The essay recalls the main scholar thinkings on separation of powers which have been published in Archivio giuridico before the adoption of the Italian repubblican Constitution. During the 1800s, by persuasively and insistently arguing that legal power, when divided, degenerates into despotism less easily, as well as by assessing the different ways to improve separation, basically linked to the distinction between ‘check and balances model’ (which advocates that each of the branches has the power to limit or check the others and so inducing that the ambitions of one branch prevent that one of the others become supreme) and ‘separation stricto sensu’ (which relies on a formal and functional ascription of powers that generally excludes interferences between the different branches, with main regard to the separation between legislative and judiciary). During the first half of the 1900s, by observing the negative outcomes which somewhere the division of powers in different areas of responsibility had showed with regard to efficiency of governance over periods of economic and political instability. On the whole, these thinkings show a converging trust in steadiness and relevance of the ban on concentration of powers in the Italian constitutional framework, as much in the opportunity of adaptive institutional answers to the necessity of protecting the separation of powers.
La separazione fra legislativo ed esecutivo nell'Italia prerepubblicana: spunti di riflessione dall'Archivio Giuridico
E. Ferioli
2019
Abstract
The essay recalls the main scholar thinkings on separation of powers which have been published in Archivio giuridico before the adoption of the Italian repubblican Constitution. During the 1800s, by persuasively and insistently arguing that legal power, when divided, degenerates into despotism less easily, as well as by assessing the different ways to improve separation, basically linked to the distinction between ‘check and balances model’ (which advocates that each of the branches has the power to limit or check the others and so inducing that the ambitions of one branch prevent that one of the others become supreme) and ‘separation stricto sensu’ (which relies on a formal and functional ascription of powers that generally excludes interferences between the different branches, with main regard to the separation between legislative and judiciary). During the first half of the 1900s, by observing the negative outcomes which somewhere the division of powers in different areas of responsibility had showed with regard to efficiency of governance over periods of economic and political instability. On the whole, these thinkings show a converging trust in steadiness and relevance of the ban on concentration of powers in the Italian constitutional framework, as much in the opportunity of adaptive institutional answers to the necessity of protecting the separation of powers.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
