Acceso usuarios
The essay tackles the broader trend in the European legal area of moving from the formalistic concepts of law and legislation to substantive ones, by illustrating its reflection in the Italian legal system, as an example of a country of the civil law tradition in contemporary continental Europe. This trend, fostered by the case law of the European Court of Human Rights and somehow implied in the current status of the legal integration within the European Union, has been taken over by the highest Italian Courts. The results of this evolution are a progressive decline of the formal categories that dominated the public law literature in the past two centuries but, at the same time, carry the risk of also losing the democratic meaning of the legality principle, represented by the necessary linkage between the system of sources of law and the separation of powers. In other words, relocating the role of parliamentary legislation means rethinking the role of parliaments vis-à-vis both the government and the courts in the contemporary state. The essay fosters the reflection on this process and on some of its potential disadvantages for the good functioning of European continental democracies
