Le ragioni del decidere. Per un possibile studio della giurisprudenza e della mentalità del giudice

Scholars in Italy have traditionally paid rather scanty attention to the source of legal precedent, preferring to concentrate on doctrinal debate and legislation, a pre-ference that appears to be a spin-off of the predominance of legal positivism. Alt-hough interest in legal precedent as a source has certainly increased of recent ti-mes, there is still a prevalent analytical and classifying perspective that considers judicial decisions as sources of law, in an approach very similar to the one that in-spires the relationship between law and lawyers. This observation also hints at a different commitment to recording legal prece-dent for posterity, this time with the purpose of using the techniques of historical investigation to throw light on the premises of decisions arrived at in a broader so-cial context and also highlighting the unusually close relationship between judicial regulation and the facts they regulate. It is towards this different angle that an in-terpretation that relates the decisions made by the judge to the overall destiny of judicial institutions effectively tends. Although recent writings by French histo-rians demonstrate an interest in this direction, it would appear that there is still so-me way to go before the thrust towards a thorough verification of the political lines adopted by judicial institutions. The essay closes with an attempt at offering an example of the method propo-sed, in the form of an analysis of some cases of legal precedent.

Orazio Abbamonte, Le ragioni del decidere. Per un possibile studio della giurisprudenza e della mentalità del giudice in "SOCIOLOGIA DEL DIRITTO " 2/2001, pp , DOI: