Mario Dogliani

Constitution in a Formal, Material, Structural and Functional Sense: With Regard to an Observation of Gunther Teubner on the Self-destructive Trends of Social Systems

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In times of worry over the erosion of the Constitution and democracy itself the topic of the conflict between material constitution and formal constitution returns. And it returns in the terms expressed by Schmitt, viewing the material constitution as the 'political sovereign' and the formal constitution as a normative whole exposed to the force, in the final instance not subject to constitutionalisation, of that sovereign, i.e. of those oligarchic powers. It is true that this thesis does not dominate in solitude the field of constitutional discourse, since the material/ formal opposition is propounded in terms completely different from those current that are grouped together under the name of 'neo-constitutionalism', according to which the material side of the constitution is to be identified not with principles that express a situation brought about by force, but with social morals, understood as a widespread, shared whole of principles of justice. From this viewpoint the formal constitution is seen as a sort of container, always open to innovations produced socially. Each of these theses can be presented in terms more or less descriptive and more or less judgmental.

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