The Constitution in the Material Sense

The Constitution in the Material Sense, first published in 1940, is a classic of constitutional thought of the 20th century, and it is widely considered to be the masterpiece of Constantino Mortati, a towering figure in Italian jurisprudence and one of the ‘founding fathers’ of the Italian constitution.

The book, published here in English for the first time, puts forward a full-fledged theory of the legal order for the modern State. Mortati’s argument is based on a development of legal institutionalism undergirded by a politically realist tone. His contribution to this debate offers an original perspective on the relationship between the constitutional order and society. The material constitution pushes lawyers to see the normativity of the legal order through the coupling of law and politics, conceiving the ordering power of the material constitution as supported by forces that gather around fundamental political ends. And, crucially, all of this is declared – against classic legal positivism – to fall within the scope of legal science, and hence to be incorporated into the analysis of law’s functioning.

In this respect, Mortati’s book advances one of the most compelling and thought-provoking accounts of the essential link between political forces and the legal order. Not only does it set forth a most innovative theory of the material foundation of law, but owing to its core intuitions, it is of the utmost relevance to any contemporary analysis of the nexus of law and politics.