Certezza del diritto e rule of (common) law. Corti, interpretazione e diritti fondamentali negli ordinamenti australiano e neozelandese

The interpretive activity of the courts in common law legal systems represents a response to the need to ensure the principle of legal certainty, as a possible guarantee for compliance with “constitutional” principles and rule of law. It may be useful to take two legal systems – Australian and New Zealand – as a point of reference, in order to explore the relationships between courts and political actors that traditionally contribute to the formation of legal certainty. The analysis moves primarily from an examination of the hermeneutic canon represented by the so-called principle of legality, the means through which (jurisprudential) protection of fundamental rights and freedoms is concretely given. Born as a rule of normative interpretation, it is now considered an integral part of Australian common law; moreover, it represents the main means for the protection of fundamental rights in a system lacking a codified Bill of Rights. Such a (jurisprudential) construction of a ‘constitutional’ common law, on the other hand, takes on a different declination in the New Zealand legal system, one of the few systems not to have a codified constitution as a fundamental norm; in this case, it will be analyzed whether the presence of a textual Bill of Rights leads to evidence of an equal capacity of the courts to stand, through interpretive activity, as actors capable of defending legal certainty and rule of law.