Sulla distinzione tra norme e principi

This written questions: (a) the historical origins and the different kinds of the conflict between rules and principles and (b) the limits of usability of the subsumption method in the identification of prescriptive capacity of the principles. In the period prior to the EU private law, the principles were used essentially to meet the evolving needs of a system oriented towards the goal of completion in relation to a hoped but consciously unreachable completeness. In the current system of legal sources, when it became clear that the processes of the law no longer depend only on the Italian Parliament, because they have to deal with a system of sources which assigns the national legislature a competing role in determining the applicable law, the system values inherent in the new type of principles reacts to the risk of inconsistency also imposing on anyone other than the legislature the task of identifying what the legislature is no longer able to do the same exclusively, that is, create the rule of law. We can not say that the technique of subsumption is actually unenforceable: we are witnessing, more precisely, to a postponement of its use, which is still necessary but which is in fact preceded by the completion of a work of concretization, which is entrusted to the adequacy of an argumentative apparatus. In this way the principles become the rules of a creation process of law and the hypothesis of the fact (“fattispecie”) — instead of being given once and for all — becomes argumentative outcome of the reconstruction of the principles. The hypothesis of the fact (“fattispecie”) continues to be a necessary condition for the application of the rule and it may be the subject of critical assessments of the interpreter, who have the responsibility to complain about its inaccuracy or inadequacy and therefore to offer a different reconstruction and a consequent distinct regula iuris.