L'inerzia del legislatore alla luce del principio della Rule of Law

The aim of the paper is to investigate the issue of the crisis of the centrality of the legislative power. In some sectors there has recently been a form of substitution of “powers” which does not fully adhere to the principle of the rule of law, to be understood as an expressive concept of the principle of the “limits” to power. If the judicial power intervenes in the promotion of rights in the absence of a specific law, the rigid principle of the separation between powers knows a form of loosening which determines an imbalance between the expression of parliamentary sovereignty and the correlated need to protect constitutional principles. The analysis of the effectiveness of rights is therefore intertwined with the issue of the relationship between the body holding the legislative power and the body holding the judicial power, and this especially in specific “areas” of law. Consider, for instance, the “end of life” or the regulation of the rights and duties of same-sex couples. In the light of this context, the consequences deriving from the inaction of the Italian Parliament, which often does not intervene not only before pronouncements of common judges, but not even if requested by the Constitutional Court, will be investigated. On the contrary, the German Parliament usually responds to the requests of the Federal Constitutional Court through the Unvereinbarkeitserklärung, which is a relevant type of decision with respect to the role played by the Bundesverfassungsgericht in the form of government.