Legislation and Neoconstitutionalism

Abstract

This article aims to explore the current relationship  between legal theory and theory of legislation. Three widespread claims emerge from the current debate: the need for legal theory to focus not only in adjudication,  but also on legislation, the need of a specif ically legislation-centered  theory  of legal  argumentation  and  the  need  of ethics  assessment  of legislation.  These  claims  need to be implemented  by leaving  behind  the positivistic  pre- suppositions,  which embedded  the traditional  legal thinking since Bentham’s  writtings on legislation.  It will be suggested instead, that it is time for theory of legislation to account for the main tenets of the so-called ‘neoconstitutionalism’.