Legalità e illegalità nella Costituzione
This essay is an attempt to stress the gap between the Constitution as a (written) document and the “living” Constitution and to point out the «constitutional legality »’s idea as the capacity for providing how the Constitution works, in the sense suggested by the English and American political cult...
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| Format: | Article |
| Language: | English |
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Rosenberg & Sellier
1993-04-01
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| Series: | Quaderni di Sociologia |
| Online Access: | https://journals.openedition.org/qds/5921 |
| Summary: | This essay is an attempt to stress the gap between the Constitution as a (written) document and the “living” Constitution and to point out the «constitutional legality »’s idea as the capacity for providing how the Constitution works, in the sense suggested by the English and American political culture. In short, the «constitutional legality» consists of two elements: the consent about some principles and a decision-making process, both presettled. If so, defining the «constitutional illegality» is not as easy as it could seem: we can think of this concept as “lack of rules”. In the author’s opinion constitutional law is the legal field where the games theory can be applied more successfully. It makes we think of the «constitutional illegality». Into the Italian legal system rules work on the basis of their hierarchy, which defines several powers’ authority. We can see the most serious pathology of our constitutional system when the rules’ production does not depend on this hierarchical principle: this pathology has been highlighted by several sociologists of law and political scientists who have stressed that general rules did not come from the legislature, but from the executive or the judicial power. If we read the Constitution as a political document we will find some basic political values (the “distributive justice”, “civilliberties” and soon) the political leadership’s legitimization is built on, but among these basic principles we can not find another ones, like the “economic liberty”.Today the judical power seems to balance the constitutional system. Its internal organization has been directy established by judges. After having done it, they are searching for public opinion’s support, but, paradoxically, this judges’ action is another example of «constitutional illegality» because it is difficult to provide for the constitutional game’s rules. |
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| ISSN: | 0033-4952 2421-5848 |