A Short Lesson on Equality under the Italian Constitution

  • Riccardo Guastini
Keywords: Equality, Legal and Social, Reasonableness of Legislation, Axiological Gaps, Rule-adding Constitutional Decisions, Equalization, Affirmative Actions

Abstract

The paper bears upon the double constitutional provision on equality, legal and social respectively, in the Italian legal system, mainly from the standpoint of the theory of legal interpretation. As to legal equality, five main subjects are discussed: (1) the addressee of the equality clause; (2) the question whether such a clause expresses a rule or a principle; (3) the Constitutional Court’s interpretation that construes equality, understood as a principle, as a requirement of reasonableness of legislation; (4) the way in which equality works as a gap creating machine and the nature of axiological gaps; (5) how the equality clause is used to justify constitutional rule-adding decisions, i.e., decisions that introduce new rules into the legal system. As to social equality, the paper argues that the corresponding constitutional clause amounts to a political directive of equalization (addressed to the legislature), which justifies affirmative actions but is in conflict with legal equality.

Published
2023-12-20
Section
Essays