SEPARAZIONE DEI POTERI E DISCREZIONALITÀ DEI GIUDICI NEL PENSIERO DI GAETANO SILVESTRI

On the occasion of Gaetano Silvestri's 80th birthday, this essay examines the scholar's work on the problem of judicial discretion, that is, the spaces of choice that remain to judges in the exercise of their functions, especially constitutional justice, after having observed all pertinent procedural and substantive rules. After identifying Silvestri's definition of the concept of jurisdiction, in his broader reconstruction of the separation of powers, and emphasizing the centrality, in this concept, of judicial independence, the essay highlights how the scholar recognizes that judges have "margins of decisionism, inevitably nourished by value judgments." It then asks what the perimeter of such discretion is, according to which canons it should be exercised, and how its judgment should be evaluated even in the scientific sphere. It concludes by emphasizing the relevance, in this regard, of attention to the impact of decisions, to the delicacy of certain hard cases and, in general, of considerations favourable to the option for moderation – while observing how, in recent works, Silvestri has decisively insisted on the duty to "render constitutional justice".