2023/I

gennaio-aprile

 

PARTE I

STUDI

 

 

 

 

JACOPO FERRACUTI

Gli istituti di democrazia diretta a 75 anni dall’entrata in vigore della Costituzione. Bilancio provvisorio e prospettive di riforma

(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

Considerazioni minime sulla lettera del Presidente della Repubblica ai Presidenti delle Camere e del Consiglio in occasione della promulgazione della legge di conversione del decreto-legge del 29 dicembre 2022, n. 198

(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

La selezione dei pazienti per l’ammissione alle terapie intensive. una scelta tragica durante la pandemia di Covid-19

(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

L’attualità del fenomeno bellico tra principi supremi e assetto delle fonti. L’ordinamento italiano di fronte alla guerra in Ucraina

(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

L’impiego delle nuove tecnologie nel settore della salute: problematiche e prospettive di diritto costituzionale

(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

I poteri normativi del Governo nell’emergenza bellica in Ucraina. Alcuni spunti critici a partire dall’invio di aiuti militari e sulla loro secretazione

(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

Rielezione del Presidente della Repubblica: qualche riflessione (ad un anno dalla rielezione del Presidente Mattarella)

(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

Si può rinviare alle Camere ex art. 74 Cost. una legge di conversione di un decreto-legge? (note minime sulla lettera del pres. Mattarella rispetto alla legge di conversione del decreto legge del 29 dicembre 2022 n. 198)

(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

Chiariti ulteriormente gli ambiti dell’autodichia parlamentare (osservazioni a margine della sentenza della Corte costituzionale n. 237 del 2022)

(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

La lotta per l’uguaglianza: l’itinerario percorso da Lodovico Mortara nella “prolusione pisana” del 1889

(23.01.2023)

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.