Le ragioni del silenzio (apparente): l’atteggiamentodella giurisprudenza italiana rispetto alle citazioni dottrinariea confronto con quello della giurisprudenza inglese

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Abstract

[automatically translated] The work deals with the theme of the relationship between doctrine and case law, and in particular the transposition of the first part of the second, in view of the comparison between Italian and English legal experience. The first appears to be dominated by regulatory prohibitions, succeeded one another since the provisions were found in some pre-unification of Italy, the quote in the judgments of the legal authors. It is trying to trace the reasons for this ban, also present in vigentecodice of Civil Procedure. But the same prohibition is without penalty, so that has always been characterized as imperfect standard situation that can not give rise to any procedural penalty of the judgment. Despite the existence of the prohibition in Article. 118 paragraph 3 of the implementing provisions of the Code of Civil Procedure, it is easy to verify that in practice the Italian law makes substantial use, while not expressly citing them, the thought of legal authors inspired and create their own decisions. The essay also reports of a growing trend of Italian law to champion substantially creative guidelines, which some writers end up paying subservient membership. Under English lacks provisions forbidding the use directly in the judgments of the doctrine. There are, however, cultural barriers - was traditional rejection of conceptual abstractions by the courts - that quite simply the concrete using the benefits of forming a doctrinaire. The conclusion is in cheappare sense necessary dialogue between doctrine and case law in any legal system: a famous English judge of the then House of Lords compared them to the travelers of the Canterbury Tales. Is in actual fruitfulness of this dialogue, both in Italian law and in the English, and not in the existence of formal rules on the admissibility of case law citations of legal authors, the real answer about the intensity of the dialogue between forming doctrinal and jurisprudential forming .
Original languageItalian
Pages (from-to)25-42
Number of pages18
JournalANNUARIO DI DIRITTO COMPARATO E DI STUDI LEGISLATIVI
Publication statusPublished - 2015

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