CONSIDERATIONS ON “PROSPECTIVE OVERRULING” IN CIVIL PROCEDURAL LAW

Abstract

The role of case law in the formation and development of Law varies according to the legal system in which it operates. In countries of the common law tradition, judges create the Law, and adherence to their precedents is an imperative of legal certainty. However, in countries of the Roman law tradition, characterized by statutory law, the idea of legal certainty and stability derives from enacted legislation. Even within this system, the relevance of case law cannot be denied, especially with regard to consolidated precedents, given the need to ensure uniformity in the interpretation of the law. Thus, the role of the modulation of effects in cases involving the overruling of established understandings emerges as a matter of significance, particularly concerning the guarantees of legal certainty and legitimate expectations that citizens place in the Judiciary. In this context, the prospective effects of overruling appear to be one of the means of giving practical effect to such an objective.