Formalisme et nihilisme en Italie entre le XIXe et XXe siècle. Une nouvelle lecture de Natalino Irti

Between the end of the 20th century and the beginning of the 21st, Natalino Irti focused his studies on legal formalism also under general theory of law standpoint. Moving from a traditional definition he considered the legal formalism a complex legal technique established in the economic system and independent from the State and the legislator. These are the reasons why it is necessary to reflect on the theoretical structures developed by Natalino Irti and that lead law historians to understand the reason for a need of a new definition of “legal formalism” and the extent to which it should be far from the previous one. Therefore this research analyses the Italian legal thought which, between the end of the 19th and the 20th century on the basis of German scholars, used the formalism to strengthen the idea of State. Then the State of Law results from the liberal culture where the strict application of the laws justifies their nature in the State and formally ensures the freedom of individuals as subordinated citizens of the State. The formalism results in the legalism principle i.e. the fact that law provisions only originate from law and both citizens and public administration are subject to it. In the theoretical conception of the State of law the formalism consists of an elaboration of technical criteria of law. Due to Carl Schmitt (1888-1985) this idea of formalism was then replaced by a formalism based on the justification of authoritarian and decisionist regimes. On the one hand, this new perspective seems to recover the relationship between State and society, that was neglected under Kelsen's normativism which is based on the mere formalism of the rule, while on the other hand it expresses the need for a legal system and State to be the same.