L’attuazione dello scopo pratico della legge tra giudice e legislatore: Rotondi e “Gli atti in frode alla legge”

In the work of Rotondi, who devotes himself in great detail to the analysis of the numerous practical cases of Roman law, a methodological inclination emerges which combines innovation under dogmatic control, underpinned by the reluctance to break pre-existing paradigms and by the predilection for harmonious development that relegates solutions of continuity with traditional juridical categories to exceptions. This is even more evident in his reflection on the evolution of the meaning of the word fraus and on the consideration according to which the fraus legi of Roman-Justinian law could be configured as an interpretation technique (like aequitas and bona fides), through which the interpreter should have grasped the spirit of the norm before the literal datum. From this investigation derives the conception that recognizes in fraud a diversion of the cause from its purpose, indirectly achieving the result that the law prohibits: the elusive transaction is therefore distinguished from the directly illicit one for the sole circumstance that the violation of the law is hidden. In particular, this survey aims to help understand Rotondi's pages, while attempting to offer, at the same time, valuable insights into the current regulatory context.