Canale examines judicial reasoning
Damiano Canale, Full Professor of Philosophy of Law and Critical Thinking at Bocconi University and research fellow of the Baffi Centre, is also the principal investigator of “Looking for Legislative Intent in Judicial Reasoning: An Empirical Account” research project, which has just been concluded. We have asked him some questions about the project.
Who has funded this research project?
Ministero Università e Ricerca (MUR) and PRIN financed within the Next Generation EU initiative have financed this project.
Why this project?
Italy's apex courts (Civil Court of Cassation, Criminal Court of Cassation, Council of State and Constitutional Court) decide hundreds of thousands of cases each year, yet systematic evidence on their interpretive strategies has remained scarce. By coding thousands of rulings against a standardised analytical framework, this project bridges legal theory and practice — delivering the first large-scale, cross-court empirical portrait of intentionalist reasoning in Italian jurisprudence and opening new avenues for comparative and normative research.
Which universities have been involved in the project?
The project brings together five Italian universities: Università Bocconi (lead), Università degli Studi di Brescia, Università degli Studi di Milano (Statale), Università di Siena, and Università Ca' Foscari di Venezia.
Why your research is innovative?
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 collected 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 include the branches of constitutional law, civil law, criminal law and administrative law. This quantitative analysis allowed the researchers to determine the statistical relevance and prevalence of the argument in the different branches of Italian law.
Why the topic of the research matters for people?
Lawmakers, judges, other legal professionals and academics will benefit from the outcomes of the research. First of all, the research makes available to the public an open access statistical dataset based on a repository of judgments encompassing the decisions of the Italian courts in which the argument from legislative intent is employed. The dataset will be of interest not only as a tool for retrieving case law but also for didactic purposes and for fostering further research.
Secondly, the project delivered a Framework for Analysis (FoA), i.e. an analytical model for the study of the argument from legislative intent. This model identifies the elements of which the argument in question is composed, the sources from which the intention of the legislature can be drawn, the diverse argumentative operations that can be performed under the umbrella of legislative intent. The FoA is first of all a research tool for the project, as it allows the performance of quantitative statistical analysis. As such, it has been made available to the project participants in the form of a questionnaire setting out what information should be sought in the empirical analysis of the case law. However, the FoA was refined and developed during the project and made available to the legal community at large in the form of a self-standing research essay. Thus, the FoA was not just a research tool but also a significant deliverable of the project, which is of potential interest for legal scholars and legal practitioners alike. It allows to distinguish the various configurations of the argument from legislative intent and it will show that they result from profoundly different theoretical premises and normative commitments. This is likely to render legal argumentation more self-aware, transparent and practically effective.
Thirdly, the project provides a qualitative analysis of the argumentative practice of Italian courts. The qualitative research outcomes of the project have been delivered in the form of original, self-standing academic essays. The project does not aim at directly modifying the current argumentative practices, nor does it purport to formulate detailed guidelines and codes of best practices for the legal practitioners.
Which data have you analysed?
Our empirical research that combined quantitative and qualitative methods. This methodological approach is increasingly attracting the interest of legal scholars.
The OneLegale database was queried using 23 search keys in NEAR/5 proximity format, combining synonyms and related expressions for legislative intent in Italian legal language (e.g., ⟨volontà legislatore⟩, ⟨intenzione legislatore⟩, ⟨finalità riforma⟩). This produced seven aggregated files, one per court formation, containing a combined total of over 28,000 rulings.
For the four most authoritative formations (Constitutional Court, Council of State — Adunanza Plenaria, Civil and Criminal Court of Cassation — Joint Sections), all retrieved rulings were analyzed in full. For the three larger formations (ordinary sections), a statistically representative random sample was drawn and hand coded.
The search-key approach sets a lower bound on the true frequency of IdL arguments. Arguments expressed in vocabulary not captured by the 23 keys will have been missed. All frequencies reported in this report should therefore be read as conservative estimates.
Which were the research questions?
The study was designed to answer three interconnected questions:
- Frequency: How often do Italy's apex courts invoke the Legislative Intent argument?
- Incidence: What role does the IdL argument play in the courts' actual decisions?
- Normative acceptability: When is the use of the IdL argument theoretically justified from the standpoint of legal argumentation theory?
The first two are empirically answerable through the collected data. The third is normative in nature and requires theoretical rather than purely statistical analysis. This report focuses on the first two.
What are the main findings of the research project?
Across all seven court formations, the Historical Legislator is invoked in 94–97% of all interpretive arguments. The Current Legislator (what a present-day parliament would have decided) is essentially absent — never observed in the Civil Joint Sections, found in a single Criminal SU case, and marginal everywhere else. The Ideal Legislator (what a perfectly rational lawmaker would have done) accounts for 2–6% across formations. This convergence is one of the most robust findings of the study. Italian apex courts are historically oriented intentionalists: they look backwards to the original drafter, not forwards to a hypothetical rational lawmaker.
In most courts, Communicative Intention (what did the legislature mean to say?) outweighs Teleological Intention (what goal did it want to achieve?). The Criminal Court shows the strongest communicative dominance (76–78%), suggesting a literal-intentionalist culture that privileges textual clarity over purposivism. The Council of State is the exception, with an approximately equal split between communicative and teleological — consistent with administrative law's tradition of purposive interpretation.
In every court formation, the IdL argument is most often concurrent — used alongside, rather than instead of, literal and systematic arguments. The Criminal Joint Sections show the highest concurrent rate (94%), the Council of State Plenaria the lowest (47%, offset by a high decisive rate of 43%). The high concurrent rate reflects a polyargumentative judicial culture in which no single criterion is allowed to carry the full interpretive load.
The most practically significant finding: across virtually every court and formation, judges invoke the IdL argument without explicitly justifying why intentionalism is the right approach for the case at hand. Art. 12 Preleggi — the statutory provision that organizes interpretive criteria — is cited in fewer than 6% of cases in civil courts, about 13% in Criminal Joint Sections, and marginally in the Council of State. The Constitutional Court stands apart by frequently grounding its arguments in constitutional principles and values, but this too is a domain-specific justification rather than a general theory of intentionalist interpretation. This deficit raises important questions for legal scholarship and judicial training: if intentionalism is deployed without explanation, how can its use be critiqued, refined or limited? Future research should explore whether greater transparency in justification would improve the quality and predictability of judicial reasoning.