SIMONA ROSSI

Costituzione e forze costituenti. Le suggestioni kantiane

N. 182

Summary — Does Kant’s theory of public law include the concept of constitution as a fundamental law of the state? The attempt of this essay is to follow Kant’s main juridical works in order to examine the relations between the concept of constitution and the concepts of constitutional power, state and government, political order. sovereignity. amending or overriding of the constitution. Kant’s definitions are compared to Schmitt’s, who — according to the opinion held here — represents an important and influential part of Germany’s constitutional doctrine. The two authors have different points of view. Kant asserts that it is not possible to reflect ("vernüfteln ") about the origin of public power. A constitution is shaped by a power that does not exist in a constitutional state, therefore a constitution can only change by being substituted by a new one. Schmitt’s theory of sovereignty stipulates that the will of the largest part of the people cannot be stopped by a fundamental law. That is why, in Schmitt’s view, there cannot be a difference between legality and legitimacy. Such a separation is however — and this is Kant's thought — the main way to protect the citizen from the tyranny of those who abuse their position of personal influence and power to rule the state. Legality is a requirement condition of democracy.