Consulta OnLine (periodico online) ISSN 1971-9892
2023/I
gennaio-aprile
PARTE I
STUDI
(12.04.2023)
Abstract
The essay focuses on the tools of direct democracy and
on the use that has been made of them in the first seventy-five years since the
entry into force of the Italian Constitution. In particular, with reference to
the institutions of the petition (art. 50 of the Italian Constitution), of the
popular legislative initiative (art. 71 of the Italian Constitution) and of the
abrogative referendum (art. 75 of the Italian Constitution), the survey focuses
on the identification of the causes of ineffectiveness of such remedies. The
mentioned causes, for the first two institutions, are mainly to be recognized
in the lack of attractiveness shown by the subsidiaries, as a consequence of
the ineffectiveness of the protection offered to them, in the light of the
absence of obligations for the Chambers resulting from the presentation of a
petition or a popular law proposal. Regarding the referendum, the main problem
lies, however, in the abusive use made of it by party-political practice, which
has bent its use to its own ends. In the face of this situation, considering
the current crisis of the representative system and of the political parties,
in the essay are prefigured possible prospects for reform, with the aim of
giving new life to direct democracy.
ANTONIO RUGGERI
La forma di Stato
a-democratica (cause, effetti e rimedi)
(05.04.2023)
Abstract
The essay points out that at the basis of some
relevant institutional distortions there is the manifest crisis of the
political representation and that they produce negative effects on the
principle of separation of powers and, therefore, on constitutional democracy.
Then, it focuses on the most indicative indicators of
the a-democratic nature of the legal system, including the growing electoral
absenteeism and the low rate of democracy found within political parties.
The study concludes with the search for possible
remedies, at the institutional and above all social level.
MARIO PANEBIANCO
(04.04.2023)
Abstract
Starting from a particular type of promulgation of
laws complemented by Letter, the article focuses on the relationship between
the governmental decrees and the President of the Republic. This article aims
to propose statutory remedies to the Italian legislative system's disorder.
BRUNO BRANCATI
(27.03.2023)
Abstract
The essay addresses the problem of selection for
admission to intensive care units under conditions of insufficient resources
during the Covid-19 pandemic. After presenting an overview of different
possible approaches, also considering foreign experiences, it dwells especially
on the approaches adopted in Italy. The focus is directed in particular towards
the selection criterion based on the assessment of chances of survival,
investigating the implications from the point of view of the principle of equality
and the possibility of recognising a constitutional anchorage for this
criterion.
ANTONELLO LO CALZO
(27.03.2023)
Abstract
The outbreak of the conflict between Russia and
Ukraine has brought war back to Europe after years. War is a phenomenon that
profoundly affects legal categories, and the Italian legal system does not
escape this impact. The most recent events are an opportunity to reflect both
on the meaning of the constitutional principles that characterize Italys
position in the face of war, having embraced a clear pacifist philosophy in
Art. 11 of the Constitution, and on the way in which a legal system reacts to
war at the level of the sources of law, observing in conclusion how there is a
close link between these two profiles, since the formal and procedural aspects
that concern the production of law and the relations between constitutional
bodies are directly influenced by principles, above all that of the
"repudiation of war".
CATERINA DI COSTANZO
(23.03.2023)
Abstract
In this paper, we will try to identify what are the
normative evolutions in the field of digital health and what are the main problems
that arise with respect to the system of constitutional guarantees that protect
the right to health. The massive use of new technologies, on the one hand, can
lead to the implementation of more effective and inclusive care practices, but,
on the other hand, they could represent a danger to the protection of
fundamental rights. Therefore, the use of new digital health technologies must
be regulated on the basis of the constitutional principles, with increasing
intensity in the case of the involvement of the most fragile people (e.g.
elderly, chronic, minors).
ANTONIO RUGGERI
Chi è il garante dei
nuovi diritti fondamentali?
(17.03.2023)
Abstract
After highlighting the need to endowed the new
fundamental rights with an essential constitutional discipline, the essay
focuses, on the one hand, on the events of the relative rules over time and, on
the other hand, about the balancing between the new rights case-by-case.
Finally, the author argues that the most effective guarantee of the rights in
question can and must be provided - even before and more than in court - by
each one and by the social body as a whole, making them count to the maximum of
their expressive potential in their context.
MARIO BERTOLISSI
Di bessòi. La Piccola
Patria del Friuli in soccorso di una Repubblica spaesata
(14.03.2023)
Abstract
There is the Constitution, which came into force on
January 1, 1948: seventy-five years ago; and there is the everyday
Constitution, which consists in administering with scruple and conscience and
in the good use of the resources made available by the honest taxpayer. The
first constitution promises, the second delivers. Over time, the distance
between these two profiles has gradually grown and today is such as to have
generated a worrying void. This is why it is essential to recover examples of
good administration and institutional loyalty from the past.
The Friuli of reconstruction, after the earthquake of
1976, represents an example to imitate, because it was able to merge centralism
and autonomy, ensuring that the reconstruction was entrusted to local
communities that proved to be motivated, serious, farsighted, and responsible.
This Friuli heir to the Little Homeland and interpreter of the motto Di
bessòi is available to the Republic, which is old, and it shows. It needs to
be revived through the recovery of a hope that walks with the legs of its best
people.
MARCO MARAZZINI
(14.03.2023)
Abstract
This article aims to reconstruct the Italian legal
system's reaction to the international crisis following the Russian invasion of
Ukraine. The article focuses on the government's regulatory power in relation
to the crisis, highlighting how both successive governments, one year after the
start of the war crisis, preferred to resort to "ad hoc"
legislation instead of using the legal instruments provided by the legal
system. In particular, the article focuses on the relationship between the
governmental decrees and the l. no. 145 of 2016 and on the decision to classify
the list of armaments sent to the theatre of war.
DOMIZIANO PIERANTONI
(08.03.2023)
Abstract
This paper, taking inspiration from the recent re-election
of President Sergio Mattarella, wants to suggest some reflections on the topic
of the re-election of the President of the Republic.
ALFONSO CELOTTO
(27.02.2023)
Abstract
The author agrees with the presidential solution
required by the risk of decadence of the law decree and suggests proceeding at
a partial promulgation. In fact, this solution would allow overcoming the
temporal impasse avoiding the risk to frustrate the conversion procedure and to
eliminate the more "abusive" provisions added during the same
procedure of conversion of the decree-law.
FRANCESCO GIULIO CUTTAIA
(06.02.2023)
Abstract
On the basis of what was ruled by the Constitutional
Court in sentence no. 237/2022, the foundation of parliamentary domestic
jurisdiction was further specified, which is the basis not only of the major
regulations of the Chambers, but also of the minor ones, without the
possibility, therefore, that the latter can be the subject of an interlocutory
judgment of constitutional legitimacy in an incidental way.
At the same time, thanks also to the recent rulings of
the Supreme Court of Cassation and the Council of State, inspired by the
rulings of the Constitutional Court no. 120/2014 and 262/2017, the scope of
parliamentary domestic jurisdiction is limited only to issues involving
subjects linked to the administrative bodies of the Chamber and Senate by an
employment relationship or at least of service, with the exclusion of third
parties bound by a contract or similar negotiating instruments.
ANTONIO RUGGERI
Fine-vita (problemi e
prospettive)
(30.01.2023)
Abstract
After noting the urgent need to fill, through a
prudent constitutional revision, the persistent shortcomings highlighted by the
Constitutional Charter both with regard to experiences at the beginning and at
the end of life, the contribution highlights how, already in the light of the
indications provided by the constitutional jurisprudence in Cappato, the idea
is confirmed that the subject's self determination with respect to his or her
medically assisted death meets insurmountable objective limits. It is therefore
clarified that suicide still constitutes a disvalue, also from the point of
view of criminal law, and that one must guard against the risk of transforming
a right (here, that of life) into its opposite (of «non-life»), while there
appear the critical observations of those who appeal to the need to preserve
the dignity of the person and the principle of equality are out of line. The
study closes with some notations relating to the so-called «therapeutic
alliance» between doctor and patient, also in the light of the legislative
discipline in the pipeline.
GIORGIO CATALDO
Sulla temporaneità
nell'emergenza costituzionale. Primi rilievi
(25.01.2023)
Abstract
The essay focuses on the characteristics of the
temporariness component of the emergency rule. Not to be confused with the
concept of «shortness», temporariness is important in the scrutiny of
proportionality. In this sense, above all, case law on coronavirus offers
several systematic insights on the issue, helping to distinguish the
temporariness of the emergency from that associated with ordinary contexts,
which are more akin to the idea of «tolerability». In the emergency,
temporariness presents itself as an increasingly stringent criterion of
progressive scrutiny in which the norm's ability to respond to the evolution of
the alarming fact is decisive. Thus, the component of temporariness arises in
its instrumentality to the constitutional order's endurance during serious
events, avoiding the establishment of a stable regime that is antithetical to
the original one.
CELESTE CHIARIELLO
Voto elettronico e
principio di segretezza tra regola ed eccezioni
(23.01.2023)
Abstract
Against a backdrop of democratic deficits highlighted
by low community participation in political decision-making, information and
communication technologies open up new spaces for participation and democratic
life. However, constitutional problems arise with regards to the possible
introduction of unsupervised electronic voting mechanisms in political
elections. Indeed, despite the fact that the Constitutional Court immediately
recognized the inalienability of the requirements set forth in Article 48 of the
Constitution to safeguard the exercise of the right to vote, on certain
occasions, our legislator has been forced to derogate from the principle of
secrecy of the vote in order to guarantee participation on equal terms and the
exercise of popular sovereignty. Therefore, in light of past and future
experimentation operations conducted in Italy and abroad, as well as
jurisprudential interpretations, the question arises as to what margin of
tolerance would allow our legislature to use e-voting to foster greater
democratic participation.
MARIANGELA ATRIPALDI
Abstract
The prologue to the Constitutional Law course entitled
"The Struggle for Equality" given by Lodovico Mortara at the
University of Pisa for the academic year 1888/89, offers a contribution to
Constitutional reflections, to the general theory of law and political science,
and also provides a framework for the evergreen debate on inequality. This
article will identify the reasons that prompted Lodovico Mortara in his Pisan
lecture to identify the different areas of scientific reflection in the legal
field, allowing the interpreter to contrast the 'apoliticality' and 'stability'
of the private law field with the 'political' and 'dynamicity' of the
constitutionalist field.
Lodovico Mortara also argues that constitutional law
encompasses not only the study of fundamental concepts of public law, but also
the examination of Italian political institutions and the way they function, in
comparison with those of other major states in the world. The further
itineraries of this essay will be aimed at determining the motivations that do
not allow the principle of equality in law to realize equality in fact, also
offering a contribution to scholars in the interpretation of Article 3 of the
Italian Constitution of 1947. Equally relevant will be the analysis aiming to
verifying the actual realization of the principle of equality in certain
activities carried out by Lodovico Mortara, as a judge and as a politician.
QUIRINO CAMERLENGO
La sostenibilità
costituzionale: profili teorici e scenari applicativi
(19.01.2023)
Abstract
In this essay the author aims to explore a concept
often evoked in legal papers, but not yet focused, namely "constitutional
sustainability". A theoretical reconstruction will be proposed starting
from some concrete cases. The thesis is based on the idea of the Constitution
as an act that supports a complex regulatory structure built to implement the
fundamental principles. These fundamental principles nourish the "social
vocation" of the Constitution, to be understood as the ability to
contribute significantly to the transformations of society. The Constitution is
not only a limit to power, but also an incentive and guide to power. So, we
will try to demonstrate that an act or behaviour, even if it is legitimate, can
prove to be constitutionally unsustainable.
Consulta OnLine (periodico online) ISSN 1971-9892