This writing deals with the question whether in a civil law jurisdiction, as Italy is, the Courts are empowered of making law as a source comparable to statutes. The answer cannot be definite in terms of yes or no, but must be articulated according to the experience. In any case Courts can be recognized as secondary sources of law, subject as they are to legislation. There are examples of exceeding the limits, but these are not to be taken as truly conform to the actual legal order. In a civil law country Courts also cannot be considered as source of customary law, since decisions are not binding even when they acquire in fact the status of precedents. Nor are the Courts entitled to directly do justice. Yet a true idea of what is going on implies the recognition of what the Courts really do.

Castronovo, C., L'aporia tra ius dicere e ius facere, <<EUROPA E DIRITTO PRIVATO>>, 2016; (4): 981-1017 [http://hdl.handle.net/10807/101821]

L'aporia tra ius dicere e ius facere

Castronovo, Carlo
2016

Abstract

This writing deals with the question whether in a civil law jurisdiction, as Italy is, the Courts are empowered of making law as a source comparable to statutes. The answer cannot be definite in terms of yes or no, but must be articulated according to the experience. In any case Courts can be recognized as secondary sources of law, subject as they are to legislation. There are examples of exceeding the limits, but these are not to be taken as truly conform to the actual legal order. In a civil law country Courts also cannot be considered as source of customary law, since decisions are not binding even when they acquire in fact the status of precedents. Nor are the Courts entitled to directly do justice. Yet a true idea of what is going on implies the recognition of what the Courts really do.
Italiano
Castronovo, C., L'aporia tra ius dicere e ius facere, <<EUROPA E DIRITTO PRIVATO>>, 2016; (4): 981-1017 [http://hdl.handle.net/10807/101821]
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/10807/101821
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