Abstract

In this essay, the Author professes to demonstrate that a material theory of the Constitution is useful and, indeed, difficult to do without. The most well known theory is the «material constitution» conceived by Costantino Mortati, however, this is often interpreted ambiguously. For this reason the Author proposes a variant of Mortati's theory based on the notion of «constitutional system» so as to avoid the misunderstandings often associated with the notion «material constitution». The Author therefore reproposes in innovative terms the distinction between «laws of the Constitution» and «Constitutional system». The result is that those rules that are formally constitutional may not necessarily characterise the constitutional system while, on the contrary, those contained in ordinary legislation or parliamentary standing orders may. Indeed, the basis for constructing a constitutional system does not only consist of the aims and values pursued by the political parties that supported the Constitution nor by the texts that are formally considered to be constitutional, but also by those rules of the legal system that, due to their close relationship with said aims and values, characterise the form of state, «i.e. the relationship between the holder of power and the subject of that power», and determine the identity of the system itself. Among other things, the reference to such heuristic instruments gives an explanation as to why certain countries have changed their costitutional system yet maintain the same Constitution (e.g. the United States when slavery was abolished with the 13th Amendment) while others maintain the same constitutional system despite adopting a new constitutional text (e.g. Switzerland with the reform of 1999).