Luigi Ferrajoli

Constitucionalismo principialista y constitucionalismo garantista

In this paper, the author introduces and elaborates on the most relevant differences between neoconstitutionalism and a version of constitutionalism that is essentially defined in terms of garantism. Firstly, he argues that constitutionalism can be conceived in two opposite ways: as a way to overcome legal positivism, thus with a certain tendency towards Iusnaturalism, or as the expansion or improvement of the former; for these purposes he commits himself to a revision of the standard terminology. Secondly, the author maintains that were the constitution to embody principles of justice of an ethical-political nature, then it will disappear the main distinctive feature of legal positivism: the separation between Law and morality or the separation between validity and justice. He considers that essentially garantist constitutionalism is a strengthened version of legal positivism: it completes a rule of Law system since it implies both submission to the Law and judicial review. Fourth, the author maintains that the argument that any legal system objectively meets some «ethical minimum» is nothing more than the old iusnaturalist claim. Ethical constitutionalism, for which constitutional principles are intended to be objectively fair, is thus the current version of ethical legalism. Fifth, the author objects to the distinction between principles and rules that underlies a conception of the constitution and of constitutionalism opposite to the positivist and garantist one. Sixth, the author claims that constitutional principles’ being always weighted and not only applied threatens the independence of the jurisdiction and its political legitimacy. And, finally, the author stresses that constitutionalism somehow implies both the undermining and virtual collapse of the normativity of the constitutional principles as well as the devaluation of fundamental rights to merely generic ethical-political recommendations.

Marxism and the criminal question

The question considered is whether it is possible to trace a theoretical strategy for a criminal policy on the basis of Marxs work. The answer offered is that Marxian political and economic analysis does not supply any “general theory” of criminality and that any attempt to formulate such a theory (as in Lenin, Pašukanis or Gramsci) necessarily leads to authoritarian and regressive conceptions of crime and punishment. Nevertheless the authors maintain that it is possible to trace three theoretical suggestions within Marxian thought which allow of a fruitful approach to the criminal question. The first suggestion relates to the economic roots of many aspects of modern criminality; the second regards the Christian and bourgeois “superstition” of moral liberty and individual culpability; the third suggestion deals with the lack of a guaranteed “social space” as the prime root of crime. These theoretical suggestions permit clarification of the social character of penal responsibility and this character points to the need for the socialization (but not deregulation) of criminal treatment.

PRINCIPIA IURIS. UNA DISCUSIÓN TEÓRICA

The author discusses the commentaries and criticisms presented in the «Brescia’s Seminar» organized on FERRAJOLI’S last work, Principia iuris. FERRAJOLI’S answer is threefold: 1) Questions on meta-theory of law and democracy. The topics here discussed are connected to: the axiomatic method; his conception of legal theory, legal dogmatics, sociology of law and political philosophy; and FERRAJOLI’S understanding of constitutionalism in terms of legal positivism. 2) Questions on legal theory. Here, FERRAJOLI includes problems connected to his conception of legal gaps and legal contradictions, as well as the relationship between law and logic, specifically the topic of implicit norms. 3) Questions on theory of democracy: the foundations of human rights; constitutional democracy; the relationship between constitutional democracy, political power and sovereignty; the constitutive character of the employment contract and the techniques to fulfill legal gaps; separation of powers and garantism; war and international relations; and «methodological optimism».