The “questions de société”: boundary between constitutional review and legislator’s discretion

Abstract. The “questions de société”, that is the issues linked to the evolution of social conscience and customs, find, precisely because they are the expression of fluid concepts, their natural source of discipline in a dynamic instrument such as the law, and not in the constitution, which , even in the correct evolutionary reading of the text, “living law”, can only define, in the light of the supreme and inalienable principles, the legislative choices and the correct balance between different interests and values at stake.
Constitutional judges are well aware of this and demonstrate self-restraint in this matter. For example, we examine in this essay the jurisprudence of the Italian Constitutional Court and of the French Constitutional Council.
The task entrusted to the legislator’s discretion is arduous and requires constant attention, sensitivity and intelligence in grasping the issues that emerge from the social conscience and its evolution. The question arise if and what instruments does a constitutional judge have in the face of a situation of protracted legislative immobility. With regard to the Italian case, and in the light of the vast typology of decisions which the constitutional jurisprudence has produced in its exercise, recourse to the “monitoria” judgment is suggested.

SUMMARY: 1. Introduction. – 2. The judgment of the Constitutional Court no 230 of 2020 on same-sex parenting and the role of the legislator. – 3. The judgment no 221 of 2019 and the main stages of constitutional jurisprudence. – 4. Notes on comparative law. The “questions de société” in the jurisprudence of the French Constitutional Council. – 5. Concluding remarks. The difficult task entrusted to the sensibility and intelligence of the legislator. Tools in the face of legislative inertia.

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