Consulta OnLine (periodico online) ISSN 1971-9892
2025/I
gennaio-aprile
Parte Prima
STUDI
PAOLA TORRETTA
Cittadinanza e disabilità : è
incostituzionale lÂ’obbligo di provare la conoscenza della lingua italiana
(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 CourtÂ’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
I poteri normativi del governo alla
luce dell'elezione diretta del Presidente del Consiglio dei ministri
(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
ExecutiveÂ’s regulatory production already in place for some years through an
adaptation of the form of government itself to them.
CHIARA DORIA
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
LÂ’inammissibilitĂ del referendum sullÂ’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
LÂ’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
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
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
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
roleÂ’ 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 DÂ’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 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