«The Need for the Abuse of Power Has Given Rise to the Vice of Abuse». Lodovico Mortara and the Issue of the “Judicial Review” of Decree-Laws in Liberal Italy

Abstract

The article provides an analysis of Lodovico Mortara’s theoretical and jurisprudential approach to the issue of judicial review of decree-laws. In the context of the growing expansion of the executive’s regulatory powers between the nineteenth and twentieth centuries, the article examines some significant moments in Mortara’s legal reflection, focusing on the distinction between
“intrinsic” and “extrinsic” review as a criterion for delimiting the scope of judicial intervention. In the aftermath of the First World War, the 1922 rulings of the Court of Cassation, drafted by Mortara, marked the outcome of a process aimed at bringing the government’s decree-making power back within the limits of constitutional legality. As is widely acknowledged, this attempt was ultimately unsuccessful and paved the way for the rise of the fascist regime, marking the conclusion of Mortara’s tenure as a leading figure in the Kingdom’s judicial system. Nevertheless, it provides an invaluable testimony to the attitude of liberal Italian legal culture in attempting to stem the emergence of a “strong government” paradigm, thereby reaffirming the pivotal role of Parliament as a limit to the concentration of decision-making power.