The existence of a connection between the identity of a people and the rules that govern their life is very difficult to question.
Even in a society that does not give itself its own rules, but on which they are imposed, in fact, the law retains a forming function of identity, the influence of which depends, in the first instance, on the effectiveness of the juridical order. The connection between identity and law, on the other hand, is much closer in a democratic society in which the social body participates in the process of forming the rules. In this case the law not only has the function of forming identity, but is also a sort of “identity document” of the majority of the population. Finally, it is useful to note that even in a theocratic society or with a religiously based law, if founded on an authentic adherence of the people to a set of religious precepts, law retains both functions.
The application of these simple theoretical concepts to contemporary societies and, in particular, to Italian society, must deal with the complexity of modern legal systems and with the existence of the Constitutions .
In evaluating the connection between law and identity, first of all, one should take into account the graduated rigidity of the rules that govern life in our society. Traditionally, reference is made in this regard to the concept of a hierarchy of sources . Three degrees of rigidity can be identified, simplifying: the rules that can be changed by a majority, those that can be changed with a qualified majority and, finally, those that cannot be changed. The first category is that of which most laws are part, the second is typically related to constitutional norms, while the last group is that of the supreme principles of the legal system.
If the relationship between laws and identity and those between constitutional norms and identity do not raise particular questions, the same cannot be said of the relationship between supreme principles and identity. In fact, this last category of rules that cannot be changed seems to pose exactly like the sacred text in religious-based legal systems, so that the adherence of the social group to these supreme principles appears to be one of the most important presuppositions for the proper functioning of the ‘legal system. The substantial difference in the genetic moment of the two sources, the Constitution and the sacred text, matters, if anything, a further guarantee that in the first case the supreme principles underlying society are shared by the largest part of the people,
From the point of view of the practice of law, the supreme principles of the legal system have recently been brought back to the center of scientific debate by the well-known Taricco case. The legal matter, which took the form of a close dialogue between supreme courts, is currently standing still pending the response of the Court of Justice to the threat of the Italian Constitutional Court to activate the so-called “counter-limits”, declaring the ratification and implementation law unconstitutional of the European treaties because they are in contrast with the supreme principle of legality in criminal matters (in short, the need for a sufficiently predictable written provision of law to decide which facts to punish, with which criminal and within what time limit).
Beyond the many and very complex profiles of law touched upon by this case, it is interesting, for the purpose of reflecting on the relationship between law and identity, that last May 29, in Luxembourg, on the occasion of the discussion of the so-called “Taricco- bis», The Avvocatura dello Stato Italian was asked to address the problematic issue of the description of the Italian constitutional identity. The fundamental principles (articles 1-12 of the Constitution) and all the constitutional provisions in which the fundamental rights and freedoms of the person are enshrined have been brought back to this notion, without prejudice to the competence of the Constitutional Court to rule definitively on the point. In fact, it will not escape those who want to read the provisions indicated that they, in addition to defining our legal system, are among the most characterizing elements of our way of thinking, being and living.
The limit function that legal reflection associates with these norms must also be preserved in the wide-ranging discourse on the relationship between identity and law. The supreme principles, not being able to be changed, represent in fact also the only limit to the evolution of the identity of the people. Around the moment of their overcoming a further difference emerges between the category of supreme principles and that of sacred texts in religious-based legal systems: if for the former the overcoming is only concretely inconceivable (the legal system does not admit the possibility of the subversion of supreme principles), for the latter the overcoming is inconceivable even abstractly (the person does not admit the possibility of subversion of the precept).
In conclusion, having outlined the role and characteristics of the supreme principles of the legal system, it is evident that the proper functioning of the social system of which they are part requires, at least, that the social body is put in the conditions of being able to know them. This need should be satisfied in a secular society by the teaching of civic education. The function of civic education, in fact, too often and wrongly confused with a disguised form of indoctrination, is to transmit knowledge, among other things, of the supreme principles of the legal system so that each new generation has the possibility of to adhere spontaneously to them or to proceed with a reasoned criticism of them and, in the last case, to overcome them.