I. Costantino Mortati and the Crisis of the Modern State

Published in 1940, La costituzione in senso materiale marked a watershed in the Italian public law doctrine. The significance of this 1940 book, both for Mortati’s intellectual journey and for the Italian legal scholarship in general, lies in the fact that—in Maurizio Fioravanti’s words—he “believed that certain key problems of constitutional law would remain unresolved if jurists did not set about clarifying the very concept of a constitution.”Footnote ⁶ The focus on the study of the material constitution was, on the whole, Mortati’s tentative response to a critical juncture in Italian public law doctrine, which was split between a traditional doctrine, whose main assumptions were coming from the 19^th century, and a revolutionary one, trying to respond and accommodate the demands and the new ideology of the Fascist regime.Footnote ⁷ During the 1930s, a new generation of jurists dissatisfied with the bourgeois state renovated the whole vocabulary of public law: constitution, constituent power, political party, political direction (indirizzo politico), political regime (regime politico) were now replacing the old concepts such as sovereignty and person-state.Footnote ⁸ This new scholarship revolted against the traditional liberal understanding of the state, as an administrative body subject only to the law enacted by the legislative power, and looked for a more political understanding, more effective in maintaining social order against the intensification of class conflict.Footnote ⁹ Consequently, legal doctrine could no longer be confined in the formality of the dogmatic work. Without losing sight of the method and rigor of legal science, the task of this new public law doctrine was to give a de facto more solid legal basis to the state, by investigating the “extremes of the legal order [ordinamento giuridico] where the embryonic reality of the state is grasped,”Footnote ¹⁰ in the “grey area” of politics and law.Footnote ¹¹

This need for a renewed scholarship strongly emerged in the very first pages of La costituzione in senso materiale, where Mortati explained the purpose of his research agenda starting from the need to distinguish between the formal and the material understanding of the constitution:

The absolute and typical content of the state’s legal order is what the material constitution provides, as such distinguished from a solemn declaration or specific constitutional provisions. Against the variability of constitutional provisions, the function of the material constitution is “to confer stability to the form of State (forma di Stato),” and thus to preserve the state’s fundamental structure, its “essential order.”Footnote ¹³ Mortati was aware that this search of the foundations of the modern state had involved the whole history of political thought. What was important to him was to stress that this search for the fundamental structures of the modern state was a legal question. The concept of material constitution is important to systematize the law, that is to make sense of the legal order, which must be understood as a “closed and autonomous system of norms, consistent in its parts, capable of effective realization, stable and equal to itself.”Footnote ¹⁴ The material constitution is not in contradiction with the formal one: it is rather the other side of the same coin.Footnote ¹⁵ It is the highest source of the legal order as it confers validity to the formal constitution and harmonizes it, in the moment of interpretation,Footnote ¹⁶ according to the will and the ideology of the prevailing social forces. That means that legal interpretation is never merely a scientific activity, but is a political one.Footnote ¹⁷ While the formal constitution conveys the ways in which the will of the supreme organs of the state expresses, the material constitution points to the need to harmonize this will with the ideologies of the social forces, such that this harmonization (concordanza) “cannot be considered as an element extraneous to the law and pertaining to the pre-legal stage of the formation of the will of the organs themselves,” but instead “appears to be of legal relevance, because it constrains the activities of those organs.”Footnote ¹⁸

Importantly, the legal relevance of this material underpinning of the legal order is not only confined to the state’s supreme organs, but runs through all the levels of the public administration where decisions have to be constantly harmonized with the will of the social forces or, more precisely, of the political party.Footnote ¹⁹ It is the political party in fact the new central subject of the constitutional order, not from a sociological perspective, but as a figure of public law. Against any formalistic solution, leaning on concepts such as “hierarchy” of the legal sources, the problem of assuring unity and stability to the legal order is solved in the unity of the “political aim, which informs a certain legal order,”Footnote ²⁰ and which can gain the constant support of the leading political party. The political party has the task of “structuring interests, making choices regarding the order of the ends and the means to satisfy them,”Footnote ²¹ and therefore to concretize “the general purpose, necessarily indeterminate, by the very nature of its object, which is the State in its entirety.”Footnote ²² In sum, the liberal aspiration of the separation of state and society, and of the state as mere neutral and legal construct, can no longer hold. In fact, the political party is constantly engaged in an activity that “presents itself as the immediate realization of the material constitution, the first stage in the process of the successive concretizations through which it unfolds, and which therefore precedes and conditions all other forms of state action, which receive precisely their impetus and direction.”Footnote ²³

Mortati’s legal theory rejected both Kelsen’s normativist formalism and Schmitt’s idea of the constitution as decision over the form of political unity: the first one for the paradoxical character of the Grundnorm and the difficulties in identifying the proper content of the constitution, the second one for the difficulty in attributing legal character to the will of the people as constitution-making power.Footnote ²⁴ His realist account of legal phenomena, whereby the legal order is always determined by the effective exercise of power, was rather closer to the perspective of the Italian administrative lawyer Santi Romano, to whom his 1940 book is dedicated. Romano’s institutionalism stood on the equation between objective law, legal order (ordinamento giuridico), institution, and organization.Footnote ²⁵ Any legal order is first of all a concrete order, meaning an effective and lasting ordering of human relations, whose legal character sprung from the necessity of human and social needs: ubi societas ibi ius.Footnote ²⁶ From this follows Romano’s legal pluralism, so that the state is just one among many legal organizations, although surely the most important one.Footnote ²⁷ Mortati agreed with Romano’s approach to look at the legal phenomena not only as an ordered system of norms but as organization, concrete order, endowed with its own means and ends actively pursued by social forces. Despite that, Mortati blamed Romano for undertheorizing the role of norms and, consequently, of constitutional normativity:

While for Romano the constitution in the material sense was nothing more than constitutional law, that is the description of the functioning of the state organs and so finally coincided with the legal order,Footnote ²⁹ Mortati claimed a prescriptive function of the constitution as teleological unity and as a limit to the will of state organs, and thus against state absolutism.Footnote ³⁰ Moreover, while in Romano’s account the social underpinning of the legal order is a harmonious and homogeneous society, Mortati put at the center stage the political party: the part of society which managed to affirm itself, its political aims and priorities, over the rest of the population, through a process of differentiation and specification of the rulers over the ruled.Footnote ³¹ As the material constitution remained the legal and normative core of the state and the legal order, the party “is nothing more than an instrument of state-building through the differentiation of society.”Footnote ³²

Finally, the prescriptive function of the material constitution and the need for a more politically conscious public law doctrine led to another fundamental concept of Mortati’s work: that of political direction (indirizzo politico). The concept of political direction, just like the one of constitution, was at the center of the new Italian constitutional scholarship, deeply influenced by Weimar experience and debates.Footnote ³³ In his Istituzioni di diritto pubblico, published after the war, Mortati distinguished the activities of the state into four functions: constituent, of political direction, legislative, and executive, divided into administrative and judiciary.Footnote ³⁴ While the constituent function is addressed in the section on the guarantees, in particular of constitutional revision,Footnote ³⁵ the function of political direction has clearly a certain pre-eminence. In fact, the task of the state organs with the function of political direction, “by virtue of its most immediate connection with the constitution, is the task of promoting the progressive realization of the imperatives stemming from it.”Footnote ³⁶ As Mortati clarified, this function is not in contradiction with the doctrine of division of powers, but is needed to harmonize the activities of the different organs among which is shared. The fact that, in the post-war constitutional framework in Italy, the function of political direction was primarily exercised by parliament and not, as under fascism, by the head of government,Footnote ³⁷ did not change the essential need for the state to guarantee the identity and continuity over time of its fundamental and typical content, its material constitution, which is the specific task of the function of political direction.Footnote ³⁸

II. A Material Constitution Beyond the State?

The concept of material constitution was devised to rethink the state and public law in a moment of crisis, when new collective political subjects were shaking the state as the central institution guaranteeing production and social reproduction and contesting liberal constitutionalism as its ideological legitimation.Footnote ³⁹ It is hardly disputable that this concept was conceived to address specifically the modern state and its claim for unity, identity and stability, with the constitution as universal and, at the same time, partial fundamental law regulating all the public power.Footnote ⁴⁰ Still, only a few years after the publication of La costituzione in senso materiale, with the end of the Second World War a set of political, social, and economic transformations drastically affected the role, legitimacy, and functioning of the state and its constitutional order. It is beyond the scope of this article to assess these changes, or to revise the enormous literature that has tried to give an account of the new international or global scenario generally under labels such as “global constitutionalism,” “constitutional pluralism,” “societal constitutionalism” or “transnational constitutions.” In general, it is possible to see that all these strands of studies refrained from the political realism and legal institutionalism that qualified Mortati’s understanding of the state and the constitution, adopting rather a normativist or a sociological perspective.Footnote ⁴¹ Even within Italian public law scholarship, the notion of material constitution has seemed to gradually fade away from the debates, as most of the works on the topic are more oriented to the historical reconstruction of Mortati’s genius than to rethink the validity of his concepts and categories today. Discussing the material constitution, whether at the national or international/global level, must have seemed until very recently to many an unnecessary or unfruitful effort.Footnote ⁴²

The publication in 2019 of La constitution matérielle de l’Europe, edited by Céline Jouin, showed a renovated interest by several scholars in the approach and method cultivated by Mortati and by all those theorists which believed that “the constitution is first and foremost an instrument for recognizing the plurality of social powers and integrating them into the state.”Footnote ⁴³ Most notably, the general idea that “historical constitutions are related to long historical periods and to the overall structure of society”Footnote ⁴⁴ was discussed not in relation to states but to a sui generis, supranational entity: the European Union. As stated in the preface of the edited collection, the debate over the existence and the nature of the EU constitution gained new impetus after the failed ratification in France and the Netherlands of the Treaty establishing a Constitution for Europe in 2005. In particular, scholars had to face the flagrant contradiction between, on the one hand, a consolidated constitutional interpretation of the founding treaties by the Court of Justice of the European Union (CJEU) and, on the other hand, the popular unwillingness to accept a supranational document named “the Constitution of the European Union.”Footnote ⁴⁵ Within this international debate, Augustin José Menéndez argued that, despite the absence of a solemn document recognized as formal constitution, the EU has indeed a material constitution, which he defined as “the norms of social interaction that are regarded as basic norms according to social practice.”Footnote ⁴⁶ This conclusion stemmed from the fact that, especially since the so-called “constitutionalisation” of the treaties, legal practitioners have widely recognized the existence of a set of legal materials as the sources of an autonomous legal order, endowed with its own basic norms defining its structural features, powers, and duties of its organs, and substantial limits—fundamental rights.Footnote ⁴⁷

Menéndez can be taken as an example showing that, despite the return of the expression of the material constitution, the way of defining it happens to be quite different from the one provided by Mortati, as it is rather closer to Hart’s positivist and hermeneutical approach, considering law as a social practice shared among officials and legal practitioners.Footnote ⁴⁸ Despite this shift, in Jouin’s edited volume Menéndez also reaffirmed how Mortati’s critiques are still valid:

The concerns raised by Mortati’s theory of the material constitution remain open and contested among scholars seeking to adapt his ideas to the European Union. According to some, the EU has indeed a constitution because the CJEU has interpreted the international treaties as such, by applying the typical interpretative methods and legal arguments of national constitutional courts, but it cannot be said to have a material constitution—in Mortati’s sense—because it is still missing a formal constitution, and there are no “leading political forces,” or a political party, which can guarantee unity, identity, and stability to the political entity.Footnote ⁵⁰ Moreover, it might be said that the Court has interpreted the EU legal order according to the values of the État de droit, despite the evident contradiction of not being a state, but not according to the democratic ones, so that the political will of the social forces has not been considered a fundamental content of the EU constitution.Footnote ⁵¹ Rather than a democratic and material understanding of the constitutional order, the Court has adopted a functionalist understanding of it: instead of conceiving the EU as a political entity with general character and aims, the functionalist method has juxtaposed different sectors or competences, mostly in the economic sphere, and constitutionalized them.Footnote ⁵²

All these difficulties in thinking of a material constitution beyond the state led other scholars who still believed in its method and core intuitions to reframe the concept and adapt it to a “transnational material constitution.”Footnote ⁵³ Marco Goldoni and Michael Wilkinson have built on early 20^th century theories of the material constitution, coming both from institutionalist and Marxist thinkers, in order to provide a materialist account of contemporary processes of constitutional ordering which is able also to describe the current transnational dimension of politics and law.Footnote ⁵⁴ According to these authors, the traditional understanding of the material constitution lacked a proper materialist understanding of the connection between constitutions and political economy, between constitutional ordering and the conditions of social reproduction. Focusing on the “ordering forces,” rather than on the origin and history of the modern state, they provided some analytical categories for thinking the dynamics between the formal and the material constitution beyond its birth-place.Footnote ⁵⁵ In fact, the process of differentiation and specification of the societal body that Mortati’s political realism placed at the origin of the state and its material constitution is still affected by a residual formalism; unless it considers the ways in which subordination reproduces under specific historical conditions, that is, under industrial and post-industrial capitalist societies.Footnote ⁵⁶ Consequently, political realism must also acknowledge that social conflict, rather than being solved once and for all with a political decision on the fundamental content of the state, has to be considered an outcome of the constant opposition between labor and capital. The material constitution, instead of being thought as the static or monolithic “essence” of the state, should rather be envisioned as a dynamic process of constitutional ordering and re-ordering.Footnote ⁵⁷

This turn towards the study of the political economy of constitutional orders has the potential to give account of contemporary “derivative” regimes, meaning non-original, non-state legal orders endowed with their own institutions and political aims serving specific state sectors, and so their “derivative material constitution.”Footnote ⁵⁸ In this sense, the European Union, and the other supranational institutions as well, must not be seen as the death knell for states and state sovereignty, but they rather provide new sites for transnational government and a global constitutional law which has to be materially understood starting from its underlying political economy.Footnote ⁵⁹

In sum, the “return” of the material constitution came with a renovated interest in a materialist understanding of societal relations, placing politics and class conflict at the heart of constitutional ordering and constitutional change beyond the state. The analytical categories provided by Goldoni and Wilkinson have been helpful in framing some complex contemporary phenomena, where language and concepts of constitutionalism met the legal framework of the new global financial and economic structure.Footnote ⁶⁰ What still has to be addressed, though, is whether legal scholars, justices, and legal practitioners in general are, or have been, still thinking through the concept, and its related categories, of the material constitution. According to Mortati, in fact, the material constitution was a legal concept with a prescriptive value, meaning that it was not just a way to describe the functioning of the state’s legal order, the arguments to which jurists appealed to solve legal problems, but it was per se a good legal argument. As we have seen, the material constitution provided a doctrine for constitutional interpretation that was convenient for the political discourse of the time, responding therefore to the need of keeping together the web of doctrines and institutions with the transformations of the socio-political structure.Footnote ⁶¹ Looking at the discourse of legal scholarship can illuminate how the constitutional ordering forces were supplemented by a particualr legal discourse

That legal scholarship has not disowned some of these concepts and intuitions, but has also tried to apply them particularly to the EU legal order, can be seen in some recent Italian studies in comparative public law. For example, in La forma di Stato dell’Unione Europea, Francesco Palermo investigated the EU constitutional order through the lenses of the prescriptive concept of “form of state [forma di Stato],” quite popular in the Italian 20^th century constitutional doctrine.Footnote ⁶² In a nutshell, the form of state prescribes the correspondence between the aims of the legal order and the organization of public powers, or “the reflection on the constitutional level of the ideological characterization underlying the system.”Footnote ⁶³ The inquiry into the European form of state led Palermo to identify in the rule of law the constitutional principle of the European organization of public powers, and in the process of integration the axiological core of European constitutionalism. In fact, integration among constitutional orders has acquired, among European judges and legal practitioners, an “autonomous legal meaning,”Footnote ⁶⁴ being the common and most important value and political aim, such that “in short, integration is the material constitution of the form of state of the subjects of the supranational constitutional space.”Footnote ⁶⁵ Finally, in the “integrated form of state [forma di Stato integrata]” of the European Union and its member states, we can see a material constitution consisting in the fundamental prescription of pursuing integration, and thus guiding the interpretation of the constitutional treaties.Footnote ⁶⁶

Palermo ended up providing an analysis of the EU material constitution focused on the courts, understood as the main actors of this new constitutional law, based on judicial remedies and more flexible solutions, closer to the common law rather than to the Rechtsstaat paradigm.Footnote ⁶⁷ What is important to stress is the permanence in EU legal scholarship of the search for a teleological unity, or a fundamental aim, which goes beyond the analysis of formal legal sources and tries to grasp the gray area between politics and law. This search can also be shown in other recent studies in comparative constitutional law that have employed Mortati’s fundamental concepts, such as that of political direction (indirizzo politico), to investigate the EU constitution, focusing also on other European institutions, like Commission, Parliament and Council.Footnote ⁶⁸ Especially after the COVID-19 pandemic, the extraordinary measures taken by the European institutions in order to address the multiple crises have questioned the legal basis of the EU legal order and the very political aim of the supranational constitutional order.Footnote ⁶⁹

But was it all new? Had legal scholars attempted to address the question of the existence and content of the material constitution of the EU before?

I. An Italian jurist in the “Transnational Legal Field”

Studies in the field of the legal history of the European Union have pointed to the role of judges and legal scholars in shaping the nascent European institutions and the specific political legitimation that the “legal field” provided to those institutions.Footnote ⁷⁰ Especially since the “Integration Through Law Project,” established between the 1970s and the 1980s, the idea that the law has been the main driver of European integration, and that the legal order of the European Communities was a constitutional one, became one of the most prominent political discourses legitimizing both the supranational legal order and the activities of EU-related legal practitioners.Footnote ⁷¹ In what was called “the making of a transnational constitution,” the discourses of justices and legal scholars played a major role way beyond the mere description of the new supranational phenomena.Footnote ⁷²

Among those who made a significant contribution to shaping the new constitutional discourse was the Italian law professor, civil servant, and later judge at the CJEU, Riccardo Monaco.Footnote ⁷³ Despite the fact that “Riccardo Monaco was undoubtedly the most influential Italian figure in the development of studies on European legal integration,”Footnote ⁷⁴ his intellectual contribution has received little attention.Footnote ⁷⁵ Monaco’s life was implicated in the new supranational order in different ways, but his doctrinal writings are certainly one of his most important legacies. Starting from the 1950s, Monaco innovated in the field of international legal studies, and he did so specifically as a response to the challenges posed by the EC. Notably, he widely adopted a semantic coming from the field of constitutional law in order to talk about international law and the law of international organizations, and in doing so he challenged the usual divide between international and national law in terms of the subjects, procedures, guarantees, and content of the norms.Footnote ⁷⁶ This new understanding of international law was grounded on an institutionalist philosophy of law that Monaco shared with one of the leading constitutional theorist of the time, Costantino Mortati. These two authors developed different theories and doctrines that are not easy to reconcile, and in fact the two names have never been studied together. At the same time, they still shared a common semantics and common categories highlighting a “strong” normative understanding of the constitution, conveyed by the “material” adjectivization. In the second edition of the Manuale di diritto internazionale pubblico, for example, Monaco explained the foundations of the international legal order by explicitly referring to Mortati’s work as the best way to frame a non-formalistic understanding of the constitution, suitable also for studying the law beyond the state.

This idea of a constitutional normativity that goes beyond formal criteria of validity was crucial for Monaco in understanding contemporary legal phenomena. Even more than in international law, it is in the law of international organizations that his assertion of the existence of a material constitution has had fundamental legal and political consequences. However, as we will see, despite the use of the same expression and the explicit reference to Mortati’s work, Monaco’s understanding of what the material constitution is diverged from that of his colleague. On the one hand, thinking of the constitution of the international organizations such as the EC in terms of a material constitution was clearly a way of bestowing a particular political legitimacy to these organizations, for the link it established with the will of social forces; on the other hand, it also raised some theoretical difficulties that were hard to overcome unless the concept underwent some serious transformations. It was also within this tension that legal scholars, such as Monaco, had to rethink the fundamental legal concepts in order to accommodate the new legal and political realities.

Born in Genoa in 1909, Monaco graduated in international law from the University of Turin in 1930 under the supervision of Giuseppe Ottolenghi and soon after became a judge.Footnote ⁷⁸ After graduation, he also started his academic career: in 1939, he became professor of international law, first at the University of Cagliari, and then in Modena, Turin and Rome. Between 1947 and 1956, he worked as advisor for the Italian Ministry of Foreign Affairs, and later became chief of the Service for Diplomatic Disputes, taking the position occupied by Tomaso Perassi, one of the most important Italian international lawyers of the time. Thanks to his personal knowledge of the vice-president of the Council of Minister and future President of the Republic, Luigi Einaudi, in 1948 Monaco was appointed to the Council of State, the highest administrative court in Italy. During the 1950s, he became professor of administrative law at the University in Rome and, as chief of the Service for Diplomatic Disputes, he supervised several diplomatic delegations and interstate conferences, including the Conference of the Ministries in Messina that led to the creation of the European Coal and Steel Community (ECSC). In 1956, he was appointed to the first chair in “Law of international organizations” in Italy, becoming a pioneer in this new discipline.Footnote ⁷⁹ One year before this nominee, Costantino Mortati joined the same faculty of political science at the University of Rome as professor of “Italian and comparative constitutional law,” although for only few years, since he was appointed in 1960 at the Italian Constitutional Court. Despite the fact that there was no close acquaintance between the two, Monaco remembered his colleague as an influential figure for him, especially for his studies on constitutional law.Footnote ⁸⁰ The apex of Monaco’s career is the nominee in 1964 as judge at the CJEU, where he served for two terms, until 1976. During those twelve years, the CJEU issued some of the most important rulings such as Internationale Handelsgesellschaft, in 1970, and ERTA, in 1971, while also national constitutional courts started settling their doctrines on EU law, as in the case of Frontini for the Italian Constitutional Court in 1973, or Solange I for the German Constitutional Court in 1974. While at the CJEU, Monaco was juge rapporteur for almost one hundred cases, including Portelange in 1969, in which the Court stated for the first time that “general principles of the law” are unwritten sources of the EU legal order.Footnote ⁸¹ Finally, after the years at the CJEU, he went back to Rome and was appointed dean of the Faculty of political science and Secretary General of the International institute for the unification of private law (UNIDROIT). He died in Rome in 2000 at the age of 91.

Monaco was an incredibly prolific writer: on top of his works in both public and private international law,Footnote ⁸² he wrote also on constitutional law and the first handbooks in law of international organizations.Footnote ⁸³ However, he is best renowned for his work in the field of European Communities law, having written the very first books on the subject, countless essays, handbooks, and commentaries on the European Treaties.Footnote ⁸⁴ In 1961, he also co-founded the Rivista di diritto europeo, the first Italian scientific journal dedicated to issues related to European Communities law.Footnote ⁸⁵

Monaco’s philosophy of law was deeply informed by Santi Romano’s institutionalism, which he more thoroughly applied to international legal theory. Romano’s theory of international law rejected voluntarism and normativism, considering the international system of states as an “institution of institutions”: just like state law could not be considered merely the set of norms produced by the state’s or the sovereign’s will, in the same way international law, being properly law, could not be reduced to the sum of agreements among states, either in the form of international treaties or as customary norms, but had to be considered concrete order and organization.Footnote ⁸⁶ While still adhering to the traditional Italian dualist conception of international law of Dionisio Anzilotti and Donato Donati, Romano’s institutionalist theory of international law provided legal scholarship with new tools that would prove crucial in solving some conceptual problems that arose amidst the crisis of the universalist formalism of international legal scholarship after the Second World War.Footnote ⁸⁷ The legacy of Romano’s approach to international law was clearly acknowledged by Monaco who wrote in 1990 that:

Romano referred indeed to the “constitutional characters” of the international system of states,Footnote ⁸⁹ while he conflated the notion of a constitution in the material sense with constitutional law.Footnote ⁹⁰ Romano died in 1947, and although he anticipated some later important themes in international law’s doctrine, he could not comment on the post-war major transformations.Footnote ⁹¹ Also Mortati, Romano’s pupil, proposed a constitutional understanding of international law, conceiving of the international order as grounded on a fundamental normative structure that orders and validates the otherwise mere sum of international agreements and customary norms. In his Istituzioni di diritto pubblico, written in 1969, he used the expression “constitution in the material sense of the international legal order,”Footnote ⁹² in order to denote the fundamental, customary norm from which the other sources of the international legal order—treaties and customs—gain their validity. Mortati was not an expert in international law and did not elaborate further on this idea that also the international legal order has a material constitution, and he focused more on issues associated to the “limits and counterlimits” to the principle of sovereignty according to the Italian Constitution.Footnote ⁹³ However, the few lines Mortati dedicated to explaining what the material constitution of the international legal order is already give an idea of the shift in the meaning when the concept was applied beyond the state: instead of a reference to the fundamental aims of the prevailing social forces, a more traditional reference to customary normativity is in place. Indeed, from the pages of Mortati’s Istituzioni di diritto pubblico we can see that a younger generation of scholars was becoming the reference point for the study of the new phenomena in international law such as the supranational bodies promoting European integration —still called “special international law [diritto internazionale particolare].” Among these scholars, it was Monaco who tried to systematically adopt the constitutional language and semantics to the newly born EC and thus providing his tentative definition of a supranational material constitution.

II. Extending and Renovating the Vocabulary of Public Law: Supranationality and Integration

In his studies on the post-war Italian public law, Monaco adopted the distinction between the constitution in the formal and in the material sense. In the formal sense the constitution refers to the solemn document that came into force January 1, 1948, whereas “in the material sense it indicates the structure, the actual organization assumed by the entity.”Footnote ⁹⁴ Public law was “even more than private law, imbued with sociality [permeato di socialità],” because “every society is organically constructed and arranged in correspondence with the interplay of the social forces at work within it.”Footnote ⁹⁵ For Monaco, again following Romano’s institutionalist philosophy, law was first and foremost an institution, which means that the structure and organization are the central legal elements of social entities, which by definition are plural and cannot be reduced or derived by the state and its authority. Therefore, every legal order has its own constitution “signifying the highest degree achieved by the legal organization in the system in question,”Footnote ⁹⁶ and that is constituted by “the set of principles, procedures, fundamental bodies and their practical functioning.”Footnote ⁹⁷ From these understandings of law and constitution followed a particular agenda for the study of public law: to analyze the relations between legal orders as “open” entities, while at the same time considering them as “autonomous and independent one from another.”Footnote ⁹⁸

According to an important legal scholar, in his writings on public law Monaco paid attention to Mortati’s theories.Footnote ⁹⁹ The references in Monaco’s public law studies to the “praxis of the men of government,”Footnote ¹⁰⁰ or to the “political jurisprudence (political history),”Footnote ¹⁰¹ in general, point to a conception of the constitution that acknowledges the “political character of constitutional law.”Footnote ¹⁰² Although the positions and findings of the two jurists do not overlap, we can see that the gap between the material and the formal constitution, which was particularly felt by a large body of legal scholarship in the first decades after the Second World War, could be filled with different contents and political ideals. In other terms, the concept of material constitution, although the different understandings jurists might have had of it, gave space to the claims coming from the legal field—scholars and judges—for a more important political role, especially where a constitutional document was either struggling to find its proper implementation, as in Italy,Footnote ¹⁰³ or where it was completely missing.

The idea that “political history is not only an auxiliary science, but part of the subject of public law,”Footnote ¹⁰⁴ so that legal science has to look beyond the formal content of texts in order to formulate constitutional norms, informed Monaco’s approach to the law not only in the study of state law. In particular, Monaco argued that the study of the historical and social reality, sustaining and undergirding the legal order, was necessary in order to justify and give an account of the new supranational and autonomous legal order represented by the ECs whose very legal nature was in question. The Treaties of Paris and Rome, which established the ECs, were certainly governed by the rules of international law, but there was also something more to them than that. As Monaco clearly stated in a conference in 1965, especially with the creation of the ECSC we had something more than a multilateral treaty:

This passage from a formal to a material constitution is what marked Monaco’s institutionalist understanding of this new entity and goes at the heart of an international debate involving the meaning of that “supranational character” enshrined in article 9 of the Treaty Establishing the ECSC. Since his very first comments to the newly born community, Monaco excluded the possibility of categorizing it as “union of states”: it is a ‘union of states’ because the High Contracting Parties “have felt the need to resort to a term that more clearly expresses the cohesion that has been created between several states, and to this end have chosen the expression community.”Footnote ¹⁰⁶ Although the choice of the term “community,” meaning the “pooling [messa in comune] of certain means and resources among several states,”Footnote ¹⁰⁷ could not be considered politically and legally irrelevant, it is not only a matter of the name. It was the original intention of the governments that actually qualified the new entity in a particular way: in other words, in a way that would allow that entity, over time, to exceed in power and scope the very original intention that created it. This was apparently quite paradoxical, because Monaco could not deny that, unlike national constitutions, the constitution of the ECSC—and of the ECs later—was first the product of an international agreement, so that the will of the parties remained the principal legal source. Moreover, the Treaties of Rome, differently from the one of Paris, did not actually mention the characteristics of supranationality. At the same time, his institutionalist understanding of the law led him to affirm that it was still possible to overlook the will of the sovereign legislators when it conflicted with the need for conservation of the legal order as concrete order, because “a statute, a constitution, although from a formal point of view is always an international agreement, is meant to signify something permanent, something structural.”Footnote ¹⁰⁸ The quest for unity, identity, and stability that characterized the understanding of the constitution in the material sense, linking together the formal aspect of the legal order with the political aim of the underlying social forces, was recovered to account for a permanent and structural feature of the supranational legal order, as autonomous from the will of the states.

The key characteristic of unlimited duration was also repeated by Monaco when commenting on the other supranational communities—the EEC and the Euratom—which, unlike the ECSC which was originally intended to last for only 50 years, had no time limit:

Therefore, “supranationality” had to be addressed as a distinguished legal category, which included those international organizations such as the ECs and which needed to be framed as the “third dimension of public law that lies between international law and state law.”Footnote ¹¹⁰ The “vertical structure,”Footnote ¹¹¹ associated with this new concept, of course came with crucial practical implications, where the most important one was the direct applicability of supranational norms by national courts to legal subjects. We cannot here enter into the details of the doctrine of direct effect,Footnote ¹¹² but it is important to stress how Monaco’s technical solutions to the problem of the coexistence and coordination between autonomous legal orders—such as the theory of formal referral (teoria del rinvio mobile)—were again possible thanks to his institutionalist understanding of the law.Footnote ¹¹³ For Monaco, the possibility of direct application of Communities’ norms in Italy was in fact possible through a specific reading of article 11 of the Italian Constitution, stating that limitations of sovereignty are possible, in a condition of equality with other states, in order to promote peace and justice among nations and the international organizations furthering these ends. Although the article was designed specifically for addressing the Italian participation to the United Nations, “the new course of international organization” had shown that “the essential purpose of the new bodies would not be mere horizontal cooperation, but socio-political integration.”Footnote ¹¹⁴ The main issue was the meaning of “limitation of sovereignty,” to which Monaco provided a singular answer: technically, there can be no limitation of sovereignty as an absolute and indivisible power, but is the exercise of the powers constituting sovereignty that can actually be limited. It was the “functional aspect of sovereignty” that was involved in the supranational integration,Footnote ¹¹⁵ so that what happened when Italy joined the Communities was a “compression of state law by community law.”Footnote ¹¹⁶ In this way, Monaco could get around the problems associated with traditional dualist normativism, thinking in terms of “delegation of powers” or “delegation of competencies,” which tended to conclude that the very idea of supranationality was nonsensical and incompatible with state sovereignty, so that either community law had to be considered international law, or the ECs had be considered quasi-federal or pre-federal entities.Footnote ¹¹⁷ There were no limitations of sovereignty simply because there were no delegations of competencies: the new supranational legal orders were new autonomous constitutional orders, with new competencies independently administered from national authorities.Footnote ¹¹⁸ This was the fundamental wisdom of Monaco’s pluralist institutionalism.Footnote ¹¹⁹

Monaco was aware that the solutions he proposed were not definitive and that the doctrinal debate on the relationship between national law and Community law, as well as the jurisprudence, was far from being settled. On more than one occasion, for example, he called for a formal revision of the Italian Constitution, or at least for a new statute, to allow ordinary judges to directly disapply national laws when found to be incompatible with earlier Community regulations, thus avoiding the need to wait for a ruling on constitutional legitimacy which, in turn, could be detrimental for the purpose of homogeneous application of Community law among Member states.Footnote ¹²⁰ Still, in those pages, we can also see an appeal to legal doctrine and to jurisprudence to look beyond formal solutions. The anti-formalism, which characterized a material understanding of the constitution, inviting legal scholars and practitioners to grasp the legal relevance of the political reality sustaining the legal order, were echoed by Monaco’s invitation to innovate the vocabulary and legal solutions in order to adapt to the new reality. The concept of integration, which is so pervasive in Monaco’s writings, can hardly find a sharp and coherent definition based on legal materials, but it has a proper constitutional force redefining the other concepts of constitutional law:

Integration does not cancel sovereignty, because it is actually the product of sovereign acts. Nonetheless, integration provides the content, or the fundamental aim, of the material constitution of a new supranational legal order, which encompasses and goes beyond the sovereign states and their constitutions as a “social fact.” Integration, as the material content of the constitution, teleologically drives the interpretation of the treaties and “gradualism in creating Communities is the characteristic feature of the method” for integration, because “in order to ensure the adherence of the constitutional text to the changing reality, an evolutionary interpretation of the text must be adopted.”Footnote ¹²² Nonetheless, this was possible, according to Monaco, only if legal scholarship adopted a different approach, actively pursuing the political aim of integration, since “it would be necessary for the jurist to place himself fully in the communitarian perspective, leaving aside the internal influences, of various kinds, that have contributed to his formation.”Footnote ¹²³

In sum, the emerging “transnational legal field”Footnote ¹²⁴ had an unprecedented political task: to harmonize, through an evolutionary and teleological interpretation of the treaties, the formal constitution with the European social basis which, at the same time, was created through the process of integration between national and supranational legal orders. Monaco was aware of how challenging this task was; he acknowledged that the process of integration could not be left to the work of jurists, as it was necessary the active participation of political parties and social groups to persuade the “public opinion.”Footnote ¹²⁵ In fact, as he wrote in 1968: “the European spirit has not yet penetrated deeply into the psychology of the European peoples.”Footnote ¹²⁶ Nonetheless, the material grounding of the supranational constitution was the only way he could envisage the possibility for that new legal order to succeed.

III. Concluding Remarks. The Political Direction of the Economic Constitution

This Article has addressed the question of whether the EU has a material constitution or not from a historical angle, by looking at how a nascent legal scholarship in EU law tried to translate a concept, born in the specific context of the nation state, to the supranational level. The Italian jurist Riccardo Monaco provided an example: in applying his knowledge in public law to the new law of international organizations, his pluralist and institutionalist conception of the law allowed him to rethink relations among states as horizontally coordinated by the substantial concept of integration, rather than according to formal hierarchies of delegation of power. In order to do so, the new supranational constitutional order had to be thought by jurists and political actors in connection with a new historical and social reality, and its law as the product of constant adjustments, sparked by social impulses, but teleologically oriented.

Monaco was a multifaceted jurist and, in this Article, I could only sketch part of his intellectual contribution. In conclusion, it is possible to point to some themes and questions related to the adaptation of the concept of material constitution to a supranational level that Monaco left unanswered. In the first place, the non-traditional organization of public powers that informed the supranational constitution was not easy to accommodate with the function, so important “by virtue of its most immediate connection with the constitution,”Footnote ¹²⁷ of political direction (indirizzo politico). According to Monaco, one of the main distinguishing features of the supranational character of the ECSC, beside direct application, was the fact that, while international agreements and institutions express only the will of national governments, international and autonomous organizations have organs composed by the representatives of the peoples’ will. For this reason, “mediation of the various political currents existing in the various national parliaments is possible, and the political direction surfaces and gains influence in community organs.”Footnote ¹²⁸ A supranational assembly featuring legislative but non-sovereign powers, although indirectly elected, was for Monaco the best way to ensure the harmonization of legislation with the material constitution. This link between supranationality and directly/indirectly elected organs was repeated in different moments by Monaco.Footnote ¹²⁹ Nonetheless, he also had to admit that the powers of the supranational representative assembly were very limited, and that especially after the Treaty of Rome in 1957, which did not mention the supranational character of the new associations, and Treaty of Brussels in 1965, merging the different executive organs of the Communities into a single Commission, it was the latter that became “the only organ of government and political direction.”Footnote ¹³⁰ Moreover, we could add, 1965 was also the year of the so-called “Luxemburg compromise,” which set the rule of unanimity for decisions in the Council moving, therefore, the whole institutional balance toward the traditional inter-governmental method, at least for some years.

This difficulty could be explained by the fact that, in Monaco’s words, “when the ECSC arose, it was thought that prevailing over political direction was the techno-economic need to give birth to the common market for coal and steel.”Footnote ¹³¹ In fact, a crucial difference between the material constitution of the state and the supranational material constitution is that the latter could clearly not be universal in scope as the former. Monaco seemed to acknowledge this difference but did not give a clear answer:

The legal order of the ECs is a special one, for the deep connection between the legal and the economic spheres, which, therefore, cannot be understood as the sheer sum of economic relations regulated by the law, but are—thinking again in institutionalist terms—concrete order, institution, organization: “it is a matter of seeing through the instruments of the legal system-organization and norm-setting a common economic order being constituted.”Footnote ¹³³

Finally, one could ask: which were the social forces that formed the social basis that Monaco considered both the agent and the object of integration, as the political aim of the supranational material constitution? The answer is not straightforward. On the one hand, as we have seen, he still believed in the necessity of an active involvement of pro-European political parties promoting integration, especially the Christian democratic parties, to which he belonged.Footnote ¹³⁴ On the other hand, the economic constitution is presented as having its own specific subjects, which are the main addressees of the fundamental principles regulating the common market and the main participants in the new social order. In fact, “it can be justifiably argued that companies of all kinds acting within the European Common Market are now the true protagonists of the economic system established by the Treaty of Rome.”Footnote ¹³⁵ As much as these “immaterial” entities are the true protagonists of the new legal order, the materiality of the transnational movement of capital has indeed to be found in the transnational mobility regime of labor. In fact, for Monaco:

In this sense, Monaco’s late idea of the “existence of implicit limits to revision” of the Treaties,Footnote ¹³⁷ another wisdom coming from the doctrine of the material constitution, can be said to find its material content in the political economy of the supranational economic constitution, where the transnational circulation of capital and transnational mobility regime of labor provide the fundamental normative core. With the semantic shift from the material to the economic constitution, the latter could have claimed to be both an empirical and a descriptive concept, both a constitution formed by economic rules and a constitution formed in order to rule the economy.Footnote ¹³⁸ This meant, however, that the universality in scope that characterized the material constitution, which provided the absolute and typical content of a legal order, was no longer there. The concept had now to be reassessed within the tension between its universal aspiration and the particularity of the new social forces and of capital regime.