Maurizio Fioravanti

The Legislator and the Judges Before the Constitution

  • Abstract

Informations and abstract

Keywords: Constitutional State; Rule of Law; Legislator; Judges; Myth of the Constitution; Will.

The author identifies a transition between the «Rule of Law of the tradition», still dominant at the time of the Italian constitutional assembly, to the «Constitutional State of the present». This passage has produced a new configuration in the relationship between legislation and jurisdiction. The legislator has lost its monopoly in the application of the Constitution, while judges have been carrying out their ordinary functions under a growing impact of the Constitution. This transformation should not be seen as an anomaly, because it is not the product of a violation of fundamental principles of the Rule of Law. At the origin of this phenomenon one can find the dissolution of the «myth» of the legislator - the «myth» of the original will which lays the foundations of everything else and which is naturally transferred in the first and predominant power: the legislative. At the same time one could also point at the fading away of the mythical character of the origin of the Constitution, which is moving closer to other ordinary legal provisions and as such is seen as the product of concrete and plural wills, all measureable and verifiable.

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