Nicolò Zanon

A Reflection on Value Pluralism and the Unity of the Law

  • Abstract

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Keywords: Values; Principles; Neo-constitutionalism; Judicial Modesty; Deference.

The essay reviews critically that stream of literature, dominant in a wide part of the current «neo-constitutionalist» culture, which identifies principles and values. It tries to demonstrate how the overlapping of values and principles prevents us to grasp a key distinction in the history of modern constitutionalism. This distinction is the one between the external regulatory function of the law - its so called objective function, which puts order and pacifies conflicts - and the freedom of the inner forum of the interpreter of the law - realm of freedom of conscience which is relentlessly looking for which value to adhere. Within this distinction, specific attention is devoted to the role of the judge as a qualified interpreter with real decision-making powers. The paper advocates a renewed judicial modesty, especially in those controversial cases dealing with divisive issues which are widely debated within public opinion and in the political fora.

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