Fonti culturali del diritto e cultura giudiziaria. Rileggendo Alessandro Pizzorusso

[Autom. eng. transl.] The work of Alessandro Pizzorusso is crossed by some recurring themes, highlighted for some time in the in-depth studies dedicated to him and, in particular, in the annotated bibliography edited by his students in 2005. One of these themes emerges from one of the oldest essays among those now republished (in the series dedicated to the "Constitutionalists of the twentieth century") and continues to resurface in many other studies dedicated to the judiciary and the sources of law. It is the question of the "contribution of the judiciary to the process of creation-implementation of law", polarized around two concepts: the qualification of the judicial precedent as a source of law, on the one hand, and, on the other, the institutional and cultural conditions which allow for such a statement. This contribution consists in a re-reading of some pages dedicated by Pizzorusso to these concepts (respectively, § 2 and § 3) and in the comparison with different scientific orientations (§ 4). The conclusions (§ 5) will be in the sense that: in the same thought of the author mentioned today, the assimilation of jurisprudence to the sources of law is plausible more on a logical than on a dogmatic level; this does not at all mean that, understood in this way, it is not legally relevant, neither in general terms, nor in relation to its impact on the sources of law in the dogmatic sense, considered at the time of their application; to understand this dynamic, it is necessary to consider the conditions which, on the one hand, allow us to speak of the creativity of jurisprudence (or discretion, evaluativeness, etc., according to the various doctrinal perspectives that will be recalled) and, on the other, require that this prerogative be exercised with caution.