Corti, dottrina e società inclusiva: l'impatto dei formanti dottrinali sulle Corti di vertice

With regard to the legal systems under investigation, the Federico II University Research Unit aims to study the French model and its circulation in EU systems of law (Belgium, Luxemburg, Italy, etc.) and beyond, with reference to mainly civil law. Research on French case law is of particular relevance since, among other things, it also relies on the ‘cryptic’ nature of its judgments. This is because, on the one hand, of a legal tradition which is opposed (and widespread) to citing doctrinal works in the judgment and, on the other, the extreme synthesis which characterises legal reasoning. The latter is at the heart of the arrêt, which is almost always based on a syllogistic model based on the sources of law. Nevertheless, this does not mean that doctrine does not play a primary role in the structuring of French legal science, by precisely promoting the circulation of ideas and comparison of solutions in the various legal systems, and often aiming at a higher level of protection of civil, social and economic rights, with specific reference to the struggle against various forms of separation, discrimination and inequality. In essence, this research aims to verify: 1) to what extent doctrinally-shaped legal formants in French law (that is, those which provide the legal basis upon which the legal system of a given society actually develops) permeate judicial precedent-shaped formants in the various legal systems, by means of citations (explicit and implicit) of legal literature in the judgments of the higher or inferior courts. In addition, cases will be analysed in which doctrinal influence, to a greater or lesser extent, is not present so as to understand the reasons for why legal formants may be halted; 2) in those instances where doctrinal formants are influential, what function doctrine plays in the reasons behind the decisions made in concrete cases; 3) if and how doctrine may be seen as aiding the spread of theories and approaches which in turn offer stronger protection of fundamental rights, including social rights and the promotion of social inclusion; 4) what are the determining factors helping to circulate doctrinal formants in jurisprudence; in other words, what determines the ‘success’ of a particular doctrine or legal theory. The main objective is therefore towards a better understanding of those procedures that are accountable for the creation and justification of concrete cases and their resolution by the judges themselves. The doctrine will thus be analysed within a practical context in order to understand its role in the reasoning behind the judgment. The second aim is to verify to what extent the doctrine sets itself as a factor influencing the spreading of theories and approaches which offer more protection of fundamental rights, including social rights, and the promotion of social inclusion, with particular reference to the problems of work, home and education, as well as overcoming political, ethnic, sex, age discrimination and so on, without disregarding specific issues relating to immigration. The third and more general aim is to identify the direction of circulation flow of legal theories and solutions within the French legal system.