Abstract

The author affords a picture of the recent scholarly debate between those advocating a return to the concept of legal certainty typical of the continental positivistic tradition and those denying such possibility, with the aim of demonstrating that both these perspectives reflect the need of taking a position vis-a-vis the institutional conflicts currently opposing judges to legislators. According to the author, both these scholarly assumptions not only are biased by such need, but tend to neglect the effective challenges which judicial 'creativity' raises for constitutionalism. On the other hand, the essay examines whether, and to which extent, current reliance of European continental courts on the caselaw as a substitute of the legislation's certainty can be reconciled with constitutional law.