Consulta OnLine (periodico online) ISSN 1971-9892
2025/I
gennaio-aprile
PARTE PRIMA
STUDI
PAOLA
TORRETTA
(28.04.2025)
Abstract
The essay examines Constitutional
Court judgment no. 25 of 2025, in which the Court addressed the language
proficiency requirement within the procedure for acquiring Italian citizenship
by naturalization or marriage, introducing a dispensatory measure in favor of individuals with severe disabilities. The Author
demonstrates that, despite its apparent innovativeness, the decision is
consistent with the Court's established jurisprudence, further strengthens the
protection of fundamental rights for persons with disabilities and reaffirms
the role of citizenship as a fundamental means for the full realization of
human dignity.
MICHELE
FRANCAVIGLIA
(22.04.2025)
Abstract
The essay reconstructs the
possible effects of the constitutional revision bill AS 935 on the system of
sources of law and, in particular, on the regulatory powers of the Government.
The analytical perspective adopted allows to focus both on the methods of
normative production of the Executive in the new institutional context
(characterised by a strengthening of the rationalization mechanisms of
parliamentarism), and on the possible overall effects that the same
constitutional revision intervention is capable of influencing to the action of
the constitutional guarantee bodies on those regulatory powers. The thesis
supported in the work is that the intervention ends up consolidating (and,
implicitly, legitimizing) the dysfunctions of the Executive's regulatory
production already in place for some years through an adaptation of the form of
government itself to them.
CHIARA
DORIA
(10.04.2025)
Abstract
This article examines
Judgment No. 16 of 2024, in which the Constitutional Court ruled on the
legitimacy of Puglia's sea urchin law. The analysis focuses not only on the
content, but also on the form of the decision, highlighting the Court's role in
ensuring environmental protection and, at the same time, the division of
legislative powers between the State and the Regions. Particular attention is
paid to the Court's use of an 'atypical' substitutive decision, assessing its
implications and potential as a strategic tool to address ecosystem
emergencies.
EDUARDO
SANTORELLI
L'inammissibilitĂ del referendum
sull'autonomia differenziata e il paternalismo costituzionale
(06.04.2025)
Abstract
The paper critically
analyses the Constitutional Court judgement that ruled inadmissible the request
for a referendum that aimed to produce the abrogation of Law n. 86/2024. The
judgement focuses on the unclarity of the question, both in the object and in
its aim, which prevents a fully conscious answer by the people. Nevertheless,
the Court relies upon motives that do not seem to be completely reasonable nor
explained. This ruling may be the legal foundation, in the future, for another
denial of an identical request, if the legislation were not to change.
IGNAZIO
SPADARO
L'incidenza dei sistemi di
reclutamento sulla paritĂ di genere nella Magistratura
(31.03.2025)
Abstract
The article compares the
system of recruitment of ordinary magistrates in Italy with those of the United
States and the United Kingdom, investigating its impact on the rate of female
participation in the administration of justice. In the following part, it
focuses on further issues on which the Italian legislator is called to
intervene in the near future, in order to remove the obstacles that still
prevent the achievement of gender equality at the level of managerial positions
in the judiciary and composition of the Consiglio Superiore della
Magistratura.
MARGERITA
GHEZZI
(24.03.2025)
Abstract
This work aims to examine
the recently approved law on maternity surrogacy, designed to extend the punishability of facts even if committed abroad. After a
premise necessary to outline the contours of the practice, the analysis focuses
on the scope of the discussed regulatory change and on the critical issues of
the phenomenon, also looking abroad and, specifically, within Europe.
VINCENZO
TELARO
Il conflitto di attribuzione
sollevato dal singolo parlamentare
(19.03.2025)
Abstract
The essay analyzes the problem concerning the conflict of attribution
between the State Powers proposed by the individual parliamentarian. In
particular, after examining the reasons why this conflict was foreseen and the
requirements required by the Constitution and the law, we focus on the
possibility for the individual member of Parliament to appeal to the Italian
Constitutional Court.
ANTONIO
RUGGERI
Indirizzo politico costituzionale:
risorsa o problema?
(13.03.2025)
Abstract
The paper reconsiders the
well-known thesis of constitutional political direction, highlighting its
merits and drawbacks within a framework that is significantly more complex than
at the time of its formulation. This increased complexity stems, on the one
hand, from the ongoing process of supranational integration and, on the other,
from the evident trend toward institutional role confusion at the domestic
level, as well as the multiple emergencies that need to be addressed. These
factors make the formation of both the specific political direction in question
and political direction in general problematic and uncertain.
GIOVANNI
BAROZZI REGGIANI
(03.03.2025)
Abstract
According to the Italian
Constitution, the referendum allows the citizens to repeal a legislative act
approved by the government or the parliament. In the given context, the essay
investigates some issues concerning the changes that can occur to a legislative
act submitted to a referendum, with a specific focus on the functions of the
Ufficio Centrale per il Referendum, which has to examine whether a change to
the legislative must lead to a stop of the referendum.
PAOLO
PILUSO
Ripudio della guerra e legittima
difesa collettiva: profili costituzionali
(24.02.2025)
Abstract
The contribution, starting from
a framework of the principle of repudiation of war in the art. 11 of the
Constitution (also in light of the work of the Constituent Assembly), questions
the space of what is "constitutionally permitted", with particular
reference to the case of legitimate collective self-defence, evaluating not
only its traceability (as the object of an enabling provision according to
international customary law) to the aforementioned space of constitutionally
admissible conflicts, but also the possibility of building an (authentically)
constitutional statute of legitimate collective self-defence (leveraging, in
particular, the limits to the exercise of the same). Within this general
interpretation, the question of military assistance to Ukraine will be
addressed, as a case study, also claiming the need for the centrality of
politics and diplomacy in the spirit of the art. 11 Constitution.
FRANCESCO
IANNELLI
(24.02.2025)
Abstract
The paper analyses the
rationality of taxation of windfall profits in the European and National
orders, focusing on the decisions of the Court and the power of energetic
multinational companies. The proportionality principle has been carried out in
several sentences of the Italian Constitutional Court, in such a way that the
balancing technique of the principles of solidarity and equality demonstrates
the relativity of judgement which can be considered the guarantee of democratic
system.
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
DiscrezionalitĂ 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 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
disabilitĂ 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