Review de Principia Juris

7/27/2019 Review de Principia Juris

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Iri, Iss 2036-3257, I, 2 October 2009, p. 557-579

Firenze Univerity Pre

A Caaa, P Ca

nd Gm Pon

Luigi Ferrajolis Principia Iuris*

The Formalisation of Rights and the Disorder of Politics

Alfono Ctni

It i no ey tter to do jutice to work tht i coprehenive nd dierentited

Luigi Ferrjoli Principia Iuris. For we re confronted with n extrordinrily rich

of docuenttion nd rguenttion here. Yet there i certinly one thing tht gretly

fcilitte thi tk prt of coure fro the pleure nd interet which uch detiled

nd ignicnt contribution cn hrdly fil to provoke nd tht i the logicl tyle in

which the work i copoed. The text begin by contructing forl nd xiotic

prdig of right, clerly explicting it vriou level nd dienion, before proceed-

ing to pply thi conceptul-ctegoril frework, with ll it r igorou conequence,

to the tk of furnihing theory of deocrcy tht i reponive to the dend of tie like our own. Thi i tie in which we re witneing profound crii of

contitutionl deocrcy nd coniderble biguity in the interprettion of the role

which fundentl right cn ply in uch deocrcy tie of pot-deocrcy

nd of n evident rhetoricl evcution of the celebrted lnguge of the right of n.

Before ddreing Luigi Ferrjoli line of rguent directly, I hould like to

ephie thi prticulr tylitic feture of hi work. And here, of coure, I pek-

ing of tyle in the logicl nd conceptul, rther thn the literry, ene of the ter.

A progre tht envige ytetic nd in oe ene totl nd exhutive con-

ceptul recontruction tht ebrce the entire evnecent relity in which we live

cnnot fil to hve the ot profound conequence for ny rigorou cientic ndtheoreticl invetigtion. The tk i to contruct yte, to crete n rticulted nd

coherent logicl tructure which furnihe the et-theory of lw nd of the theory of

lw. And nything which cnnot be reduced to thi yte, trnlted or trncribed

in ter of thi tructure, cn only be regrded theoreticl lcun, diculty

tht require olution.

Although the dend for xiotic coherence could eily ugget uch iun-

dertnding, Ferrjoli pproch doe not produce n eentil ly ttic or conervtive

conception of the prdigtic reltion between lw, right nd deocrcy, but yield

precie project for the further expnion of lw, nd revel Ferrjoli legl thinker

* L. Ferrjoli, Principia Iuris. Teoria del diritto e della democrazia, 3 vol., Roe-Bri: Lterz, 2007.


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558 Alfono Ctni, Pietro Cot nd Geinello Preteroi

who i ephticlly engged with the rel world. Thi totl iing ethodology, which

for Ferrjoli iplie concrete nd relitic project for expnding the phere of con-

titutionl control over the current tte of globl diorder, ut contntly be borne

in ind in ll our reection on thi text.

Every plug ut nd it proper plce, nd every ce in point it pproprite nor-tive clriction; nd if it fil to do o, thi cn only produce troubling lcun

with repect to the relition of the ethico-politicl juridicl nd contitutionl prin-

ciple, if it i conidered fro the et-theoreticl perpective of the whole coherent

tructure. A juriprudentil theorit, we ll know tht thi juncture of theory nd

prctice i theenitive iue: the point where principle of jutiction nd politicl

legitition re converted into principle of internl jutiction. Theprincipia iuris et

in iurere ubitted to further nd deciive point of view. Ferrjoli rguenttion

will purue thi proble in detil.

With full wrene of the diprity between logicl principle nd ctul lw

(including hiprincipia iuris), Ferrjoli ccord the nortive burden to the phere oflogic in reltion to the poitive lw of the contitutionl tte: the gp produced by

the lck of correpondence between logic nd the poitive relity of lw i lled by

the uthorittively nortive nd precriptive chrcter of logicl nd et-juridicl

dicoure in reltion to the poitive one. Thi i the proper ite of theprincipia iuris

tantum. Wht i in quetion here tht level of nortivity which render explicit the

precriptive chrcter of the contitutionl nor theelve.

Thi cli of Ferrjoli prove deciive when the entire theoreticl tructure revel

it prgtic dienion in contructing the prdig of the deocrtic contitution.

Thi prdig i ubjected to thi et-theoreticl level, thi totlity of politiclly cru-

cil principle, which include the diviion of power, pece, fundentl right, ndrepreenttion. The chief object of Ferrjoli iene ytetic lbour i preciely

toformalise thee bic deontologicl principle. eedle to y, the culturl preup-

poition of thi pproch i eentilly rtionlit nd enlightened in chrcter, nd

ret on the cli tht nlyticl logic no le thn thetic, grticl rule,

or other yte one could ention here poe n intriniclly precriptive t-

tu in reltion to relity. And for Ferrjoli logic eentilly ignie non-contrdiction

nd ytetic copletene. The rt volue contruct the logicl preter of the

theory in uch wy tht nything tht exceed it, or devite fro it, either ue

n ntinoil chrcter or becoe lcun in the yte. And it i thi contruction

which then furnihe the indipenble preie for the econd volue which providethe juridicl theory of deocrcy. The i i to vindicte juridicl ought derived

fro theprincipia iuris tantum for the ordinnce tht re dened in deocrtic ter

on the bi of the internl or contitutionliedprincipia iuris.

It i evident tht the uthor intention i ephticlly criticl nd prgtic in

chrcter, nd the concept of right erve logicl device for expoing the ere

pproxition to deocrcy, nd indeed the betryl of deocrcy, on the prt of

thoe exiting deocrcie which re o redy to procli their own deocrtic cre-

dentil. Thi ut be pointed out tright wy in order to dipel the ipreion, tht

y oetie ee encourged by the uthor hielf, tht one could concentrte

entirely on the econd volue, given tht the rt volue i forulted in rigidly n-lyticl nd logicl ter nd thu ee to ugget n utterly btrct conceptul world


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559Luigi Ferrjoli Principia Iuris.

nd rigid juridicl odel well. Yet I believe tht thi hypothei could ctully be

revered: theprincipia iuris tantum re crucil, in fct, to the trnition to the nortive

theory of deocrcy, nd poe n entirely forl, rther thn xiologicl, chrc-

ter. For it i they which provide the principle of unity, coherence, nd copletene,

while theprincipia iuris involved in the concept of right re xiologicl nd evlutivein chrcter: pece, repreenttion, fundentl right, nd o forth. But on their own

they re inucient to erve criterion for criticiing the indequcie of exit-

ing circutnce nd bringing bout the requiite chnge. It i on ccount of the

ought, of the deontologicl uch, tht the juridicl deocrtic ordinnce poe

forl tructure correponding to the principia iuris tantum, nd it i thi tructure

which give cogency to the ubtntil principle of jutice.

I hould like to oer oe brief rerk regrding the truly ipreive lbour of

logicl nd xiotic orgnition which i diplyed in Ferrjoli text.

A we hve lredy indicted, the key to the work i et-theory of lw. For

older reder, thi terinology theory of the theory of lw will recll the periodwhich Ferrjoli explicitly invoke, nd to which he declre hi llegince, the golden

ge of conceptul juriprudence. But we ut ieditely note tht hi nlyi i fr

fro btrctly theoreticl or devoid of evlutive coitent. In it theoreticl bi-

tion, hi nlyi of lw nd peciclly of poitive odern conception of deocrtic

nd contitutionl lw goe beyond the eprtit pproch of tht erlier period. It i

theory of lw which exprely preent itelf contruct which ove fro deonto-

logicl lw to poitive lw, thu ddreing the exiting contitutionl tte nd prcticl

quetion of eccy, including with reference to fundentl contitutionlly gur-

nteed right nd the prdig of the contitutionl tte the quetion of deocrcy.

We y lredy ee here how Ferrjoli pproch overturn coonplce con-ception to which we hve becoe o eily ccutoed, nd return u to the poition

of odernity in it clicl phe, inofr it ttept to juridify politic, rther thn

to politicie lw. Deocrcy i criticlly crutinied in the light of deductive nd

xiotied che of lw. Thi perpective dend eriou conidertion in it own

right. Clerly it i not quetion of decribing relity in ter of the dierent vector

of ocil nd intitutionl power, of politicl nd governentl yte in the nrrow

ene, of econoic, ideologicl, collective, locl, ub-territoril or upr-territoril fc-

tor which previl or conict with one nother t dierent level of contettion or

coexitence, ll vector of power ongt which ntionl lw nd perhp the intern-

tionl order well ut lo be included. The relity of juridicl reltion i not iplyconceived, we tend to think tody, multilevelplurlity of ource. If it i true tht

the lw, even in the relity evoked by Ferrjoli, repreent the ediu of ocil rel-

tion in the context of thee vector of power, it i lo true tht thi diorder i evoked

within the overll perpective of reilient orgnied nd deductive che which

pper cpble of being ubjected to unity nd coherence by en of precriptive

principle. The evidence for thi contnt reitertion of n ordering (overeign?) truc-

ture i lo provided by the upree nd unchllenged hierrchicl ignicnce tht

ttche to the principle of Declrtion of Right. By reference to thi principle the

uthor hold tht relevnt tructure of order could pluibly be extended to our glo-

blied world, thu betowing nortive coherence upon the ltter nd reedying thelcune which continue to chrcterie it. Thu lthough he i fully wre of the incon-


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gruity between ctul relity nd the ide of lw, Ferrjoli ue tht thi incongruity

could in principle be reolved in unied nner, nd hi generl perpective therefore

rein fithful to the periting nortive odel of clicl odernity.

Thi bic cli i clerly connected, in double ene, with the xiotic ethod,

i.e. with rigid nd rigorou recontruction, in logiclly coherent conctention, ofll the relevnt conceptul ter, but lo, nd bove ll, with the founding rtionl

cli of the totlity of rguent which legitite the precriptive chrcter of the

theory: chrcter which revel quinteentilly odern Enlightenent perpec-

tive in the fce of relity itelf. Once the xio nd the principle of coherence

which ut pply to the dierent dienion of the nortive juridicl yte re

properly etblihed, one cn only convict the unted rel of relity, the turbid,

confued, contrdictory, nd inconcluive for of ctul prxi, for lcking genuine

vlidity nd legiticy.

In thi xiotic ethod, we cn ee, it i not the theory of the theory of lw

which reect the nrchicl chrcter of ctul concrete for of prxi. On thecontrry, it i the unitry, coherent, nd thu lo rigid, deontologicl odel which

identie the principle of lw ctully ineective, nd the vriou for of prxi

illegitite, to the degree in which there till rein, and cannot but remain, certin

diprity or incongruity here.

I hould like to drw prticulr ttention, within the et-theoreticl contruction,

within the theory of lw chrcteriticlly dened n orgnic coplex of cli

(nd reducible to coherent unity preciely becue of thi orgnic chrcter) to the

ection of the work dedicted to prgtic, which peciclly elborte, with conid-

erble theoreticl power, the dicult expliction of the teleologicalchrcter of juridicl

concept nd ertion. Thi teleologicl chrcter i obviouly jut bound up withthe hun sensus communis it i with the ideologie tht nd expreion in the vriou

project nd context ocited with the generl conception of lw nd right.

I think we hould ephie the prgtic here ince, I hve lredy uggeted,

the iene theoreticl lbour of Ferrjoli certinly hrbour trong, indeed p-

ionte, prgtic project t it core. The noteworthy vigour nd intenity with which

Ferrjoli broche the criticl iue of the reltionhip of theory nd prxi in ter of

ntinoie lo explicitly revel the ignicnce of the work, centrlly concerned it

i with the wy in which juridicl for relte to the relity tht it would like to chnge.

The xiotied et-theoreticl preie of the work crete certin linguitic

level, t once rticil nd conventionl, which redily lend itelf to forlition, icontrted with the level lo dittedly forl, but in highly fryed nd incoher-

ent wy of the dogtic tructure of the prticulr juridicl dicipline. Thi double

focu i explicitly choen for the ke of the reon which utin the work whole:

ipliction, clrity, univocity, deductive logicl orgnition, coherence, yte-

ticity, the rejection of ll for of pori nd bivlence.

For Ferrjoli, the extrordinry rigour, though perhp we could lo y, the rigid-

ity, of the odel cn prdoxiclly enough prove to be the bet wy to ount

critique of the indequte relition of lw, or to project the relevnt legl gurntee

which current relity lrgely diregrd. With both pion nd conitency, he in-

tin tht the odel pprent detchent fro the chotic nd diorderly chrcter ofjuridicl dicoure nd concrete politic pve the wy for ore rigorou forli-


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tion of the xiologicl nd ubtntil ipliction of deocrtic contitutionl lw,

forlition which could furnih en of ore fully reliing principle of lw, or,

ore preciely, of dequtely vindicting uch right, with repect to the uneployed

nd the weket eber of ociety, for exple. And it ut lo be ditted tht

coplex forl contruction which Ferrjoli oer u in thi connection i explinednd clried with coendble preciion. But thi i not the centrl proble.

If I hve inited prticulrly trongly on thi point, it i becue I conider it to

be eentil if we re to undertnd the pirit of thi work nd the coplex project

it ebodie, project which, I point out once gin, i ctully nything but purely

btrct nd theoreticl, in pite of the oetie forbiddingly btrct level of it

forultion. But to return to the prgtic dienion of the work: Ferrjoli ke

hi own poition quite cler with regrd centrl iue of the conteporry debte

by ephticlly endoring nortive, rther thn the vlue-free, conception of the

juridicl cene, whether we re peking, obviouly, of the level of poitive lw, which

include contitutionl nor, or of the dogtic level (nd here perhp we perceivethe inuence of Betti, nd the evlutive prgtic dienion which i developed

in the nlyi nd interprettion of the lnguge of poitive lw), or, nlly, of the

level of theprincipia iuris tantum, ince hi purpoe i preciely to how the precriptive

chrcter of the deocrtic order whole.

ow Kelen lo ephied the dicretionry nd evlutive chrcter of legl nd

interprettive lnguge, but he drew the line t tht point, nd endored the yth of

purely decriptive legl cience, or one tht t let pired to the tndpoint of neutrl

decription. Ferrjoli, on the other hnd, rgue tht the precriptivity, the nortivity

of the et-theoreticl lnguge, i itelf contitutive, tht it i not xiologicl or vlue-

free fro the cientic point of view, but i precriptive in reltion to the for to whichit i pplied. The ignicnt tructurl lcune which, for the reon lredy indicted,

tetify to the inevitble detchent of the juridicl order fro the chotic nd dynic

chrcter of relity cnnot be reedied, ccording to Ferrjoli, by oe uthorittive

interpreter, but rther dend to be resolved, nd I ephie gin, resolved, by the theo-

rit or et-theorit the logicl or conceptul proble which they re.

To re-trncribe n event uch n ggreive rther thn defenive wr, for ex-

ple, in ter of the proble of the lck of correponding nction obviouly iplie

logicl nd theoreticl solution, nd not, le coplex nd rigorou pproch would

cli, n ct of dignoi or politicl therpy. The reltionhip between lw nd politic

ee to be developed here in ttic nd horizontl ene: it exists, it i nifet in theubtntil nor of the contitution (which will lo hve been choen by oeone t

certin tie or other), but thee nonethele cquire forlition, deontologicl

chrcter which i binding in logicl nd teporl ene. And thu ctul jurit cn-

not help but ppel to the xed hitorico-teporl chrcter of thi reltionhip, nd if,

for exple, there i no dequte gurntee for the relevnt politicl vlue, they will

denounce the lcun in quetion, or better, wil l denounce the ordinry legilture for

violatingthe obligtion to enct lw tht ebody thoe vlue. In hort, the theoreticl

jurit Ferrjoli hielf or nyone ele cpble of pplying the ytetic forli-

tion i lredy trngely precriptive, lredy exercie n exprely nortive ctiv-

ity, without dopting ny direct politicl role, which i oething tht could only beexercied eprtely. speking, it were, in hi ocil cpcity repreenttive of


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(enlightened) rtionlity, the jurit denounce the dipritie, the nolie, the lcu-

ne tht re reveled in the orgn reponible for dinitering the lw in the everydy

context, nd thu decide, hitoriclly peking, on how lw, the principle of leglity,

the diviion of power, etc., re to be undertood.

Conidered in broder nd ephticl ly ore relitic cognitive context, wouldit not be the tk of the theoreticl jurit nd philoopher of lw to regiter the ctul

nol ie, the incoherencie, the dipritie etc., nd, bove ll, to indicte the force

which lo nd expreion in juridicl prctice, nd how how the bivlent chrc-

ter of thi prctice y dpt nd repond to new politiclly eerging dend? Why

hould they hve to pply theprincipia iuris tantum (in ll their unity, coherence, nd

copletene) in order to ccount for the entire nortive tructure?

And I hould like to point out certin curioity here: if coherence nd co-

pletene re vlue to be purued, nd not jut fct to be regitered, one cn, up to

certin point, endore thi pproch. But thee vlue re often internl to right, to

certin yte of lw which i hitoriclly given, for exple, to the Itlin yteetblihed in 1942, one which, independently of it other politicl nd ideologicl

feture, in the preliinry proviion of the Civil Code involve thee liberl princi-

ple. The reltionhip between lw nd politic i neither ttic nor uceptible to totl

rtionlition. In the ctul context of everydy life, the orgn of the ocil order nd

the citizen theelve frequently, nd often unconciouly,give political form to their

own ct nd deciion, nd thu fro tie to tie deterine, tht i, provisionally

deterine, their politicl poition through prctice of interprettion.

The ection of the work peciclly dedicted to deocrcy, we hve pointed

out, i by no en externl to Ferrjoli project. For it proceed fro the xio-

tied theory of right to furnih nortive forultion of the contitutionl pr-dig. The foundtion of the nortive thei lie in the xiotic network of cli

nd ertion which render thi nortivity copelling, tht i, logically copelling.

Ferrjoli i fully wre of the extrordinry lck of unity in the legl order, of the

indequte cpcity of exiting lw to regulte re of behviour nd entire ector of

life which would be crucil for the genuine exercie of fundentl right. He i eqully

wre of the profound, one ight even y genetic, chnge he ut confront regrding

the nrchic plurlity of legl ource, the uperipoition nd contrdiction of infr-

ytetic juridicl principle nd extr-juridicl decree which re ieditely cted

upon, the frequent itution of the upenion of legl gurntee, oething which

inted of being dened in the context of tte of eergency i redened in the con-text of undicloed preventive eure. In hort, the uthor i perfectly wre tht the

world i notone which i orgnied in ter of hi contructed juridicl order, nd hrdly

reeble the rigorou, coherent, nd unied prdig tht nd it bolute found-

tion in hi xiotied theory. But he delibertely nd rdiclly defend the nortive

chrcter, the fundentl nortive cli, of hi et-theory in reltion to the lw.

And thi i crucil, ince hi perpective, i well known, cnnot be iilted to

purely forl nd procedurl conception of deocrcy. Wht Ferrjoli piontely

defend point of honour i the ide of ubtntive deocrcy, of the indioluble

nexu between the overeignty of the people nd the buttre of fundentl right,

nd thu eek to contin or prevent poible bue on the prt of the jority byetting r contitutionl liit to ny uch ction, by reinterpreting the till contr-


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dictory concept of overeignty logiclly through the principle of deocrtic liit-

tion, nd by reforulting the centrl role of gurntee regrding trictly univerl

right, including ocil right. And he doe o with view to extending the contitu-

tionl deocrtic prdig, he h preented it, t once forl nd ubtntive, nd

exprely juridicl, to the interntionl order.Other ore copetent in thi eld thn yelf y be ble to pek ore uthori-

ttively on thi wy of nlying nd preenting the deocrtic prdig. In expreing

y own thnk to Ferrjoli for hi enorouly ignicnt contribution to quetion of

fundentl concern to ll of u, I cn only reiterte in concluion tht hi pproch

dend 1) rtionlly ordered perpective, nd thu one tht cn be preented in n

entirely coherent nd denitive for, nd 2) preuppoe, bove ll, n ephtic co-

itent to the rtionl, univerl, nd necery foundtion in logic. For only uch

n pproch, the uthor believe, could poibly erve, it h never erved before, to

furnih cogent nortive criterion for ddreing the diorder of current relity nd

the heterogeneou otivtion of thoe involved in pplying juridicl prctice itelf.

(Translated from Italian by Nicholas Walker)

Alfono CtniUniverity of [email protected]

Towards a Reading of Luigi Ferrajolis Principia iurisPietro Cot

I ut begin by declring certin ebrrent: I nd it very dicult to dicu the

ltet book by Luigi Ferrjoli not only on ccount of y own ubjective liittion,

but lo on ccount of the nture of the ubject tter in quetion. Wht then re the

prticulr dicultie which ny reder of thi text ut confront? The ot obviou dif-

culty would ee to be connected with the unuul dienion of the work itelf: in book rket tht i increingly dointed by the odel of the intnt book, we re

uddenly preented here with work in two hrdbck volue, with n extr volue

in CD Ro fort. The third volue lone ount to 1,002 pge, nd i thu only

ingle pge horter thn the e uthor erlier work, Diritto e ragione, which itelf,

h often been oberved, poee nuber of pge (1,003) which equl the nuber

of spnih beutie entioned in the fou lit produced by Leporello. But if we dd

the rt two volue to the third, then with repect to it nuber of pge whole

Principia iuris fr exceed the totl nuber of conquet which Don Giovnni nged

to ke in the whole of hi illutriou creer. The conquet of Don Giovnni tnd t

2,065, while Principia iuris coprie 2,746 pge: Don Giovnni i thu defeted, but thepotentil reder of the book y worry tht they will be defeted too.


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Yet in fct uch worry would be unjutied. ot becue there rent ctully

ny pge I hve uggeted, but becue the concrete vlue nd utility of the book

re by no en didvntged by it ive bulk. The third volue i intended, the

uthor tell u, ore ource to be conulted the need rie thn book to be

red yteticlly fro trt to nih: it provide upport nd rigorou found-tion for the cli preented in the rt two volue. And while thee volue re

dending, they certinly do not repel the eort of the eriou reder, who will be

ble to work through the text without experiencing feeling of boredo or exhu-

tion, depite the gret length of the journey involved. But how i it poible for the

reder to undertke thi rduou journey without tiring of the tk? It i poible if we

re properly nourihed nd utined long the wy. And the work diply nuber

of chrcteritic feture which do help to utin the propective reder: rtly, it

bredth of thetic rnge (the ot iportnt iue of the current legl nd politicl

debte re ll thoroughly ddreed nd delt with in depth); econdly, the trnpr-

ency of the overll tructure of the work, which cn redily be grped even by quickglnce t the index; nd thirdly, the punctiliou preenttion of the denition nd

the clrity of the rguenttion. And thi rguenttion cptivte the reder not by

en of ny ttering rhetoric, but iply by the rt of denition, dicriintion nd

ditinction. It i true tht there re certin forule tht re rther forbidding to the

hitoricit ttitude of ny reder, but the uthor hten to reure u by pointing

out tht ll the relevnt forule hve been trnlted into nd nlyed in ter of

ordinry lnguge. And thi proie, expreed in the Prefce, i indeed eectively

intined throughout the enuing work.

It i thu ey to red Principia iuris, long we undertnd the ct of reding

not quick tour of the terrin or cul pling the text (wht we would decribetody rndo pproch), but liner nd equentil proce which dvnce

fro the rt rguent to the following one in the precie order deterined by the

uthor. It i ey to red Principia iuris but the pprent prdox here lie in the fct

tht the very reon tht ke it ey to red lo ke it very dicult to dicu.

The heer ultiplicity of the iue tht re ddreed certinly help to utin the

ttention of the reder, but prevent the coenttor fro providing n dequte

dicuion of ll of the. The rigorou conitency of the rguenttion ( veritble

mos geometricus for the twenty-rt century) cptivte nd involve the reder, but di-

courge the critic fro dwelling on ny ingle link in the generl chin of rguent.

onethele, I hl l hve to do oe violence to the ele grent of the rgu-ent in Principia iuris by drwing prticulr ttention to jut few of the thee tht

contitute the work. One pect tht I hould like to underline in prticulr i it fun-

dentl connection exprely cknowledged by the uthor with n ide tht we

cn trce bck to Autin: the ide of philoophy or theory of right which ly cli

to univerl ity not becue it h been iolted or detched fro every hitoricl con-

tingency, but becue it i contructed, through proce of generlition nd btrc-

tion, by trting fro oe given poitive order, or rther ( Autin recoended)

fro everl poitive order. Principia iuris too revolve round group of legl order

tht re internlly coptible: the contitutionl yte creted in Itly nd Wetern

Europe in the period fter the second World Wr, nd the interntionl order tht hbeen developed on the bi of the Univerl Declrtion of Hun Right. Thee


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legl yte furnih the dt fro which Ferrjoli extrct hi cintillting nortive

odel. The Aericn contitutionl trdition, on the other hnd, rein oewht

in the bckground, it ee to e.

The wy in which Ferrjoli contruct hi odel h nothing iply elf-referentil

bout it, but produce eect in everl direction. Thu it perfor lutry functionof linguitic nd conceptul elucidtion, providing the reder with cler nd univo-

cl theoreticl vocbulry; nd if the odel i derived by btrction fro poitive

legl yte, it lo erve vluble intruent for deciphering nd teting the

internl logic of the; nd, nlly, it lo l low u to purue dichronic coprion

with other order nd juridicl culture of the pt.

But perhp the ot fcinting ppel of the odel lie elewhere: in the wy in

which it both tke up nd trnfor the intellectul legcy of juridicl poitivi.

Ferrjoli chrcteritic tyle of thought i rly nchored in thi trdition, nd oe

of the bic choice nd coitent of the uthor ut, directly or indirectly, be

trced bck to thi trdition well: hi oppoition to the trditionl perpective ofnturl lw (the rejection of the poibility of deriving nor fro the notion of oe

underlying hun nture), hi nti-cognitivit orienttion (the denil tht ethic

repreent yte of vlue tht re objectively true), nd, nlly, hi choice of

fundentlly nortive pproch, rther thn relit or ociologicl one. Thu

the nortive odel developed by Ferrjoli wnt to hve nothing to do with vlue

judgeent or ideologicl-politicl choice: the odel in quetion i olely concerned

with legl order network of nor, right, dutie, power etc. tht i con-

tructed by individul for individul.

On the one hnd we hve the principle of lw, on the other hnd the principle of

politic: juridicl poitivi ut rein fithful to thi ditinction, but it ut lo coeto ter with the new nd deciive eleent repreented by the contitutionl yte

tht were introduced in the pot wr period. For thee contitution trnfor politicl

principle (preciely thoe principle, uch liberty nd equlity, in ter of which nd

in the ne of which the gret truggle of odernity were o rdently proecuted) into

juridicl principle which becoe the very foundtion of the new yte of order.

The ctegoril ditinction between lw nd politic (nd between juridicl theory

nd politicl philoophy) rein intct, but the chnge in the object i lo reected,

to oe extent, in the odel: inofr the ltter i theory of deocrtic-conti-

tutionl order, it cnnot fil to include the gret politicl principle of odernity

intrinic coponent of itelf, without thereby forfeiting it own juridico-nor-tive voction. Fro thi point of view, I would y tht the theory of contitutionl

deocrcy, which i peciclly ddreed in the econd volue, i both the eentil

point of deprture nd inent gol ofPrincipia iuris. But the ttinent of thi gol

itelf require the foridble nlyi nd developent of the tructured theoreti-

cl rguent to which the rt volue i dedicted. The theory of deocrcy thu

preuppoe the theory of lw (lw cn exit without deocrcy, Ferrjoli cli, but

deocrcy cnnot exit without lw). We ut pek of deocrcy andlw; nd, in

prticulr, of deocrcy andright. One of the centrl thee ofPrincipia iuris i pre-

ciely the nexu of copleentrity between the rt nd the econd.

Thi thei, we know, i not uncontroveril. And to undertnd the ene of potentil tenion between deocrcy nd contitutionli, we ut reeber the


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context in which the deocrcie of the econd hlf of the lt century eectively

eerged: they were inpired by the nti-totlitrin ptho of the iedite pot

wr yer, they brethed the ir of the nturl lw trdition (in the brod ene), nd

they were dointed by the need to ephize the role of contitutionlly gurn-

teed right nd ecure the fro interference on the prt of tte power. The pot-wr ypthy for ntur l lw theorie w oon diipted, but neo-contitutionli

till ephticlly ue tht right ut be protected irrepective of the deciion

of ny prlientry jority. Thi uption lredy give rie to the upicion

tht right nd deocrcy repreent two pole of n unreolved tenion: on the one

hnd, the ll-powerful wil l of the demos, the condition of the legiticy of n order

tht conider itelf to be deocrtic, nd on the other, the inviolbility of fund-

entl right. We y lo think of thi nother nifettion of the ncient

oppoition between ratio nd voluntas.

Are we then inevitbly confronted by the oppoition of right nd deocrcy?

By no en, ccording to Ferrjoli, for right, fr fro tnding in intrinic tenionwith deocrcy, re the condition of the poibility for the ltter. In fct, the deoc-

rcy of which Ferrjoli pek i neither the deocrcy of the ncient nor tht of the

odern. The ghot of Roueu, which lo hunted the ide of rdicl deoc-

rcy tht circulted in the nineteenth century, hlt t the threhold of contitutionl

deocrcy, deocrcy which ubtitute the plurli of ubject nd group for

the oni of the deo. In the plurlitic deocrcy of lte twentieth century neo-

contitutionli, nd thu lo in the deocrcy thetied in Principia iuris, there

i no uch thing the demos, the unity of the people, the people ocil body, tht

would be the berer, totl entity, of n bolute nd onipotent overeignty.

Ferrjoli thu h n ey tk in trcing the ide of populr overeignty bck to theu of individul rther thn to oe unitry deo, nd in preenting thee indi-

vidul the berer of fundentl right. Once gin, we ee how deocrcy nd

right coe together to for perfect circle.

One hould lo reeber tht the deocrcy of which Ferrjoli pek h noth-

ing to do with the rhetoric of repreenttion prticiption. In thi repect, the legl

poitivit Ferrjoli, like hi gret predeceor Kelen, i indebted to the relit nly-

e of the elitit trdition. The key gure of thi trdition, fro Moc to Michel nd

schupeter, hve deontrted tht power doe not belong to the people, or to ll

of the citizen, but rther to the few, nd peciclly to the elite, while the chinery

of repreenttion i iply n eective en of creting governing cl (throughthe election of the ble, Vittorio Enuele Orlndo hd lredy rgued), nd

one which lo erve to replce it eber in reltively ooth nd pinle wy.

Thu deocrcy doe not refer u to the overeign deciion of the people: it refer u

inted to u of ubject who re berer of right iputed to the by deocrtic-

contitutionl order. Fr fro being in tenion with deocrcy, right furnih the

contitutive rule nd tructure which utin it.

Ferrjoli expend good del of nlytic lbour on developing the conceptul xi

of right nd deocrcy, lbour which ucceed in lot every pge in y ielding

iportnt reult nd concluion, nd in furnihing extreely vluble conceptul

clriction. And here we ight point, for exple, to Ferrjoli lucid forl de-nition of fundentl right, nd the two ditinction he ubequently introduce:


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tht between peronl nd proprietry right, nd tht between the right of the per-

on nd the right of the citizen.

The rt ditinction llow hi to expoe nd to criticie the confuion of dier-

ent level which w perpetrted by the liberl trdition. For thi trdition ubtn-

til ly identied the ctive nd ppropritive dienion of the ubject nd the concreteeect nd reult of individul ctivity, nd inveted both with the e ur of invio-

lbility. And the econd ditinction (between the right of the peron nd the right of

the citizen) plce hi in poition to chllenge Mrhl l highly ucceful ctegory

of citizenhip. For it i Ferrjoli principl objection tht thi ctegory il legititely

identie cle of right which re conceptully ditinct: the ot divere kind of

right right of liberty nd politicl right, ocil right nd proprietry right re

ll indicriintely trced bck to ingle ource the concept of citizenhip nd

their ditinctive chrcteritic re conted in the proce.

Once gin, the work of conceptul clriction tht i ccoplihed in Principia

iuris i beyond reproch. But we hould y few word on behlf of the unfortunteMrhll who eerge rther bttered fro the hrh nlyticl tretent to which

Ferrjoli h ubjected hi. Mrhll i indeed itken if we look t hi fro the

perpective of the juriprudentil theorit for who the proper denition nd ditinc-

tion of the ctegorie he eploy i crucil. But we hould ber in ind tht Mrhll

i not philoopher of lw, n nlyt of nortive dicoure, but ociologit who

i not concerned with contructing nortive odel, but i iply ttepting to

undertnd the eective ocio-juridicl or politico-juridicl condition in which pe-

cic ubject coe to nd theelve in given context. Thu the ue of ingle ter,

uch citizenhip, to refer to ll ort of right i not oered n dequte repone

to the dend for precie denition or cliction with repect to the right the-elve, but i erely intended to ephie the eect tht thepolicies of pecic ocio-

politicl for of orgnition exercie on the condition (in the brodet ene) of the

ubject tht belong to it, whtever the prticulr ground which y be invoked fro

tie to tie in order to ign pecic right to thee ubject.

Thee ditinction, which re not bolutely required in the context of hitori-

cl or ociologicl type of nlyi, re nonethele centrl to the inner tructure of

the juridicl-nlytic theory tht i developed in Principia iuris. I would ugget tht

it i preciely thi erudite ply of ditinction nd ctegoril connection tht ke

Ferrjoli odel into oething ore thn onolithic tructure which i cpble

of reiting every poible ttck, but lo ke it exible nd eective intru-ent for intervening in oe of the ot burning nd controveril iue of the

conteporry debte.

In thi repect, I would jut like to indicte two exple where Ferrjoli con-

ceptul regie of ditinction nd connection revel it coniderble power. In the

rt plce, I refer to the ditinction between decidble nd non-decidble right. Thi

vocbulry y ee provoctive in reltion to juridicl or politicl theorit in the

schittin trdition. I would even ugget tht Ferrjoli prticulr choice of lnguge

here h oething liciou bout it (though whether intentionlly or unintention-

lly liciou I cnnot y) in reltion to the kind of politico-juridicl conception tht

ephticlly intin tht nor eentilly depend on power, on will thtdecide, nd doe o deciively. In fct, for Ferrjoli, the non-decidble chrcter


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of fundentl right i not etphyicl potulte or one tht covertly drw on the

nturl lw trdition: on the contrry, thi ide i the direct juridicl conequence of

odel tht he would decribe contrctulit. Ferrjoli tell u tht contitution

re nothing but ocil contrct in written or poitive for: pct of civil ocition

which hve been hitoriclly generted [].1

We could clrify thi by recoure to thefollowing hypotheticl forultion: ifwe contrctully crete n order chrcteried

by repect for fundentl right, ifwe opt for deocrtic-contitutionl order, then

uch n order cn only be contructed in ter of network of right tht re (ued

to be) non-odible, non-decidble, nd binding for l l nd for ech.

It i thi coplex of non-decidble right which dene the ditinctive chrcter

of contitutionl deocrcy. And it i the ditinction introduced to identify dierent

cle of right tht l low u to pecify the dierent dienion of deocrcy: on the

one ide, liberty right nd ocil right, nd on the other ide, politicl right nd civil

right; on the one ide, the ubtntil dienion of deocrcy, on the other ide, the

forl dienion of deocrcy. If we cobine thee indiction in dierent wy, wecn then ditinguih between dierent type of deocrcy, while initing tht we cn

only properly pek of contitutionl deocrcy (the deocrcy for which Ferrjoli

Principia iuris provide the rigorou conceptulition) when ll four dienion of

deocrcy (nely politicl, civil, liberl, nd ocil deocrcy) re preent.

It i not dicult to ee tht Ferrjoli odel elegntly void the chrcteritic

oppoition which hve plgued o uch juridicl debte during the twentieth cen-

tury. Here I wil l erely ention the ot fou of thee oppoition: tht between

liberty right nd ocil right. The brillint de-contruction (or de-contitutionl-

ition, I would cll it) which Crl schitt dvnced in hi interprettion of the

Weir contitution (the rt one tht peciclly cknowledged nd included ocilright) h long exercied ignicnt inuence: lthough ocil right to urie

schitt rguent y be enhrined in contitution, they do not enjoy the e

ignicnce liberty right. Thee right, nd only thee right, re bolutely nd

unconditionlly vlid, while ocil right, which cn only be tied sub conditione,

in reltion to the vilble reource etc., hve weker nd erely progrtic

ignicnce. Even Clndrei (during the Contituent Aebly debte) i till di-

poed to relegte ocil right to the libo of good intention, to the ghetto of

preble to the true, proper, nd binding contitutionl ordinnce. The odel

preented in Principia iuris leve thee controverie behind nd cknowledge both

cle of right (liberty right nd ocil right) eentil for the exitence of con-titutionl deocrcy: citizen hve the right to habeas corpus, no le thn they hve

the right to eduction nd to en of ubitence.

We re peking therefore of liberl and ocil deocrcy, of politicl andcivil

deocrcy. And the econd volue ofPrincipia iuris develop it rguent preciely

in ter of thi four-dienionl odel, Ferrjoli decribe it. It i ipoible

not only to dicu the relevnt individul pect of thi project, but even to enuer-

te the ll here. I hll iply indicte few of the ny iue nd proble tht

re ddreed here.

1 Ferrjoli, Principia iuris, vol. I, p. 823.


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I hould prticulrly like to ention the iue of the contitutionlition of pri-

vte lw: rther neglected iue which pring fro recognition tht thret to

fundentl right derive not only fro the tte, but lo fro the rel of ociety,

not only fro the overeign power tht w o fered by Locke nd Contnt, but

lo fro privte ubject tht re often ore invive nd uncontrolled thn politi-cl intitution. Wht i ore, even hitoriclly peking, the privte phere h not

lwy preented itelf rel of freedo, not only in the ancien rgime, but even

in the nineteenth century. In thi repect we only hve to think of the doin of the

fily nd the eld of eployent: of the fily which w til l cpble of intin-

ing, throughout the nineteenth nd into the erly twentieth century, the hierrchicl

tructure of uthority dened (once nd for ll, we ight y) by Aritotle in the

Politics, nd of reltion of eployent which re bed upon contrct (nd preented

the triuphnt vindiction of the liberty of privte individul), but till produce

rigidly hierrchicl nd potentilly depotic condition. Ferrjoli Principia iuris pro-

vide exeplry clriction of ll thee iue.I hould lo like to point out the creful ttention which Ferrjoli ccord, in the

chpter dedicted to the dierent kind of freedo, to the let gurnteed of uch

freedo, nely the freedo of oveent, one which tody nd itelf on col-

liion coure with the elf-defenive dend of our wetern ocietie, nd therefore

tend to be criced or coproied in the ne of the ecurity of their eber.

And in Ferrjoli view, penl lw lo belong to the chpter on liberty nd it gurn-

tee, nd i preented fundentl nd crucil en for the protection of ubject

(of ll citizen before n oence i coitted, of the ccued during the legl proce,

of the convicted prty in the dinitrtion of punihent). Finl ly, I hould lo like

to ention the wy in which the odel of contitutionl deocrcy i extended frothe doin of given stte to the interntionl legl order in the light of the ntithei

which i in oe ene foundtionl for the very ide of legl ordinnce itelf, nely

tht between the tte of wr nd the tte of right.

I relie tht I hve hrdly entioned, let lone nlyed, nuber of fundentl

iue (nd hve lo ped over other rguent of gret ignicnce). And oreover,

up to thi point, I hve lrgely poken ofPrincipia iuris project eentilly dedicted

to the contruction of juridico-nortive odel: generl theory (in Autin ene)

of conteporry contitutionl deocrcie. But in fct, thi line of rguent, which

certinly utin the generl tructure of the dicoure developed by Ferrjoli, by no

en exhut the ltter. For in fct Ferrjoli doe not retrict hielf erely to con-tructing thi nortive odel. He lo invetigte the reltionhip between theory

nd prxi, contrt tht which is with tht which oughtto be, nd relte the one to

the other, nd k, in hort, bout the genuine eectivene which cn be ttributed

to the four-dienionl odel of contitutionl deocrcy which he propoe nd to

the right which dene thi odel.

The reder ofPrincipia iuris thu nd theelve confronted with two ditinct

dicurive trt which re in evidence throughout the work, but re prticulrly con-

picuou in the econd volue. Thi produce n undenibly ingulr eect on the

rhetoricl level (on the level of the concrete orgnition of the dicoure nd of the

eect it produce on thoe to who it i ddreed): the reder i iultneoulywre of two voice tht re dierent in ound nd chrcter. There i n ephtic,


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crytlline, nd iperturbble voice, eentilly concerned with the contruction

(more geometrico) of the nortive odel; but thi voice i croed nd interrupted

by nother voice, with dierent elody, which nifet the drtic (nd often

increingly initent) drift of the prxi, reote it i fro the nortive previion

of theory. o ooner hve we been hown, for exple, the neceity for inilpenl lw, one conitent with the eentil feture of the nortive odel, when the

ong i uddenly interrupted by very dierent nd drtic elody which tell of

the ever-increing rech nd power of new ecurity eure. The text pek of

the obligtory (nortive) dend for globl contitutionl order, nd once gin

the ong i interrupted by bitter denuncition of the unchecked power of the ulti-

ntionl corportion nd the ipotence of the United tion. The lerned texture

dopted by Ferrjoli dopt technique tht the ncient polyphonit clled oquetus (or

truncatio):the frequent nd lternting interruption of voice in uicl pge when

it i contntly broken by two dierent elodic line.

Two quite ditinct dicoure re interlced in the text ofPrincipia iuris withoutipir ing the overll coherence of the work. The exeplry ditinction between the

i nd the ought prevent ny confuion between the two voice nd render the

preence of both epiteologiclly unilble. And it i preciely the preence of

both tht free the text fro ny eblnce of cold btrction, o tht every ingle

pge of the book how how the denition nd elucidtion of right i fundentlly

eriou tter connected to the need nd vit l pirtion of every hun being.

Principia iuris thu preent u with not one but two dicurive level. But I cn-

not help king nd I oer thi non-rhetoricl quetion by wy of concluion

whether we cnnot perhp detect third dicurive level t work in the text:

level where the uthor doe not iply liit hielf to contructing nortive-jur idic l odel, but i redy to dd, l ike God conteplting the world tht he h

jut creted, tht thi odel i good. It ee to e, in hor t, tht between the

line ofPrincipia iuris we cn lo glipe the eergence of n nticiptory, evlu-

tive, nd politicl oent, of t let frgent of politicl phi loophy (nd per-

hp of philoophicl nthropology) tht cn hrdly be ccoodted within the

vlue-free liit of generl theory of right. In tht ce, contitutionl deocrcy

would not iply repreent nortive odel contructed on the bi of everl

poitive legl yte. For then it would lo pper n indipenble en of

reliing n other nd better world, like tht which Knt connected with the

continul progre of the hun rce towrd the highet good. And it i perhpthe ige nd nticiption of thi other world which utin the civil pion

which coure through the entire work of Luigi Ferrjoli nd enhnce both it

inner tenion nd it peruivene.


Pietro CotUniverity of [email protected]


15/23


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ene, tht it i cpble of decribing nd explicting the nortive tructure of con-

teporry contitutionl deocrcie, oething tht would be out of the quetion

for ny theory tht clied to be purely decriptive in chrcter. Finlly, it i not in

pite of, but becue of, the fct tht the theory h been forlied, tht it i cpble

of cknowledging, rtly, the ubtntive, nd not erely forl, dienion ipoedon the concept of lw by the prdig of contitutionl deocrcy, nd, econdly,

the inevitble dicrepncy, internl to poitive lw itelf, between it nortive odel

nd it ctul concrete exitence (Ibid.). Ferrjoli pproch preuppoe cceptnce

of the thei ccording to which every theory of lw including Kelen pure theory

of lw ( it quite evident fro the concluion of hi Problem of Sovereignty5) inofr

it i conventionl nd rticil, or bed on prticulr uption nd deciion,

i lo prgtic nd evlutive in chrcter, nd end up plying perfortive role

whether it intend to or not (pp. 32 .).

In the brief criticl obervtion tht follow, I hould like to purue few probletic

quetion, lthough inevitbly they do not do full jutice to the coplexity of Ferrjoliytetic recontruction of juridicl nortivity. onethele, thee quetion re quite

centrl, in y view, well indictive of certin key iue which revel nuber

of eloquent pori which re oetie productive, nd oetie yptotic. The

leitotif of thee obervtion i wht Bobbio rightly recognied the uthentic crux of

every theory of lw: the bi-univocl reltionhip between lw nd power.

According to Ferrjoli, the legl tte, in the trict or trong ene, i the con-

titutionl tte under the rule of lw (to be ditinguihed fro the legiltive tte

which roe fro the originl odern juridicl revolution tht red the pricy

of the lw). The contitutionl tte of lw chrcteriticlly r lw overthe lw:

it iplie the progreive poitive relition of liit nd juridicl retrint on theexercie of power, whether public or civil, ntionl or interntionl, executive or leg-

iltive. We re thu preented with potentilly unliited expnion of the rel of

lw. Thi i poible to the degree tht (odern) lw project itelf uch, nd ert

it own ought. Thu the founding principle of the contitutionl tte under lw i no

longer iply the poitivit xi, derived fro Hobbe, tht Auctorit, non Verit

fcit lege, but lo theoreticl coherence, or logico-deontic Veritas,tht i con-

tructed to ecure the coptibility of it xiologicl principle. The ditinction between

ubtnce nd for, nd tht between uthority nd truth, would thu be overcoe

here (p. 487). Clerly, thi doe not iply ny return to pre-odern ubtntilit

conception of lw ince the repudition of ethicl cognitivi i trongly intinedfro the ethodologicl point of view, i the poition of juridicl conventionli.

While thi forl dienion of vlidity i intined, there i lo ene in which it i

upereded (the wy in which Ferrjoli deploy the notion of overcoing i objec-

tively ignicnt) ince it i powerfully integrted through vlidity reinforced by

principle (one which re poited rther thn inferred fro nture or gurnteed

by God, tht i, etblihed by oe ethicl or religiou auctoritas). Thi uper-vlidity

pper to reltivie the oppoition between poitive lw nd nturl lw on which the

odern juridicl prdig i bed (in the ene tht even odern nturl lw, with it

5 see H. Kelen, Das Problem der Souveranitt und des Vlkerrechts, Tbingen: Mohr, 1920.


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individulit nd rtionlit chrcter, erve, with prdoxicl neceity, to precribe

nd theoreticlly to jutify the rticil chrcter of lw ince it redily extend to

furnihing n ethicl jutiction of the exiting order, thu trncending it inil

purpoe of preerving the pece nd enuring the fety of it citizen).

The point i tht the constitutionaltte under lw i dened preciely by the fcttht it i not tied with uch detionry trtegy: it exceed the ere tte (of lw)

nd end up iporting ignicnt content, lbeit in forl wy, nd thi poe n

objective proble. Obviouly, thi doe not en tht it would be deirble, or even

poible, to return to n erlier pproch. But thi dynic urely concel core

eleent of contrdiction. Once the lw becoe it own nor, with thi econd revo-

lution, doe it not lo run the rik of contitutively trnuting itelf, or the chrc-

teriticlly odern for which it inherited fro the rt revolution (the ditinction

between lw nd orlity, the neutrlition of the fundentl it potentil ource

of hrd conict of the xiologicl pproch)? Doe Ferrjoli overcoing not run

the rik of filing to be n overcoing t l l, of hrbouring rik tht we believed hdlredy been overcoe, of helping to nourih theoreticl-juridicl biguitie nd

indirect power, nd even clerly gint the uthor explicit intention, indeed in

prdoxicl inverion of tht intention of encourging the repetition of ubtn-

tilit fntie which i to re-legitiie the cli to ground lw denitively in n

unvoidble nd iedite given (on the ethicl nture of hunity, for exple)

or to deploy the lnguge of hun right poleiclly in upport of politic of iden-

tity? such developent, unfolding quite independently of the i nd the eculr-

rtionlit culturl preie of the theory doe it not increingly elude, with ll

it ybolic biguitie nd ethico-nortive dicultie, the logicl plot of the

theory itelf? With the intention of enriching the contructed chrcter of lw forthe entirely coendble i of reponding to newly eergent need t the hert of

odern ociety but lo, nd bove ll, with the hyper-enlightened ide of provid-

ing full nd denitive legitition of conteporry contitutionl rrngeent

for which the theory of lw would repreent the logicl trncription nd provide the

el of cloure do we not rik of feeding the illuion, or the ideologicl hope, of

exepting ourelve fro the unvoidble ipliction of the conventionl chrcter

of lw, fro it inevitbly proviionl nd reltively unnticiptble chrcter, fro it

plurlitic nd conictul openne? in hort, fro the insuciency of lw, which rep-

reent not only given fct but probbly conditio sine qua non, qulifying eleent

tht i intrinic to ny pot-ubtntilit (nd contitutionl) juridicl for, nd lo,if recognied fctor by criticl elf-conciou reection, certin reource well.

With hi theory of vlidity which ditinguihe between the vlidity nd the

ctul force of lw nd plce the iue of invlid or illegitite (though exiting) lw

t the centre of ttention Ferrjoli pproch h the coniderble erit of deyti-

fying the preuption of legiticy tht juridicl forli cribe to legl order

onolithiclly interpreted poitive nd thu lredy endowed with uthority.

Tht i to y, Ferrjoli diconnect the doin of lw nd power, thereby ttepting

in every poible wy to protect juridicl cience fro rik tht it h lwy courted

hitoriclly nd to which it h frequently cpitulted: tht of trnforing itelf into

powerful ideologicl tool nd ll the ore powerful the ore btrctive it i tthe ervice of the power tht i ctul ly victoriou hitoriclly.


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Yet re we relly o ure tht lw, even odern lw, elf-nortive for of

knowledge, i entirely rtionl nd conitent fro the perpective of it ought, nd

tht it i only the yte of power (which it lo require) tht render it puriou?

Perhp it i the intriniclly politicl genei of odern lw tht i puriou, the

Hobbein prdig indicte, oething tht cnnot eily be eliinted, epecillyif we wih to intin the conventionl pect of lw, it eculr chrcter, the ditinc-

tion between lw nd orlity, etc. In hort, the che ccording to which odern

lw pring forth red with it own utonoy, like Athen fro the brow of Zeu,

ee probletic to u. A doe the ide tht the ipurity of lw derive fro out-

ide, fro it connection (lthough thi i recognied inevitble) with the politic

of lw (in which the theory of lw lo end up prticipting, though only inofr it

erve, or explicte, the logicl coherence of juridicl nortivity, thereby encourg-

ing juridicl yte to correpond ore cloely to their own logos). It i ore pluible

to cknowledge tht there i n originl nd reciprocl nexu, one tht precondition

the legl order whole, between overeignty (or, if one prefer, intituting force)nd odern public lw6: the originl auctoritas i n inent preuppoition endowed

with eccy, though it function neither on the bi of forl uthoriing nor, nor

on the bi of oe lredy preuppoed veritas. But in order to chieve thi, it ut

rticilly preuppoe nd on thi bi lo ipleent the indipenble becue

trtegic-rtionl pricy of wht it i uppoed to relie: the ecuring of the pece

nd the politicl exchnge of protection nd obedience the ole ource of inil

nd eleentry legitition (one tht i reoved fro the kind of dipute tht rie in

connection with religion nd nturl lw) nd of n ultitely functionl for of power

in n order without ubtnce. In hort, there i lo certin ought tht ttche

to the (odern) tructure of power, which i tht ofthe order of survival. Cn the logiclnortivity of odern lw, once it i fully rticulted nd contitutionlied, ignore

tht inil nd dittedly dicult ought? And i it not the ce tht uch nor-

tive core inherent in the quetion of order, nd united with it function necery

preuppoition (even though it i itelf foundtionle), bring the politicl dien-

ion insidethe juridicl doin nd the nortive theory (not only in the ene tht the

6 Thi nexu doe not exhut the rel of the juridicl, epecilly if we conider it enuing

copliction, but we cnnot conceptulie the conventionl nd pot-ubtntilit

chrcter of lw if we ignore it ltogether. There i now vt literture on thi hitoricl ndtheoreticl nexu. In thi connection I would iply ention the following: C. schitt, Der

Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum, Cologne: Greven, 1950 [The Nomos of

the Earth in the International Law of the Jus Publicum Europaeum , trn. G. L. Ulen, ew York:

Telo Pre, 2003]; Id., Der Leviathan in der Staatslehre des Thomas Hobbes. Sinn und Fehlschlag eines

politischen Symbols, Hburg: Wndbeck, 1938 [The Leviathan in the State Theory of Thomas Hobbes.

Meaning and Failure of a Political Symbol, trn. G. schwb nd E. Hilftein, Chicgo: Univerity

of Chicgo Pre, 2008]; E-W Bckenfrde, Der skularisierte Staat, Munich: Crl-Friedrich-

sieen-stiftung, 2007; M. stollei, Staat und Staatsrson in der frhen Neuzeit, Frnkfurt Min:

suhrkp, 1990; R. schnur, Individualismus und Absolutismus, Berlin: Dunker und Hublot, 1963;

. Mtteucci, Lo Stato moderno, Bologn: il Mulino, 2001; W. Reinhrd, Geschichte der Staatsgewalt,

Munich: Beck, 1999; P. Cot, Civitas. Storia della cittadinanza in Europa, vol. I-IV, Roe-Bri:Lterz, 1999-2002; M. Fiorvnti, La scienza del diritto pubblico, vol. I-II, Miln: Giur, 2001.


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ltter cn contribute to certin politicl-culturl eect, but becue it ut lredy tke

ccount of quetion of eectivene, quetion which cnnot be logiclly neutrlied

nd, bove ll, re not t the dipol of theory itelf, nd whoe reolution precede both

the production of yte of rule nd it logicl cknowledgeent)? Thi rk fun-

dentl point of digreeent with Ferrjoli, who believe tht the dicoure regrd-ing the tte of eergency ( quetion tht explin the reltion between lw nd

politic in condition tht re out of the ordinry) i exhuted iply by recogniing

tht thi i prohibited (which i true, but only fro the point of view internl to the

exiting order, not fro contituent genelogicl perpective, or of theory of lw

which doe not eprte itelf o fro the politicl dienion, except by covertly or

unconciouly preuppoing thi dienion; tht i, of theory which lo thetie

the crie internalto the juridicl doin nd thu it non-utrchic chrcter). In y

view, however, the tte of eergency i not only concrete chllenge to eective

lw tht i lwy poible in ny order, but i lo, ore generlly, the litu tet of the

inevitble ipurity of the theory of lw, including legl theory tht coherently ndfro y point of view upiciouly tret the tk of rtionliing the tructure of

power with utter erioune, Ferrjoli to hi erit ttept to do. To eliinte pre-

ciely tht which crete proble for nortivitic pproch, nd retricting oneelf

to the tk of conring the ground of regulrity, run the rik of dging the theory

itelf nd forfeiting it ful l potentil, nd of becoing poretic fro theoreticl point of

view ince the regulrity in quetion doe not iply tnd on it own, nd i not co-

pletely iune to every thret. In hort, it i not enough to y the tte of eergency

i illicit in order to eliinte the thret it poe for lw.

Hving id thi, nd depite thee prticulr reervtion, it ut be recognied

tht Ferrjoli h de quite fundentl contribution to the logicl clrictionof the nture of the constituent act: thi i n inforl but preceptive ct, nd thu po-

ee n bivlent chrcter oewhere between fct nd lw (pp. 856 .). Thi

quliction i deterined by it plceent t the pex of the yte: the contituent

ct i nortive if viewed fro below, fro within the order tht it contitute; it

i extr-juridicl or downright nti-juridicl if it i conidered fro n externl

perpective (tht i, fro the point of view of n lterntive or ubtituted order). Thi

iplie tht the legitition of the contituent ct nd power fundentlly conit,

it ee we y y in the wke of Ferrjoli, in for of elf-recognition (both

elf-perception of legiticy nd poition of politicl plu vlue vlid erga omnes,

which ly cli to generlied obedience, nd collective repone to uch cli);it lo poee retropective chrcter (tht i to y, it intervene through n eect

which i qulied nd interpreted the veriction of the contituent itution).

The point i tht, once thi genelogy of order h been exhuted nd cquired, the

ter overeignty need not pper in Ferrjoli theory of the contitutionl tte

under the rule of lw, even though in fct the theory potulte the ctul exercie of

overeignty. But re we thu o ure tht thi poibility nd proble h properly

been delt with (thi chl lenge which overeignty nd contituent power nother

pot-revolutionry ne for overeignty expre, chnnel, nd reolve)? There

re pect connected to the contruction of obedience nd to procee of ybolic

identiction in the context of power, to the eergence of conictul ce tht needto be integrted, to the reproduction of the ocil-nortive condition of hred


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contitutionl culture, which condition the juridicl order not only in it found-

tion but ubequently too, nd which the theory of lw cnnot llow itelf to ignore

except t the cot of becoing entirely elf-referentil.

With repect to the reltionhip between Principia iuris nd the juridicl-politicl

trdition in which the work brodly belong, one cnnot void ephiing the extentto which it copiouly goe beyond Kelen: not only in reltion to the quetion of

wr, the conception of the role of legl nction, ubjective right, the ditinction

between the vlidity nd the exitence of nor (thi exitence being identied with

the ctul force of lw) in the ne of reinforced vlidity. In fct there re

lo three other deciive point of digreeent which lo plce the principl point

of Kelen generl theory into quetion: rtly, the thei tht poitive lw cn only

be dynic, nd tht which cli tht hierrchicl nortive order cn only be

dynic. Preciely by criticiing thee uption Ferrjoli ucceed in freeing hi-

elf fro one of the ot probletic feture of the pure doctrine of lw (whoe po-

retic chrcter i nonethele product of the obtinte legl-poitivitic coherenceof Kelen pproch): in Principia iuris, fundentl nor, in the ene of non-

originted nor, iply doe not exit; it i reolved into the contitution, nd it

indipenble legl nucleu (p. 854). Thi highly originl reviion of Kelen theory

led to recovery of noottic conception, even if it i no longer undertood in

trditionl nturl lw ene. Ferrjoli recognie tht non-dynic poitive lw

would be contrdiction in ter, but in the light of the trnfortion of the politi-

cl tte into contitutionl tte of lw (which in wy repreent the logicl ful-

lent of theoreticl dend), it i ipoible to conceive of legl order tht would

not lo be tt ic in certin ene (p. 571). Here too, nuber of quetion inevitbly

rie in lrge prt, it ut be id, conequence of Ferrjoli courge in refuingto iniie the key iue which Kelen hielf recognied thret to the for-

litic chrcter of nortivitic theory. And one i nturlly led to k whether thi

logico-deontic theory which correpond to rel hitoricl-intitutionl procee

which the theory help to contruct nd which it iultneouly preuppoe i not

itelf oething of philoophy of hitory? In ddition, it i lo necery to recog-

nie tht it i by no en irrelevnt even from a theoretical point of view(nd not erely

fro politico-hitoricl or fctul-prcticl point of view) tht thi very content

h ued peciclly poitive for in the highly xed contitution chrcteritic

of the period fter the second World Wr. ow the upporting ground of Ferrjoli

entire theoreticl contruction (nd indeed in generl of every forlied ccountof the contitutionl tte of lw), tht i, the ground which render thi contruc-

tion poible, i the internl connection between forl theory nd the rtionlied

chrcter of the odern politic of lw, which thu how itelf to be eentil here.

In fct, the theory hold peciclly for odern poitive lw, nd for the tructure

of contitutionl deocrcy in prticulr. We would ee to hve rr ived, therefore,

through coplex hitorico-culturl proce tht h here been ried to coherent

nd clerly rticulted nd coherent theoreticl level, t recognition of poible

(indeed necery) coexitence nd conjunction of both forl nd ubtntil rtion-

lity: Ferrjoli reection, in ny repect, thu lo point beyond Weber. Mut

we then conclude, prdoxiclly enough, tht wht Ferrjoli interpret the copletefullent of the odern conventionlit conception of lw, the relition of the


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eculr heritge of the Enlightenent juridicl trdition, hould led u to reltivie

the concept ofWertneutralitt, to ccept kind of hroniou rrige between n

ethic of reponibility nd n ethic of conviction? And hould not thi lredy et o

certin lr bell, nd indicte the rik of ort of counter-productive reintroduction

of n ethicl perpective into thi otherwie entirely rtionlied theory of lw, inofr it would now pper to be both forl nd ubtntil t the e tie?

Another key iue which Ferrjoli pproch peciclly rie i tht concern-

ing the reltionhip, which y lo be one of utul tenion, between the nortive

chrcter of the contitutionl tte of lw nd the prctice of deocrcy: if the deci-

ion on the tter h lredy been decided (i.e. it i either prohibited or obligtory

to decide it), i it not the ce tht the who nd the wht loe uch ignicnce

here? And doe not politicl deocrcy thereby loe ignicnce too, inofr uch

deocrcy i not jut forl fct (the utotic nd intitutionlly correct execu-

tion of n lredy given ought), but nifettion nd rticultion of conen-

u, for of prticiption, n idel obilition, choice of interet nd principlewith ephtic ybolic iportnce, n expreion of conict nd of poibilitie

of integrtion? Ferrjoli i well wre tht thi dienion exit, nd tht it i hugely

iportnt. It i the doin of tht ocio-culturl nortivity which nd expreion

in the notion of civic duty nd i ot ephticlly projected within the public

deocrtic phere: the eectivity of lw nd the legl ground of ction depend upon

the fct tht lw i ocilly hred ybolic world: it reect, nd t the e tie

produce, sensus communis nd counl vlue. And thi i the principle dienion

of both nortivity nd eectivity, nd i relevnt bove ll to the ot fundentl

principle of ll. The fundentl right, nd the leglly gurnteed chrcter of thee

right, the principle of equlity, the iportnce of pece, nd the rule of deocrcy,re eriouly nortive, well eective, inofr they re ocilly hred, or re

governed by wht we cll civic duty (pp. 704-705) But i not thi pre-juridicl

phere exceively invoked erely upport of juridicl reon, nd epecilly

of contitutionl deocrcy the copleted odel of coplete juridiction? And

i it not prdoxicl tht juridicl cience, in turn, i invoked in it criticl nd

projective (pp. 704 .), nd in fct in it perfortive, role to reinforce nd utin

thi civic ene of duty (which ought to nourih the reource of legitition with

regrd to contitutionl deocrcy)? I it not ipertive for juridicl cience to rec-

ognie it liit well? Ferrjoli cli tht lw both reect nd produce sensus

communis, etc.; I gree entirely with thi, but on condition tht we do not deceiveourelve tht we re producing, in oe excluive or pre-einent wy, tht which in

relity we re liiting to reecting, orbelievetht we re reecting. To prevent the

pred of thi opticl il luion, nd to enure tht lw eectively perfor it work

brek oething it ut certinly do if we re not to fll below even the inil

ordined nd contitutionl tndrd it y be necery to conider de-

tionry nd lo self-criticl conception of juridicl cience.

A Ferrjoli how, the contitutionl tte of lw repreent odel for inii-

ing the exercie of power (nd grounding politicl legiticy) (p. 594). Thi i not in

doubt, but it ee to e tht we hould contntly reeber the idel chrcter

of the odel nd epecilly it vlue kind of ntibody, reource to whichwe cn ppel (there y be judge in Berlin ), bond which i not coplete or


22/23


denitive nd in ene never could be rther thn regrding it forul cpble

of entirely borbing nd onopoliing the politicl dienion. If we think, for

exple, of the ubtntil bond tht re enviged by the contitutionl tte of

lw, would they not be ore eective if undertood in reductionit ene, nely

inil level below which we cnnot fll, rther thn projected indiction rule which re to be evluted (ore or le) politiclly? Let u ue (nd

unfortuntely thi i no erely cdeic exple) deocrtic-contitutionl order

tht recognie ocil right fundentl, in which the jority legilted eure

deigned to brogte generl helth cre or univerl eduction, plcing the poibility

of uch thing entirely t the dipol of the rket nd privte coercil initit ive:

in thi ce, I believe it would be ore thn reonble, if not entirely obviou, to

rie the proble of going beyond certin liit, of choice tht could not be con-

teplted. But if, on the other hnd, the e jority choe to p legiltion tht

inveted ignicntly fewer reource in re of ocil policy, thu reducing but not

bolihing public helth nd eductionl proviion entirely, how would the conti-tutionl tte of lw iuxt propri principi repond? Would uch eure hve to

becoe n object of prohibition, or would they contrvene ny obligtion to iple-

ent the, the odel propoed by Ferrjoli pper to ugget? Would it not be

poible to undertnd the rther legitite object of dipute nd deocrtic

choice (nd thu to be conteted on the bi of politic of lw nd generl ocio-

culturl intervention)? And i it conceivble tht we cn reduce our evlution nd

qulittive ditinction which inevitbly extend the pce of juridicl nd, bove ll,

contitutionl interprettion to kind of rigid nd inexorble logico-deontic truc-

ture, or cribe the nortive-projective chrcter of lw, with ll it relitic liit

nd condition, entirely to the doin of rtionl neceity? Do we not thereby runthe rik of ephticlly retricting the pce of the quid novi (o centrl to con-

ventionlit, poitivit, nd, I would y, eculr conception of lw), nd producing

ei-deterinitic yte of juridicl reon?

The dr of conteporry econoic globli lie in the wy in which it

nturlie the ideology of non-politic, ttept to bind the politicl gend (whether

doetic or interntionl) to utotic nd pre-contituted choice, nd bolutie

purely econoic echni. For thi reon, I would intin tht the contitu-

tionlit pproch to right hould not llow itelf to retrict the phere of (deo-

crtic) politic ore nrrowly thn it need to, epecilly ince the ltter i fr too

depleted it i. On the contrry, thi pproch ut trive to ugent it dynicnd gonitic contribution to public dicoure, even if thi incur certin rik of it

own. Either becue the juridicl bond on it own cn hrdly reit the doinion of

dvnced wetern cpitli, or becue the phere of jur idicl edition, in order

to re-legitiie itelf nd re-cquire oe force in reltion to the vge power,

ut return for upport to rel politicl procee nd culturl oveent tht expre

current of legitition fro below, tht i, ut ccept tht it wil l be trvered nd

rked by reltion of power nd yetrie of one kind or nother, by new for

of ubjectivity nd novel hegeonie. The cience of public lw tody i clled upon to

dicover dicult equilibriu between it (indipenble) role in gurnteeing right,

nd it bility to renew juridicl yte, it undecidbility, nd it cpcity forpoliticl innovtion.


23/23


Ferrjoli think there i ene in which lw ve. For y prt, I would be

quite content if, in ddition to voiding unnecery dge, it could curb the thret

nd chllenge of the politicl in reltion to which it i contntly clled upon to

oer protection, thereby internliing nd involving itelf in tht doin well.

And likewie if the tk of dvncing the truggle for lw (nd right) were purued,not only by en of juridicl culture, but lo by deocrtic politic tht h not

lredy been denitively neutrlied. Let e ke yelf quite cler: I entirely

in greeent with Ferrjoli concerning the rik tht re contitutively inherent in

the ever ltent nd potentil diorder in the phere of power. Indeed, I would rgue

tht juridicl cience hould never llow itelf to forget the leon of Cnetti: power in

itelf, in it innerot chrcter, i lwy hoicidl power, relted, in the ultite

intnce, to the wterhed between life nd deth over which it preide. But I believe

tht power ut lo be recognied, trgicl ly, kind of fte with repect to lw,

one which the ltter cnnot void confronting theoreticl dtu, without thereby

deceiving itelf tht it i the Otherof power, entirely free of ny dro or reidue ofthe ltter, nd cpble of decontinting tht doin. Perhp it i no ccident tht,

while eploying very dierent ethod, Ferrjoli work purue the e end

Hber in Facticity and Validity: the juridicl overcoing of the opaque decisionistic

nucleus of politics, nd the violent nturli tht till chrcterie it. We re deling

here, in fct, with the two conteporry theorie which ttept, in the ot coherent

nd ytetic poible wy, to unite lw nd deocrcy in tructurl fhion. And

in doing o, they both undoubtedly furnih n renl of nortive criteri, ort of

idel-criticl odel in the fce of vriou diue procee tht threten to underine

the contitutionl legl prdig. But prt fro confronting n ever ore reclci-

trnt relity, doe not thi neo-enlightened pproch, which I peronlly think cnbrodly be endored in ethico-politicl ter, iply rik becoing the expreion

of elf-proclied nrrtive of Modernity which generte n exceive fith in the

poibility nd reonblene of coplete juridiction of politic?


Geinello PreteroiUniverity of [email protected]

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