The Will to Order: In Conversation with Mariano Croce and Marco Goldoni on Costantino Mortati’s Account of the Legal Order and the Material Constitution

Abstract

In this article, taking my cue from the insightful analyses contained in the book The Legacy of Pluralism, by Mariano Croce and Marco Goldoni, I reconstruct in outline Costantino Mortati’s conceptions of the law as a legal order and of the material constitution. I focus on the problems pointed out by Croce and Goldoni: the emergence of legal normativity, the problem of radical pluralism, and the role of jurists vis-à-vis politics. In sections II, III, and IV, I describe the general framework that, however much detailed and adjusted over time, Mortati adamantly maintained from his earlier works in the 1930s to his last ones in the mid-1970s. In section V, I describe the significant shifts that took place in the way he fine-tuned his general framework in an attempt to capture the changing events of Italian politics. On the basis of my account, I will argue in favor of an interpretation of the view Mortati had of the role of jurists vis-à-vis politics significantly different from the one defended by Croce and Goldoni.