O uso marginal dos precedentes estrangeiros e a hesitação italiana quanto ao ‘alieni juris’

Abstract

The article describes the characteristics of the Italian Constitution starting from the socio-historical background to the elaboration of the constitutional text as a compromise between three different points of view: those of the Christian Democrat, the Socialist and the Communist parties. Furthermore, the compromise achieved was supported by some of the most important leaders of Italian juridical culture and internationally famous economists; eminent politicians, together with a group of Catholic professors. The second part of the article develops the role of the Italian Constitutional Court and the choice to quote foreign law or foreign case law: from the empirical research arises the fact that the judge decides to refer to foreign case law when his own system fails to provide clear and satisfactory solutions. Thus, foreign case law is an instrument for the evolution of the judicial legal order, suitable for bridging gaps and antinomies. What undoubtedly emerges is a functional use of foreign decisions by the Constitutional Court: they can be useful to underline the unreasonableness of the contested rules, to put constitutional principles in a persuasive perspective, to reinforce the argument. But it is a kind of comparative silence, at least at a judicial level: the comparative analysis is actually (almost) absent from the style of the motivation of the Italian Constitutional Court’s decisions.Keywords: Italian Constitution, Italian Constitutional Court, foreign law, foreign case law.