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Le funzioni delle Corti supreme. Cenni generali

SKU: 9911179002
Autore:
Taruffo Michele
Estratto Rivista

Annuario di Diritto Comparato 2011

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The many differences that characterize the courts that can be defined as «supreme» make particularly difficult to analyse their functions in a comprehensive way, also because these functions are often numerous and heterogeneous. Nevertheless, it can be underlined one function that seems – at least in general terms – common to these courts, and that consists in the protection and promotion of legality. Indeed, we have two function before us: the first is reactive and consists in verifying the legitimacy of decisions already taken in concrete cases, while the second is proactive and consists in promoting the evolution of the law. The former function is typical of those courts that embody the «cassation model», while the proactive function is typical of constitutional courts and of supreme courts that select and control their own precedents in order to influence the future developments of case law. This function is particularly evident when supreme courts deal with the protection of the fundamental rights. It is carried out mainly through such instruments as the control of precedents, the selection of recourses on the basis of the importance of the matters that have to be decided, and also the more and more frequent reference to foreign law. In this way, it is possible to identify the fundamental characters that a modern a supreme court should have to carry out effectively a proactive function of participation to the evolution of the law. Consequently, it becomes also possible to measure the distance that separates the different supreme courts (like the Italian court of cassation) from a kind of ideal model of supreme court.

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