Principi generali e autonomia negoziale

A discourse on the general principles of law cannot ignore the investigation of the role that the judicial interpretation plays with respect to their elaboration. Indeed, it is not possible to distinguish: the investigation overlaps with the discourse. The different theoretical approaches on the nature and on the scope of the general principles oscillate between the absolute negation of the interpretation’s contribution in making the rule of the concrete case and the attribution to the precedent of the quality of formal source of law. That is to say, we are witnessing conceptual and ideological graduations of the recognition of the principles’ normative nature. The present work aims to justify the normativity of the (expressed and not) principles and (at least) the paranormative nature of the precedent. From this does not follow a passive deference to the current judicial interpretation, but rather the obligation to start from it in order to verify whether it is still, if it has been, the one that offers the best concretization and development to legal system’s values in relation to the factual circumstances of application, through the balancing of relevant principles and rules. The current complex and multilevel legal system, which increasingly uses the general principles to govern complexity, cannot be reduced to a set of rules, commands to be executed mechanically, according to the subsumption’s dogmatic logic, for which the only way to valorize the peculiarities of the concrete case, eventually, is offered by the range of possibilities of linguistic signification of general clauses and undetermined legal concepts. On the other hand, with the advent of the Constitution the ethical datum penetrates into the juridical one, providing it with meaning and legitimacy. The value is positivized, it is norm, id est: principle, directly applicable in private law relations. It constitutes justification of any legal effect; this requires re-reading the foundation of legislative, administrative and contractual powers of regulation of interests in a single key. ... [edited by Author]