L'APPORTO DELLA COMPARAZIONE NEL RAPPORTO TRA SCIENZA GIURIDICA ED ELABORAZIONE GIURISPRUDENZIALE

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Abstract

[automatically translated] The essay is Aimed at demonstrating the extent to Which comparative law, and the adoption of a comparative method, can play a role in clarifying the relationship between law as a science and law in action. The starting point Is that any legal system Should be appreciated as a whole without giving in to the temptation of describing it only by way of giving prevalence to one of its formants (legal doctrine, judicial decisions, legislation). These are only stand-points from Which to observe the entire legal phenomenon. This method is here applied. In the first part of this paper the Inglese common law is scrutinized with reference to the values and the defects inherent in its formation through a judge-made law: they are explored according to Functional the analysises, both dating back to the 1930s, made by two leading scholars, Pollock and Goodhart. These fundamental Contributions show, even it to a different degree, faith in the intrinsically scientific character of the case law (Which can be Observed experimentally in the same way natural sciences do), and in the general benefit, in terms of certainty and reliability, That it can give to the legal system as a whole. A large survey of other, and subsequent opinions of Court decisions follows. It is, then, the turn of Italian law, in the light of Capograssi's thought, to be Looked at from the perspective of how and what case-law can do for the law in general. That shows the experience it has helped to develop a new set of rules That Themselves have integrated coherently into the general framework of the legal system and sono stati, in most cases, upheld by legal authors and scientists. I know, the judicial development of the law has helped its re-shaping and has opened up new frontiers in terms of the recognition of the relevance of European law in the private law of member states. This is shown to be true Both of Inglese and Italian law in Their overall dimension of legal systems living, at the same times, through theoretical Contributions and judicial interventions.
Original languageItalian
Pages (from-to)433-463
Number of pages31
JournalANNUARIO DI DIRITTO COMPARATO E DI STUDI LEGISLATIVI
VolumeI 2011
Publication statusPublished - 2011

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