La rilevanza del fatto nella struttura del precedente giudiziario inglese

Research output: Contribution to journalArticle

Abstract

The essay looks at how the so-called doctrine of judicial precedent in English law has come to a gradual development over the years. In truth, the elucidation of judicial precedents is essentially due to the contributions that legal doctrine and judicial decisions alike have been making since the 19th century’s reforms culminated in the 1873 – 1875 Judicature Acts. Since then, the notion of precedent started being the object of specific reflections.Alongside this process, it was perceived that there might be circumstances which might justify the courts in not following precedents. Among the circumstances that in a growing number of cases were used to obtain that result the evaluation of the factual elements of a case, as apposed to those of the precedent, gained such prestige as to become the propellent of the judicial technique of distinguishing.Within this ambit it was necessary to determine the reasons that could lead the court to abandon a precedent by way of fact differences. Many distinguished scholars committed themselves to the finding of the facts which could give rise to a distinguishing: it was Goodhart, in particular, even if he encountered a fierce criticism by other academics, who referred to “material facts” as being decisive. The courts showed to be favourable to this approach, according to which when material facts are different in two cases, then different decisions may rightly ensue. And the essay finally demonstrates that a long line of decisions is still in accordance with this perspective.
Original languageItalian
Pages (from-to)357-394
Number of pages38
JournalEUROPA E DIRITTO PRIVATO
Volume2
Publication statusPublished - 2013

Cite this