Consulta OnLine (periodico online) ISSN 1971-9892
Settembre-Dicembre
PARTE I
ELEONORA
SANTORO
(23.12.2023)
Abstract
Waiting for the
Constitutional Court to rule on the constitutionality of the art. 18 of the law
no. 354/1975 (which prevents the inmate from carrying out intimate
conversations, even of sexual nature, requiring visual control by the custodial
staff), the paper wants to analyze the discussion
during the public hearing that took place on December 5th. The aim is to
underline few aspects which could be important for the Court's choice of the
decision technique.
GIAN
PAOLO DOLSO
Attualità della riflessione kelseniana sulla giustizia
costituzionale
(18.12.2023)
Abstract
This paper
examines an influential essay
by Hans Kelsen that appeared
in 1928 on the subject of constitutional justice: 'La
garantie juridictionnelle de la Constitution (la justice constitutionnelle),
Revue du droit public et de la science politique, 1928'. The aim of this paper is to verify the contribution
made by Hans Kelsen's study in relation to problems concerning the
judicial review of legislation. The 1928 essay turns out to be very rich in
indications. There are indications of general profiles, but there are also
indications relating to the procedure of judicial review of legislation. What
emerges is Kelsen's marked attention to the problems of access to
constitutional justice and particular attention to the procedural aspects of
the judicial review. The usefulness of going back to the essay by the great
jurist thus appears evident both for a better understanding of the functioning
of systems of constitutional justice and for reasoning about them from a "de
jure condendo" perspective.
MARIO
BERTOLISSI
(15.12.2023)
Abstract
In The Betrothed (i.e. Promessi Sposi) a work beloved by
Goethe and appreciated by the Anglo-Saxons; unloved by the Italians ,
Alessandro Manzoni indicates what are the iron rules of human action and their
implications when people live together in society. Especially, when injustices
increase the pain, which the Constitutions would like to mitigate at least.
Through the main characters
of the historical novel, lessons are exposed, with exceptional smartness and
depth of thinking, that identify the essential core of citizenship education.
Without it, there is no future for Constitutions and Charters of Rights, in
which the relationship between power and freedom seems to be fixed, in a
balanced way. Between power and justice.
MARIO
PANEBIANCO
Brevi considerazioni sul comunicato della Presidenza della
Repubblica del 1° dicembre 2023
(12.12.2023)
Abstract
The Article focuses on
Press release «The President Mattarella has promulgated the DDLon
cultivated meat», 1 December 2023, and underlines a possible and concrete
presidential role in euronational co-legislation.
ANTONINO
SPADARO
(05.12.2023)
Abstract
The article contests the
constitutional reform which introduces the direct election of the premier and
instead calls for the adoption of a efficient and
comprehensive electoral law with "designation of the premier".
VALENTINA
PAGNANELLI
Prospettive sulla valorizzazione dei dati personali in ambito
pubblico
(05.12.2023)
Abstract
The paper delves into the
economic value of personal data, focusing not on the private sector dominated
by Big Digital Companies but on the public sector. In this context, the term
"valorization" of data is considered more suitable than "monetization".
The discussion includes two examples of personal data use in the public sector
and references recent European regulatory developments on data governance,
including the emergence of data altruism. The aim is to assess how public
entities can leverage the informational value of personal data while upholding
the fundamental rights and freedoms of individuals.
DANIELA
TARANTINO
(04.12.2023)
Abstract
Pre-Unitarian Italy
struggled to implement the formalization of marriage mandated by the Council of
Trent. The push for civil marriage over religious marriage caused tension with
the Church. Italy aimed to assert its secular sovereignty post-unification,
differing from France and Spain in their approaches to regulating matrimonial
matters.
FEDERICO FURLAN
(28.11.2023)
Abstract
The paper explores the Constitutional Reform project
aiming to introduce direct election of the Italian Prime Minister. The author
begins by describing the evolution of this parliamentary form of government
then attempts to draw possible insights from the practice of direct election of
the Regional President which regions have been experiencing for the last two
decades.
ANTONIO RUGGERI
(20.11.2023)
Abstract
The paper highlights some oddities inherent to the
Reform Bill aimed at introducing the direct election of the President of the
Council of Ministers, containing provisions likely to pave the way for
unpredictable outcomes, possibly even leading to an overall regulatory
involution.
ALESSANDRA MAZZOLA
(16.11.2023)
Abstract
After a brief introduction on the institution of
political representation, the growing phenomenon of abstentionism during
electoral consultations is highlighted. Among the various "types" of
abstentionism identified in the Libro bianco sull'astensionismo published in 2022,
attention is focused on the so-called involuntary abstentionism. A reflection
then follows on the difficult balance between respecting the characteristics of
the right to vote, as enshrined in Article 48, second
paragraph, of the Constitution, and the ineffectiveness of its exercise
by some voters. This balance is then examined in relation to various
alternatives in the manner of expressing vote, evaluating whether the potential
expansion of the electorate able to cast their vote may compromise the
principles of personality, equality, freedom, and secrecy.
CARLA DI MARTINO
Il diritto
costituzionale alla «non radicale inintelligibilità» delle disposizioni
(06.11.2023)
Abstract
The article focuses on the value of legal certainty in
the Italian legal system, in the light of some recent rulings of the Italian
Constitutional Court. These decisions seem to have affirmed a constitutional
right to the 'non-radical
unintelligibility' of regulatory provisions. In this sense, the Italian
Constitutional Court seems to have intended to determine the threshold of
regulatory uncertainty that can be tolerated in our legal system, while also
confirming that the constitutional process can be the place in which to judge
the quality of laws, in light of the principle of
reasonableness.
PASQUALE COSTANZO
L'Enciclica Pacem in terris come Carta dei
diritti (spunti per una riflessione)
(31.10.2023)
Abstract
The paper examines the structure and content of a
genuine and contemporary charter of rights within the Encyclical "Pacem in
Terris". It underscores certain similarities with the French Declaration
of 1789 and, most notably, with the UN Charter of 1948. However, the paper also
emphasizes the profound ontological differences between the Pontifical document
and the two secular charters.
ANTONIO RUGGERI
Pace e dignità, nella Pacem in terris e secondo
Costituzione
(31.10.2023)
Abstract
After recognizing that the value of peace is not
exclusively limited to the international context, as might be inferred from
Article 11 of the Constitution, but also holds significant importance within
the domestic context, the text emphasizes the interdependence of peace and
dignity, to the extent that they ultimately merge into a single concept in
human experience. Consequently, the text firmly condemns instances of
constitutional discontinuity within "Pacem in Terris" and
underscores the essential role of the right-duty of resistance in upholding
allegiance to the Republic. Finally, it underscores that the essence of dignity
is most profoundly appreciated through the lens of solidarity, particularly as
it evolves into brotherhood. This leads to the realization that the genuine and
profound significance of dignity is best understood, above all, in relation to
peace, just as the meaning of peace becomes clear in the light of dignity.
MARINA PIETRANGELO
Spazio digitale e
modelli di regolazione
(24.10.2023)
Abstract
The paper reflects on the relationship between the
Internet and its rules, with particular attention to the evolution of the
models used over time. The objective is to understand what the role of
regulatory states and of private entities in the future that
should be.
GIOVANNI CAVAGGION
(05.10.2023)
Abstract
The article studies the constitutional issues
connected to the possible case of a President of the Council (or a Minister)
with double (or multiple) citizenship. The issues are framed in the context of
the constitutional duties of the members of the Government in the Italian
constitutional system (that require a special level of allegiance to the
Republic) on the one hand, and of the international openness and pluralism that
the Italian Constitution embraces on the other. The article argues that while it
is not possible to infer a general rule on the matter at hand from the
Constitution, single problematic cases should be handled within the perimeter
of the constitutional controls on national policy.
SILVIA TALINI
Diritto all'impianto e
revoca del consenso del padre. Nel "labirinto" della legge n. 40 del 2004
(03.10.2023)
Abstract
Starting from the analysis of Constitutional Court No.
161 of 2023, the paper proposes a reflection on the difficult balance between
the woman's right to the implantation
of the embryo and the man's withdrawal of consent
following the termination of the affective relationship.
The author focuses her attention on the numerous
jurisprudential changes undergone by Law No. 40 of 2004, which make it
necessary to undertake extensive reform efforts, also to allow single women
access to medically assisted procreation.
ANTONIO RUGGERI
(02.10.2023)
Abstract
The paper underscores the significant distortions in
the institutional model that have given rise to a potentially irreversible
crisis in the principle of separation of powers. Specifically, we examine
whether structural shortcomings in political representation can be addressed
through expanded uses of jurisdiction. Contrary to popular belief, it's emphasized that the real
normative strength of acts seems to increase as one descends the hierarchical
ladder that defines the system. This is evidenced by the prominence of the role
played by circulars in administrative practice. Lastly, we explore potential
remedies for this situation, at least in part.
GIUSEPPINA BARCELLONA
Vaccini e riserva di
legge (brevi riflessioni a margine di Corte cost. sent. n. 25 del 2023)
(25.09.2023)
Abstract
The Constitutional Court, in Judgment no. 25 of 2023,
returns to the subject of compulsory vaccination. This short paper critically
analyses the fundamental argumentative junctures of the decision, dwelling on
the way in which the object and function of the reservation of the law provided
for in Article 32, paragraph 2 of the Constitutional Constitution
are thematised.
ALESSANDRO CANDIDO
(25.09.2023)
Abstract
The paper analyses the issue of parliamentary immunity
in the context of digital society and modern forms of political communication. In particular, it is argued that the thesis that anchors the
immunity of opinions expressed in the presence of a prior parliamentary act, of
which the Member of Parliament could limit himself exclusively to divulging its
contents extra moenia, needs to be updated and
rebalanced, which may find space through an amendment to parliamentary rules.
FRANCESCO TORRE
(18.09.2023)
Abstract
The paper analyses the Constitutional Court, rulings no.
54 and no. 67 of 2022, concerning the recognition of welfare benefits for
non-EU citizens. The present work seeks to offer a broader view of the
connections between these judgements all of which
appear to be linked by a common thread. In both sentences, the Constitutional
Court arrived at two different outcomes of acceptance in the first, and
rejection in the second, affirming the due respect for the principle of
non-discrimination in access to such benefits. The reason why the
Constitutional Court arrived at two diametrically opposed approaches, even
though the same reference parameter (Article 12 of Directive 2011/98/EU) was
invoked, is to be traced back to whether or not the
referring judges invoked the Charter.
SIMONE SCAGLIARINI
La Corte e la tecnica
legislativa
(13.09.2023)
Abstract
The judgment n. 110/2013 represents a fundamental step
in the jurisprudence on legal drafting, as for the first time the Court affirms
that the unclearness of the law determines its unreasonableness (and,
consequently, its illegitimacy). The paper identifies further parameters that
lead to the same conclusion reached by the Court and emphasises
the need, from now on, to define the cases in which the obscurity of the law is
so severe as to determine its unconstitutionality. This activity is to be
performed by the Court with extensive use of its self-restraint.
ROBERTO ROMBOLI
(12.09.2023)
Abstract
The essay collects the conclusions drawn at the
Conference in memory of Alessandro Pizzorusso (Pisa,
December 15, 2022) and primarily focuses on the topics of the relationship
between the Constitutional Court and the legislature and on the decision-making
techniques of the Court itself, examining the multiple implications of these
aspects also from the standpoint of the separation of powers.
ANGELICA GEROSA - ALICE STEVANATO
Nel
tempo e nello spazio: l'eredità di Serio Galeotti sui nuovi doveri di
solidarietà
(12.09.2023)
Abstract
In Serio Galeotti's papers on the value of
solidarity, he provides a definition of solidarity as a sense of brotherhood,
mutual assistance, and support in times of difficulty, a concept worthy of
reflection in our current context. The intervention aims to answer the question
of who the recipients of the principle of solidarity are. The reflection
focuses on two different perspectives.
First, in terms of "time" and taking our cue
from the recent constitutional reform of Article 9, which expressly mandates
protection of the environment "also in the interest of future
generations" we would like to explore the breadth of the principle of
solidarity, asking, in particular, if exists a general principle of
intergenerational solidarity, which requires the Legislature to balance the
interests of those who will come after us not only with regard to the
environment, but also with regard to economic resources, social security and
artistic goods.
Reflection then focuses on environmental issues and
the potential of the principle of solidarity between living generations
inhabiting different places on Earth, even beyond state sovereignty. To this
end, we want to reflect on what relationship exists between solidarity and
"space", to see if it is possible to overcome the thesis that
conceives of duties of solidarity only within a state, at least in reference to
global events such as climate change.
Starting from the assumption that man is nowadays the main culprit for
climate degeneration, environmental protection has become a legally relevant
question of justice, also because some countries, generally those least
responsible for climate-changing emissions, are the most affected by the
negative effects of climate change.
AGATINO CARIOLA
(11.09.2023)
Abstract
With sentence no. 126 of 2023, the Constitutional
Court decided on a conflict of attribution raised by the Chamber of Deputies
against the Tribunal of Lecce which had ordered the forced execution of the
social security treatment in favor of a former parliamentarian, without
applying a regulation adopted on the subject by the same Chamber. The
constitutional Judge considered that the jurisdictional provision violated the
autonomy recognized to Parliament.
The comment notes that the Court's decision took place
without the participation of the third creditor who had acted to obtain payment
of his credit, the Agenzia delle
Entrate in the matter. And it is criticized that was
requested the application of an internal act of the Chamber which is not
published. The fact once again raises the problem
regarding the basis of the parliamentary power to decide on one's own organization and
activity when third party positions are involved. In criticism of the
constitutional jurisprudence that has always identified this foundation in the
sovereignty of the Parliament, the comment proposes to trace it in the free
decision of those who agree to submit to the same parliamentary power.
ANTONIO RUGGERI
Ha una forma la forma di
governo?
(01.09.2023)
Abstract
The paper highlights the lack of a clearly
and fully delineated form of government. In fact, the guidelines provided by
the Constitutional Charter, which are based on two key principles - first, a
clear distinction between political management bodies and guarantee bodies, and
second, the centrality of Parliament - are evidently contradicted by deviant
practices. These are characterized by dramatic shifts,
confusion, and continuous, not insignificant changes.
The question arises as to whether this form of
government can achieve a stable identity, and what remedies might be suitable
for achieving this stability. This is especially relevant in
light of forthcoming significant reforms aimed at both institutional
rules and system corrections to ensure policy regularity.
Consulta OnLine (periodico online) ISSN 1971-9892