Rapporti interordinamentali, riconoscimento e tutela dei diritti fondamentali, crisi della gerarchia delle fonti

By on April 18, 2019

The paper outlines how a value based constitutional theory is able to undermine a hierarchical approach to the sources of law theory. This crisis is clearly emerging from the case law of the Italian Constitutional Court, with particular regard to the protection of fundamental rights.
The paper goes on by critically analyzing the always more univocal trend of the constitutional case law to centralize the evaluation related to the compatibility between domestic and external norms, outlining the possible negative implications for the protection of the rights at stake.
Finally, the paper ends with a series of counter-objections to the objections related to the proposal which suggests to focus not on “the form” but on “the value” as far as the construction of a sources of law theory is concerned.


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Andrea Buratti, Giuseppe Martinico, Oreste Pollicino, Giorgio Repetto, Raffaele Torino