Towards a Positivist Reading of Neo-constitutionalism (*)
It is difficult to see how [an ultimate foundation] can be attributed to rights which are historically relative. But we should not be frightened of relativism. [...] It is precisely this pluralism which constitutes the most powerful argument in favour of some of the most significant human rights, such as religious freedom and freedom of thought in general. If we were not convinced of the irreducible plurality of [the ultimate views], but instead believed that religious, ethical and political declarations could be demonstrated by theorems [...], the right to religious freedom or the freedom of political thought would lose their reason for existence. (N. Bobbio, 1965) (1).
It may be objected that anyone who [...] denies that values can be determined scientifically thereby cuts himself off from making a choice between good and evil and must end up in an indifferent passivity, but this objection is foolish. [...] I know very well what I shall stand for and fight for. Only I do not imagine myself, or try to make others believe, that it can be scientifically proved that my point of view is the "right" one. (A. Ross, 1952) (2).
Neo-constitutionalism is a term recently suggested in legal and political philosophy to label what appears as a new perspective to look at and to discuss of law, of its ontological, phenomenological and epistemological dimension; i.e.: of its forms of identification, application and cognition.
Namely, the term neo-constitutionalism has been proposed and first used by some exponents of the Genoa School (3) to capture and to account for what, despite any difference in the arguments adopted and/or in the tenets maintained, emerges as a common assumption in the last two or three decades writings by legal and political philosophers as Ronald Dworkin, Robert Alexy, Carlos Nino, and, in Italy, Luigi Ferrajoli and Gustavo Zagrebelsky.
That is to say, to put it roughly, the assumption along which the very notion of law together with its forms of identification, application and cognition (i.e., in its ontological, phenomenological, and epistemological dimension) requires to be radically revisited because of the prominent role and pervasive influence fundamental rights have been acquiring since the conclusion of the second world war both in the domestic law of an ever increasing number of (western) countries and in international law. In other words, the assumption is that fundamental rights have been so deeply affecting law in all its major aspects, to justify the need and to urge the claim for a new understanding of its notion.
The suggestion to name neo-constitutionalism the demand for such a new understanding of the notion of law is captivating. Simple and plain as it sounds, the term neo-constitutionalism in fact both recalls constitutionalism as the immediate antecedent of the demand dealt with and acknowledges what in such a demand can be taken to be distinguishing and innovative.
The other way round, the quite dominant opinion on the way to perceive what can be referred to as an expression of neo-constitutionalism, far from being captivating, appears restrictive if not even misleading. Namely, what appears restrictive if not even misleading is the opinion according to which neo-constitutionalism, despite any difference in the way it may happen to be phrased and argued for, is mainly, if not exclusively, a form of natural law; i.e., one of the different forms natural law has been given as the time goes by.
Despite such a widespread dominant opinion, actually there is no reason why neo-constitutionalism shouldn't be conceived of as a form of positive law rather than as a form of natural law. To the contrary, it seems sound to maintain that, both as a matter of fact and as a matter of law, neo-constitutionalism deserves and requires a legal positivist reading in order to account for its true distinguishing feature: the demand for a new definition of the notion of law because of the radical changes a great number of positive legal systems have been going through since the statement and the protection of fundamental rights have been taken to be their grounding constitutive components; i.e., since fundamental rights have been acquiring a prominent and pervasive influence in affecting them in all their major aspects.
Thus, the ultimate contention of this paper is the attempt to vindicate a legal positivist reading of neo-constitutionalism. But, before venturing it (§ 3.), a few remarks will be devoted to an introductory characterization of the notion of neo-constitutionalism (§ 1.) and to the distinction of some of its different understandings because of the two crucial notions it relies on (§ 2.): the notion of constitutionalism (§ 2.1.) and the notion of fundamental rights (§ 2.2.).
II. Neo-constitutionalism: some introductory remarks and a preliminary distinction
For any major trend in philosophy (of law) it is usually possible to isolate a kernel of ultimate distinguishing features despite the different ways such features may happen to be combined and merged together and, to a certain extent, regardless of the differing views each of these features may be maintained to amount to either because of the forms the (legal) philosophical trend has actually been given and/or because of the forms it can potentially acquire. The same holds true with neo-constitutionalism whose very core, as already mentioned, amounts to the assumption that the notion of law needs to be reconstructed and defined from anew because of the peculiar role fundamental rights have been playing in the last decades and, despite their most recent apparent crisis (4), continue to play both in domestic law of many countries and in international law.
1. The claim for a new understanding of law
According to a neo-constitutionalist perspective, the legal acknowledgement and statement of fundamental rights together with the institutions of a cluster of procedures, practices and devices aiming at promoting their legal implementation and/or granting their judicial protection, have given a start to a radical change in the forms of identification, application and cognition of law (5).
That is mainly so because of the intimate axiological nature of fundamental rights which, as a rule, either express a value (e.g., equality, equity, individual freedom, human dignity) or a means to promote, attain, further or defend a value (e.g., scholar education as a means to promote and further human dignity). To be sure, because of such a strong evaluative connotation, insofar as their legal statement goes together with the adoption of legal devices for their implementation and protection (be they peculiar institutions, or the enactment of procedural rather than substantive rules, or even the emergence of judicial practices), fundamental rights cannot but affect and urge a new definition (a) of the criteria of identification, (b) of the modalities of (judicial) application, and (c) of the forms of cognition of the rules whose totality integrates and constitutes a legal system.
To begin with, the statement of fundamental rights in the constitution and/or in constitutional amendments of a legal system, originates a twofold innovation in the way to conceive of the criteria of identification of its rules.
The first, manifest, innovative outcome is that formal criteria of identification, consisting in compliance with competence and/or procedural metarules, both as a matter of fact and as a matter of law, become complementary to material criteria of identification consisting in the requirement to cope or at least not to conflict with the values expressed by and/or grounding the fundamental rights acknowledged by the system (6). Further, formal criteria are not only complementary, but also subordinate to material criteria of identification: to be sure, insofar as a statute, regardless of its compliance with the formal criteria of identification, can be doubted not to meet some material requirement, then, for this very reason, it becomes liable to be declared void and/or, as the case may be, not to be given (judicial) application (7).
A second innovative outcome is one which follows from the widespread view on the alleged universality of fundamental rights. Namely, depending on how seriously the universality of fundamental rights is taken to be, the (material) criteria of identification of the rules of a legal system can be maintained not to be confined to the values entrenched by the fundamental rights of the system. To the contrary, it might be purported that such criteria also range over the values grounding the fundamental rights laid down and solemnly proclaimed in regional and/or international declarations, charters and covenants (8). Such a change surely is not yet much evident, nor largely promoted. Nevertheless, to a certain extent, it is even more radical than the one mentioned before. That is clearly so since it challenges the forms along which domestic and international law can and/or have to interact with each other, and, hence, obviously enough, the very way to conceive of the notion of national sovereignty.
The way in which the statement of fundamental rights in a legal system affects the modalities of the (judicial) application of its rules is, perhaps, less innovative but surely not less prominent and pervasive than the way in which it affects the criteria of identification of the rules of the system.
Surely it is not less prominent and pervasive neither when (a) fundamental rights are given a direct, straightforward, (judicial) application (9), nor when (b) they are provided an indirect (judicial) application mediated by the (judicial) application of the statutory rules which, as the case may be, have happened to be enacted both to confine and to specify the scope of the different understandings of the values expressed by and/or grounding fundamental rights, nor, lastly, when (c) they are made use of as an interpretative device in the (judicial) application of the rules of the system (10). In all these different occurrences, fundamental rights cannot but have a prominent role and a pervasive influence; to be sure, because of their ultimate evaluative nature, they cannot but give rise to and ground a radically antiformalist way to interpret, and hence, to provide (judicial) application of law.
The way in which the statement of fundamental rights in a legal system affects the (judicial) application of its rules is, perhaps, not as much innovative as it undoubtedly is prominent and pervasive. In fact, theoretically well-grounded arguments contrasting any formalist conception of legal interpretation as well as any mechanical view on the (judicial) application of law can, to a large extent, be figured out even with regard to legal systems where fundamental rights have no deep, nor wide relevance (11). Nevertheless, though the claim for any antiformalist understanding of adjudication is not much innovative, there is still something which can be taken to be a distinguishing feature of the neo-constitutionalism way to account for it. Namely, the contention for an increasing attention towards equity regardless of legal certainty; i.e.: towards materially just and fair rather than simply formally correct judicial decisions, towards weighting of and balancing among eventually competing legal principles rather than towards any apparent deduction from legal rules (12), and hence, towards an "approximate" rather than an allegedly deductive nature of legal reasoning (13).
Finally, the very reason why the statement of fundamental rights in a legal system can be maintained to affect the modalities of the (judicial) application of its rules, holds good with regard to the forms of their cognition. In fact, insofar as the ultimate evaluative nature of fundamental rights confirms and strengthens an antiformalist understanding of legal interpretation, it cannot but lead to a critical attitude both towards any mechanical view on (judicial) application of law and towards any allegedly neutral and objectively scientific form of cognition of law.
2. Two arguments against the claim for a new understanding of law?
Before coming to a preliminary distinction concerning different possible ways to conceive of neo-constitutionalism, a warning is in order. Namely, the need for a radical change in the way to account for the notion of law in all its major dimensions because of the prominent role fundamental rights have been acquiring in a large variety of legal systems in the last decades, holds good despite, if not even because of two major deficiencies such legal systems can be blamed for.
The first deficiency, at the same time political and legal in character, has to do with the choice and realization of the different legal tools and techniques to implement and protect the catalogue of fundamental rights which, as the case may be, happen to be written down in a given legal system. In other words, the first deficiency concerns the (limited) extent to which legal protection of fundamental rights can be decided to be confined to (14).
The second deficiency, at the same time theoretical and ethical in character, has to do, in its turn, with the very notion of fundamental rights and the criteria of their identification and/or foundation. In other words, the second deficiency concerns both the fuzziness and the culturally laden nature of any fundamental right which, as the case may be, happens to be listed in the catalogue of rights to be protected by a given legal system (15).
Neither the complaint because of the shortcomings in granting satisfactory protection to the fundamental rights acknowledged by different legal systems, nor the critical attitude towards the allegedly universal and/or univocal understanding of which fundamental rights should be granted legal protection are sufficient to reject the neo-constitutionalist claim for a new definition of the notion of law. Neither of the two is sufficient, regardless of how much sound and well-grounded each of them can be maintained to be. Surely, neither of them diminishes the prominent role of fundamental rights in affecting the criteria of identification, the modalities of (judicial) application and the forms of cognition of the rules whose totality integrates and constitutes the legal system where they have been written down. The other way round, the two of them, both the complaint concerning the shortcomings in making them effective and the critical attitude towards their allegedly universal and/or univocal understanding, contribute to recognize, blamed as its effects can be purported to be, the pervasive influence of fundamental rights in those legal systems where they, as a matter of fact and as a matter of law, are maintained to be the ultimate constitutive ingredients.
3. A preliminary distinction on the way to conceive of neo-constitutionalism
The foregoing introductory remarks (meant to make clear the reason why of the claim for a new understanding of the notion of law) lead to a preliminary distinction about the term neo-constitutionalism and its possible uses. Namely, they lead to distinguish what might either be taken to amount to three different notions of neo-constitutionalism, or, perhaps even more convincingly, to what might rather be conceived of as a threefold significance (import) of one and the same notion.
Being more precise, the term neo-constitutionalism can be used, first, in the language of jurists to refer to legal systems where a catalogue of fundamental rights has been expressly laid down in the constitution and/or in constitutional amendments, and where such a catalogue has been supplemented with a variety of legal devices, different as the case may be, to further their implementation and/or to grant them legal protection. Such an use of the term simply refers to a distinguishing feature which some legal systems may happen to possess; that is to say, it simply refers to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics (16).
Second, the term neo-constitutionalism can be used in the language of legal theorists and philosophers to refer to a new paradigm of law together with its modalities of (judicial) application and forms of cognition. Such an use of the term does not refer just to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics. It rather refers to an explicative model which (positive) law can be given because of the way legal systems may happen to be figured out (17).
Third, the term neo-constitutionalism can be used in the language of legal and/or political and/or moral philosophers to refer to law as it should be because of the law as it is; that is to say because of the principles and the values which it explicitly states: the fundamental rights, the principles and values which are within, nor without it (18). Such an use of the term does not refer just to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics. Nor it refers just to an explicative model of particular (positive) legal systems. Rather, such an use of the term refers to an axiological-normative model of law.
Three different notions, perhaps. Or, rather, perhaps a threefold significance and import of one and the same notion: empirical and descriptive in its significance and import, when the term is used in the language of jurists and/or legal dogmaticians; reconstructive and explicative in its significance and import, when the term is used in the language of legal philosophers and theorists; axiological and normative in its significance and import when the term is used in the language of legal, political or moral philosophers.
III. Neo-constitutionalism: different uses, concepts, and conceptions
As already mentioned, neo-constitutionalism is a term recently suggested in the literature of legal and political philosophy to refer to the forms and modalities which constitutionalism has been acquiring in the last decades. To be more precise, it is a term to label the forms and modalities which constitutionalism has been given in the last decades with regard to the ever increasing number of contemporary legal systems where a catalogue of fundamental rights has been expressly stated in the constitution and/or in constitutional amendments, and where a number of legal devices to secure their implementation and/or legal protection has been adopted. That is the ultimate core meaning of a term which, though it is just a new entry in the lexicon of legal and political philosophy, already conveys different understandings referring to a variety of ways to conceive of law which are far from being equivalent.
Such a plurality of different understandings undoubtedly reflects, as the dominant opinion maintains, the variety of different concepts of the notion of constitutionalism which neo-constitutionalism explicitly recalls and relies on (§ 2.1.). But at the same time, as on the contrary it is hardly ever taken into account, it also depends upon the competing views on the notion of fundamental rights; i.e., it also depends upon the disagreements on the notion because of which the distinction between constitutionalism and neo-constitutionalism is claimed to be drawn (§ 2.2.).
1. Differences due to different views on constitutionalism
The variety of possible understandings of neo-constitutionalism is a somewhat obvious consequence of the corresponding variety of possible understandings of constitutionalism. Though one-sided, such a tenet of the dominant opinion is undoubtedly sound.
To be sure, different understandings of the notion of constitutionalism can be distinguished (a) partly because of the differing ways to trace its first occurrences back in the past and to figure out the main forms it has happened to be given in different historical periods and/or geographical areas (19), (b) partly because of the plurality of disciplinary contexts in which its notion is made use of: from the political to the legal philosophy, from (the theory of) constitutional law to the sociology of law (20), and (c) partly because of the variety of concepts and/or conceptions constitutionalism has been provided in each of these contexts, and particularly in its originally most natural one of political philosophy (21).
An excellent overview, sharp and brilliant, of these many reasons why the notion of constitutionalism is intricate when not even tricky, is provided by Giovanni Sartori in a paper first published in 1962. (22) In fact, despite its intent is far from being meta-theoretical, Sartori's analysis touches upon the major controversial questions on the (re)construction of the notion of constitutionalism supplying, as a result, a cluster of intertwined distinctions which actually are of great help in clarifying most puzzles together with the main sources they stem from.
The ultimate contention of the paper is the denial of any alleged one to one correspondence between constitutionalism and (written) constitutions, between the two terms as well as among the notions each of them can be taken to express. Namely, following a three steps argumentative strategy, Sartori shows the possibility of (a form of) constitutionalism without any correspondent (written) constitution and, symmetrically, the possibility of (written) constitutions without any correspondent (form of) constitutionalism.
To be more precise, the first step in such an argumentative strategy is to show that constitutionalism is not necessarily bound to a (written) constitution. That is the case, paramount for its significance, with the English constitutionalism (23). Namely, the English political-legal system lacks a proper written constitution (24). Nevertheless, it cannot be doubted to be an expression of constitutionalism because of its distinguishing features: the rule of law and a "system of protected freedom for the individual" (25). Thus, here it comes the first implicit distinction between two understandings of constitutionalism: (a) constitutionalism as a way to term a political-legal system which, regardless of any written constitution, posses "a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a "limited government"" (26), and (b) constitutionalism as a way to term any political-legal system which may happen to exhibit a written constitution.
The following step in Sartori's argumentative strategy is to take into account the demand for a written constitution as the very kernel of the sort of constitutionalism which is figured out in the United States as well as in France and Europe since the late XVIII and beginnings of the XIX century. That is to say, the second step consists in focusing on the notion of written constitution in order to draw a new explicit distinction between two meanings which, in Sartori's view, the term constitution is nowadays given: "a strict [substantive] meaning (the garantiste meaning) and a formal cosmic meaning" (27), "Along with the former "constitution" is a system of protected freedoms for citizens. Along with the latter "constitution" is any way of giving form to a State whatever" (28). Further, going deeper in his linguistic/conceptual overview, Sartori distinguishes three sorts of constitution (29): (a) garantiste constitutions (i.e.: proper constitutions); (b) nominal constitutions (i.e.: constitutions which "are merely organizational [...], i.e., the collection of rules which organize but do not restrain the exercise of political power in a given polity" (30)); (c) façade constitutions or fake constitutions (i.e.: constitutions which, differently from the nominal ones "take the appearance of "true constitutions". What makes them untrue is that they are disregarded (at least in their essential garantiste features" (31)) (32).
Far from being confined to different possible sorts of constitution, the previous two distinctions prelude to the third step in Sartori's argumentative strategy: the last and decisive distinction which parallels in a somewhat symmetric way the first implicit distinction between the two understandings of constitutionalism. Namely, the last distinction is between two understandings of constitution: (a) constitution in the sense of a true distinguishing feature of constitutionalism (i.e., that is the case when a garantiste constitution is at stage, and (b) constitution in the sense of (an alleged) source of law which, regardless of the way it happens to be phrased, is actually unable to comply with the constitutionalist major requirements (i.e., that is the case when either the nominal or the façade constitutions are at stage).
In a word, as already remarked, Sartori's main contention is to deny any one to one correspondence between constitutionalism and (written) constitution because of a clearly defined way to conceive of both the notion of constitution and the notion of constitutionalism: constitution as the garantiste constitution, and constitutionalism as the political-legal system whose distinguishing feature is the rule of law, not of men; the rule of law through the limits of law (33).
Now Sartori's analysis, its main contention together with the three steps argumentative strategy to support it, can be acknowledged a threefold merit: (a) the first merit, as already remarked, is that to point out and isolate, probably beside any real intended purpose, the major sources where disagreements on the way to conceive of constitutionalism stem from; (b) the second merit is that to provide a definition of constitutionalism which is very close to the characterization of the ultimate kernel of what, following the recent suggestion, may be termed neo-constitutionalism; and (c) the third merit is that to make clear the reason why of the alleged contrast between constitutionalism and legal positivism.
In particular, the first merit of Sartori's analysis is that to make clear that the disagreement on the way to conceive of constitutionalism is the result of different ways to look at the possible relationships between different understandings of both the very notion of constitution and the ultimate features of what political-legal systems can be maintained to instanciate a constitutional system.
Further, the second merit of Sartori's analysis is the way of defining constitutionalism as the rule of law through the limits of law, namely as a "system of protected freedom for the individual" (34) consisting in "a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a "limited government"" (35); that is to say a way to conceive of constitutionalism which is very close to what the ultimate kernel of neo-constitutionalism has been taken to amount to. To be sure, Sartori's characterization of constitutionalism as well as the ultimate kernel of what has been suggested to be termed neo-constitutionalism make reference, the two of them, to the peculiarly "invasive" role which the protection of fundamental rights has been acquiring after the second world war both in domestic and international law. Now, no doubt that legal protection of fundamental rights had already been pointed out as a necessary ingredient of the concept of constitution(alism) long before, in 1789 Declaration of the Rights of Man and of the Citizen (36). Nevertheless, though it might be taken to be a long lasting traditional tenet of constitutionalism, it is only beginning with the second post-war, i.e. beginning with what probably too optimistically has been labelled the "age of rights" (37), that legal protection of fundamental rights has started to be a distinguishing feature of both international and domestic law. That is clearly so with regard to international law where it constitutes a truly innovative principle. And that is clearly so also with regard to domestic law of both those countries where a new democratic constitution has defined from anew the former legal system inherited from the nazi-fascist regimes, and those countries where, though already affirmed and to a certain extent effective, the principle of legal protection of fundamental rights has been acknowledged an ever increasingly larger range of action.
Lastly, despite, if not even contrary to Sartori's intention, his analysis actually suggests the very reason why the natural law understanding of (neo)constitutionalism together with the alleged opposition between constitutionalism and legal positivism is misleading. That is so because of the way Sartori argues for the denial of a one to one correspondence between (written) constitutions and constitutionalism: to be sure, the main outcome of his argumentation is that a political-legal system can be maintained to be an instance of constitutionalism insofar as its "institutional arrangements" provide for a real legal ground to protect fundamental rights. That is to say, contrary to any anti-legal positivist attitude, when the positive legal system at stake actually meets the requirements to "ensure a "limited government"". That is so, as argued for in the sequel (§ 3.2.), because of the very assumption that what distinguishes a political-legal system as constitutional is the sort of (legal) institutions it actually posses to protect a bunch, rich and detailed as the case may be, of ultimate principles and values. In other words, that is so since, contrary to the dominant opinion, what it really matters in order to characterize a political-legal system as constitutional is not any alleged or pretended moral foundation of the principles and values to be granted legal protection, but the true effectiveness of the positive legal devices adopted to secure them.
2. Differences due to different views on fundamental rights
The variety of possible understandings of neo-constitutionalism surely is affected by the corresponding plurality of concepts and/or conceptions of constitutionalism, as the dominant opinion maintains.
Further, the variety of possible understandings of neo-constitutionalism is surely affected as well, if not even more deeply, by the competing ways to claim for a natural law rather than for a positivist ultimate nature and/or foundation of fundamental rights, as, on the contrary, the dominant opinion hardly ever mentions (38). Competing ways on the ultimate nature and/or foundation of fundamental rights (that is to say of the values which they express and/or to which they provide a means to be secured) cannot but be influential on a symmetric opposition between a natural law and a positivist understanding of neo-constitutionalism.
Now, though more than once the variety of its possible concepts and/or conceptions has been pointed out and dealt with, nevertheless neo-constitutionalism has usually been confined within the scope of a natural law reading. That is actually the way it is both when its advocates openly vindicate a natural law standpoint and when they covertly affirm it from anew, while apparently maintaining the need to overcome the current sterility of the natural and positive law traditional opposition. Further, that is actually the way it is when its opponents and/or critics blame its manifest or, as the case may be, its hidden natural law ground and assumptions (39). That is so since, as a rule, it has been taken for granted that neo-constitutionalism cannot get apart from the assumption that fundamental rights are and cannot but be moral and/or natural law principles which, once entered positive law, have been conquering an ever increasing dominant role within it. Or, to put in other words, that is so since, as a rule, its current reading, even when the lack of univocity of its notion is paid attention to, is that neo-constitutionalism cannot but rely on the thesis of an intimate connection between law and morals; an intimate connection which has been acknowledged and given a manifest expression with the inclusion of moral principles, phrased as fundamental rights, in the law (40).
And to be sure, an intimate connection between law and morals is the true distinguishing feature of any form of natural law, regardless of the plurality of concepts and/or conceptions it has ever been given (41). Quoting Nino, despite the variety of theses which can be distinguished along with the plurality of its different understandings, the ultimate kernel of natural law consists of the conjunction of two theses: "(a) A thesis of ethical philosophy according to which there are universally valid principles of morals and justice accessible [asequibles] to human reason. (b) A thesis concerning the definition of the concept of law according to which a normative system or a norm cannot be qualified as "legal" if conflicting with those principles of morals and justice" (42).
Now, despite the natural law reading of neo-constitutionalism is undoubtedly the most widespread, or at least the one which up to now has been paid more attention to and which has been giving rise to a larger number of debates, actually, there is no reason preventing a positivist reading as well; a positivist reading, which, as the natural law one, probably enough, can be figured out in a plurality of non coincident ways. There is no reason, that is to say, which precludes the plausibility of a positivist reading of neo-constitutionalism which could properly account for fundamental rights, their acknowledgement and their forms of implementation and/or protection within a legal system in fullfledged positivist terms (43). A positivist reading which, in its turn, would be totally coherent not with the denial, but with a re-statement of the thesis of the separation between law and morals.
That is the case, e.g., with Luigi Ferrajoli whose theory of fundamental rights and way to conceive of (neo)constitutionalism show how to account for the two of them and for their intimate connection without resorting to any connection and/or confusion between law and morals.
Namely, there is no connection nor confusion between law and morals in Ferrajoli's definition of the notion of fundamental rights, i.e.: "'fundamental rights' are all those subjective rights to which 'all' human beings are universally entitled by virtue of having the status of persons, or of citizens, or of persons capable of acting; what is understood by 'subjective right' is any positive expectation (of services) or negative expectation (of non-infringement) ascribed to an actor by a legal norm, while 'status' is taken to mean the condition of an actor for which provision is also made by a positive legal norm as a precondition of his suitability to hold entitlement to legal situations and/or be the author of the acts that are their exercise" (44).
Nor there is any connection or confusion between law and morals when Ferrajoli focuses his attention on the sort of relationship to be established between fundamental rights and the legal guarantees needed to grant their protection, that is to say when he states: "In opposition to the thesis of the confusion between rights and their guarantees, which means denying the existence of the former in the absence of the latter, I shall maintain the thesis of their distinction, which holds that the absence of relative guarantees is tantamount to a failure on the part of positively stipulated rights to perform and thus consists of a legal gap, which it is the legislator's duty to remedy" (45). Normative as it may sound, such a contention surely has no natural law flavour, nor any moral underpinning (46).
Departing from the previously sketched opposition, a further hypothesis to be tested is whether and eventually in which terms neo-constitutionalism might be given an alternative reading both to the natural law and to the positivist one. That is to say, whether and to what an extent neo-constitutionalism can be supplied a plausible reading, leading not to word from anew, but, rather, to overcome the traditional opposition between the natural law and the legal positivist way to conceive of law in reason of a radically different way to approach, think and define the relationship between law and morals; between law and the variety of values (it doesn't matter whether moral, religious, political, or somehow cultural in nature) on which law is based and of which law is both an instanciation and a means of implementation and protection.
Such an alternative reading seems to be purported by Norberto Bobbio when, commenting on Gregorio Peces-Barba's view on fundamental rights, states to agree with his refusal of both any natural law and positivist form of reductionism as far as the foundation of fundamental rights is concerned, and writes: "In the acknowledgement of fundamental rights, morals, law and politics integrate with each other giving rise to the need of a global view on the modern legal system as inspired to the principles of constitutionalism; a need which has to take into account each of the three members of the set, namely: the justified morality becoming legal morality through the mediation of power" (47).
Tempting as it may sound, whether and to what an extent such an alternative is viable, remains, nevertheless, doubtful. In particular, it remains doubtful when, as it is with Peces-Barba's view, such an alternative amounts to the claim for the moral nature of fundamental rights complemented by the requirement to make them effective resorting to the mediation of political power in order to incorporate them in positive legal systems. To be sure, it is doubtful whether there is anything alternative to the natural law reductionism in vindicating, as Peces-Barba does, the moral nature of fundamental rights and in maintaining the necessity of the priority of morals (48). In fact, quoting once again Nino's charcterization of the ultimate kernel of any form of natural law, the two contentions of Peces-Barba's appear to be equivalent, respectively, the former to the thesis of ethical philosophy, and the latter to the thesis concerning the definition of law.
IV. Neo-constitutionalism: a natural law and a legal positivist reading confronted
Simple and plain as it probably may sound, the natural law reading of neo-constitutionalism actually is both unsatisfactory and misleading.
The natural law reading of neo-constitutionalism appears simple and plain because of many reasons.
The one which is likely to be the most immediate, follows from the very way fundamental rights are phrased and/or made reference to in a great variety of solemn declarations, charters and covenants of international law as well as in the constitutions or constitutional amendments of domestic law of a large number of countries. To be sure, they are often labelled "human" and/or characterized, in a manifest natural law flavour, as the ultimate values humankind deserves to be secured.
One more reason is provided by the tendency to confine public international and domestic law to a one-sided political dimension without taking into account, if not even denying, its effective and/or potential mandatory legal import. That is to say, the tendency to confine domestic constitutions as well as international declarations, charters and covenants to the limited scope of political aims and purposes, disregarding what a legal translation such aims and purposes might happen to be given and/or should deserve to be acknowledged in order to be attained or, as the case may be, put into practice. Under this respect neo-constitutionalism closely resembles a major trend of the so to say classic constitutionalism which was contrasting rather then complementing the political and the legal reading of the notion of constitution (49).
Further, a third major reason to look at neo-constitutionalism as a form of natural law is, banally enough, that most scholars devoting keen attention to the dominant role and pervasive influence of fundamental rights in a large number of contemporary legal systems up to now have been adherents of natural law (50).
Now, simple and plain as it may sound, to conceive of neo-constitutionalism as a form of natural law is nevertheless unsatisfactory and misleading.
It is unsatisfactory since it actually misses the very point which grounds the demand for a neo-constitutionalist understanding of law, namely: the radical change positive law has been going through since the implementation and protection of fundamental rights have been taken to be purported as the main distinguishing feature of a legal system.
Further, to conceive of neo-constitutionalism as a form of natural law is misleading since, to use Hans Kelsen's words, it actually ignores that similarly to King Mida transforming in gold whatever he was touching, law provides with an ultimate legal character whatever may happen to be its specific concern (51). That is to say, it ignores both that what is taken to be a matter of legal implementation and protection depends upon the catalogue of fundamental rights which may happen to be selected in a given legal system, and that the greater or lesser extent to which such a catalogue of fundamental rights is secured legal implementation and protection depends, once again, upon what any given legal system may happen to adopt as their guarantees. In other words, it is misleading since, far from making it clear, actually conceals that both the values to be legally protected and the extent to which secure them depend, either of them, upon the contingent choices adopted by different legal systems.
Now, before going ahead figuring out the terms of a positivist reading of neo-constitutionalism (§ 3.2.), the terms of its natural law reading are worth to be mentioned (§ 3.1.).
1. The dominant natural law reading
Despite any difference in the way to be phrased and/or defended, the main assumption which grounds the natural law reading of neo-constitutionalism is that the explicit legal acknowledgement and statement of fundamental rights in the constitutional domestic law of quite a number of countries as well as in public international law prove of morals entering (positive) law, i.e., testify of morals vindicating its role within (positive) law and, hence, of positive law manifest surrending to the most basic contentions of natural law. In particular, the explicit statement of a catalogue of fundamental rights in the constitutional charters has been conceived of: (a) as the acknowledgement by the historical law-giver of natural rights; i.e., of the rights which cannot but pertain to every human being; namely, the universally valid moral principles which can be found out and known by means of the human reason; (b) as the means to grant the production of laws which are just since, if the law-giver wouldn't comply with the values expressed by the rights whose catalogue is laid down in the constitution, the enacted laws could be liable to be declared void and/or not to be given (judicial) application; (c) as the means to grant that judicial application of law be not merely mechanical or formal, but, to the contrary, just and fair insofar as its interpretation would match and comply with the values expressed by the rights whose catalogue is laid down in the constitution.
Such three points, (a) - (c), are claimed to rule definitely out three symmetric basic positivist contentions which have always been the main target of natural law criticism to legal positivism. Namely: (i) point (a) is taken to amount to the denial of the positivist contention of the separation between law and morals; (ii) point (b) is taken to amount to the denial of the positivist contention of the validity of legal norms as confined to their compliance with merely formal criteria of validity; (iii) point (c) is taken to amount to the denial of the positivist contention of a mechanical and/or formalist judicial application of law disregarding any equity appraisal of the case to be decided.
Despite its easy going appearance, such a natural law phrasing of the points (a) - (c) is far from being unquestionable.
Namely, insofar as the point (a) is concerned, to maintain that fundamental rights which may happen to be laid down in the constitution of a given legal system are natural rights is both arbitrary and not much convincing. It is not much convincing since, not mentioning the variety of differing moral understandings each fundamental right can be given, there actually is neither coincidence among different catalogues of different legal systems, nor unanimous consensus with regard to the catalogues of fundamental rights to be written from anew. It is arbitrary since the identification and the statement of the fundamental rights to be granted legal protection within a given legal system have never been the result of a cognitive process of which principles of morals and justice can be purported to be universally valid. Rather, they have always been, and go on being, the outcome of a decisional process arrived at through plenty of mediations and compromises among differing (political) interests (52).
Further, insofar as the point (b) is concerned, the requirement to comply (also) with material criteria of validity, aside of the formal ones, does not provide by itself any sufficient reason for a legal norm to be maintained morally grounded as well as legally valid. Obviously enough, nothing prevents that a material criterion of validity be actually conceived of as morally controversial, if not even as repulsive.
Lastly, insofar as point (c) is concerned, to take into due account fundamental rights in the judicial application of law does not provide by itself any sufficient reason to grant a judicial decision being just and fair. That is so, first, because of the very same foregoing remark with regard to the compliance with the material criteria of validity as an alleged ground of morality for legal norms. That is so, further, because of the plurality of variables which can play a role in affecting judicial discretion, i.e. because of the variety of variables which legal positivism itself has already been devoting much attention to at least since Kelsen's writings.
2. Arguments for a positivist reading
Insofar as along with legal positivism, law is what the law-giver and/or the competent organisms either lay down or acknowledge to count as law, nothing contrasts nor prevents that neo-constitutionalism be given a proper and coherent legal positivist reading.
To be sure, neo-constitutionalism is (also) a way to label a distinguishing feature of many contemporary positive legal systems: their explicit acknowledgement and statement in the constitution of a catalogue, rich and detailed as the case may be, of fundamental rights, supplemented with a cluster of different legal devices aiming at granting them, to a larger or lesser extent, legal implementation and protection. That actually is, as previously pointed out in this paper (§ 1.3.), one of the three possible ways to conceive of neo-constitutionalism and/or one of the dimensions of what can be taken to be its threefold significance and import; namely, that actually is what previously has been pointed out as the empirical and descriptive significance of the term neo-constitutionalism when it is used in the language of jurists and/or of legal dogmaticians.
In other words, if along with Norberto Bobbio's well-known distinction (53), by legal positivism is meant neither an ideology, nor a theory, but a methodology (i.e., a way to approach to law), nothing contrasts nor prevents that neo-constitutionalism can be given a proper and coherent positivist reading.
Moreover, not only nothing contrasts nor prevents a positivist reading, but, the other way round, it actually appears to be the sort of reading which is needed if one wants to account for the radical changes positive law can be maintained to have gone through because of the acknowledgement of fundamental rights and because of the consequent equipment, defective as it still can be blamed to be, of legal devices to grant them legal protection.
Then, going on following the distinction of different meanings of legal positivism suggested by Bobbio, if legal positivism is taken to mean either the ideology according to which just law is positive law because of its being positive, or else the theory according to which any positive legal system can be taken to be complete, coherent, not redundant and univocally definable with regard to the totality of norms constituting it, then, in either case, neo-constitutionalism is liable to be criticized for the very same reasons legal positivism itself, as many legal positivists have already largely shown to be aware of, is liable to be criticized (54).
Thus, summing up and coming to a final remark, the contention of the dominant opinion according to which neo-constitutionalism denounces and proves for the limits and shortcomings of a positivist understanding of the notion of law appears if not arbitrary, at least highly debatable. That is so, first, because neo-constitutionalism can be given a properly coherent positivist reading, unless, of course, one doesn't stick to an old-fashioned and distorted view on legal positivism which actually has already been overcome in the last century by most legal positivists themselves (55). And, further, because the legal positivist reading of neo-constitutionalism proves to be more convincing and coherent than a natural law one. To be sure, there is much more than a grain of truth in Ferrajoli's remark that Hans Kelsen, the greatest positivist last century, had already thought of all the theoretic premises of "democratic constitutionalism", and figured out, with his 1920 project of the Austrian Constitution, the legal tools to ground and secure its realization (56).
*. In: «Associations», 6 (2002), n. 2, pp. 233-260. I wish to thank Riccardo Guastini for his comments and Aulis Aarnio, Manuel Atienza and Ernesto Garzón Valdés for their criticism on a first draft of this paper. I wonder whether I have been able to explain away the reasons grounding the critical remarks, but I am sure I have greatly profited from the arguments with which they were put forward.
1. N. Bobbio (1965, 2nd ed. 1990); the quotation is from the English translation, p. 6.
2. A. Ross (1952), the quotation is taken from A. Ross (1968, p. 65, fn. 2).
3. Cf. S. Pozzolo (1998), (2001), P. Comanducci (1999, p. 128, fn. 5), and Neo-constitutionalism: an attempt at classification, M. Barberis (2000a), (2000 b).
4. Though on the base of not always coincident arguments, a worried warning on the most recent apparent crisis of the protection of fundamental rights as a leading principle of domestic and international law has been raised, e.g., by U. Allegretti (2002, pp. 127-197), L. Bonanate (2001), L. Ferrajoli (2001), (2002 a, pp. 363-368), T. Mazzarese, Is the age of rights to a turn?.
5. Though not always explicitly stated nor similarly defended, the need to think and define from anew the forms of identification, application and cognition of law because of the role fundamental rights have been acquiring in many contemporary positive legal systems is recurrent in the literature on neo-constitutionalism. In particular, one of its explicit and most determined formulation is spelt out by Ferrajoli who writes of constitutionalism (Ferrajoli himself does not use the term neo-constitutionalism) as a new paradigm of law as contrasted both with what he terms the pre-modern paradigm of law (judicial and doctrinal in character) and the modern paradigm of positive law (legislative in character). Cf., e.g., L. Ferrajoli (1998), (2002 a) and (2002 b).
6. Material criteria of identification are not ignored by legal positivists. To the contrary, since the 1934 edition of his reine Rechtslehre, Kelsen writes: "the essential function of the constitution consists in governing the organs and process of general law creation, that is, of legislation. In addition, the constitution may determine the content of future statutes, a task not infrequently undertaken by positive-law constitutions, in that they prescribe or preclude certain content. [...] The catalogue of civil rights and liberties, a typical component of modern constitutions, is essentially a negative determination of this kind. Constitutional guarantees of equality before the law, of individual liberty, of freedom of conscience, and so on are nothing but proscriptions of statutes that treat citizens unequally in certain respects or that interfere with certain liberties". The quotation is from the English translation, pp. 64-65. Nor material criteria of identification are disregarded by A. Ross (1958, pp. 78-81) and (1968, pp. 96) when taking into account material rules of competence as well as personal and procedural ones. Nevertheless, though far from being ignored, material criteria of identification have not been paid any special attention, nor acknowledged any peculiar import in affecting and conditioning legal systems way of functioning.
7. Great emphasis on constitutional fundamental rights as material criteria of identification is devoted, e.g., by L. Ferrajoli (1998), (2002 a), (2002 b), and G. Palombella (2002, p. 7 and pp. 23-29). Focusing more on the problem of the identification (and interpretation) of the constitutional rules than on the problem of the identification (and interpretation) of the statutory rules coping with the material criteria of validity, the topic is dealt with at length by the contributions to L. Alexander (ed.; 1998).
8. That is to say that the validity of a domestic provision might be challenged and/or its interpretation affected by making reference to fundamental rights listed in regional and/or international declarations, charters and covenants, though not included in domestic law. Further, a query not coincident with such an eventual practice is the problem as to whether to conceive of any catalogue might happen to be written down in a legal system, be it domestic, regional or international, as open or closed; that is to say, the problem as to whether to understand it as a mere exemplification rather than a sort of utterly definitive list of what rights are to be legally and judicially protected. Arguments in favour of the open character of any such a catalogue can be found, beside any natural law attitude, in positive constitutional provisions. That is so, e.g., with the IX amendment of the United States Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people", or else with art. 2 of the Italian Constitution: "The Republic recognizes and protects the inviolable human rights...". Insofar as the Italian Constitution and its art. 2 are concerned, the query is dealt with, e.g., by A. Pace (2001). Further, cf., R. Guastini (1998 b, p. 343-344).
9. This topic is dealt with, e.g., by R. Guastini (1998 a), (1998 b, pp. 331-333, 476-479), and (2001, pp. 233-243).
10. Worth to be reminded that judicial protection of fundamental rights is itself acknowledged as a fundamental right and explicitly stated, e.g., by art. 7 and art. 8 of the 1948 Universal Declaration of Human Rights, by art. 13 of the 1950 European Convention on Human Rights, and, insofar as domestic law is concerned, e.g., by art. 24 of the Italian Constitution.
11. It should not be needed either to mention Hans Kelsen's and Alf Ross' view both on legal interpretation and on judicial decision-making, or, in general, to refer to the attitude towards the two topics characterizing the American and the Scandinavian legal realism.
12. Following R. Dworkin (1977), such a contention is often given a quite strong antipositivist import. That is the case, e.g., despite any difference in the arguments adopted, with R. Alexy (1985), G. Zagrebelsky (1992), and M. Atienza, Legal Reasoning and Constitutional State. Nevertheless, nothing prevents that the same contention be accounted for in positivist terms. To be sure, the alleged ultimate moral character of fundamental rights and legal principles affecting and/or grounding judicial reasoning and decision-making is far from being obvious and plain.
13. Reference to the logic of approximate reasoning (fuzzy logic) as contrasted with the deductive classical logic account for the distinguishing features of the neo-constitutional view on judicial decision-making may sound provocative, at least insofar as a natural law understanding of neo-constitutionalism is concerned. Namely, that is so since, despite its claim for the material justice of judicial decision as opposed to any alleged positivist formalism, the natural law understanding of neo-constitutionalism would never renounce to the contention for the ultimate rational objectivity of practical reasoning. On the logic of approximate reasoning (fuzzy logic) and judicial decision-making, cf. T. Mazzarese (1996).
14. With regard to domestic law, insofar as the Italian legal system is concerned, a critical overview of shortcomings and deficiencies concerning the judicial protection of fundamental rights is provided by M. Taruffo, Diritti fondamentali, tutela giurisdizionale e alternative. With regard to international law, a rich exemplification of the limits met in securing legal implementation and judicial protection of fundamental rights is offered by A. Cassese (2001).
15. Such a deficiency has been denounced from a variety of perspectives. From a theoretical perspective, it constitutes the main concern of those who concentrate on the difficulties of the identification and/or judicial implementation of fundamental rights because of the interpretative difficulties their formulations can give rise to: that is the case, e.g., with N. Bobbio (1968, English translation, pp. 26-30), T. Mazzarese (1993), M. Koskenniemi (1999). From a (meta)ethical perspective, it constitutes the main concern of those who doubt any alleged universality of fundamental rights because of the differing values of different cultures and/or ideologies and/or religions: that is the case, despite any distinguishing feature of different trends, with the advocates of multiculturalism and/or of (political) realism and/or of the gender theory. From a political perspective, it constitutes the main concern of those who maintain that their legal positivization deprives fundamental rights of their political innovative potentiality: that is mainly the case, e.g., with the adherents of the so called critical legal studies movement.
16. This can be taken to be the case, though his main concern is not the definition of the notion of constitutionalism, with R. Guastini (1998 a) when providing a list of what he terms "conditions of constitutionalization".
17. That is the way it is, as already mentioned above fn. 5, with L. Ferrajoli (1998), (2002 a), and (2002 b). Further, though not always as manifestly vindicated and purported as in Ferrajoli's works, that is also the case, e.g., with G. Zagrebelsky (1992), G. Palombella (2002), M. Atienza (2001, pp. 309-310), and Legal Reasoning and Constitutional State.
18. A similar understanding of the notion occurs in L. Ferrajoli (2002 a, p. 357), when maintaining that the new paradigm of constitutionalism "represents a completion not only of the rule of law but also of the very legal positivism [...] since the change it has led to, has provided legitimacy with a twofold artificial and positive character: not only of the law as it is, i.e. of its conditions of existence, but also of the law as it ought to be, i.e. of its conditions of validity made constitutionally positive them too, as law on the law, in the forms of legal limits and constraints on its production" (author's italics, the English translation is mine). Further, cf. also J. Raz (1984), when stating: "Legal rights can be legal reasons for legal change. They are grounds for developing the law in certain directions. Because of their dynamic aspect legal rights cannot be reduced, as has often been suggested, to the legal duties which they justify. To do so is to overlook their role as reasons for changing and developing the law" (p. 15), and "Legal rights [...] are legal reasons for developing the law by creating further rights and duties where doing so is desirable in order to protect the interests on which the justifying rights are based" (p. 18).
19. Cf., e.g., C.H. McIlwain (1947), G. Sartori (1962), (1987), M. Troper (1988), G.G. Floridia (1991), and M. Dogliani (1994).
20. Cf., e.g., M. Barberis (2000 b), and P. Comanducci, Neo-constitutionalism: an attempt at classification.
21. Cf., e.g., M. Troper (1988), P. Comanducci, and Neo-constitutionalism: an attempt at classification, S. Pozzolo (2001, pp. 26-36).
22. First published in 1962, a new version of such an analysis on constitutionalism, different in some of its formulations though not in its ultimate tenets, is provided by G. Sartori (1987).
23. A similar tenet is assumed by G. Tarello (1976, p. 24) when stating: "Great Britain hasn't had any codification: neither a constitutional one (despite, or perhaps just because of its precocious constitutionalization), nor of any other branch of law"; the English translation is mine.
24. As G. Sartori himself writes (1962, p. 853): "United Kingdom has a difficult and sui generis constitution, deriving from a tortuous sedimentation of common law, acts and conventional usage, partly legal and partly extra-legal".
25. G. Sartori (1962, p. 854).
26. G. Sartori (1962, p. 855).
27. G. Sartori (1962, p. 857) and (1987, p. 18).
28. G. Sartori (1987, p. 18); the English translation is mine.
29. As Sartori himself points out, the following threefold distinction recalls the distinction drawn by K. Loewenstein (1957).
30. G. Sartori (1962, p. 861).
31. G. Sartori (1962, p. 861). As Sartori himself makes clear, he uses "the French (and Italian) term garantisme" to label what he conceives of the distinguishing feature of constitution(alism) since English vocabulary has "to this day refused to import the word" (p. 855). That is still the way it is and "the French (and Italian) term garantisme" still sounds odd when used in an English (con)text.
32. Such a threefold distinction which, following Loewenstein, is adopted by Sartori, is not, clearly enough, exhaustive of all the possible notions of constitution which can be, and to a large extent, have already been distinguished. For a carefully, multidimensional overview of such a variety of notions, cf. G.G. Floridia (1994). Further, cf. also, e.g., M. Dogliani (1994, pp. 11-30); R. Guastini (1998 b, pp. 307-321). Needless to be remarked that the net of (relationships among the) different notions of constitution provides one more reason, beside those ones already listed in the text, for the plurality of possible understandings of constitutionalism.
33. As G. Sartori (1987, p. 18) writes: "historically, constitution was an "empty" term which constitutionalism has taken possession of in XVIII century to account for the idea of the rule of law (not of men) through the limits of law. [...] The term was defined from anew, adapted and appreciated not because it was meaning just "political order", but because it was referring to that peculiar political order which rather than simply "shaping" was also limiting governmental action" (author's italics); the English translation is mine. In a similar, though not coincident way, cf. also G. Sartori (1962, p. 860).
34. G. Sartori (1962, p. 854).
35. G. Sartori (1962, p. 855).
36. In fact, article 16 of 1789 Declaration states that: "Every society which has no assured guarantee of rights, nor a separation of powers, does not possess a constitution".
37. Reference is to the phrase which, first used by N. Bobbio (1987), has been enjoying a quite large acceptance.
38. Significantly enough, for example, no mention as to whether different understandings of the notion of fundamental rights may affect different views on neo-constitutionalism is made in the undoubtedly rich overview supplied by P. Comanducci, Neo-constitutionalism: an attempt at classification.
39. Cf. e.g., M. Troper (1988), L. Prieto Sanchís (1997), M. Barberis (2000 b), S. Pozzolo (2001), G. Palombella (2002, p. 98), and P. Comanducci, Neo-constitutionalism: an attempt at classification.
40. The standpoint by M. Barberis (2000 b, pp. 150-151) can be taken to be paradigmatic of such a view, namely: "neo-constitutionalism differs from inclusive legal positivism just because it maintains the natural law thesis of the (identificative) necessary connection between law and morals; it differs from the traditional natural law, getting closer to inclusive legal positivism, insofar as it places such a connection at the level of fundamental or constitutional principles"; the English translation is mine. An utterly favourable standpoint towards an inclusive positivist reading of (neo)constitutionalism is suggested, e.g., by J. Moreso (2001) and G. Palombella (2002, pp. 7-8, 97-130).
41. Such a remark as well as the quotation from Nino mentioned below in the text could have been superfluous if not for replying to the contention according to which to vindicate the moral character of fundamental rights does not imply any natural law attitude towards neo-constitutionalism and its moral understanding.
42. C.S. Nino (1983, pp. 27-28). Such a characterization of the ultimate kernel of any form of natural law makes debatable the recent and widespreading attitude to speak of and delineate hybrid forms of "inclusive", rather than "soft" or "critical" positivism; that is to say forms of alleged positivism which, as it is with natural law, take into account (the possibility of) morals as a source of law.
43. Cf., e.g., J. Raz (1984), where the contention is maintained that legal rights can be accounted for on the base of the so-called Sources Thesis, i.e. the thesis according to which: "the existence and the contents of the law can be determined without resorting to any moral arguments" (p. 10). To be sure, Raz appears sceptical on the very notion 'fundamental human rights' can be taken to term. Thus, after having mentioned and characterized some different types of rights, in a somewhat detached way, he adds: "People who believe in fundamental human rights usually believe that these rights do not derive from social practices which recognize and implement them even where such practices exist. They further believe that people have such rights even in societies in which the rights are neither recognized nor respected" (p. 2).
44. L. Ferrajoli (1988, p. 3), the quotation is taken from the English translation, italics is mine.
45. L. Ferrajoli (1988, p. 8), the quotation is taken from the English translation, author's italics.
46. On Ferrajoli's legal positivist way to account for the theory of fundamental rights and for the contention of constitutionalism as a new paradigm of law cf., among others of his works, L. Ferrajoli (1998), (1999), (2000), (2002 a) and (2002 b).
47. N. Bobbio (1993, p. vii).
48. Cf. G. Peces-Barba (1991, chap. 2).
49. Mainly confined to public domestic law, such a one-sided political reading of constitutionalism is exemplified by N. Matteucci (1963).
50. Such a reason appears paramount in most papers where neo-constitutionalism (or, as often is simply labelled, constitutionalism) is at stake mainly with regard to the forms it has been given by Robert Alexy, Ronald Dworkin, Carlos Nino in criticizing legal positivism and its main contentions. In particular, that is the case with L. Prieto Sanchís (1997), M. Barberis (2000 b), S. Pozzolo (2001), and P. Comanducci, Neo-constitutionalism: an attempt at classification.
51. Cf. H. Kelsen (1945, p. 161): "Just as everything King Midas touched turned into gold, everything to which the law refers becomes law, i.e., something legally existing".
52. Just an empirical collation will suffice to show the lack of coincidence among the catalogues of fundamental rights acknowledged in domestic law of different countries and/or in regional and international declarations, charters and covenants. Similarly, as, e.g., N. Bobbio (1958) and A. Ross (1958, pp. 258-267) emphasize, just an inspection will suffice to show the lack of coincidence among the lists of which natural and/or moral rights different exponents of natural law maintain to deserve protection. Needless any exemplification of these two statements. Nevertheless, it might be worth reminding the complex network of political disagreements and ideological tensions standing behind the approval of the 1948 Universal Declaration of Human Rights, or, more recently, the political disagreements and the ideological tensions standing behind the approval of 2000 Nizza Charter. With regard to the 1948 Declaration, cf. eg., A. Cassese (1994, pp. 21-49), and with regard to 2000 Nizza Charter, cf., e.g., A. Manzella, P. Melograni, E. Paciotti and S. Rodotà (2001).
53. The threefold distinction of legal positivism as (a) an approach to (i.e., a methodology), (b) an ideology, and (c) a theory of law is drawn by N. Bobbio (1961), and (2nd ed. 1996).
54. In a rather different perspective, Bobbio's threefold distinction on legal positivism has already been referred to when dealing with (the actual form of) constitutionalism by M. Troper (1988), and L. Prieto Sanchís (1997), and when dealing with neo-constitutionalism by P. Comanducci, Neo-constitutionalism: an attempt at classification. Though not in a completely coincident way, Troper, Prieto Sanchís and Comanducci, each of them, draws a symmetrically parallel distinction to the one suggested by Bobbio in order to confront and to underline the terms of the contrast between legal positivism and (neo)constitutionalism insofar as either of them is conceived of, respectively, as a methodology, an ideology or a theory of law. On the contrary, what is suggested above in the text is that the threefold way to conceive of legal positivism is compatible with, and can provide a satisfactory understanding of neo-constitutionalism; that is to say it is meant not to show that legal positivism and neo-constitutionalism contrast with each other, but, the other way round, that neo-constitutionalism can be given a positivist reading.
55. A similar contention occurs in A. Pace (2001, pp. 41-42).
56. Cf. L. Ferrajoli (2002 a, p. 360). What, on the other hand, Ferrajoli strongly regrets to Kelsen and to his reine Rechtslehre is the very conception of validity as the specific existence of a legal norm, i.e. the lack of the distinction between existence and validity which in Ferrajoli's view provides a distinguishing feature of what he conceives of as the new legal paradigm of "democratic constitutionalism".
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