Massimo La Torre

The article critically examines the issue of “constitutional identity” in the European Union through a methodological approach articulated in five decisions, which makes it possible to reach some substantive conclusions about what “constitutional identity” is and what it should be in the legal practice of European courts. European law is a peculiar creature, as it is the product of both case law and legal scholarship. Its teleological nature, oriented toward the efficiency of the single market, has led to a jurisprudential evolution that is often creative, at times even contra legem, with profound effects on national legal systems and on the tradition of the ius privatum europaeum. In this context, the clause on national identity as constitutional identity set forth in Article 4(2) of the Treaty of Lisbon is interpreted as a principle that limits the expansion of the European economic constitution, acts as a brake on supremacy, and ultimately functions as a “reservation of interpretation”.

After the Maastricht and Amsterdam Conferences the European Union can no longer be conceived as an intergovernmental arrangement: It is a polity founded on an “overlapping consensus.” Consequently, to reconstruct the relations between national and Community law, legal monism does not work, neither in its statist, nor in its international version: Legal pluralism is needed, not in a sociological‐descriptive sense, but as a normative criterion by which a judge (and a citizen) must refer to many and various sources of law to settle a dispute. Legal pluralism, however, can operate only under a rule of recognition: a common normative framework within which a reasonable number of sources can be handled. What Europe needs, therefore, is an interactionist constitution, which should emerge through an “open‐ended”discursive process.[Link]

The article's main objective is to test the merits of the evolutionary paradigm as it has been applied first to social phenomena and then more specifically to the legal domain. In a preliminary move, a set of the available concepts of law is worked out. A discussion of the idea of evolution and of its use in the social sciences follows. Functionalism and systems theory are scrutinized, with a close eye to the new doctrine of “autopoiesis.” Once an institutional and normative concept of law is agreed upon, attempts to introduce an “evolutionary” paradigm are deemed—the article contends—to be unfruitful. The article concludes that, if law needs a metaphysics, it should be one which allows for change, transformation and the emergence of the radically new. A social universe without gaps, all possible forms of which are determined from the beginning, will end up as the opposite of what we are used to considering as the practice of law.

The paper focuses on and criticizes the jurisprudential approaches of the last twenty years, paying particular attention to the Anglo-Saxon recent trend and the essentialist turn in jurisprudence. Against the direction opened up by Hart, Dworkin and Rawls, contemporary jurisprudence has resumed to reduce law to its imperative and coercive dimension, and legal philosophy to a discipline fundamentally devoid of any practical relevance, including legal reasoning. Counteracting these new tendencies, the paper outlines a research agenda aimed at re-establishing the relevance of jurisprudence in the realm of praxis. Starting from an idea of the practice of law as a self-reflexive exercise aimed at pragmatically defining the concept of law, as distinct from both artefacts and practices which do not raise definition issues, the author argues for the crucial function of legal philosophy in formulating an idea of law that can serve as a standard of correctness for legal reasoning. To this end, the author relies on the categories of Dworkin and Arendt, adding, at the close of the essay, the proposal to integrate this conceptual framework with a criterial or conventionalist concept of law. In this perspective law is seen as an interpretive concept, but it would be pragmatically oriented, though normatively anchored.

The Collapse of the Rule of Law. The Messina Earthquake and the State of Exception Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.