Le clausole generali tra struttura e funzione

The essay deals with general clauses, a typical legal tool, by providing. an explanation of their structure and function. According to. legal Realism, legal interpretation concerns the concept of natural. law and focuses on the role of the judge in the law-making processes.. The answer to the everlasting question on whether a “just” law can. exist, is deeply bound to the relationship between positive law and. “living law”: the judge actualizes the rule, that only within the application. can become “positive”. The structural analysis in this article. underline the difference between general clauses, general legal standards. and analytical legal standards, thus proposing a distinctive criterion. based on the evaluative concepts used. The functional analysis,. on the other hand, moves from some remarks on general principles. that underline the differences between those and general. clauses: these are operative tools which provide for the connection of. the legal system with other external system. The relationship between. law and reality is therefore “osmotic” and the values that steer. the judge in the decision-making process, when based on a general. clause, are not only the ethic ones.