Stare decisis e argomentazione giuridica. La logica del common law e il diritto sovranazionale europeo

This essay argues that the logic of common law reflects itself in the duty of legal practitioners in common law systems. The ethical codes and rules of conduct that govern advocacy in common law require that attorneys and barristers disclose to the courts adverse precedents and make arguments that also incorporate them. This rule creates an intellectual framework for litigation that is lacking in supranational European law, not with standing its reputation keeping a common law approach. The obligation to disclose adverse precedents also explains why supranational European law and common law diverge in how they practice overruling, cite foreign precedents and sometimes treat amici curiae.