The Effectiveness of the Law and Consistent Interpretation  

by Gennaro Santorelli

The subject of the value of judicial precedent appears to have assumed a central role in current scholarly debate. Although the principle of binding precedent is not applied in the Italian legal system, the gradual strengthening of the Court of Cassation’s function as guarantor of the uniform interpretation of the law raises important questions regarding the current basis of legal effectiveness.
Through a critical re-reading of the traditional doctrine of the so-called ‘living law’, it may come to take on a meaning that falls in line with the duty of ordinary judges to interpret it in a way that is compatible with the Constitution, a duty long upheld in constitutional case law. Once the ontological basis for the effectiveness of the law has been discerned, the so-called ‘living law’ is no longer a restriction on the interpretative freedom of the Constitutional Court but rather a hermeneutical/argumentative standard, serving to suggest the meaning of the provision whose constitutionality is at issue.

DOI 10.23815/2421-2156.ITALJ           ISSN 2421-2156

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