Instead, as this essay shows, courts make use of constitutional norms extensively, applying them not only indirectly — that is in the presence of statutory norms — but also directly. Thus, the Constitution is integral part of the law controlling private relationships, making them functional to the general values that mould the whole legal system.
This perspective encourages the re- reading of civil law precepts in the light of the Constitution, as well as the complete fulfilment of constitutional legality. Re-reading statutory law from a constitutional perspective: a preliminary clarification.
The translation in English is due to Dr. Majello, Profili costituzionali della filiazione legittima e naturale Napoli: Morano, , Private law doctrines began to take on different contents and meanings,3 of fundamental importance not only for the reform process, but also for a more balanced application on the part of practitioners, raising a number of delicate questions of constitutional legitimacy.
See P. Scialoja e G. On the contrary, regarding such relevance, see P. Bessone and E.
To this end, it is vital to overcome the uncertainties that still pervade many scholarly positions, pertaining to the nature not merely political, but fundamentally juridical of constitutional norms,6 as well as to their internal relationships. On the topic, among public law scholars, see G.
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Lombardi, Potere privato e diritti fondamentali, I, Torino: Utet, , 26 ff, and passim; now, very explicitly, L. Montuschi, Rapporti etico-sociali, in G. Branca ed, Commentario della Costituzione Bologna-Roma: Zanichelli, , ff; see also, of late, the mention made by G. Volpe, Foro italiano, IV, ; as regards German scholarship, very sensitive to the issue of Drittwirkuntg or of Sozialwirkung, see, in addition to the authors cited at n 45 below, T.
Beck, , and now, particularly, H. See, moreover, A.
Perlingieri, Introduzione to A. Barile, La costituzione come norma giuridica. Profilo sistematico Firenze: Barbera, , With respect to values, which form the basis of the legal system, they are by definition identifiable by means of an accurate historical and systematic interpretation of the Fundamental Chart, from which it may be inferred that the free development of the human person is to be deemed superior to any concurrent economic interest eg right to private ownership and freedom of enterprise.
In order to understand how such an influence has arisen, it is necessary to focus in greater depth on the actual interplay between constitutional norms and statutory laws, bearing in mind the actual meaning of the pre-eminence of the former over the latter. With respect to this, two different scholarly views can be identified. Ruscello, I regolamenti del rapporto condominiale Camerino-Napoli: Edizioni Scientifiche Italiane, interim edition, , ff; now, from a critical perspective, A.
Quite on the contrary, the unitary nature of the legal system requires that the constitutional norms, and their underlying values, be seen as general principles, relevant and binding in any context. However, whilst it cannot be denied that some constitutional norms aim to limit the scope of statutory laws, this cannot be considered the sole function of the constitutional norm. It happens 10 See, on this issue, N. It follows that the norms that establish rights are interpreted widely, while norms that impose obligations, duties and liabilities are subject to a rather restrictive approach.
The function of the Constitution is thus reduced to that of delineating the rules of the game, and is deprived of the promotional capacity that historical-political arguments and its very nature as a Basic Law seem to confer upon it as a matter of priority.
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Tarello, ibid. Perlingieri, Profili istituzionali n 12 above, ff. The constitutional norm as an expression of general legal principles which must be adhered to when interpreting statutory law.
The dynamic and historical nature of the legal system: logical- systematical hermeneutics and constitutional values From a different perspective, the pre-eminence of the constitutional norm over statutes is acknowledged not only, and not simply, as a limiting factor, but also as expressing general legal principles, which have to be accounted for when statutes are interpreted. This idea directly contradicts the one previously presented because, being moved by the need to fulfil constitutional legality, it is inclined to bend the hermeneutic tools to the primary goal of implementing fundamental values.
Contrary to the operativity of constitutional principles also at the level of interpretation is the opinion expressed by R. If, on the other hand, the principles recalled therein include those of constitutional standing, then Art 12 would be wholly or partially unconstitutional, as it would hinder the interpretive recourse to a hierarchically superior source, thereby introducing a blatant anomaly into the system.
Quadri, ibid ff; and for a clear synthesis on the state of case law and scholarship, see V. Perlingieri ed Torino: Utet, On the remarks made in the text above, see P. Lonardo, Meritevolezza della causa e ordine pubblico Camerino-Napoli: Edizioni Scientifiche Italiane, interim edition, , 69 ff. Quadri, ibid , to whom the quoted words belong. Lonardo, Meritevolezza della causa n 22 above, ff and ff. Crisafulli, Lezioni di diritto costituzionale, I, Padova: Cedam, , Quadri, ibid.
The constitutional norm as a justification for statutory law. The perceived risk of constitutionalization of all branches of the law and the retreat of traditional hermeneutical rules: critical remarks. Stanzione, Introduzione a M. Ancel, ibid XXII. Tarello, ibid ; likewise, R. It is thus misleading to single out the legislator as the exclusive addressee of Constitutional norms; likewise, there is no point in highlighting their allegedly political non-juridical nature. The principle of constitutional legality38 is an anchor; it is a mandatory pathway to follow for the interpreter who intends to find, with a humble spirit, a unifying factor in the interpretation of laws.
This can be achieved, on the one hand, by overcoming the myth of a misconceived certainty of the law which, although daily contradicted in the court rooms, continues to stand out hypocritically in defence of conservative needs and, on the other, by definitively setting aside the contrary myth of destabilizing the system by means of a classist interpretation of the law.
However, it has been ascertained that 37 On the conception of a systematic legal system see, in particular among civil law scholars, Salv. Romano, Ordinamento sistematico del diritto privato, I, Diritto obiettivo, diritto soggettivo Napoli: Morano, 2nd ed, n. Lonardo, Meritevolezza della causa n 22 above, ff, ff. This would be historically objectionable, all the more so given that constitutional legality confers a higher and more qualified protection to humans and their related existential prerogatives. The hermeneutical rules in themselves must be expressions of the structure and logic of the legal system, and not of the abstract logic of the jurist.
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Perlingieri, ibid ff for references on this topic in the literature; see, however, the seminal pages of A. Carnelutti, Metodologia del diritto Padova: Cedam, , ; see, also, V. Diritto costituzionale Padova: Cedam, , ff; on this topic see also G. Tarello, Diritto, enunciati, usi Bologna: Il Mulino, , ff.
The issue of the direct relevance of constitutional norms to interpersonal relationships. The so-called indirect application of constitutional principles, mediated by statutory rules, results in the combined application of both. It is not just about interpreting a statutory provision: it is about determining the applicable norm While the re-reading of statutory law in the light of fundamental norms, within the twofold meaning referred to above as mere interpretation driven by constitutional principles and as a functional justification of statutes might embody a helpful and workable methodology which could be deployed constantly, it does not seem to be able to exploit the full potential of constitutional norms.
Having abandoned the idea that such norms have the legislator as their only addressee and that they do not solely aim to impose normative limits or establish political programmes, it is then necessary to face the question of their direct relevance for interpersonal relationships, with specific regard to those relating to private law.
According to prevailing German scholarship,45 constitutional norms ought to be applied indirectly, via statutory rules, whether they are expressed by way of general clauses or through specific and 44 It is useful to consider the insights on the varying conceptions of the subject- matter and contents of socialist civil law: see, for example, I.
Markovits, Il diritto civile tra socialismo e ideologia borghese nella Repubblica democratica tedesca, italian translation Camerino-Napoli: Edizioni Scientifiche Italiane, , 71 ff, ff; on this issue, also, P. Stanzione, Introduzione a I. On the historical grounds of the application of law see, among others, L.
Perlingieri, Profili istituzionali n 12 above, ff; more in-depth V. Recourse to the Constitution is hence justified, just like any other legally binding norm, as it expresses a normative value which cannot be ignored. Ascarelli n 46 above, ff, and, in a wider perspective, now R. Lipari ed, Diritto privato. Unquestionably, when a judge is faced with a legal provision that appears unlikely to comport with the Constitution and its application is crucial for the resolution of the case at issue, he is expected to suspend the ongoing proceedings and refer the matter to the Constitutional Court for certiorari; conversely, in the presence of a provision that does not stand out as manifestly illegitimate, or that is irrelevant for the case under examination Legge 11 March no 87, Art 24 , the judge is not under any obligation to refer it to the Court.
In either case, the judge clearly exercises a broad discretionary power.
Related Sistemi giuridici: Principi fondamentali (Bibl. di diritto civile e comparato) (Italian Edition)
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