Costantino Mortati is a classic and - in Italo Calvino’s words - a classic “has never exhausted all it has to say to its readers”. The present paper focuses, in particular, on his conception of constituent power that, albeit old-fashioned, has not yet 'exhausted all it has to say'. This conception lies on a balance that, in Mortati’s view, is essential if any legal system may be said to be democratic and may aim to be stable and long-lasting: the balance between what is ‘formal’ (in the sense of ‘procedural’) and what has to do with to the content of legal acts, as well as between what is ‘formal’ (in the sense of ‘official’) and what is ‘material’ (in Mortati’s well-known significance). Such an interpretation will be shown through three steps: 1. Mortati between formalism and substantivism; 2. the comparison with Carl Schmitt; 3. Mortati's substantivism and its relationship to natural law.
«Un libro che non ha mai finito di dire quello che ha da dire»: La Costituente di Costantino Mortati
Bisogni, Giovanni
2022-01-01
Abstract
Costantino Mortati is a classic and - in Italo Calvino’s words - a classic “has never exhausted all it has to say to its readers”. The present paper focuses, in particular, on his conception of constituent power that, albeit old-fashioned, has not yet 'exhausted all it has to say'. This conception lies on a balance that, in Mortati’s view, is essential if any legal system may be said to be democratic and may aim to be stable and long-lasting: the balance between what is ‘formal’ (in the sense of ‘procedural’) and what has to do with to the content of legal acts, as well as between what is ‘formal’ (in the sense of ‘official’) and what is ‘material’ (in Mortati’s well-known significance). Such an interpretation will be shown through three steps: 1. Mortati between formalism and substantivism; 2. the comparison with Carl Schmitt; 3. Mortati's substantivism and its relationship to natural law.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.