Some effects of European Courts on national sources of law: the evolution of legality in the Italian legal order

The essay analyses an ongoing tendency that is transforming a traditional cornerstone of constitutional and administrative law in Italy, such as the principle of legality. This progressive makeover is given by the reflections in the internal legal order of the joint effect of the jurisprudence of the European Court of Human Rights, together with the integration in the European Union, that are producing a progressive shift to a more substantial and comprehensive concept of the “rule of law”. The main reason for this seems to derive from the so-called “democratic disconnect” that affects the supranational legal orders and weakens the preference traditionally acknowledged to parliamentary legislation. Due also to the low quality of the internal legislation, the Italian Highest Courts are following the hints coming from the outside and both the Court of Cassation and the Constitutional court are slowly embracing a more comprehensive idea of what “law” is, closer to the idea typical of the “common law” systems. The results of this evolution are a progressive decline of the formal categories that dominated the literature in the past decades as well as, at the same time, the risk of losing also the democratic meaning of legality, represented by the necessary linkage between the system of sources of law and the form of government. In other words, relocating the role of parliamentary legislation means rethinking the role of Parliaments vis-à- vis both the Government and the courts in the contemporary State. The essay fosters the reflection on this process and on its potential disadvantages for the good functioning of the democracy.