ABOUT THIS SERVICE
JUDICIAL PRECEDENTS AND THE PREDICTABILITY OF JUDICIAL DECISIONS
At the present time it is of vital importance both
for the common citizen and for economic operators to be
able to predict, in a sufficiently reliable fashion, the judicial
decisions which will be handed down on one or
more legal matters, both in the event that there is a pending
lawsuit or not.
In the first case, a knowledge of how the dispute
will probably be resolved will allow the interested party
to act in the most advantageous way to his interests, continuing
the action if a positive result is foreseeable or by
doing the utmost to find a settlement in the event of a
likely negative outcome.
In the case that there is not a pending lawsuit, the
person interested in the legal opinion will be able to
evaluate whether or not to initiate legal proceedings
so as to defend his interests, or indeed evaluate if it is
necessary or opportune to change his behaviour in order
to avoid liability towards a third party.
In the Italian judicial system a fair degree of predictability
exists with regard to judicial decisions. The
reason for this lies in the fact that even though the binding
nature of precedent is not formally operative as in
other Common Law countries, Italian judicial decisions
are normally influenced by the practicality of the so-called
“argomento autoritativo” (from the Latin “
argumentum ab exemplo”). This expression means that judges
abide by what other judges have decided or the interpretation
of legal doctrine by legal academics, amongst
whom University Law Professors have considerable importance.
Interpretation of legal doctrine, which is also carried
out through the giving of legal opinions, has a notable
importance. Such interpretation permits the formulation
of predictions on as yet unexplored legal issues for
which judicial decisions are not available or in cases
where judicial precedents are not easily understood. In
fact, to establish if a statement contained in a judgement
will be observed in future as precedent by other judges
causing them to act in the same way, one must first distinguish
between
obiter dictum, that which is merely a
comment in passing and
ratio decidendi, that which is
the rationale of the decision. The former is a statement
which is not strictly necessary for the purposes of the decision
and hence is not normally useful for predicting future
decisions on the subject. The latter, instead, is a
judgement which has been adopted in a specific case by
a judge because he is firmly convinced of the same and
thus, will probably in future be adopted and observed by
other judges.
Distinguishing between
obiter dicta and
rationes decidendi
is not an easy task and requires recourse to the
services of legal academics with considerable experience,
who, when requested, can give legal opinions
providing one or more solutions on a given issue. Furthermore,
these solutions are delivered in a way which is
understandable to the general public of non-jurists who
are not equipped with the necessary instruments to understand
the often technical and inscrutable language
used in legal statements and judgements.
Professor Franco Angeloni is a Full Professor of Civil Law in the Faculty of Law at the University of Urbino
in Italy. He provides professional legal advice, giving legal opinions with particular reference to civil law in
general and specifically with regard to inheritance, property law and commercial and corporate law.
To contact Professor Franco Angeloni please complete the following
form.
