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The Legacy of PluralismThe Continental Jurisprudence of Santi Romano, Carl Schmitt, and Costantino Mortati$
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Mariano Croce and Marco Goldoni

Print publication date: 2020

Print ISBN-13: 9781503612112

Published to Stanford Scholarship Online: January 2021

DOI: 10.11126/stanford/9781503612112.001.0001

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Costantino Mortati and the Material Constitution

Costantino Mortati and the Material Constitution

(p.136) Chapter Four Costantino Mortati and the Material Constitution
The Legacy of Pluralism

Mariano Croce

Marco Goldoni

Stanford University Press

Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.

Keywords:   fundamental political aims, Heller, integration, legal institutionalism, material constitution, political direction, political party, Smend

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