Premesse per una discussione sul rapporto tra continuità e discontinuità nel diritto civile. A partire dalla lezione di Tullio Ascarelli

Starting from a Tullio Ascarelli theoretical and methodological essay published in 1953, this paper proposes a thoughtful discussion on some aspects of the relationship between continuity and discontinuity in Italian civil law. In the background, there is the perceived need for a methodological renewal in the face of Italian case law massive recourse to an argumentation largely based on general principles and general clauses. However, Ascarelli’s methodological lesson shows how the interpreter hermeneutic openness does not represent an attack against the certainty of law and the predictability of decisions (therefore of the transformations of the legal system by way of interpretation), because this hermeneutic openness is never left to itself, but is subject to controls of legal and social nature. Hence, of course – in Ascarelli’s perspective and in that of the most attentive contemporary legal hermeneutics –, provided that the relationship between legal continuity and discontinuity is placed in an authentically historical dimension, which looks to the jurist-interpreter as the subject called upon to assess reality normatively, thus giving rise to new legal rules, in a continuous process of constant adaptation of the legal system to the social order.