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Diretta da Gennaro Terracciano, Gabriella Mazzei
Direttore Responsabile Coordinamento Editoriale Marco Cardilli Luigi Ferrara, Giuseppe Egidio Iacovino, Carlo Rizzo, Francesco Rota, Valerio Sarcone
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Comitato scientifico Salvatore Bonfiglio, Gianfranco D'Alessio, Gianluca Gardini, Francesco Merloni, Giuseppe Palma, An- gelo Piazza, Alessandra Pioggia, Antonio Uricchio, Vincenzo Caputi Jambrenghi, Annamaria Angiuli, Helene Puliat, J. Sánchez-Mesa Martínez, Andry Matilla Correa.
Comitato dei referee Gaetano Caputi, Marilena Rispoli, Luca Perfetti, Giuseppe Bettoni, Pier Paolo Forte, Ruggiero di Pace, Enrico Carloni, Stefano Gattamelata, Simonetta Pasqua, Guido Clemente di San Luca, Francesco Car- darelli, Anna Corrado, Fabrizio Cerioni, Gaetano Natullo, Paola Saracini, Mario Cerbone, Margherita Interlandi, Bruno Mercurio, Giuseppe Doria, Salvatore Villani.
Comitato dei Garanti Domenico Mutino, Mauro Orefice, Stefano Toschei, Giancarlo Laurini, Angelo Mari, Gerardo Mastran- drea, Germana Panzironi, Maurizio Greco, Filippo Patroni Griffi, , Vincenzo Schioppa, Michel Sciascia, Raffaello Sestini, Leonardo Spagnoletti, Giuseppe Staglianò, Alfredo Storto, Alessandro Tomassetti, Italo Volpe.
Comitato editoriale Laura Albano, Daniela Bolognino, Caterina Bova, Silvia Carosini, Sergio Contessa, Marco Coviello, Ambrogio De Siano, Fortunato Gambardella, Flavio Genghi, Concetta Giunta, Filippo Lacava, Mas- simo Pellingra, Stenio Salzano, Francesco Soluri, Marco Tartaglione, Stefania Terracciano.
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Legal Decision vs Security State in the social need for po-
litical sovereignty of the globalisedfdghdfg constitutional state
di Francesco Petrillo1
Sommario
1. Legal Decisionism and Legal Hermeneutics. Indications as to a possible debate. - 2. Legal Decision- making and De-statehood. - 3. The role of Constitutional Interpretation. – 4. The Security State.
Abstract
Legal positivism of modernity, built on the will of the legislature, is today an interesting issue, considering its differences with logical legal positivism, because it is based on a political deci- sion. Being constructed on a willed decision, it is intertwined with the need for constant re- course to the courts of justice to settle pre- or post- legal questions, regarding radical anthro- pological or existential problems of one individual or of the whole society. The studies on legal decision-making help us also to better understand recent security legislation, in some countries - including European countries - against terrorism, without any opposition from national and supranational political and legal systems.
1 Il presente lavoro è stato sottoposto a referaggio secondo la double blind peer review.
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1. Legal Decisionism and Legal Hermeneutics. therefore to a moderation of extreme logicism in Indications as to a possible debate. which, for Schmitt, legal positivism falls into ab- Carl Schmitt has stated clearly that legal deci- fdghdfgsolute normativism. sionism is closely linked to legal positivism Legal-gnosiological decisionism, born of Gentile’s though not with the formal logicism that has and Croce’s historical materialism- upon which is emerged from research by his antagonist, Hans conceptually built Betti’s legal hermeneutics- ra- Kelsen (Schmitt, 1972: 265). Legal hermeneutics, ther than dialectical materialism, attempts in real- on the one hand, as a sceptical interpretation of le- ity to incise the unhealed wound of the positivism gal interpretation, has a clearly stated approach, of the modern tradition. It attempts to overcome closely aligned to classical, positivistic legal sci- the dualism: the will of the legislature (which de- ence, hinged on the will of the legislature, rather cides generally and abstractly)/will of the judge than analytical-logical legal positivism which dis- (who decides concretely and in particular), bring- tances itself from the will of the legislature (Betti, ing into discussion the spatial and temporal limi- 1990: 846 ss.; 1971: 312 ss.). tations of positive law and attempting to explain Carl Schmitt’s political and legal decisionism is the a-spatial or meta spatial of a-temporal or in- however, a far cry from Emilio Betti’s legal- gno- temporal dimension (Hartmann, 1963; 1970; 1975) siological decisionism. The only common ele- of the will of the legislature and the judge. This is ment shared by the two approaches to the study an attempt to single out, from its premises, in ac- of law is the awareness of being a part of the legal- tual legal ordinance, a sense of the gnosiological- positivistic tradition, built upon the will of the leg- decisional power of the judge’s judgment or of ju- islature, and the foundation of philosophical his- rists in general, not only when established by law tory. In the face of closed codifications and for- which legal-political decisionism requires for malised systems there is no other choice than that <
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sovereign power of general consensus, but it is the interpretation, in the inter-relationships and con- sovereign (power) that this power is to guarantee. nections between legal interpretation and dena- Although Betti’s legal hermeneutics contain traces fdghdfgtionalisat ion and de-statehood, which have char- of Schmitt’s decisionism, especially in the argu- acterised the contemporary world since the end of ments criticising normativism, relevant differ- the Second World War. ences remain between their approaches to the le- Particular relevance is always apportioned, in any gality, and are of a structural and a functional thematic study on constitutional interpretation, to type. the conceptual difference between state and na- 1) The decisional aspect of legality will never tion (Fioravanti, 1979; 1991: 325-350), especially in derive from the hermeneutic-legal ap- order to adequately describe the conceptual diver- proach of political-theoretical presump- sity between internationalisation and interstate- tions. It will never be political authority hood (Bergholz and Peczenick, 1999). which establishes the basis of the right to Internationalisation does not regard the matter of decide, this latter, if anything, will be use- the state (Petrillo, 2014). It stems from legal-natu- ful for establishing the need and the aim. ralistic concepts, or rather, legal rationalistic con- 2) Betti’s legal-hermeneutics decision (Pe- cepts, from modernity and not from contempora- trillo, 2005), in relation to Schmitt’s political neity. These latter concern the relationships be- decision, will never make moves towards tween states, regulated by a supranational law, legislative-political construction because it originating and developing from interstatehood is, in a sense, anti-modern since its ap- (Schmitt, 2005) and not from internationalisa- proach to law excludes the need for law. tion (Campbell, Tomkins A. and Tomkins E. , This latter presents itself solely as a further 2011). eventuality for reflection on law, not as a However, since the concepts of state and state- conceptual synthesis (Schmitt’s legal deci- hood are in crisis, just as the concept of sover- sionism), nor as a reductionist mode of ex- eignty, in contemporary times, is in crisis pression (normativism). (AA.VV., 1996; AA.VV. 2000; Butler and 3) The operative dynamic of the decision, in Chakravorty Spivak, 2009) - from these same the relationship between legal decisionism bases - taking into account the diversity between and legal hermeneutics, makes clear that the concept of nation as state and the concept for while the former tends to emphasise the ca- state as nation, attention should be given to how pacity of law to stabilise political disorder, the operative law between states is more and the latter claims that it is able to guarantee more defined in the conceptualisation the stability of the political system within o f a d e - national law rather than a su- the ethical tolerance possible in the judg- pranational or international law. ment of the jurist. A de-national law may be just a de-state/ or de- statalised law, that is, a law that through its sub- 2. Legal Decision-making and De-statehood stantial rather than formal nature (Catelani, 1998; Although any discussion on the Constitution 2014), does not stem from the illuminist-positiv- (Omaggio, 2015) may find its ubi consistam in the istic concept of law but rather is identifiable arguments on the legal organisation of a state, it through its provision for a series of protections, to be should be emphasised that, maybe paradoxically, evaluated case by case and concerning individual and particular interest lies, regarding constitutional collective legal decisions (Dworkin, 1985). This law is
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the only one to be applied in relationships be- and circumscribed spatially, cannot be ex- tween citizens belonging to different legal sys- cluded, at least in the first instance, from legal tems, though circulating in various states when fdghdfgnorms. these persons, precisely because of the matters In the absence - at least in the aforementioned legal governing interpersonal, legal relationships, can- situations - of statehood and the consequences of not ask for, with the exception of agreements be- law, an interpretation whose exclusive aim is to in- tween states unable to resolve legal problems of a terpret would seem to be manifestly insufficient. generally theoretical type – the application of the An interpretation of rights certainly requires com- laws of the states to which they belong. This is the petence and knowledge different from interpreta- only applicable law by the international Courts of tion of the law. justice, which, on account of their structure and If the analytical-logical interpretation is argumen- nature, must set themselves apart from single tative and feasible for law, as it is based on legal states and in most cases must -otherwise they codes and documents for its reasoning, it is certain would have no reason to exist- face judgments that it will not succeed – without including irre- that cannot be resolved, taking simple recourse to solvable problems in its reasoning when it the laws of the states from which they come from. measures itself against current legal realities – in States which have jointly conferred to the courts, taking into adequate account de-statehood, de- the power to settle controversies between their cit- positivised, axiological and deontological legal izens and citizens of other states (Hirschl, 2011). value-principles essential to legal interpretation Constitutional interpretation currently succumbs that is not dependent on legal statutes. to the influx of interpretation of the law stemming This is commonly found in the constant from globalised de-statehood: comparison with the most recent Ital- ian and foreign constitutional juris- 1) as much because this could concern the pr udence ( AA.VV., 2016; Arajärvi, 2007; Berg- rights of individuals amongst them- holz and Peczenic, 1999; Bogdan, 2010; Carlson, selves, excluding the laws of their own 2013). states; The problem of values interpretation (AA.VV., 2) as much because it could affect public law, 2007) cannot be simply resolved by saying that the particularly inherent to judgments con- values to interpret might have their own colloca- cerning the internal organisation of these tion within interpretation of the law since it it of states, these states in relation to one an- normative derivation, especially considering the other and the relationships between the fact that temporally, these come before norms, states and all public and private subjects, otherwise the norms would have no reason to es- citizens and foreigners in continual rela- tablish them. Nor can it be resolved by saying that tionship with their territorial administra- the constitutional norm is different from other le- tion. gal norms, as for example the Highway Code, Co- dice della strada (Pino, 2010: 127-142). The decisions in such matters require a model Following these views constitutional interpreta- of interpretation of law well beyond mere inter- tion has seemed for a long time to oscillate be- pretation of the law, in which the judges fulfil tween two different possibilities: an exclusive role in interpretative activity and the subject of this interpretation, in-temporal
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a) either the constitutional provision is a through the need for their normative connotation legal norm and the Constitution should almost like a contradictio in terminis, not consid- be interpreted like any other legal doc- fdghdfgered for the exclusive end of justifying value in- ument (Guastini, 2004, 2011); terpretation as normative interpretation. This be- b) or the constitutional provision is not cause values precede norms, in the sense that they only a legal norm and may be consid- pre-exist and their being included, often, in a ered a possible extension of a pro- vague manner in constitutional norms, explains nouncement of values to be interpreted. why norms c a n n o t c o n n o t e them since The constitutional Charter conse- they do not contain them. They can- quently cannot be interpreted like any not be abstracted and generalised in legal document. order to interpret them, but rather they have to be in terpreted, over- This has been observed, from a hermeneutic-legal looking their normative connota- point of view (Betti, 1979; 1990, 1991), but the ques- tions and their abstraction and gen- tion is not asked. Constitutional interpretation can eralisation since they can have their be of a normative type, but might also require a particular concrete dimension . The non-normative type approach. It may be neces- problems posed by the polemic between Herbert sary to have a method capable of taking into con- Hart and Ronald Dworkin ( Hart, 1965; Dworkin, sideration as much the normative dispositions as 1982; 2009; La Torre, 2003; Ferrajoli, 2007) were al- the factual values. ready resolved at the end of the 1950s by Italian Recent neo-constitutionalist theories, though legal doctrine (Caiani, 1954; 1955:163-169), fol- fashionable, ignore the prickliest thorn in consti- lowing fairly precise theoretical guidelines: tutional interpretation and especially compliant constitutional interpretations, in other words, one a. 1.) Values cannot be normatively con- which emerges as a rebuttal. They do not take into noted because their capacity of ex- account, maybe because of a strong Anglo-Saxon tension and expression is such that influence, that Italian doctrine of the 1950s had al- they elude the connotative capacity ready faced such problems which in some ways of the legal norm. They regard a general- were new to our legal culture. ity of cases, in themselves, wider than that It has always been clear in continental, theoretical- of the legal norm. For this reason it is contra- legal perspectives, how little weight axiological dictory, for post-normative theory, to think constitutional dispositions have – when they ex- that the inevitable will happen, that is, that press value , even pre or extra legal - but rather the the norms connoting constitutional values values are axiological when they are understood can be axiological and evaluative, in themselves. The latter, just because they are ax- when: iological, are not normatively connotable. Legal norms fail to express themselves fully, having al- 1. a legal norm cannot be, for normative theories, ways to restrict themselves, considering their ex- evaluative; tensions and their possible deployment in practi- 2. a legal norm, cannot be, for the same theories, cal reality. axiological, because axiological is perhaps the To insert values within a constitutional interpre- value that it seek to connote. tative judgment therefore, one has to force
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b. 1.) Values cannot be abstracted from norms tive and argumentative perspectives based on ax- since, preceding norms themselves, they can also iological and deontological premise which the su- deal with particular and concrete cases, which fdghdfgperior Courts of justice and particularly the Con- elude normative abstractedness. One particular stitutional courts can no longer overlook2. Which value, not in all circumstances, must depend on or methodology for the interpretation of law, used in place submit to a general value. A case by case assess- of a merely analytical- logical or argumenta- ment is always necessary, which is impossible for tive-logical analysis of the law, opens an normative connotation given its general and ab- enormous door in a thick, seemingly im- stract nature. penetrable wall and possibly harmonising Common Law and Civil Law. It slowly wears thin The hermeneutic-legal decision is however con- the demarcation between comparison and inter- sidered, in relation to the decision following an in- pretation, according to the teachings of Tullio As- terpretation of the law, within the phenomenolog- carelli ( Ascarelli, 1952; 1959). It overcomes, in nuce, ical perspective of an interpretation of law, capa- the merest consideration of the polemic between ble of ignoring normative premises connoted with Herbert Hart and Ronald Dworkin. the aim of deciding legally. The problem becomes The hermeneutic canon allows an interpreter to re- not so much that of right decisions according to ject an exclusive approach to the normative docu- the law, since one cannot always make reference ment and to concentrate specifically on an analysis to laws, nor that of decisions according to justice, of the legal activity, to go beyond the parameters which is not of this world, as not only jurists between rule and document and to occupy them- know... but rather – as our constitutional legisla- selves, at the same time, with the completed legal ture has included and ruled1 - that of the right act, the act during its execution, as well as the con- method with which to proceed to a decision sequences of its effects in a broad and comprehen- (d’Alessandro, 1991: pp. 5-17), not the method for sive way. seeking the truth, rather the search for the truth of The application of hermeneutical canons, which the method. ally themselves methodologically with normative The hermeneutic-legal theory proposes itself as an dispositions, allows for the guarantee of a way to ad hoc method for constitutional judgment. Being proceed exhaustively in judgment, substituting as it is filled with interpretative criteria from Ro- the abstract logical procedure of indictment or man law, from medieval hermeneutica juris, as well subsumption, which, in the absence of spatial/le- as from German romantic hermeneutic philoso- gal system limitations and an in-temporality of phy- aimed at discerning human sciences from the law –which is in fact missing, since the reference activity of non-scientific man- it offers interpreta- to a precise legal system, limited by its confines – guarantees any definable judgment as being legal
1 The first clause of art. 111 of the Italian guarantee the means rather than the ends, the Constitutional charter, introduced by art. 1 of law correctness of the interpretative method rather than cost. n. 23 November 1999, n. 2, very precisely, the achievement of justice. raising it to the rank of constitutional principle of our 2 Cfr., on the question, the sentence of the Italian legal system, adhering in practice to the basic need Constitutional Court of 12 March 2010, n. 93, on the for a hermeneutic-legal type of general theory, the issue of due process ex art. 111, the first comma of change of interest perspective between a trial based our Constitutional Charter. Such a sentence is a clear on law, aiming to guarantee the myth of distributed, application of the hermeneutic-legal methodology by ideal justice and a trial based on law, aiming to our Constitutional Court.
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and not only p o l i t i c a l . The deci- becomes a guarantee of the judgment sion of such a judgment is, in fact, itself, though in different perspec- l e g a l : fdghdfgtives depending on whet her they are taken into consideration by private 1. because it is not just considered as an a t t o r n e y s – triadic or dyadic circu- act of cognitive interpretation, but l a r i t y - (Mengoni, 1996; 1999:353 ss.) or public also as an act of will, where the deci- attorneys- triadic circularity - (Modugno, 2009). sion on the normative document There are evident differences between pre-under- moves from a merely gnoseological standing and circularity, such as premises of this approach; methodology, originating for the interpretation of 2. because it is not built exclusively as an law (quid juris) and setting themselves up, only in act of will but also as an act of a second instance, as a philosophy of law (quid knowledge, where the political decision jus) and the so-called neo-constitutionalist theo- is characterised, instead, for being an ries, born as theories of cognitive analysis of nor- act of will capable of being excluded mative production and then put forward as inter- from cognitive analysis; in fact pretative methodologies. for having no need of one. In these latter cases, the evaluative instances pre- vail over the method merely as a means. Their The hermeneutic method therefore allows for a le- proceeding is resolved in a teleology of justice, re- gal judgment able to go beyond just a “reading” sulting in value judgments – for example for con- of the normative provision, and also to analyse the stitutional value (Barberis, 2011: 233) – so much so possible application of the principles of law, as that there distancing from analytical jus-positiv- well as going beyond the peremptory discretion- ism lies precisely in the negation of the thesis of ality of the judge (Stolleis, 2007; Bartole, 2008), reparability between law and morals, founding le- never completely aborted, in the history of the ap- gal positivism. In the circular and pre-understand- plication of law (Nobili, 2009), if not by illuminist, jus- ing, hermeneutic method, it is natural and does positivist, jus-normative mythology. And the hermeneu- not pose the question as a forcing of the insepara- tic canons of this method permit a judgment bility of law and morals, as also between law and which is not so much internationalised as de-sta- nature and law and history (Torben, 2007) talised; available for deciding the legal The one determining a final evaluation of a judg- point of view regardless of delimited ment is the collectivity of interpreting spirits, spatiality and of systemic in-temporality. which in its turn is interpreted and reinterpreted Therefore, the presupposition of the her- and able to evaluate the existence of validity, not meneutic canon is precisely the question merely the legal content but rather the formality of space-temporality, a question not so of the judgment. In this is the real sense of the sci- much philosophical as legal. entific community of jurists: a sense that is not Pre-understanding and circularity make up the sub- only dogmatic, nor just historical but rather le- stantive and constituent substance of interpretative gally validating that interpretation in normative canons defining a judgment aimed at guaranteeing function , which is legal interpretation. The discre- the right method, rather than a method for justice tionality of the interpreting subject, for example – or a right decision, because the existence of criteria in the end however recognised by neo-constitu- in proceeding towards a judgment tionalist theories – has never been denied here.
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And more. The possibility of its regulation and ument because of its constituents but not as a res- control is built on its non-negation. olution or exclusive- such as the possible premises The legal decision is always posed as a reinterpre- fdghdfgof legal reasoning. tation. The object speaks to us through the spirit of the subject which is already occupied by it. And 3. The role of Constitutional Interpretation. while artistic, musical, theological and literary in- On the issue of de-statalised interpretation, this terpretation can, perhaps, do without it, the inter- strongly affects constitutional interpretation be- pretation of law is forced to ask a further question, cause the study of constitutions has for a long time what is the object of legal interpretation ? Rectius: gone beyond the logic of edification of state legal is an object the object of legal interpretation ? systems. Constitutional judgment (Tronconi Rei- It would seem evident, even to the most inatten- gada, 2013), not only concerns the norm/individ- tive jurist that the object of legal interpretation is ual relationship but also the principle legal/indi- certainly the interpreted subject, since whoever vidual relationship is shown – at least when it de- interprets law decides on the activity, on the his- cides on the conformity of the law to the Constitu- tory, on the life of a man like himself, with whom tion, providing an in-depth interpretation of the he is in absolute circular continuity. law itself, in unresolved sentences - as a teleolog- Legal interpretation is manifested as the construc- ical and axiological judgment. tion of thought and the direction of the will of the It is not by chance that the tool of hermeneutical- interpreting subject, but also as the overall consid- legal theory par excellence , used in the eration of the activity undertaken by the inter- heart of constitutional judgment is preted subject. the tool of the fundamental princi- In the absence of the existence of circularity, as p l e s o f l a w . A n d it is not by c h a n c e with pre-understanding, not only must one deny that hermeneutics methodology, the assess ability or the validity of the judg- applied to the Constitution, clearly ment, that is, the content of the judgment is to distinguishes itself for those argu- be considered non-legal or non-moral, but actu- mentative methodologies which ally, the correctness of the procedural realisa- aim to single out the axiology and tion of the judgment. One must declare not its the teleology of norms , holding that the content invalid but the judgment itself; not tits judgment is not axiological but it is the constitu- decision but the interpretative procedure con- tional norms themselves which are axiological, as cluding in that same decision. premises bound to legal reasoning. At this level of reasoning, we can fully under- The formal premises of legal reasoning, in her- stand, at the heart of constitutional interpretation, meneutical methodology, are however, pre- for example to give a hermeneutic meaning to the understanding and circularity and explain the constitution, in constitutional hermeneutics (Pe- styptic relationship between the fundamental trillo, 2011: 202 ss.), the difference, intertwined principles of law and human collectivity –as with hermeneutic-legal methodology, between has been well stated (Cervati, 2010: 139-180) – the possibility of full circularity (dyadic) – which suitable for showing the relevance of the insti- interprets the law regardless of the normative tution of principles on the issue of constitu- document – and that of mediated or partial circu- tional interpretation. larity (triadic) – which accepts the normative doc-
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Precisely for the activity of constitutional-legal in- through recourse to principles, to constitutional terpreting, it has been proposed to give im- judgment, not only in the triadic hermeneutic cir- portance not to the logic of the text but to the text fdghdfgcle, but also in the dyadic. as an unfinished project able to acquire complete- From the first, the norm is never excluded so the ness only with interpretation, through an axiolog- interpreter will need to go back, before the deci- ical and teleological perspective (Benedetti, 2006; sion, to the point of departure of the methodolog- 2010: 11-16). ical procedure, or better to the Constitutional Despite being on the side of legal-constitutionalist charter, the fundamental and validating subject of doctrine, linked to the positivist theory of mo- such an interpretation (Modugno, 2005: 58 ss.). In dernity, it still tends to exclude found- the second place, we get nearer, keeping together ing importance of principles in favour the relationship between dogmatic and herme- of rules which are to be found in nor- neutic and isolating a circularity – though not mative dispositions like, for example completely pure, since in any case it is necessary that in Art. 12of the Preliminary dispo- to go back to the document – in which the inter- sitions or Pre-laws of the civil code (Pace, preting subject and object, but better to say the in- 2007: 83-113), and to use, consequently, the inter- terpreted subject, have the the same substance, at pretative canons) literal, logical, systematic, least from a teleological point of view (Mengoni, historical) of traditional, legal dogmatism, 1999: 353 ss.). Or taking as a point of departure, the but not to those hermeneutical canons apply- latter teleological framework, developed in pri- ing to the subject, besides the subject of inter- vate law and taking the document as dispensable pretation. for example compared to the application of the civ- Even the jurisprudence of our Constitutional ilistic categories of interpretation, such as herme- court considers by now part of its judgment the neutic canons and elevated to the rank of «norms onto-deontological, gnos-deontological and axio- of recognition» (Cervati, 2010: 159-169). The latter, logical issues inherent in their reasoning, besides bound by a double twist of cord with pre-understand- – as especially occurs in constitutional courts of ing and circularity, for validating judgment they Common Law – to give importance to a no longer have need of the text or normative doc- l o g i c a l - argumentative interpreta- ument and can allow for a verification of their ax- tion capable of taking into account iological and teleological existence. The merest on the one h a n d proportionality to consideration of the presence, in the action of balancing out the interests at judging, of the subject, adequately pre-under- stake, and on the other hand ref- standing, is enough for the realisation of the circu- erence to harmonising the set, or larity between subject and object and for the over- not set, parameters p r e v e n t a - all reconstruction of the fact. The judgment will t i v e ly. be invalid if, applying the hermeneutic canons; Consequently, since it seems rather haphazard – it turns out to be reached in the absence of the despite the ponderous theoretical tension of the critical pre-understanding of the interpreting theory of analytical-logical, legal interpretation subject and hermeneutic circularity between (Guastini, 2004: 271) – excluding the recognition of the interpreting subject and the interpreted sub- a monopoly on interpretation by the Constitu- ject. tional court, we must emphasise that such a risk is certainly eliminated, in nuce, by applying,
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Validation also coincides with verification of the denying closed, deductive, axiomatic existence of the incomplete project between the in- systems of Civil Law – once the three funda- terpreting and interpreted subjects, to fill in with fdghdfgmental principles are in contrast like the exclusive the interpretation, above all to discover whether sovereignty of the state, the forbidden gap-filling the procedural course has effectively been con- of laws, the prevalence of the law over any other cluded (Benedetti, 1995; 2014). The validity of the judg- legal rule – even though they are present in the ment lies in the realisation of this project. In the various codes and special laws, exceptionally, has case of an incomplete project, one cannot maintain a peculiar relevance on the issue of constitutional any decision as being reached hermeneutically interpretation. valid. Only a hermeneutic type of methodological ap- Hermeneutic constitutional judgment – when it proach completely manages to guarantee and val- concerns an interpretation of law by the Constitu- idate the use of unwritten, axiological and teleo- tional court with declaration of illegitimacy – can logical principles, pre-eminent in constitu- come close therefore to a perfect r e c i p r o c a - tional judgment. This is absolutely indispensa- tion with pure hermeneutic - l e g a l c i r - ble – the maximum evolution o f cularity, which in its maximum ex- o u r l e g a l culture rooted in the pansion, puts itself forward in an ab- so- c a l l e d “crisis of law” ( Ripert, 1949; solute or dyadic form of circularity. In Caiani, 1954; 1955; Betti,1955) which was, in real- this, the subject and the object of the interpreta- ity, the crisis of the concept of law in the 1950s – tion-considering that the object is shown in the le- as much for the so-called interpretation of values, gal judgment for its being the subject carrying as for the constitutional interpretation for values, out the legal activity- coincide perfectly in as for the constitutional interpretation for param- that interpretative teleology characterised by eters, and that is, for the most reliable paths justi- the collective result of the constitutional sen- fying the political-legal valence (not, we note, le- tence of mere interpretation. gal-political)3 of constitutional judgment, and be- In dyadic circularity, the teleological and axiolog- coming a subsidiary approach, if not indispensa- ical moment will prevail, in an interpretative con- ble, as much for the methodology according to in- text, over the public (law) or private (contractual terpretation of values, as for the interpretation of declaration) normative document and the valida- parameters. In both these typologies of interpreta- tion of the interpretation is characterised by the tion, it becomes necessary not so much as to confirmation of the existence of critical, pre-un- acknowledge the principle or learn it through gen- derstanding and hermeneutic circularity of the eralisation and abstraction of the norms as rather judgment. to consider it axiologically and teleologically – Hermeneutic-legal theory, through its operative taking into account, for example, of the basis of instruments, significant in institutions the legal system, the social and ethical contexts of o f administrative discretionality , j u s - a collectivity or of a people and the need for social t i c e a n d fundamental principles of la w ,
3 Cfr., e.g., Cass. civ., sez. III, 30 September 2011, a state judge to apply directly the paction norm, even n. 19985. It is interesting to note how the Cassazione though it does not comply with internal law, as long admits the immediate relevance in our legal system, as it follows the constitutional principles of that same of the norms of the European convention on human state. rights and fundamental liberties and the obligation of
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order – and then apply it, again for exam- The third is social rationality. Not even a strong de- ple, after constructing a parameter and/or mocracy can keep alive its formal rules if the uni- balance of the interests. In balancing in- fdghdfgversally accepted social rights are not upheld. The terests and in the choice of parameter we rules are, instead, modulated on social needs and build, between principle and norm, a pure the law must put all its tools at their disposal, not circularity of a dyadic type. It becomes only new rules (dispositions and principles) but the principle and norm, not only as a dis- also interpretative corrections to old rules, inter- position, as a relationship between regu- pretative methods for guaranteeing, if not the lating disposition and regulated fact, but truth of the hermeneutic result, at least the regu- also because balancing interests and in- larity and the certainty that the method applies terpreting parameters. By constructing a equally to all. principle or a parameter, one builds a Political sovereignty (De Giovanni, 2015) is au- new, abstract typology- independent from thority more than legality, and the authority is those present in the current norm - essen- none other than the recognition of a constant rela- tial for a judgment. tionship between the authoritativeness of who- ever exercises it and the feeling of being guaran- 4. The Security State. teed by those who hold to its worth (respect). A The article published in Le Monde on 23 December collective recognition of the legal method of ap- 2015 (Agamben, 2015) by Giorgio Agamben, plying law rather than the legal rule to be applied. closes and opens, at the same time, this interven- In complex and multiracial societies it is certainly tion. Substance and the form of law (Catelani, preferable to have judicial mediation-because it is 1998), do not in effect represent the defining and a guarantee of certain method, rather than the cer- conceptual hendiadys of the relationship between tainty of the result of the method - in alternative law, sociology and politics. to recourse to fear, aimed at avoiding every form So well known are the themes that one can be very of possible mediation between political power synthetic: and its subjects, with the de-politicisation of the The first is legal rationality; the substance of the citizen and the transformation of respect into obe- law. The formulae for norms regarding the anti- dience, into authoritativeness into undisputed terrorist emergency, in most cases, are not legal power. formulae. Consequently, how is it able to be legal Emergency legislation, introduced by President when applied to a concrete case by judges? How Hollande of the French Republic after the terror can the legal form guarantee legal justice and not attack, had first, on November 25, asked parlia- just political justice? We cannot look for, as Agam- ment for the depoliticisation of every person for whom ben explains so well, judicial truth by listening to there may be serious motives for believing their behav- gossip (Agamben, 2015)! iour might be construed as a threat to public order and The second is political rationality. The form of law, then, after its passage through the Senate in the the disposition of the law for example, cannot be spring of 2016, corrected its thrust, addressing the issued solely in the perspective of the reason of subject of security measures only for those in posses- state. Sovereign will cannot ignore individual and sion of double citizenship. The National Assembly in social rights; otherwise there would not be a dem- April 2016 did not even accept the most restricted ocratic will, recognisable and recognised by indi- version, especially because the word security was viduals in the global world.
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counter not to the word liberty or brotherhood but AA.VV. (2016), The Constitution of Sweden the fun- to the word equality. damental laws and the riksdag act , with an introduc- Equality is perhaps the concept on which Agam- fdghdfgtion by Magnus Isberg (Stockholm: Sveriges Riks- ben dealt with least, intending clearly to deal with dag). the political problem before the legal problem, however it is that which dominated most of the AA.VV. (2000), Diritti umani e sovranità, (Torino: speeches held in the National Assembly and the Giappichelli). French Senate. Both of these institutions prevailed over the Hollande’s government’s ‘fear’. AA.VV. (1996), Crisi e metamorfosi della sovranità. Justice is the legislature and the judge (Scialoja, Atti del XIX congresso di filosofia giruidica e politica 1932) and its legal strength is a political strength (Milano: Giuffrè). because it guarantees attention to the selfish part of every human being. AA.VV. (2007), Interpretazione costituzionale, a cura Political problems posed by the security state as a di G. Azzariti (Torino: Giappichelli). moment of political counter position to terrorism, find possible alternative solutions, more than by Agamben, G. (2015), De l’Etat de droit à l’Etat de sé- establishing new rules which tend to reduce the curité, Le Monde, 23/27 -12 - 2015. free space of the individual, they fix methodolog- ical criteria of judgment in order to guarantee for Arajärvi P. (2007), The Finnish Perspective on the all trial rules able to balance the needs of the State Last-Resort Support for Subsistence, 7 Constitutional with those of whom do not belong to the state or Law, Scandinavian in Law. do not belong at all. Francesco Petrillo Ascarelli, T. (1952), Studi di diritto comparato e in tema di interpretazione (Milano: Giuffrè).
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