In this paper I describe the conceptual impact the new Italian Constitutional Court had on the theory of law in Italy in the period immediately after World War II. My thesis is that this theory did not develop a notion of the framework of government consistent with the innovations introduced by the new Constitution. More to the point, instead of revising the concept of judicial power in light of a constitution – like the one enacted in 1948 – that consists of (quite indeterminate) “prin- ciples” rather than of “rules,” Italian legal theory viewed the Constitutional Court as merely an exception to the traditional idea of the judge, akin to that of the judge as the bouche-de-la- loi. My aim in tracing out a history of the relevant concepts is also to investigate them from a theoretical perspective. Indeed, the article is meant to also shed light on questions that went unanswered at that time – such as the limits of discretionary power in judicial interpretation, the role of the judiciary in contemporary constitutionalism, and the “political” relevance of its action – in such a way as to enable us to move beyond the received view of judicial power.

Un'occasione mancata. Il dibattito italiano sulla giurisdizione costituzionale del secondo dopoguerra

BISOGNI, GIOVANNI
2015

Abstract

In this paper I describe the conceptual impact the new Italian Constitutional Court had on the theory of law in Italy in the period immediately after World War II. My thesis is that this theory did not develop a notion of the framework of government consistent with the innovations introduced by the new Constitution. More to the point, instead of revising the concept of judicial power in light of a constitution – like the one enacted in 1948 – that consists of (quite indeterminate) “prin- ciples” rather than of “rules,” Italian legal theory viewed the Constitutional Court as merely an exception to the traditional idea of the judge, akin to that of the judge as the bouche-de-la- loi. My aim in tracing out a history of the relevant concepts is also to investigate them from a theoretical perspective. Indeed, the article is meant to also shed light on questions that went unanswered at that time – such as the limits of discretionary power in judicial interpretation, the role of the judiciary in contemporary constitutionalism, and the “political” relevance of its action – in such a way as to enable us to move beyond the received view of judicial power.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11386/4647184
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