Costantino Mortati And The Idea of Material Constitution

Abstract

Early twentieth century German reflections on the intersection between law and politics have been the object of extensive historical analysis. Especially, Schmitt’s realism and Kelsen’s positivism have often been taken to instantiate two irreconcilable epistemological poles. Yet little attention has been paid to thinkers who, being at the crossroad of different intellectual traditions, operated within this dichotomy while trying to avoid its most caricatural features. One of these figures is the Italian constitutional theorist Costantino Mortati. While introducing his life and oeuvre to the Anglophone public, this paper argues that his work should be read as an attempt to make sense of law’s relationship to politics that, although similar to Schmitt’s realism, avoids its more pernicious outcomes.