Ordine pubblico e buon costume nel pensiero di Giovanni Battista Ferri tra principi funzionali e principi di etica giuridica. Un contributo al dibattito sugli strumenti di integrazione del diritto

The author discusses the two concepts of public policy (according to the Franco- Italian meaning of ordre public and ordine pubblico) and good morals (public morality according to the meaning of the civil law traditional concepts of boni mores or gute Sitten) against the backdrop of the question of instruments for the development of law. He places Italian law in an intermediate position between the French and German models. Italian codification drew on French law for the concept of public policy, as well as for a certain difficulty in organizing the coexistence of public policy and good morals from a positivist legal perspective. There is, in fact, a risk that the former will nullify the latter. However, historical developments, from legal positivism to constitutional law (i.e., the constitutionalist conception of the legal system), seem to require that the contribution of general clauses, among which that of good morals stands out, should not be abandoned. While public policy seems to be framed as a general rule of unavailability that can be deduced from the functional principles of the legal system, good morals cannot only be reduced to a mere statistical observation of social customs, but also allows for the judicial evaluation of behaviors and agreements on the basis of meta-legal criteria, provided that they are consistent with constitutional values. Finally, the author addresses the issue of legal ethics, drawing inspiration from the debate on the principle of harm.