Consulta OnLine (periodico online) ISSN 1971-9892
2023/I
gennaio-aprile
PARTE I
STUDI
JACOPO FERRACUTI
(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 Italy’s 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