Umberto Breccia

General clauses and role of the judge

  • Abstract

Informations and abstract

Keywords: legal general clauses - rationality of decision - cultural formation of judiciary

The paper examines the function of general clauses. In the first part the author gives a comprehensive view on the topic and he evokes the dynamic image "from general clauses and into general clauses" to summarize the jurists approaches towards these clauses. There is a strong relationship between legal pluralism and general clauses: the normative heterogeneity and the different forms of law making affect their function of continuous adjustment of the law to society changes The second part deals with the role of the judge in the light of some current problems and tendencies of normative production, illustrated by dichotomous schemes: continuity and discontinuity; use of types and innovations. The content of the single provisions and of their combinations always reflect themselves on the extent of the power of the judge; when the provision contains a general clause, the judge plays a determinant role of law making in relation to the fact. The quality or the mediocrity of such mediation depend also on the judges' culture.

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