Diritto privato e realtà sociale. Sui rapporti tra legge e giurisdizione a proposito di giustizia

This writing is dedicated to the actual evolution of the Italian juridical system, particularly to the attitude of the courts towards legislation. It seems there to be a kind of inversion: what previously was that of application i.e. subordination, today appears to be the use of statutory law as a tool to confirm what judges affirm in their decisions. This is particularly clear in what has been named contractual justice, meaning that by the use of general clauses or constitutional principles the judges penetrate in the citadel of private autonomy. Contrary to the authors who praise this judicial attitude, this essay outlines the necessity of adherence to positive law as guarantee of certitude and defence against arbitrariness. The enforcement proceedings about foreign decisions on punitive damages very recently examined by the Corte di Cassazione provide inter alia a specific matter for the analysis.