Alessandro Martinuzzi

Case law order and institutional facts: A comparative analysis upon the normative attitude of intermediate bodies

  • Abstract

Informations and abstract

Keywords: Osservatori sulla giustizia, American Law Institute, Neoinstitutionalism, Instituional facts, Normative phenomena, Precedents, Chinese judicial committee, Restatement.

In recent years, different legal systems experienced the emergence of new institutional phenomena which are characterized by a significant normative impact, even if far from the ordinary legislative pattern. Most of the times, the effectiveness of these institutions depends upon the judicial application and the direct involvement of judges, regardless to the particular tradition of the legal system. The prevalence of intercategorial compositions reveals the methodological importance of debate and confrontation in order to get acceptance without the provision of a sanction by the legislator. With the exception of the interesting experience of the Popular Republic of China, the neo-institutionalism of MacCormick provides some help in explaining these phenomena and foresee the possible development.

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