"These ghosts". Brief considerations about the instrument of the référé législatif

Abstract

This essay aims to investigate the debate about the dysfunctions of justice, in a climax of increasing tension towards an ideal legal certainty, as an epitome of the opposite distrust of the interpretatio; this, in order to develop some current consideration regarding the becoming of the “limit” between legislative power and hermeneutic activity. The physiological excess of social relations with respect to the normative enunciation, in fact, is a question never dulled in the legal discussion; above all, where the fragmentation of logical-normative structures generates gaps and contradictions. Ac deinde semper, the severe diagnosis the system’s state passed from criticism to the activity of the “legulei”, invoking a remedy -apparently- simple: to bring the dubia to the legislator, holder of the volitions and reasons, through the institute of the référé législatif. The authentic interpretation thus became the chorus of a series of principles and ideals which found maximum expression during the revolutionary period; yet, the référé institute (already known in the Ancien Régime) proved to be of modest utility, so much so that it was almost abandoned in the Napoleonic period and formally repealed, without regret, in 1837. The Estense Code of 1771 is one of the most successful attempts at systematic legislation, among those preceding the Code Napoléon, and addressed the problem of legal certainty; above all, and in this a probable difference with many coeval attempts, by virtue of an Enlightenment ideal tempered by a pragmatic, perhaps tacit, acceptance (and functionalization) of the “limit”. Modern codifications and the evolution of hermeneutic rules have partially suppressed this dialectical comparison on the limit between normative activity and interpretation, in the common tension towards completeness; but, an increased scepticism about the systematic nature of the law -which sees its robust pyramidal conception ceded- seems to lead the legislator to once again indulge in attitudes of open hostility towards the interpreter’s activity, concealing, in referring to authenticity, the progressive decline of its declarative claim.