The tension between unity and pluralism has long been central to public law. The unity of the political order has been a recurring concern of public law; meanwhile, since the German scholarly debates in the Weimar years, increasing awareness of the plural structure of contemporary societies has led to heated discussions about whether and how legal orders should embrace and, to some extent, rely on societal pluralism. After 1945, the recognition of pluralism and the triggering of inclusionary dynamics were key features of a new stage in the evolution of public and constitutional law.
However, some recent trends show that counter thrusts, possibly fully-fledged counternarratives, may be at work. The instrumental use of the polysemous notion of identity plays a substantial role in these attempts to redefine the foundations of public law.
The aim of this project is to analyse the features and risks of an identitarian public law, understood as an identity-based idea of public law. We hereby refer to a public law that becomes part of a constitutional narrative that represents the people as forged by a static identity that goes back to the mists of time of the legal system. This reconstruction is based on an organicistic reading of the concept of the people and is often functional to the opposition between the traditional values of the people and those of the “others”. An identitarian understanding of public law is in contrast with the evolution over the last few decades and tends to leave little room for the protection of minorities and, consequently, for all the counter-majoritarian mechanisms of post-WWII constitutionalism.
Identitarian public law makes instrumental use of the moral-axiological argument, the historical argument, and the religious argument.
This project, funded in the framework of the PRIN 2022 PNRR call, combines a theoretical and a comparative dimension, which are investigated through the work of four research
units, respectively based in Pisa, Foggia, Siena, and Bologna.