La comunicazione transgiudiziale e i criteri interpretativi: una comparazione tra il sistema svizzero e quello italiano

Transnational Judicial Communication and Interpretative Criteria: A Comparison between the Swiss and the Italian Legal System

Abstract

Transnational judicial communication metaphorically refers to the jurisprudential voluntary use of foreign precedents in the adjudication of purely national cases. Different Courts’ involvement also depends on the legal context wherein they operate. Based on this premise, this article attempts to explore whether and how the Swiss and the Italian interpretative criteria (respectively enshrined in art. 1 Swiss Civil Code and art. 12 Italian Civil Code’ preliminary provisions) impact on the participation of their Courts to this practice. According to this theoretical analysis, the article assumes that partially both interpretative criteria legitimize Swiss and Italian judges to voluntarily refer to foreign precedents. Anyhow, following an empirical analysis of some decisions of the Swiss Federal Tribunal and of the Italian Constitutional Court, the article suggests that, even if apparently endowed with an extensive power, these judges concretely seem not to abuse it. Accordingly, the article finally questions whether all the concerns surrounding this practice might not be a typical case of much ado about nothing.