Constitutional doctrines in a material sense

Abstract

The essay analyzes the main theories of the concept of constitution in a material sense. These theories are characterized for looking for the foundations of law in the political community, without reducing it to the formal dimension of the law. It has been in this way since the rule of law principle of the 19th century, based on historic grounds linked to Savigny. This theory is indeed based upon the idea of thelegal order of the Nation, which logical expression is the law of the State. This coherence would disappear at the 20th century, due to the controversial use of the notion of material constitution as opposed to the law of the Parliament, understood as mere formal legislation. Only with the constitutions of the second half of the century it became possible to find the suitable conditions for a theory that could try to take up again the origin of the current Constitution in the deep aspect of the political community. In Italy, Costantino Mortati is the perfect example.

Key words: theories of the constitution in a material sense, legal order of the nation, rule of law, democratic constitutions of the 20th century.