Fundamental Rights in the Italian Constitution. Three Interpretive Issues

  • Riccardo Guastini Tarello Institute for Legal Philosophy, University of Genoa
Keywords: Fundamental Rights, Inviolability., Constitutional Amendment Power, Natural Law, Legal Positivism, Theory of Interpretation

Abstract

Article 2 of the Italian constitution reads: «The Republic recognizes and guarantees the inviolable rights of man […]». This provision raises a number of interpretive problems. The paper focuses on three of them. (1) The question of whether the rights in question are “declared” or “created” ex novo by the constitution. (2) The problem of identifying such rights, namely the question of the existence of further rights beyond those expressly mentioned in the constitutional text. (3) The question of whether the inviolability clause amounts to a prohibition of constitutional amendment. The answers to such questions are evidently conditioned by the legal-philosophical assumptions of interpreters. And this is a forceful argument against the current, naïve, theory of interpretation that circumscribes interpretive issues to problems of predicates’ vagueness (such as: are bicycles “vehicles”?).

Published
2021-12-22
Section
Essays