Publications

This article offers a conceptual reconstruction of the rule of law as a political-institutional and normative ideal. Adopting an epistemic internal point of view, it clarifies the methodological assumptions underlying this reconstructive enterprise. On the basis of a minimalist conception largely aligned with Joseph Raz’s account, the article argues that a rule-of-law state necessarily exhibits two structural features. First, it must be a constitutional state, incorporating a subsystem of rigid and hierarchically superior norms that serve as criteria of validity for ordinary legal norms. Second, it must recognize an internal hierarchy among constitutional norms, in virtue of which the principles constitutive of the rule of law enjoy hierarchical supremacy even vis-à-vis other rigid constitutional norms. This dual hierarchy has significant implications for legal reasoning: it excludes balancing in conflicts involving rule-of-law principles and requires their unconditional prevalence, without thereby entailing the invalidity of competing constitutional norms. The article concludes by outlining the implications of this account for the concepts of hierarchy, validity, and the identity of a rule-of-law state.

All conceptions of the Rule of Law (RoL) can be traced back to two models. The first model emphasises formal features that limit the arbitrary power of rulers. According to this model, the RoL is both a means of organising power and safeguarding those subject to it. The second model considers positive law to result from balancing two elements, dating back to the medieval tradition: gubernaculum and jurisdictio. The gubernaculum, the expression of sovereign power, finds an insurmountable limit in legal practice. Its principles express a true “legal reason”. The judges and jurists are the foremost priests of this legal reason. This essay identifies the pros and cons of both models and attempts to demonstrate that they are incompatible alternatives.

The essay clarifies the relationships between the rule of law, the separation of powers, and democracy – concepts that are often conflated in public discourse. After distinguishing the different meanings of “separation of powers”, the paper reconstructs the rule of law as an institutional arrangement grounded on the specialization and independence of the judiciary and in the subjection of the executive to the law, which, within the liberal state, is complemented by the principles of liberty, equality, and legality. Democracy, by contrast, is understood as a form of government based on meta-rules regulating legislative production: the election of the legislative assembly by universal suffrage, proportional representation, and majority decision-making. The essay argues that there is no necessary conceptual connection between democracy and the rule of law: the nineteenth-century rule-of-law state was not intrinsically democratic, whereas the twentieth-century constitutional state, characterized by constitutional rigidity and judicial review, introduces counter-majoritarian institutions that limit the democratic principle. The result is an analytical reconstruction that sharply separates the three concepts and redefines their relationships in structural terms.

The justiciability of soft law is a demand of the rule of law, understood as “articulated governance” (Waldron 2013): the normative impact of power must be channelled, exposed, and controlled by structuring its exercise through a sequence that encompasses, and differentiates, the phases in which that impact takes shape – norm-production, application, and scrutiny. Within this sequence, courts occupy a central position, serving as a crucial node of control over power’s normative impact in relation to particular cases. Soft law too, insofar as it has normative influence, must be “articulated” in these terms and, thus, subject to judicial scrutiny. The aim is not to convert soft law into hard law, but to render visible, and subject to public scrutiny, the normative force it exerts.

What is the Rule of Law? In order to define the Rule of Law, I suggest adopting a conceptual clarification based on the analysis of ordinary language. In this sense, I will assume that “what is meant by the Rule of Law” is equivalent to “what the Rule of Law is”. To test the uses of this expression, I will turn to the analysis of international Rule of Law indicators. This choice is motivated by the fact that their measurement of the Rule of Law is opinion-based. After presenting the classical definitions of the Rule of Law, I will describe the functioning of the different Rule of Law indicators that I will examine. The analysis of these indicators shows that the results of their measurements are largely identical. The convergence of these results suggests a hypothesis: the various Rule of Law indicators ultimately refer to the same underlying concept. The common core of these indices suggests that what Rule of Law indicators measure is the perception of government impartiality. In this sense, the analysis of Rule of Law indicators shows that the Rule of Law consists of two elements: (a) the expectation that there is a government; (b) that it acts impartially.

The difficulties faced by Western democracies are one of the most hotly debated topics in contemporary legal and political discourse. This text attempts to identify the origins of these difficulties by highlighting two main aspects: the loss of balance between the constituent elements of constitutional democracies (sovereignty and limits to sovereignty, freedom and solidarity) and the impact of globalisation on national political systems. The analysis of these two aspects, preceded by an examination of some of the main political, social and legal transformations, highlights, on the one hand, the progressive detachment of political choices from constitutional objectives and, on the other hand, the drastic reduction in the decision-making spheres and tasks of states and the very sharp increase in economic, financial and legal constraints on residual decisions. The current process of deglobalisation does not seem to be leading to greater decision-making and intervention space for national democracies. In the appendix, based on R. Bin’s analysis, the German/European model of the Rechtsstaat and the Anglo-Saxon model of the rule of law are compared in order to show that the former has its origins in a focus on social aspects that is lacking in the latter.

Individualism (Christopher Lasch’s “narcissism”, Émile Durkheim’s “anomie”) – that is, the tendency of individuals to retreat within the confines of the self, by pursuing selfish (as opposed to shared) values and goals – has been identified as one of the causes of the crisis of democracy. In this article, I first argue for the need to specify and differentiate that category. It is one thing for those subjected to current forms of social governance to fail to adhere to shared values; it is another for the groups participating in them to carve out privileges for themselves. I will therefore focus on the first type, which I call “the individualism of the subordinated”, asking whether populism is the only possible political response to it. In this sense, I will examine the defense of populism in Laclau’s On Populist Reason, highlighting some of its external and internal problems. Finally, I will suggest a possible alternative, following the model proposed in Acemoglu and Robinson’s The Narrow Corridor.

The paper purports to provide an elementary survey concerning the rule of law and the forms of legal-political organizations faring as its enemies. It contains two parts. The first part contains the outline of a theory of the rule of law built upon an archetypal model and encompassing five varieties arranged on a scale of progressive rule-of-lawness: namely, quasi-minimum, minimum, more-than-minimum, quasi-maximum, and maximum rule of law. The second part articulates the outline of a theory of maximum rule of law’s enemies. It proceeds, tentatively, in three steps. First, it singles out four ideal typical varieties of autocratic government: to wit, full legalistic autocracy, prima facie legalistic autocracy, discretionary legalistic autocracy, and full decisionist autocracy. -Second, it surveys Bovero’s theory of elective autocracies as (close) instances of full legalistic autocracies. Third, and finally, it casts some light on the main features of Big Tech dictatorship.

This article proposes a conceptual framework to distinguish between two forms of disagreement about the Rule of Law: dissensus and dispute. Dissensus refers to variations in how the Rule of Law is interpreted or applied, while still preserving its internal coherence and normative structure. In contrast, dispute marks a deeper conceptual rupture – where key principles such as judicial independence or the constraint of arbitrary power are strategically undermined, resulting in what the paper terms as a malfunction of the organic unity. Building on Moreso’s notion of the Rule of Law as part of an organic constitutional system, the article narrows this idea to focus on the internal coherence of the Rule of Law itself. Drawing on cases from the European Union, Hungary, and Russia, the article shows how legal discourse and institutional practices reveal divergent engagements with the Rule of Law across political regimes. While some systems reflect dissensus, others strategically redefine the concept to legitimize non-democratic governance. The dissensus/dispute distinction serves as an analytical tool to assess when legal variation reflects legitimate interpretive diversity and when it signals a fundamental breakdown in the Rule of Law’s normative function.

To avoid being overwhelmed by debates dominated by emotions and “wholesale” moral intuitions, it is advisable to take a step back to revisit the concept of the rule of law and its ideological and historical origins. This inquiry, tracing the reflections of Harold Laski, Franz Neumann, and E.P. Thompson, uncovers an apparent paradoxical stance. The defense of the formal virtues of the rule of law by certain Marxists is understandable insofar as equality before the law proves to be a lesser evil. The alternative, in fact, is a universe dominated by ideals of social justice whose realization depends on market dynamics and judicial subjectivity, thereby risking the consolidation of existing power structures.

The article is a contribution to a research project. Its basic contention is that Rechtsstaat is psychologically more counterintuitive than its competitor (e.g., sovereigntism; populism), and the reason for this would be the higher cognitive load required for conceptually processing the former. To demonstrate that contention, it was necessary to clearly separate a network of terms catching the conceptual essentials of Rechtsstaat from a similar network for competitor. This separation turned out to be difficult and the conjecture about this is that the latter does not exhibit radically different values and catchwords, but use the same basic concepts of the former, manipulating their meaning. So, a test for this conjecture is to investigate – that is the article’s aim – a real case of procedurally legal transition from a Rechtsstaat regime to autocracy: the dissolution of the Weimar Republic and the rise to power of Nazism. And unfortunately, the test is successful: if Rechtsstaat’s legality is not coupled with legitimacy, even a dictatorship can rightly call itself a Rechtsstaat.

This article engages with the research agenda of the CLEAR project by questioning whether contemporary populist and sovereigntist movements articulate a genuine alternative model of constitutionalism and the rule of law. It argues that populist constitutional discourse does not generate novel conceptual categories, but instead advances a constitutional counter-narrative based on the instrumental reinterpretation of established constitutional concepts. Drawing on comparative constitutional analysis and theories of autocratic legalism and abusive constitutional borrowing, the paper shows how notions such as sovereignty, democracy, and majority rule are strategically simplified and hollowed out. In this perspective, populism exploits the cognitive and normative complexity of the rule of law highlighted by CLEAR, not to replace it, but to subordinate it to decisionist logics. The article concludes that the key analytical task lies in contrasting the normative density of the rule of law with its populist distortions rather than in searching for an autonomous populist constitutional theory.

The Rule of Law is increasingly challenged by populist models of government that offer simple and direct solutions unencumbered by rules. The CLEAR project investigates this phenomenon through the lenses of legal philosophy and cognitive psychology, advancing the hypothesis that the Rule of Law entails a higher cognitive load than its main alternative, which we call Populist Authoritarianism. Experimental results confirm that non-experts perceive Rule of Law concepts as more abstract and harder to process, whereas legal education significantly reduces this cognitive burden. To make these values more accessible, the project has developed “legal design” guidelines grounded in empirical data and produced an animated video for high school students, in which storytelling in a relatable school setting is used to transform the concept of Rule of Law into a concrete, contextualized, and emotionally resonant experience.

This article revisits the concept of legal certainty as it is currently approached in contemporary continental legal culture. It proposes a broader perspective that relates legal certainty to human development and frames it as a complex normative ideal, sustained not only by the State but also through the active involvement of private actors and key individuals. The discussion includes the illustrative case of private soft law, which reveals how legal certainty is shaped across multiple levels of social and institutional practice. In addressing these dimensions, the paper highlights the growing relevance of empirical studies, particularly those exploring how legal concepts are understood and processed by citizens, as valuable tools for deepening our understanding of how legal certainty functions in real contexts and how it can be efficiently promoted.

This paper (tentatively) discusses, what it calls, the psychological basis of the rule of law. To do so, the paper begins with an analysis of Beccaria’s influential arguments at the beginning of Dei delitti e delle pene on why legitimate sovereignty requires the separation of powers. Then, the paper proposes an alternative conception of political legitimacy, which it calls Institutional experimentalism, and which incorporates both Beccaria’s central insights, as well as three classic critiques to key details of its overall project.

This paper examines the rule of law as a case of epistemic inequality, focusing on the growing gap between legal experts and ordinary citizens. It argues that this epistemic asymmetry is not merely a practical problem but theoretically embedded in the very concept and functioning of the rule of law, influencing contemporary debates and raising critical questions about its democratic legitimacy. By revisiting the distinction between formal and substantive conceptions, the risk of technocratic rule, and the contested nature of the concept, the paper offers a revised epistemic account of the rule of law. It emphasizes the need for broader epistemic access to legal knowledge as a condition for meaningful democratic participation.

This paper focuses on indirect theories of decision-making, i.e. those theories that tell people to use a suboptimal decision-making procedure because in the long run this will be the best way to achieve the goals established by the theory. This scheme is central in two rather distant philosophical theories. The first is Raz’ “Service Conception of Authority” – centred on the idea of exclusionary reasons –, while the second is Parfit’s analysis of the structure of self-interest theory and consequentialism. The comparison is helpful because it brings to light some stark differences between two kinds of indirect theories: on the one hand, indirect theories that replace counter-intuitive decision-making methods with intuitive decisionmaking methods, and in addition have the possibility of being self-effacing and esoteric (concealing suboptimality); on the other hand, indirect theories that impose a counter-intuitive decision-method and are “genealogical”. It is argued that obedience to authority and rule-based decision-making are parts of an indirect theory belonging to this second kind, and this may help explain the psychological difficulty people have in understanding the ideal of Rule of Law.

This article presents a tutorial-style protocol for designing and piloting vignette-based studies in experimental philosophy of law, with an application to lay evaluations of judicial decision-making under a minimal and strictly formal conception of the Rule of Law. The guiding hypothesis is that public assessments of judges are driven more by the moral valence of outcomes than by technical–legal virtues of justification, although explicit, publicly shareable reasons may mitigate the reputational costs of unpopular decisions. Part I systematizes the methodological steps for constructing “textoids” from judicial materials and controlling key threats to validity. Part II translates Raz- and Fuller-inspired requirements into operational cues of legality and anti-arbitrariness. The article concludes with a Decalogue of replicable criteria to support cumulative and comparative research on judicial legitimacy.

This paper aims to bridge the ethical and constitutional perspectives on nudging to shape a framework for assessing the legality of behavioral interventions in contemporary constitutional states. The first part outlines the broad ethical debate surrounding nudging, clarifying the terms in which ethical and political philosophers have traditionally criticized it. Particular attention is given to competing conceptions of autonomy in the literature and to the distinct normative status of informative nudges. The second part explores which ethical critiques can be translated into a constitutional argument. The authors argue that nudges operating within rights-protected areas – where strong conceptions of autonomy have been codified – should be treated as interferences requiring compelling constitutional justification.
They further propose that well-established legal tools, such as the proportionality test, must be reinterpreted to account for the specific nature of nudging. Finally, drawing on constitutional traditions, the paper advances the idea that a broader critique of nudging can be grounded in the principle of equality, given the structurally unequal effects of nudges depending on the individual characteristics of those targeted – an issue largely undertheorized in both ethical and legal debates.