Consulta OnLine (periodico online) ISSN 1971-9892
2025/I
gennaio-aprile
Parte Prima
STUDI
VINCENZO SCIARABBA
(15.02.2025)
Abstract
In this paper, an attempt is made to reflect on the ‘constitutional role’ of international and/or universal criminal law and jurisdiction, linking in the first part to the Nuremberg Trials and in the second part to some recent events that have brought into focus, in particular, the role of the International Criminal Court and the possibility of introducing a code of international crimes and a form of universal criminal jurisdiction for such crimes at the national level.
LUIGI D’ANDREA
Discrezionalità e separazione dei poteri, alla luce della lezione di Gaetano Silvestri
(12.02.2025)
Abstract
The essay proposes rethinking the concept of discretionary power in public administration through a unified approach. According to traditional legal doctrine, discretion is an interplay of constraint and freedom, both in relation to the law: the holder of discretionary power is bound by the objective to be achieved but free in the choice of means.
The thesis put forward reinterprets discretion in public law as the coexistence of two types of constraints: a constraint imposed by the legal system and a constraint imposed by facts. Both norms and concrete cases contribute to guiding, shaping, and limiting the exercise of
public functions. This redefinition is driven by the centrality of constitutional values, which have become the new objective "sovereigns" of the system, as well as by the evolving relationship between legis latio and legis executio, characteristic of the current historical context.
The theory that identifies discretion as a "dual constraint" aligns not only with the sovereignty of constitutional values but also with the principle of separation of powers.
ANTONIO RUGGERI
(10.02.2025)
Abstract
The paper focuses on certain persistent oscillations and aporias in the development of constitutional jurisprudence regarding double prejudiciality, noting how the ruling in question appears to anticipate the mandatory recourse to centralized scrutiny on issues of 'Euro-unity constitutionality' in criminal matters.
ANTONIO RUGGERI
(10.02.2025)
Abstract
The paper focuses on certain persistent oscillations and aporias in the development of constitutional jurisprudence regarding double prejudiciality, noting how the ruling in question appears to anticipate the mandatory recourse to centralized scrutiny on issues of 'Euro-unity constitutionality' in criminal matters.
GIACOMO GIORGINI PIGNATIELLO
(07.02.2025)
Abstract
The paper aims to highlight the importance of the legal implications of using law as a tool for governing women's bodies. Since the 1960s, part of legal scholarship has sought to emphasize—particularly in connection with the civil movements that emerged in the United States—that for centuries, a deeply rooted patriarchal culture has assigned decisions related to reproduction to public authority, stripping women of their autonomy. Although not without challenges, the legal frameworks of the analyzed constitutional democracies based on common law demonstrate that the regulation of surrogacy, including commercial surrogacy, is possible without necessarily leading to the exploitation of women in conditions of social and economic vulnerability. The role of civil courts in overseeing the emerging relationship between intended parents and the child—while also considering the surrogate mother—positions the judiciary as a key guarantor of the child's best interests. Similar to other sensitive family law matters, this approach ensures a relational perspective rather than a merely medical-therapeutic one.
CHIARA FINOCCHIARO
Intelligenza artificiale e transizione ambientale: riflessioni e possibili scenari
(03.02.2025)
Abstract
The present paper aims to highlight some of the consequences arising from the expansion of the phenomenon of artificial intelligence. The evolution of algorithms, in fact, has generated countless positive impacts but equally significant dangers. It is therefore necessary to activate a “constitutional precaution” to preserve the fundamental conditions of human life and nature over time, also in protection of future generations
Se ed in che senso è appropriato discorrere di una “costituzionalizzazione” dell’Unione europea
(27.01.2025)
Abstract
This paper explores how, unlike in States where the concept of constituent power is closely tied to traumatic events signaling constitutional discontinuity – articularly at the level of the fundamental purposes and values of the legal system – the evolution of the European Communities, and later the European Union, has unfolded under the banner of axiological continuity. However, this continuity has been accompanied by organizational discontinuities that reflect a supranational constitutional identity in progress. In an institutional context marked by shared sovereignty between the Union and its member States, judges (both national and supranational, common and constitutional) have played – and continue to play – a central role. Within this framework, the Constitution is reaffirmed as not total but partial, relying on external sources as much as possible to effectively fulfill its mission, which remains the recognition and protection of fundamental rights. Additionally, notions such as Constitution and constituent power are shown to carry different meanings in distinct institutional contexts, particularly between the States and the Union. What is clear is that the constitutional identity of the Union and that of each member State must assert themselves not in opposition to one another but rather in mutual support, providing reciprocal sustenance and reinforcement.
DANIELE CASANOVA
Sul ritardo nella nomina dei giudici costituzionali da parte del Parlamento in seduta comune
(27.01.2025)
Abstract
The article examines the issue of delays in the appointment of constitutional judges by the Parliament in joint session, a problem that undermines the full functionality of the Constitutional Court and its ability to effectively perform its duties. Following an initial reflection on the importance of ensuring a complete and consistently operational Court, the analysis explores the causes of parliamentary inertia. In its concluding section, the article evaluates potential remedies, including proposals for constitutional reforms as well as measures aimed at facilitating the appointment process within the framework of the current constitutional system.
LORENZO MADAU
Crisi e rilancio della discussione orale nei giudizi della Corte costituzionale*
(27.01.2025)
Abstract
The contribution focuses on the modalities of conducting the public hearing in the judgments of the Constitutional Court, which was the subject of the amendment of the Supplementary Rules introduced by by the Resolution of 24 May 2022, with the aim of introducing a tighter and more profitable oral discussion between judges and attorneys. The contribution examines, in particular, the genesis of the reform and the historical context that led the Court to review its procedural rules on public hearings, with particular reference to the experience of ‘emergency’ constitutional justice. Moreover, after examining the content of the reform and its most significant aspects, the contribution offers a first analysis of the performance of the “new” oral discussion at the test of the first two and a half years of practical application, through the empirical examination of the public hearings held from June 2022 to December 2024.
CHIARA SAGONE
La tutela delle persone con disabilità in evoluzione negli ordinamenti italiano e spagnolo
(13.01.2025)
Abstract
The essay aims to delve deeper into the topic of protection of people with disabilities, verifying the evolution and degree of attention recently paid to the issue in the Spanish and Italian legal systems
Consulta OnLine (periodico online) ISSN 1971-9892