Appunti sul diritto civile “giurisprudenziale”, rileggendo Freedom and the Law di Bruno Leoni

This article explores the concept of ‘jurisprudential’ law through a contemporary reading of Bruno Leoni’s Freedom and the Law set against the backdrop of current debates on legal methodology. The analysis begins by addressing the assertion that “jurisprudence is not a source of law”, as recently stated by the Italian Supreme Court, and asking if that is coherent with the current state of the sources of law. The article examines jurisprudential law as the law of academic jurists and judges, reflecting on its role in the modern legal system. The discussion includes the alignment of jurisprudential law with the pursuit of legal certainty, while navigating present-day challenges. By analysing key cases, the essay argues that jurisprudential law may shape modern civil law while respecting legislative prerogatives, and advocates for recognizing jurisprudential law as a ‘secondary’ yet vital source of law, operating under the principles of legality and separation of powers.