Abstract

The essay’s purpose is to unravel the various fictiones iuris portrayed by literature on how the Constitutional court and other judges oversee the legislature’s omissions. Only rhetorically and in a theoretically flawed way are these reconstructions directed at containing the discretion of judges (not only constitutional ones) in their purported activity of implementing the Constitution. This activity should instead be unveiled in its intrinsic creativity, showing all its general theoretical consequences. In particular, by reasoning on the category of legislative omissions and their control over them, it is made clear how doctrine and jurisprudence tend to postulate the existence of a negative rule of exclusion – which in reality does not exist – because this serves to justify the introduction, in its place, of its opposite, i.e. the positive rule of inclusion, by hooking it etiologically to the former (thus making it appear that the judges’ creativity is restrained). By doing so, the area of potential legislative omissions that the Constitutional Court is willing to fill with «new norms» expands, as the latter are drawn from the concrete reality of human relations, with the support of a Constitution whose semantic-normative latitude is dilated without restraint. The Constitution ultimately becomes a complete order, a source of new norms capable of responding to the cases of life even without the necessary mediation of the legislature, since in case of omission the judge intervenes. We are at the complete overcoming of legal positivism. In its place a kind of judicial positivism asserts itself.