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

The essay is aimed at demonstrating the extent to which comparative law, and the adoption of a comparative method, can play a clarifying role in 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 English 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 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, successive opinions and 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. The experience shows that it has helped to develop a new set of rules that have integrated themselves coherently in the general framework of the legal system and have been, in most cases, upheld by authors and legal scientists. So, 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 English and Italian law in their overall dimension of legal systems living, at the same times, through theoretical contributions and judicial interventions.