«The prophecies of what the Courts will in fact do, and not something else with more pretensions, such is my understanding of the law».
Oliver Wendell Holmes (The path of the Law, en Harvard Law Review, 1897).
The growing opacity of the legal system, due to its inflation, which is linked to constant political changes, its poor technical quality, the acceleration of social changes in a globalised and constantly changing context and the world economic crisis that began in 2008, have led to a drift towards a voluntarist and populist justice (judicial activism) and the collapse of our courts as a result of litigation in the field of banking contracts with consumers, in addition to a very dynamic legal system that is difficult to assimilate, judicial protagonism, a drift towards voluntarist and populist justice (judicial activism) and the collapse of our courts as a result of mass litigation based on business criteria and the digital transformation of legal firms.
The aspiration to justice is a desirable aspiration of the judicial task, but this laudable objective cannot, however, be transformed into a subjective criterion for the interpretation and application of the law.
It is true that laws must be interpreted in accordance with the social reality of the time in which they are to be applied, but fundamentally in accordance with their spirit and purpose (art. 3.1 CC) and with absolute respect for the sources of our legal system, and, among them, the case law of the Supreme Court, which is entrusted in our judicial system with the nomophylactic or purifying function and the unifying function, both with a vocation of permanence and predictability.
A regulatory system, in addition to being of high quality, must be clear, stable and predictable, i.e. its interpretation by the courts must be unequivocal, uniform and permanent. Contradictory court rulings deepen the legitimacy deficit that justice suffers in public opinion and discourage investment, which requires well-defined rules of the game whose interpretation and application cannot be modified retroactively to legal relationships that arose within the modified or reinterpreted regulatory framework.
The principle of legal certainty, guaranteed in art. 9.3 EC, is a key factor for a country's progress because it is inextricably linked to confidence and investment, especially foreign investment. One of the main determinants of "country risk" is legal certainty. A secure legal system is also a competitive system, attractive for investment and friendly for business.
ThinkBank is a project to set up a non-profit association whose objective is the scientific dissemination of Banking Law and, at the same time, to provide a platform or channel to promote a debate between independent professionals with absolute respect for freedom of judgement that contributes to improving our legal system, because the quality of our justice system, our competitiveness as a country and, in short, our economic and social development depend on it.