Constitutional Resilience Between Rupture of History and Continuity of Resistance

Abstract

Abstract The overture of the paper provides a brief survey of the philosophical positions (from Aristotle to the contemporary debate) focusing the conjecture of the legal and constitutional continuum as a problematic presupposition of theories of constituent power. The positions of the authors that we can call as continuist authors (up to Kelsen and the neo-normativism, including Soviet jurists and theorists of the constitutional cycles) constitutes the dominant part of the theoretical evolution. We discuss it (respectfully) even if we openly criticize it, with a peculiar debate involving that other position called as discontinuist (whose authors are especially Marxists philosophers, anti-fascist intellectuals like Piero Gobetti, and their references in philosophy such as Leibniz and Vico). In the first movement of the paper, we reconstruct the equivoque at the basis of the conjecture of the continuum. It corresponds to a «three-time» scheme of constitutional dynamics: (revolutionary) rupture – transition – constitution. This structure makes useless (conceptually unusable, and perhaps sources of logical contradictions) both rupture and transition. The second and final movement underlines the theoretical demand to consider the transition and the constitution as coextensive domains. Transition is, in other words, already Constitution, and the constitution is always a transition. To the latter ones, we introduce and add another phenomenon characterizing the historical phase of the transition, namely the Resistance. The fact of resistance escapes the constitutionalisation, and imposes upon the latter a necessary character of transition.