Consulta OnLine (periodico online) ISSN 1971-9892
2023/III
Settembre-Dicembre
PARTE I
STUDI
ELEONORA SANTORO
(23.12.2023)
Abstract
Waiting for the
Constitutional Court to rule on the constitutionality of the art. 18 of the law
no. 354/1975 (which prevents the inmate from carrying out intimate
conversations, even of sexual nature, requiring visual control by the custodial
staff), the paper wants to analyze the discussion
during the public hearing that took place on December 5th. The aim is to
underline few aspects which could be important for the Court's choice of the
decision technique.
GIAN PAOLO DOLSO
Attualità
della riflessione kelseniana sulla giustizia
costituzionale
(18.12.2023)
Abstract
This paper examines an influential
essay by Hans Kelsen that appeared in 1928 on the subject of constitutional
justice: ‘La garantie juridictionnelle de la Constitution (la justice constitutionnelle),
Revue du droit public et de la science politique, 1928’. The aim of this paper is to verify the contribution
made by Hans Kelsen’s study in relation to problems concerning the judicial
review of legislation. The 1928 essay turns out to be very rich in indications.
There are indications of general profiles, but there are also indications
relating to the procedure of judicial review of legislation. What emerges is
Kelsen’s marked attention to the problems of access to constitutional justice
and particular attention to the procedural aspects of the judicial review. The
usefulness of going back to the essay by the great jurist thus appears evident
both for a better understanding of the functioning of systems of constitutional
justice and for reasoning about them from a “de jure condendo”
perspective.
MARIO BERTOLISSI
(15.12.2023)
Abstract
In The Betrothed (i.e. Promessi Sposi) – a work beloved
by Goethe and appreciated by the Anglo-Saxons; unloved by the Italians –,
Alessandro Manzoni indicates what are the iron rules of human action and their
implications when people live together in society. Especially, when injustices
increase the pain, which the Constitutions would like to mitigate at least.
Through the main characters
of the historical novel, lessons are exposed, with exceptional smartness and
depth of thinking, that identify the essential core of citizenship education.
Without it, there is no future for Constitutions and Charters of Rights, in
which the relationship between power and freedom seems to be fixed, in a
balanced way. Between power and justice.
MARIO PANEBIANCO
Brevi
considerazioni sul comunicato della Presidenza della Repubblica del 1° dicembre
2023
(12.12.2023)
Abstract
The Article focuses on
Press release «The President Mattarella has promulgated the DDLon
cultivated meat», 1 December 2023, and underlines a possible and concrete
presidential role in euronational co-legislation.
ANTONINO SPADARO
(05.12.2023)
Abstract
The article contests the
constitutional reform which introduces the direct election of the premier and
instead calls for the adoption of a efficient and comprehensive electoral law
with “designation of the premier”.
VALENTINA PAGNANELLI
Prospettive sulla valorizzazione dei
dati personali in ambito pubblico
(05.12.2023)
Abstract
The paper delves into the
economic value of personal data, focusing not on the private sector dominated
by Big Digital Companies but on the public sector. In this context, the term
"valorization" of data is considered more suitable than "monetization."
The discussion includes two examples of personal data use in the public sector
and references recent European regulatory developments on data governance,
including the emergence of data altruism. The aim is to assess how public
entities can leverage the informational value of personal data while upholding
the fundamental rights and freedoms of individuals.
DANIELA TARANTINO
(04.12.2023)
Abstract
Pre-Unitarian Italy struggled
to implement the formalization of marriage mandated by the Council of Trent.
The push for civil marriage over religious marriage caused tension with the
Church. Italy aimed to assert its secular sovereignty post-unification,
differing from France and Spain in their approaches to regulating matrimonial
matters.
FEDERICO FURLAN
(28.11.2023)
Abstract
The paper explores the Constitutional Reform
project aiming to introduce direct election of the Italian Prime Minister. The
author begins by describing the evolution of this parliamentary form of
government then attempts to draw possible insights from the practice of direct
election of the Regional President which regions have been experiencing for the
last two decades.
ANTONIO RUGGERI
(20.11.2023)
Abstract
The paper highlights some oddities inherent to the
Reform Bill aimed at introducing the direct election of the President of the
Council of Ministers, containing provisions likely to pave the way for
unpredictable outcomes, possibly even leading to an overall regulatory
involution.
ALESSANDRA MAZZOLA
(16.11.2023)
Abstract
After a brief introduction on the institution of
political representation, the growing phenomenon of abstentionism during
electoral consultations is highlighted. Among the various “types” of
abstentionism identified in the Libro bianco sull’astensionismo published in 2022, attention is focused
on the so-called involuntary abstentionism. A reflection then follows on the
difficult balance between respecting the characteristics of the right to vote,
as enshrined in Article 48, second paragraph, of the Constitution, and the
ineffectiveness of its exercise by some voters. This balance is then examined
in relation to various alternatives in the manner of expressing vote,
evaluating whether the potential expansion of the electorate able to cast their
vote may compromise the principles of personality, equality, freedom, and
secrecy.
CARLA DI MARTINO
Il diritto costituzionale alla «non
radicale inintelligibilità» delle disposizioni
(06.11.2023)
Abstract
The article focuses on the value of legal certainty
in the Italian legal system, in the light of some recent rulings of the Italian
Constitutional Court. These decisions seem to have affirmed a constitutional
right to the 'non-radical unintelligibility' of regulatory provisions. In this
sense, the Italian Constitutional Court seems to have intended to determine the
threshold of regulatory uncertainty that can be tolerated in our legal system,
while also confirming that the constitutional process can be the place in which
to judge the quality of laws, in light of the principle of reasonableness.
PASQUALE COSTANZO
L’Enciclica Pacem in terris
come Carta dei diritti (spunti per una riflessione)
(31.10.2023)
Abstract
The paper examines the structure and content of a
genuine and contemporary charter of rights within the Encyclical "Pacem in
Terris." It underscores certain similarities with the French Declaration
of 1789 and, most notably, with the UN Charter of 1948. However, the paper also
emphasizes the profound ontological differences between the Pontifical document
and the two secular charters.
ANTONIO RUGGERI
Pace e dignità, nella Pacem in terris
e secondo Costituzione
(31.10.2023)
Abstract
After recognizing that the value of peace is not
exclusively limited to the international context, as might be inferred from
Article 11 of the Constitution, but also holds significant importance within
the domestic context, the text emphasizes the interdependence of peace and
dignity, to the extent that they ultimately merge into a single concept in
human experience. Consequently, the text firmly condemns instances of
constitutional discontinuity within “Pacem in Terris” and underscores the
essential role of the right-duty of resistance in upholding allegiance to the
Republic. Finally, it underscores that the essence of dignity is most
profoundly appreciated through the lens of solidarity, particularly as it
evolves into brotherhood. This leads to the realization that the genuine and
profound significance of dignity is best understood, above all, in relation to
peace, just as the meaning of peace becomes clear in the light of dignity.
MARINA PIETRANGELO
Spazio digitale e modelli di regolazione
(24.10.2023)
Abstract
The paper reflects on the relationship between the
Internet and its rules, with particular attention to the evolution of the
models used over time. The objective is to understand what the role of
regulatory states and of private entities in the future that should be.
GIOVANNI CAVAGGION
(05.10.2023)
Abstract
The article studies the constitutional issues
connected to the possible case of a President of the Council (or a Minister)
with double (or multiple) citizenship. The issues are framed in the context of
the constitutional duties of the members of the Government in the Italian
constitutional system (that require a special level of allegiance to the
Republic) on the one hand, and of the international openness and pluralism that
the Italian Constitution embraces on the other. The article argues that while it
is not possible to infer a general rule on the matter at hand from the
Constitution, single problematic cases should be handled within the perimeter
of the constitutional controls on national policy.
SILVIA TALINI
Diritto all’impianto e revoca del
consenso del padre. Nel “labirinto”
della legge n. 40 del 2004
(03.10.2023)
Abstract
Starting from the analysis of Constitutional Court
No. 161 of 2023, the paper proposes a reflection on the difficult balance between
the woman's right to the implantation of the embryo and the man’s withdrawal of
consent following the termination of the affective relationship.
The author focuses her attention on the numerous
jurisprudential changes undergone by Law No. 40 of 2004, which make it
necessary to undertake extensive reform efforts, also to allow single women
access to medically assisted procreation.
ANTONIO RUGGERI
(02.10.2023)
Abstract
The paper underscores the significant distortions
in the institutional model that have given rise to a potentially irreversible
crisis in the principle of separation of powers. Specifically, we examine
whether structural shortcomings in political representation can be addressed
through expanded uses of jurisdiction. Contrary to popular belief, it's
emphasized that the real normative strength of acts seems to increase as one
descends the hierarchical ladder that defines the system. This is evidenced by
the prominence of the role played by circulars in administrative practice.
Lastly, we explore potential remedies for this situation, at least in part.
GIUSEPPINA BARCELLONA
Vaccini e riserva di legge (brevi
riflessioni a margine di Corte cost. sent. n. 25 del
2023)
(25.09.2023)
Abstract
The Constitutional Court, in Judgment no. 25 of
2023, returns to the subject of compulsory vaccination. This short paper
critically analyses the fundamental argumentative junctures of the decision,
dwelling on the way in which the object and function of the reservation of the
law provided for in Article 32, paragraph 2 of the Constitutional Constitution
are thematised.
ALESSANDRO CANDIDO
(25.09.2023)
Abstract
The paper analyses the issue of parliamentary
immunity in the context of digital society and modern forms of political
communication. In particular, it is argued that the thesis that anchors the
immunity of opinions expressed in the presence of a prior parliamentary act, of
which the Member of Parliament could limit himself exclusively to divulging its
contents extra moenia, needs to be updated and
rebalanced, which may find space through an amendment to parliamentary rules.
FRANCESCO TORRE
(18.09.2023)
Abstract
The paper analyses the Constitutional Court,
rulings no. 54 and no. 67 of 2022, concerning the recognition of welfare benefits
for non-EU citizens. The present work seeks to offer a broader view of the
connections between these judgements all of which appear to be linked by a
common thread. In both sentences, the Constitutional Court arrived at two
different outcomes of acceptance in the first, and rejection in the second,
affirming the due respect for the principle of non-discrimination in access to
such benefits. The reason why the Constitutional Court arrived at two
diametrically opposed approaches, even though the same reference parameter
(Article 12 of Directive 2011/98/EU) was invoked, is to be traced back to
whether or not the referring judges invoked the Charter.
SIMONE SCAGLIARINI
La Corte e la tecnica legislativa
(13.09.2023)
Abstract
The judgment n. 110/2013 represents a fundamental
step in the jurisprudence on legal drafting, as for the first time the Court
affirms that the unclearness of the law determines its unreasonableness (and,
consequently, its illegitimacy). The paper identifies further parameters that
lead to the same conclusion reached by the Court and emphasises
the need, from now on, to define the cases in which the obscurity of the law is
so severe as to determine its unconstitutionality. This activity is to be
performed by the Court with extensive use of its self-restraint.
ROBERTO ROMBOLI
(12.09.2023)
Abstract
The essay collects the conclusions drawn at the
Conference in memory of Alessandro Pizzorusso (Pisa,
December 15, 2022) and primarily focuses on the topics of the relationship
between the Constitutional Court and the legislature and on the decision-making
techniques of the Court itself, examining the multiple implications of these
aspects also from the standpoint of the separation of powers.
ANGELICA GEROSA - ALICE STEVANATO
Nel tempo e nello spazio: l’eredità
di Serio Galeotti sui nuovi doveri di solidarietà
(12.09.2023)
Abstract
In Serio Galeotti’s papers
on the value of solidarity, he provides a definition of solidarity as a sense
of brotherhood, mutual assistance, and support in times of difficulty, a
concept worthy of reflection in our current context. The intervention aims to
answer the question of who the recipients of the principle of solidarity are.
The reflection focuses on two different perspectives.
First, in terms of “time”
and taking our cue from the recent constitutional reform of Article 9, which
expressly mandates protection of the environment “also in the interest of
future generations” we would like to explore the breadth of the principle of solidarity,
asking, in particular, if exists a general principle of intergenerational
solidarity, which requires the Legislature to balance the interests of those
who will come after us not only with regard to the environment, but also with
regard to economic resources, social security and artistic goods.
Reflection then focuses on
environmental issues and the potential of the principle of solidarity between living
generations inhabiting different places on Earth, even beyond state
sovereignty. To this end, we want to reflect on what relationship exists
between solidarity and “space”, to see if it is possible to overcome the thesis
that conceives of duties of solidarity only within a state, at least in
reference to global events such as climate change. Starting from the assumption that man is
nowadays the main culprit for climate degeneration, environmental protection has
become a legally relevant question of justice, also because some countries,
generally those least responsible for climate-changing emissions, are the most
affected by the negative effects of climate change.
AGATINO CARIOLA
(11.09.2023)
Abstract
With sentence no. 126 of 2023, the Constitutional
Court decided on a conflict of attribution raised by the Chamber of Deputies
against the Tribunal of Lecce which had ordered the forced execution of the
social security treatment in favor of a former parliamentarian, without
applying a regulation adopted on the subject by the same Chamber. The
constitutional Judge considered that the jurisdictional provision violated the
autonomy recognized to Parliament.
The comment notes that the Court's decision took
place without the participation of the third creditor who had acted to obtain
payment of his credit, the Agenzia delle Entrate in the matter. And
it is criticized that was requested the application of an internal act of the
Chamber which is not published. The fact once again raises the problem
regarding the basis of the parliamentary power to decide on one's own
organization and activity when third party positions are involved. In criticism
of the constitutional jurisprudence that has always identified this foundation
in the sovereignty of the Parliament, the comment proposes to trace it in the
free decision of those who agree to submit to the same parliamentary power.
ANTONIO RUGGERI
Ha una forma la forma di governo?
(01.09.2023)
Abstract
The paper highlights the lack of a clearly and
fully delineated form of government. In fact, the guidelines provided by the
Constitutional Charter, which are based on two key principles - first, a clear
distinction between political management bodies and guarantee bodies, and
second, the centrality of Parliament - are evidently contradicted by deviant
practices. These are characterized by dramatic shifts,
confusion, and continuous, not insignificant
changes.
The question arises as to whether this form of
government can achieve a stable identity, and what remedies might be suitable
for achieving this stability. This is especially relevant in light of
forthcoming significant reforms aimed at both institutional rules and system
corrections to ensure policy regularity.
Consulta OnLine (periodico online) ISSN 1971-9892