirical research on the standards of legal interpretation and argumentation applied by Italian courts has not been carried out yet. To fill this gap, the research will collect a database of the Italian judicial decisions, issued from 2018 to 2022, in which the argument from legislative intent is used to justify a judicial outcome. The collected data will include the branches of constitutional law, civil law, criminal law and administrative law. This quantitative analysis will lead the researchers to determine the statistical relevance and prevalence of the argument in the different branches of Italian law.
On the basis of the collected data, the research will then carry out a qualitative analysis of a representative sample of the decisions in which the argument was employed. To this purpose, the structure of the argument will first be examined, in order to identify the forms that the intention of the legislature takes in judicial reasoning (original communicative intent, purposive intent, counterfactual intent, ratio legis, etc.). Second, for each considered decision it will be determined whether the argument is well articulated and provides conclusive reasons in favor of the judicial outcome. This will lead us to establish to what extent Italian courts conceive themselves as agents of the legislature when interpreting a legal provision, or whether other general, normative criteria of legal interpretation actually explain current interpretive practices. The results of the analysis just outlined will lead the research groups to address a number of theoretical issues on the nature of legislative intent, to propose qualitative criteria with respect to the use of this interpretive canon, and to critically analyse the existing guidelines for legal drafting.
Principal Investigator: prof. Damiano Canale (University “Bocconi” of Milan)
Local Units: prof. Elena Bindi (University of Siena), prof. Francesca Poggi (University of Milan); prof. Paola Lombardi (University of Brescia); prof. Marco Mancini (University “Ca’ Foscari” of Venice)