Lessons Until 5th Nov

European and Italian Public Law
Prof.ssa Giovanna Razzano

Facoltà di Giurisprudenza
giovanna.razzano@uniroma1.it
Texts
• Introduction to Italian Public • P. Costanzo L. Mezzetti A. Ruggeri,

Lineamenti di Diritto costituzionale
Law, edited by G. F. Ferrari, dell'Unione Europea, Giappichelli,
Torino, 2014.
Milano, Giuffrè, 2018.
• The slides projected during the

lessons, as well as further documents
• G. Garzone, R. Salvi, Legal and classes materials (courts’
English, Milano, Egea, 2006, decisions, working papers, articles
etc…) will be uploaded by the
capitoli 1, 5, 6, 10, 12 e 13. professor.
European and Italian Public Law Giovanna Razzano Pagina 2

Syllabus and Timetable 2020
• 30 Sept Right and Law, Norms, Values and Principles (Ferrari Chap 1; Garzone, Salvi, Chap. 1)
• 1 Oct Characteristic of the State (Ferrari Chap 1; Garzone, Salvi, Chap. 1)
• 7 Oct Globalization and Multi-level Constitutionalism (Ferrari Chap. 2; Garzone, Salvi Chap. 5)
• 8 Oct State and International Law, Italian Option (Ferrari Chap. 2; Garzone, Salvi Chap. 5)
• 14 Oct Trends in the development of the Italian State, European Legal Order and European Union (Ferrari Chap. 2; Garzone,
Salvi Chap. 5)
• 15 Oct Forms of State and Forms of Government (Ferrari Chap. 3)
• 21 Oct Parliament and Constitutional Amendment Law (Ferrari Chap. 4)
• 22 Oct Electoral Systems, Functions of Parliament (Ferrari Chap. 4)
• 28 Oct The Government (Ferrari Chap. 5)
• 29 Oct The Public Administration (Ferrari, Chap. 6)
• 4 Nov The President of the Republic (Ferrari Chap. 8)
• 5 Nov The Judiciary (Ferrari Chap. 9)
• 11 Nov Constitutional Justice (Ferrari Chap. 10)
• 12 Nov Italian Sources of Law (Ferrari Chap. 10)
• 18 Nov Italian Sources of Law (Ferrari Chap. 11)
• 19 Nov The Regions, Regional and Local Government Sources of Law (Ferrari Chap. 7 and 12)
• 25 Nov European Sources of Law (Ferrari Chap. 13; Garzone Salvi Chap. 5-6)
• 26 Nov European Sources of Law Relationship with domestic Sources of Law (Ferrari Chap. 13; Garzone Salvi Chap. 5-6)
• 2 Dec Fundamental Rights and Freedom (Ferrari Chap. 14)
• 3 Dec The European Court of Human Rights (Garzone, Salvi Chap. 13)
Final Exam
Oral test (in presence or remote, it depends on the

situation)

Vocabulary and questions
• What is Law?
• What is the difference between Law and Right?
• What is Justice?
• What is the task of Politics?

European and Italian Public Law Giovanna Razzano 5
Natural Law and Positive Law
• natural law, natural rights, human rights: they exist on their own,
because of the human nature and human being, whenever and
wherever a man or a woman is. There is an ontological statute of
every man and woman (Sergio Cotta). In this vision, there are rights
even if the legal system and the law do not recognize them. There is
a difference between right and law
• positive law: (lat. positum= established)

Classical Theory of Natural Law
• The crucial moment for the emergence of the classical philosophical
tradition of natural law may be found in the writings of Plato
The Sophists had postulated a clear antithesis between man’s nature
(physis) and political conventions (nomos). Against this conception,
• Plato connects human laws and human justice (nomos) to a nature

(physis) which precedes all conventions
• This challenge was the basis upon which the classical philosophers
founded what Isaiah Berlin called ‘the central tradition of Western
political thought’.
Classical natural law tradition
(Plato, Aristotle, Agustine, Aquinas)
• The law is, in its focal meaning, an ordinance of reason for the common
good
• the government that exceeds its attributions or usurps the attributions

of others is considered by the classical natural law tradition as
illegitimate
• the tyrant justifies disobedience
• lex iniusta non est lex (‘unjust law is not law’)

The modern version of contractualism:
Thomas Hobbes (1588–1679)
• The natural man is a being oriented towards the mere satisfaction of
his desires
• a common rule of good and evil does not exist
• the ‘law of nature’ is the law of passions and desires
• It is necessary the submission of the will to an absolute authority
• It is necessary an unlimited state—the Leviathan—in which citizens
lack any rights
• a return to the antithesis physis/nomos of the Sophists
Natural Law definition
• The theory of natural law defends that the ethical foundations
of law are prior to,
• and independent of the will of men,
• and that there are certain universal and rational principles of
justice
• which every law must respect and promote in order to be
legitimate
Natural Law and Positive Law
• The theory of Natural Law denies neither the necessity of positive law
nor the duty to obey it
• Justifies both, since it is a foundational and a critical theory
• As a foundational theory, it sets the grounds for the need for positive
law and the duty to obey it on principles of practical reason
• As a critical theory, it justifies civil disobedience when positive law

radically contradicts the ends that it is supposed to serve
Natural Law and Positive Law: Antigone
• Antigone is the protagonist, the heroine, the leading lady of the tragedy written
by Sophocle, in the fifth century before Christ (V cent. b.C.)
• Antigone is a woman who wants to bury her brother Polynices , because she does
not want to disobey the ultimate law of the gods, even if the city's ruler Creon
decrees that the corpse of Polynices should be left to rot outside the city gates
because he was a traitor to the city. Antigone knows that she will die for her
disobedience
• There is a contrast between the law of the political power (the polis, the State,
the legal system, the positive law) and the law of the conscience, in an ethical
sense, in a moral meaning.

Historical integration between Natural Law and
Positive Law
• When: after the Second World War
• Where: in Europe and North America
• What: West constitutions and international declarations recognize

human rights: the positive law recognize natural law
• for instance Italian Constitution, art. 2: «The Republic recognizes and

guarantees the inviolable rights of man»
In this view, there is a difference between Justice and Law
• Law is a general word and its meaning usually is referred to a legal

system and interpreted in an objective sense: the system of rules
which a particular country or community recognizes as regulating the
actions of its members and which it may enforce by the imposition of
penalties
• Justice has a meaning related with philosophy and especially with

ethics. It is a virtue, according to Aristotele (the ancient Greek
philosopher) and it presumes the rights
• It is “Just” something having a basis in fact or reason: reasonable
The importance of the REASON in the western legal culture
• There is a link between law, right and philosophy
• The basis of a just legal system in human nature, in reason not in a

divine revelation
• In the christian vision, human nature and human reason are founded
in the creative reason of God, but not in a specific religious revelation
• The reason, not the faith is the legal source valid for everyone
Modern Theories over the Nature of Legal
Systems
• Hans Kelsen and Vienna School: normativistic concept
(law=norm=right): on the basis of the normative element and the
hierarchy of legal and effective sources. In this vision, the rights are
those established by the legal system: right=law=norm
• Santi Romano (Italy) and Maurice Hauriou (France): institutionalistic

concept, based on sociological elements, like the nature of the group,
the position of its component members and authority

The State and the Constitution
• The key concept in public law over the Nineteenth and Twentieth
centuries are linked to the political legal system known as the State
• It can be defined as a concentrated legal system, territorial in nature,

focused on general aims, independent and sovereign
• According to the democratic constitutionalist theories (Nineteenth

Century) sovereignty belong to the people and the Constitution is the
basis of the legality and validity of the sources of law
• The Constitution is at the top of the hierarchy of the legal sources
Constitution and principles
• Principles are the elements which govern the production of positive law
• Principles refer to the fundamental ethical and moral choices of a society
• The principles are the basis of the Constitution, the norm of «superior level»
• The principles of the Constitution have an «elastic» formulation open to possible

different interpretation in response to social changes but they also require
resistance to passing legal fashions, such as that of a simple law (adopted by the
Parliament)

Principles and Values
• Principles as means to reach goals or objectives, which are the values

of the system
• The specific principles largely shared by a society, influence the

formation of the legal system
• The Constitution is the central fulcrum in which principles are ordered

hierarchically and receive legal recognition
Constitutional Principles
• They are legal norms of superior level respect to a simple law:

resistance to passing the time
• The solid base governing the life of society even over time
• They have a greater degree of generality than other norms

Constitutional Principles
• Their formulation is elastic. The task of the interpretation
• A fundamental nucleus of constitutional principles that deserve

protection against change and modification: inviolable rights of man
(art. 2-3 Italian Constitution)
• There are also no written principles, that can be inferred by the

general framework and design of the Constitution, consistent with
the legal system
Plurality of legal systems
• In the experience there are many legal systems
• not only the State:
• The European Union (EU)
• The European Convention on Human Rights (ECHR)
• The Catholic Church (art. 7 It. Const.: «The State and the Church are, each
within its own order, independent and sovereign»).
Legal Systems in Experience
• Whenever humans enter into forms of cohabitation or coexistence
with others, legal systems are created: ubi sociatas ibi jus. People
connected to each other by common goals and interests
• Relationship qualified by norms
• Political power and authority within the group
• Coercion to ensure legitimate exercise of power: sanctions,

punishment
The State
• A concentrate legal system, necessary, territorial in nature, focused on general
aims, independent and sovereign
• During the Sixteenth and Seventeenth centuries there was the breakup of
medieval universalism and the overcoming of the two great pre-existing political
realities: the Catholic Church and the Holy Roman Empire
• The date conventionally assumed to indicate the advent of the European Nation
State model of government is 1648 (Peace of Westphalia)

Definition of the «State»
A very ancient etymological origin in Ancient Rome: status rei publicae.
General purpose legal system, able to regulate any aspect of social human life
Costantino Mortati definition: «a legal system having general ends and objectives which
exercises sovereign power over a specific territory, to which the subjects or participants
belonging to such system are necessarily subject and subordinated».
Four characterising elements:
1) Sovereignty
2) Territory
3) People
4) Organization/Government (because of general aims)

Sovereignty
• Externally: European States stop recognising the existence of any superior
political authorities and begin to cultivate relationships on an equal level
with other governmental systems
• Internally: the State power is not limited but rather unconditional:

- theory of John Locke: voluntary collective pact into to set up the State
- the idea of the Nation, which express the voice of its representatives, whose
supreme act of will is the law, begins to emerge in the Seventeenth century
(primacy of the middle class , French Declaration of the Rights of Man and
Citizen, 1789)

Art. 1 Italian Constitution
Sovereignty belongs to the people, which exercises it in the

forms and within the limits of the Constitution

Territory
• Terra firma, dry land, land surface and waters included within the
confines of the State
• Convention of Montego Bay (Jamaica)1982 on the Law of the Sea:

territorial sea is extended from the coastline to 12 miles, after which
begin the open seas
• The territory is the area in which legal norms are applicable
European and Italian Public Law

Giovanna Razzano
Pagina 28
People
• Those who are governed/governed ones
• Between Eighteenth and Nineteenth centuries, American and French

Revolutions put an end to the Ancient Regime, introducing the
principles of innate and inviolable human rights and the idea of
popular sovereignty
• Theory of the people as creator of State’s will (citizen not a passive

recipient of political will, but an active contributor to determining such
will)

Norms
• Legal norms are produced by the government or state legal system or by those
sources that a system internally recognises and have the power of producing
binding effects on participants (or subjects) in the system. They possess:
• Effectiveness
• Force (the force of law, to innovate the positive legal system)
• Generality
• Abstractness

Norms and Constitution
• It is necessary that a legal system identifies which sources produce or have legal
effect
• This power resides in the Constitution, which is at top of the hierarchy of legal
sources (super-primary source of law)
• The Constitution is the basis of legality and validity of the sources which are
hierarchically subordinate to it
• The Constitution governs the sources of law immediately subordinate to it
(primary sources) and leaves open the group of secondary sources (themselves
based on primary sources)

The development into contemporary State
The development into the contemporary State model follows a long

process of change which occurred between the end of Fourteenth and
the Seventeenth centuries
• In the Middle Ages the organization of the feudal system was

characterised by a high degree of power dispersion, social and class
fragmentation
• The individual was a member of a moral community

Constitution History
• In the modern sense, we talk about Constitution only from a very specific
historical moment: that of the large middle class liberal revolutions, American
and French, from the late Eighteenth century.
• Montesquieu, Rousseau: these assume the convergence of three basic principles
of contemporary constitutionalism:
1. The rule of law (government authority may only be legitimately exercised in
accordance with laws that are adopted through an established procedure)
2. Separation of powers.
3. The principle of constitutional supremacy (the constitution as the supreme
law).

Italian State Independence
• During Eighteenth century the territory was divided into numerous different states
and Spain (in the South) and Austria (in the North) held sovereign power over large
areas of Italy
• At the end of the century Napoleon Bonaparte entered and Piemonte surrended to
France and Venetian Republic to Austria.
• With the Restoration (at the end of Napoleonic period) the North West became
State of Savoy; the North East became Austrian territory; dukedoms in Parma and
Modena and Papal State remained independent and the South of Italy
(Mezzogiorno) returned to Bourbons
• The century was characterised by appeals to independence and patriot ideals,
culminating in three wars of independence
• Italian reunification and independence came through progressive annexation of
peninsular territories to the Kingdom of Savoy (Piemonte). Proclamation of
Kingdom of Italy 1861
History of Italian State
• The newborn Kingdom of Italy inherited Statuto Albertino from Savoy Kingdom,
which was a granted and flexible constitution.
• Principles of liberal State and rule of law, pure constitutional monarchy
• The king was Head of State and holder of executive power and could freely name
and revoke Ministers
• Evolution towards a parliamentary form of government: despite the fact that the
text did not provide for such, the practise of necessary relationship of confidence
arose between the Government and representative Chamber of Deputies
• In the first years of Twentieth century, with Giolitti Government, the State became
multi-class. Liberation of the economically weaker groups, extension of the right to
vote
• The Italian State went from being liberal to becoming more of a socially
interventionist State
Fascism and Mussolini
• In 1922 the King asked Mussolini to form a government opening the way for twenty
years of Fascist rule
• Civil liberties and free politics were suppressed, freedom of the press and freedom
of association were limited, personal liberties reduced, racial and political
discrimination
• Statuto Albertino formally remained in force, whilst numerous changes.
• Then a dictatorship begins: Mussolini put an end to parliamentary government by
establishing the irresponsability of the executive to Parliament and the supremacy
of the Government over Parliament
• Electoral law was abolished and plebiscite regime was established. Chamber of
Deputies was suppressed replaced by the Chamber of the Fasces and Corporations
• Italy took part in the Second World War alongside Hitler’s Nazi Germany
The end of the Fascism, Constituent Assembly
• In 1943 the King forced Mussolini to tender his resignation, arrested him and gave
to General Badoglio the task to form a new government
• 8 September 1943: armistice with the coalition made up of the USA, France, GB.
• The Country was broken in two: in the South Anglo-American and in the North a
civil war between partisans and Italian solders loyal to Italian Social Republic
founded by Mussolini in Salò.
• After the liberation from German occupation in 1944, with Pact of Salerno, the
King and the anti-Fascist parties gave life to a government, giving the people a
choice of whether they preferred to continue with a monarchy or instead became
a republic
• On 2 June 1946 a referendum was held in which Italians voted in favour of
becoming a republic and elections for Constituent Assembly

Constitution of the Italian Republic
• For the first time the women also voted: universal suffrage
• The Assembly was composed of 207 of Christian Democratic party,
115 Socialists, 104 Communists, 44 from the National Democratic
Union, 30 from Anyman Front, 23 from Republican Party
• The Italian Constitution was born thanks to the historic compromise

between Catholics, Marxists and Liberals
• On 1 January 1948 the current Constitution entered into force

Globalisation and Multi-level Constitutionalism
• The State is in crisis: process of globalisation, creation of a world marketplace
• Key economic decision are made on a supra-national basis
• Supra-national organisations impose the objectives that national governments must
pursue (United Nations, Nato, WTO, EU)
• Example: control of public expenses, public deficit and monetary policies imposed
by EU on its Member States
• Beyond national governmental level at least another level exists
• Multi-level constitutionalism: progressive emergence and development of organs,
structures and procedures that create legal norms and impose such norms on
citizens of different national States
• Erosion of each country’s sovereignty, that not pertain solely to the national State
alone, may be sub-divided among the different levels
Relationships between national and external norms
• Dualistic approach: when a legal system provides concurrent

recognition of the value of external legal norms. Separation
• Monistic approach: the internal legal system automatically accepts

the entry of the international norms into the national system
• Italy is a country open to the realities of laws coming from outside its
own system (art. 10 and 11 Const.)

• The Italian juridical order conforms to the generally recognized norms
of international law.
• The legal status of foreigners is regulated by law in conformity with
international provisions and treaties.
• The foreigner who is denied in his own country the real exercise of
the democratic liberties guaranteed by the Italian Constitution has
the right of asylum in the territory of the Republic, in accordance with
the conditions established by law.
• The extradition of a foreigner for political offences is not admissible.

Italy rejects war as an instrument of aggression against the freedoms of

other peoples and as a mean for settling international controversies; it
agrees, on conditions of parity with other states, to the limitations of
sovereignty necessary for an order that ensures peace and justice
among Nations; it promotes and encourages international organizations
having such ends in view.

A peaceful Europe
the beginnings (1945-1959)
• The European Union was born with the aim of putting an end to the
frequent and bloody wars between neighbors, which culminated in the
Second World War
• The European Coal and Steel Community (1951) begins to unite European
countries economically and politically in order to secure lasting peace
• The six founding countries are Belgium, France, Germany, Italy,
Luxembourg and the Netherlands
• The protagonists, in this phase, are three politicians from the catholic area:
Robert Schuman, Konrad Adenauer and Alcide De Gasperi. The importance
of the diplomatic work of Jean Monnet. The importance of Altiero Spinelli
Federalist Moviment
A period of economic growth (1960-1969)
In 1957, the Treaty of Rome creates the European Economic
Community (EEC), or ‘Common Market’
The 1960s is a good period for the economy, helped by the fact that EU
countries stop charging custom duties when they trade with each other
They also agree joint control over food production, so that everybody
has enough to eat and soon there is even surplus agricultural produce
The first enlargement (1970-1979)
• Denmark, Ireland and the United Kingdom join the European Union on 1
January 1973, raising the number of Member States to nine
• The European Parliament increases its influence in EU affairs and in 1979

all citizens can, for the first time, elect their members directly
• The fight against pollution intensifies in the 1970s. The EU adopts laws to
protect the environment, introducing the notion of ‘the polluter pays’ for
the first time
The changing face of Europe - the fall of the
Berlin Wall (1980-1989)
• In 1981, Greece becomes the 10th member of the EU, and Spain and
Portugal follow five years later
• In 1986 the Single European Act is signed. This is a treaty which
provides the basis for a vast six-year programme aimed at sorting out
the problems with the free flow of trade across EU borders and thus
creates the ‘Single Market’
• On 9 November 1989, the Berlin Wall is pulled down and the border
between East and West Germany is opened for the first time in 28
years. This leads to the reunification of Germany, when both East and
West Germany are united in October 1990
A Europe without fronteers (1990-1999)
• In 1993 the Single Market is completed with the 'four freedoms' of:
movement of goods, services, people and money
• The 1990s is also the decade of two treaties: the ‘Maastricht’ Treaty on
European Union in 1993 and the Treaty of Amsterdam in 1999
• People are concerned about how to protect the environment and also how
Europeans can act together when it comes to security and defence matters
• In 1995 the EU gains three more new members: Austria, Finland and
Sweden
• ‘Schengen’ agreements gradually allow people to travel without having
their passports checked at the borders
Further expansion (2000-2009)
• During the decade more and more countries adopt the euro
• The political divisions between east and west Europe are finally declared
healed when no fewer than 10 new countries join the EU in 2004, followed
by Bulgaria and Romania in 2007
• A financial crisis hits the global economy in September 2008
• The Treaty of Lisbon is ratified by all EU countries before entering into force
in 2009. It provides the EU with modern institutions and more efficient
working methods
A challenging decade (2010-2019)
• The global economic crisis strikes hard in Europe. The EU helps several
countries to confront their difficulties and establishes the 'Banking
Union' to ensure safer and more reliable banks
• Croatia becomes the 28th member of the EU in 2013
• European elections are held in 2014 and more Eurosceptics are elected
into the European Parliament
• A new security policy is established in the wake of the annexation of
Crimea by Russia
• The refugee problem. The EU is not only faced with the dilemma of
how to take care of them, but also finds itself the target of several
terrorist attacks
The Historical Development of European Community
• Paris, 1951: Treaty on European Coal and Steel Community
• Rome, 1957: European Economic Community Treaty (EEC/CEE)
• Economic matters but generalist vocation: customs tariffs on import/export

commodities were abolished, quantitative restrictions were forbidden, circulation
of people and capital guarateed
• The free and open competition become the principal objective of EU legal system
• In 1979 European Parliament was born, with the organizational structures

• Luxemburg, 1987: Single European Act (SEA). New matters were transferred to
Community jurisdiction: social policies, the enviroment, economic integration
• Maastricht, 1992: European Union (EU). Also education, industry, health, culture,
consumer protection. European citizenship was instituted, completing national
citizenship from the various Member States
• Monetary Union, European Central Bank, a single currency, the Euro

• Amsterdam, 1997:integration and cohesion policies with common foreign and

security policies and judicial co-operation in criminal matters. The idea of the
«two speed» and of «variable geometry»
• Nice, 2001: a Charter of Fundamental Rights was issued that was to become
legally binding once included in the European Constitution. But this project (a
Treaty on a Constitution for Europe) failed
• Lisbona, 2009 (Reform Treaty): the Charter of Fundamental Rights of European
Union become binding and the European Convention on Human Rights entered
inside the legal framework of European Community. Difficulties and slowdown:
• Treaty on European Union and the Treaty on the Functioning of the European
Union

Form of State and Form of Government: definition
• Form of State: the rules and principles that govern a state legal system. The
relationship between the State and the citiziens
• Costantino Mortati: «The relationship between the holder of power and the
subject of that power and therefore the various aspects of the relationship
between authority and liberty».
• Relationship between the central government and sub-national entities (even if
not all scholars agree on the fact that this relationship belong to the form of state
instead of the form of government)
• Form of government (systems of government/regime types, in English): the set of

rules concerning the distribution of power among the branches of government or,
put in a different way, the relationship between constitutional bodies/organs which
are above all the others
Forms of political power
• Ancient greek philosopher Aristotele distinguished between a government by one
person (Monarchy- that could however degenerate in tyranny), a government by the
few (Aristocracy- that could degenerate in Oligarchy) and a government by the
many (Polity- that could degenerate in democracy, disorder, lawlessness)
• Dicotomy between Monarchy and Republic: it has long been seen as a crucial
element in classifyng forms of state and government.
• Today however, with the transformation of the European Monarchies into

parliamentary monarchies, the distinction between Monarchy and Republic has
become more blurred.
• That dicotomy is incapable of distinguishing between contemporary forms of state
and government
The Feudal society and the Absolute State
• Feudal society existed in Europe from Eighth Century until the Twelfth. There
wasn’t really any state, but private agreements, contracts between individuals
and the feudal lord. The sole aim was protecting the land and its inhabitants from
external attacks
• The transformation to an absolute state (Fourteenth Century):

1. power from feudal lords to the King
2. shift of power from land to money
3. The state tried to fulfil the general interests of the people and not just the
needs of the lord of the manor. Bureaucracy and proper tax system

The Liberal State
• Ever-growing bureaucratic and military machinery; industrial revolution, growing

egemony of the middle classes. The passage from absolute to liberal state varied
from country to country:
• England: quite early, on following the two victories that Parliament obteined
against the Stuarts: (English Civil War (1649); Glorious Revolution (1688)
• United States: liberal state the consequence of the War of Independence against
Grait Britain and the approval of Constitution in 1787.
• France: middle class had to fight against privileges of nobility and clergy: French
Revolution (1789) and ideological oscillation between liberalism and democratic-
radicalism
• Italy and Germany: top-down revolution, from the expansion of Prussia and the
Kingdom of Sardinia

Characteristic elements of Liberal State
• The legitimation of power based on popular sovereignity

• Representative government and principle of separation of powers
• Strong separation between State and society, individualism, mono-class society
• Rule of law, protection of rights and freedoms
• Suffrage determined by census and large sectors of population without voting
rights
• Minimum state instead of strong state intervention

The Democratic Pluralistic State
• A slow transformation of the liberal state from a mono to a multi-
class society
• The state is based on recognition and protection of a plurality of
groups represented in Parliament
• Extension of voting rights
1) creation of mass parties
2) Parliament as the place of discussion of diverging interest groups
3) Recognition not only of liberal first generation rights, but also second
generation social and economic rights

Welfare State as
a particular type of Democratic Pluralistic State
• After World War II

• Britain as a typical exemple: in the 1945 Labour Party won general elections with a
political manifesto based on proposals made by William Beveridge, an economist
and social reformer
• Social Insurance and Allied Services Report, 1942: policies and social security must
be achieved by co-operation between State and individual
• «from the cradle to the grave»
• Britain’s National Health Service a symbol of the post-war welfare state
• Many of the States of Western Europe evolved into the model of «liberal
democratic state»: privatisation rather than nationalisation is the key word

Totalitarian and Authoritarian States
• A reaction towards the crisis of liberal state and an attempt to solve
the social conflict caused by the struggle between middle class and
working class
• Absence of checks and balances with regard of command structure of
the State
• Executive domination. For ex. the fascist state concentrated power in the hands of the
Head of the Government, who exercised both executive and legislative powers
• Use of force and intimidating action
• Limitations of basic individual rights

The Socialist State
• Alternative to democratic pluralistic state
• The theories at the basis of the Socialis St. were those of Marx and Lenin
• This form of State established first in Russia, then in Soviet Union (after the 1917:
October Revolution) and finally in Eastern Europe (after the World War II: Sovietic
bloc)
• The origin is in the Proletarian Dictatorship, which had the aim of eliminating the
bourgeoisie and creating a society whithout classes and social conflict
• Originally the Proletarian Dictatorship was supposed to be transitional, but soon
after the revolution it was evident that the state structure had to be manteined
alongside the party

The constitutional model of socialiste state
and its dissolution in Europe
• Based on the abolition of private property and the monopoly of the state in the
means of production: the socialist state aimed to abolish the market economy in
favour of a collectivist one
• Strong central government as emerged with Stalinist Constitution in 1936
• Significant limitations of basic individual rights: freedom of association, of
religion, of expression, of movement, of expatriation
• The model can be found still in some Asian countries such as China, North Korea
and Laos
• The socialis republics dissolved after the fall of the Berlin Wall in 1989, ten of
them have joined the EU and moved towards a market economy

Unitary, Federal and Regional States
• A distinction based on territorial organisation and separation of powers, between
central government and sub-state institutional structures
• In unitary state, legislative power is exercised solely by the central government,
while in decentralised state, legislative power is exercised by both the central
government and the sub-entities
• In the context of decentralised states we can distinguish between federal and
regional states and so we have to deal with 4 elements:
1) allocation of legislative power
2) allocation of judicial power
3) the Upper House
4) Constitutional Amendment powers
Allocation of Legislative Power
• Federal Constitution contains a provision or clause listing of subject matters on
which the central state can legislate, leaving the so-called residual-matters to the
sub-state entities
• Regional Constitution contains a list of matters over which the sub-state
institutions can legislate, while state has the competence with regard to all the
other subject matters
• Sometimes (like in Italy) there is a list of cuncurrent subject matters over which
both central and regional entities can exercise legislative power: the state
approve a framework law containing a series of guiding principles which the sub-
state entities have to follow when they approve a detailed law

Allocation of Judicial Power
• We can measure the degrees of federalism
• We can distinguish between separate model and integrated model:
1) separate model, as in USA: each State has its own criminal and civil codes
2) integrated model, as in Canada: there is only a criminal code of Canada, even if
provinces can appoint their own provincial judges and how enforce the criminal
code
In Italy there are First Instance Administrative Tribunals in each Region but the
administrative procedural law is the same throughout Italy

Representation in Upper House
• If the second chamber does not represente the sub-state entities, there is a
regional system and not a federalist state
• Equal representation: when all the states have identical representation
regardless of their size and population, as in USA, where in US Senate Rhode
Island and California are on a par and each of them elect two senators
• Weighted representation: when representation depend on size and population,
like in Germany, where the members of the Bundesrat are not elected directly,
but are members of the Laender executives, which appoint them and may
remove them at any time

Constitutional Amendment Powers
• The participation of sub-state entities in constitutional amendement is a
determinant element in distinguishing between a federal or a regional state
• In federal systems the member states have a central role in amending
Constitution
• in USA the amendments to the C. have to be ratified by 3/4s of the Conventions
of the States
• in Germany a law amending the latter requires the two thirds of the members of
the votes of the Bundesrat (the Upper House where Laender are represented)

Form of Government: Parliamentary Executive
• The most important element of the parliamentary form of

government is the relationship of confidence between Executive
(Prime Minister and Cabinet) and Parliament
• The origins of the parliamentary form of government are in Great
Britain, as a matter of constitutional practice: there was an evolution
from a constitutional to a parliamentary monarchy (based on
constitutional conventions and not acts or codified constitution)

The Head of Government in the Parliamentary Executive
• Strictly speaking he is not elected directly but appointed by the Head of State
• At the same time it is important the electoral system: if there is a
plurality/majority system (or proportional representation with premium of seats),
the popular elections really establish the name of the Head of Government,
because it is clear the victory in the competition
• On the contrary, when there is a proportional representation and a multy party
political system, the appointement of the Head of Government depends on the
number of members of parliament obtained by each coalition or party: the Head
of State has more discretionary powers

The Head of Government, the dissolution of the Parliament
and the constructive vote of no confidence
• The Head of Government does not have a fixed term
• If the government has a strong majority, the Head of Government
could remain the entire duration of the legislature. It is also possible
to change the Head of G. without provoking the dissolution of
Parliament
• In Germany, one of the most stable parliamentary democracies in the
world, there is an instrument called «constructive vote of no
confidence»: if the majority of members of the House have non
confidence in the Chancellor in office, they must be able of electing a
successor in order to replace him

Presidential Executive form of government
• The President is popularly elected and he/she is the Head of State and
the Head of Government
• There is no relationship of confidence between the President and the
Congress, but there is a separation of powers: the Congress cannot
vote a motion of no confidence
• the President has the power to veto legislation and the Congress has
the power to impeach the President
• The President serves for a fix term of four years and he could be
relected once

Directorial Executive
• Switzerland
• This executive is a unicum in the context of comparative law, functional in a
country, like S., that comprises a plurality of ethnic, linguistic and religious
communities, which favoured the creation of a collegial institution, the Federal
Council
• The Federal Council, composed by seven members, is not directly elected but
derive from the Federal Parliament
• There is not a confidence relationship and the Council has a fixed term of four
years
• The President of the Council is elected among the seven members and remain in
office for one year

Semi-Presidential Executive
• This system combines elements of both the presidential and the
parliamentary forms of government
• There is both a Head of State and a Head of Government
• The President of the Republic is elected directly on the basis of two-
round voting system
• The Head of the Government, on the contrary, is appointed by the
President of the Republic and he must have the confidence of the
National Assembly, the French lower house

Semi-Presidential Executive The «cohabitation»
• The President of one party and the parliamentary majority of

another: the election of the President of the Republic and the
National Assembly does not take place at the same time
• In that case, the President of the Republic is forced to appoint as
Prime Minister someone who has the support of the majority of the
Assembly and could obtain the confidence
• The President of the Republic can dissolve the National Assembly,
after consulting Prime Minister and Presidents of the Assemblies

The Italian Parliament
• The symbolic value of locating Parliament at the biginning of the
frame of government
• Art. 1: Sovereignity belongs to the people
• The most direct organisational connection with popular sovereignity
is Parliament
• Fascism had progressively eliminated the democratic elements
present in Statuto albertino of 1848
• Italian Constitution is charaterised by significant limitations on the
executive power, all to advantage of Parliament

Bicameralism
• monocameral model (very rare) and bicameral model
• The origin of bicameralism is in English experience, where the progressive
polarisation between the aristocracy and the democratic principles led to the
institution of the House of Lords and the House of Commons
• The bicameral system is generally considered the necessary characteristic of
federal systems, where one of the Chamber represents the interests of federal
unity and the other represents the single states comprising the federation itself
The distinction between perfect bicameral system and imperfect bicameral system

Italian system, example of perfect bicameralism
• The two Chambers have strong similarities with each other, both structurally and
functionally
• The Executive must have the express confidence of both Chambers
• Art. 70 Const.: «The legislative power shall be exercised jointly by the two
Chambers»
• An original choice (in the specific historical context in which italian Constitution
was drafted), since the great majority of bicameral systems are characterised by a
marked «imperfection» and notables differences between the two Chambers,
either structurally or functionally
• The only system similar to the italian one was that of the 1831 Belgian
Constitution

Electoral systems
The formalities through which Members of Parliament (MP) are elected
Two principal macro-categorie: proportional system and majority
system
Proportional systems involve the assignment of seats to electoral lists
that are presented for elections in proportion with votes actually
obtained
Majority systems provide for the assignment of the seats to the
candidates which have obteined the greatest number of votes in
comparison to the others

Comparing proportional and majority systems
• Proportional s. allows a more faithfully representation of the reality of
the political forces in the field
• But it acts to the detriment of the stability of political majority
• Do not offer any incentives favouring the aggregation around
homogeneous poles of different parties
• Majority systems sacrifice the more direct political party
representation in favour of a clearly greater stability of the majority in
Parliament

Italian electoral system (until 2014)
• Not governed by the Constitution but by ordinary laws

• From 1948 to 1993 the system was proportional
• In 1993 there was a popular referendum with a strong vote in favour of majority
system and a new electoral system law, substantially based on majority system
(only the 25% of total seats assigned using proportional)
• The consequence was a bipolar political model
• But in 2005 was approved by the Parliament a new law based on proportional
and blocked lists, compiled by the leaders of the various parties, without the
possibility to choose any candidate and with a majority corrective: a premium of
extra seats for the coalition that obtains the greatest number of votes.

Italian electoral system (after 2017)
• The italian constitutional Court (1/2014) declared partially unconstitutional that
electoral law (2005) because of the premium and the blocked lists
• The subsequent electoral law («Italicum»,2015) was also declared partially

uncostitutional
• the current system («Rosatellum» l. n. 165/2017) is basically proportional

The Government in general
• Its function is to formulate and implement administrative and political policies
• The historical evolution of this institution developed in England: at the biginning
the King chose and dismissed his Ministers and had a political relationship with
them based on reciprocal trust
• With the Act of Settlement (1701) Parliament could control the acts of Ministers
by threatening to impeach them
• By the middle of the 1700s in England there was:
• - the direct relationship between the Cabinet and the House of Commons
• - the relationship of confidence between the Prime Minister and the electoral
body

The Government in Italian Constitution
• Art. 92 Ital. Const: “The Government of the Republic is composed of the
President of the Council (Head of Government) and the Ministers who, together,
form the Council of Ministers. The President of the Republic (Head of State)
nominates the President of the Council of Ministers and, on his proposal, the
Ministers”. This procedure is regulated by customs and conventions
• The Government is a complex body, without a fixed number of Ministers
• The President of the Republic is not part of the Government but he intervenes in
the formation of the Government as a super partes authority

Formation of the Government. First stage
• It depends on the electoral system:
- if there is a majority system, the winning coalition, the parliamentary majority
and even the name of the President of the Council (Head of Government) will be
very evident after the election day and the President of the Republic (the Head of
State) has an easy task to nominate that President of the Council
- if there is a proportional s., the Head of State needs to consult political leaders
(past President, Speakers of the Chambers, Presidents of Parliamentary Groups,
etc.) to understand which political coalition (and wich person) could obtain a
majority in the Parliament and the confidence. In this case there are formal
consultation at Quirinale Palace.
Finally the Head of State verbally charges a person to form a Government that will
be able to obtain a vote of confidence
Formation of the Government. Second stage
• This stage open with the appointment of Ministers: the charged President of the
Council prepares the list of the names, proposes it to the Head of State, who signs
the official decree appointing them to office
• Article 93 It. Const.: “The President of the Council of Ministers and the Ministers,
before entering on their duties, shall be sworn in by the President of the
Republic”.
• Once the Government gives its oath, it may excercise its functions, waiting for
the vote of confidence.
• Article 94: “1. The Government must have the confidence of both Chambers. 2.
Each Chamber accords or withdraws its confidence through a motion that states
its reasons and which is voted on by a roll-call. 3. Within ten days of its formation,
the Government shall come before the Chambers to obtain their confidence”.

The time lapse between the oath and the vote
of confidence
• The Government holds office but doesn’t have the confidence yet
• The Government is fully in charge but should avoid taking important
policy decisions, because in case of no-confidence the Government is
obliged to resign
• At the same time the Government has governmental powers and
obligations and in cases of necessity and urgency may adopt
provisional measures having force of law too
• Not only «current business»
Formation of the Government: when?
• At the biginning of the legislature because of Parliament’s term had
expired (five years)
• When there is a crisis of Government:
1) there is a no confidence vote from the Parliament to the Government
(in Italian experience: almost never)
2) there is an anticipated dissolution of the Parliament (and so new
election)
3) Government resigns (in italian experience: very often)
• in the Italian Republican experience only twice a government has had
the duration of the entire legislature

A complex question:
• The President of Italian Republic is obliged or not to dissolve the Parliament if

there is a crisis of Government which makes it impossible to re-form the political
majority with the same political forces or the same coalition which had obtained
the majority of the votes in the last parliamentary election?
• In 1995 and 2011 the Head of State refused to dissolve the Parliament even if it
was impossible to re-form the majority (because one of the Parties defected from
the coalition) and appointed a new Government with a new coalition (among
other forces) that obtained the confidence from the Parliament

A complex question:
• If the President of the Republic can refuse the appointment of a Minister
for his political ideas
• In a Parliamentary system, those political ideas will be checked and

eventually approved by Parliament in the moment of the vote of
confidence
• Eventually unconstitutional measure (not simple economic theory or idea)

will find controls and sanctions in Parliament, Constitutional Court, Judicial
power, the same President of the Republic and frequently before European
Courts
The principle of monocratic leadership of the President of
the Council of Ministers
• Article 95:
• The President of the Council directs the general policy of the
Government and is responsible for it. He maintains the unity in
political and administrative policies, promoting and coordinating the
activity of the Ministers.
• He/she has a position of supremacy but the President is not able to
appoint and revoke Ministers of his Government

Law no. 400/1988
Regulation of Government Activities
and the Presidency of the Council of Ministers
• The President of the Council has the power to

represent the entire Government
• The President of the Council has the power to

promote and coordinate the activities of the
Government

The principle of collegiality
• The Council of the Ministers determines the general policy of the

Government
• legislative initiative
• competence in adoption of decrees and law decrees
• Presentation of the budges and final balance to Parliament
• Substitutive powers over sub-statal entities
• Resolve any conflict of attribution between Ministers

Principle of individual responsability of Ministers
• Each Minister is head of an administrative structure that carries out

the funcions and oversees the policy area attributed him by law
(minister of Health, Minister of Justice, Minister of the Interior)
• Each Minister could receive an individual vote of no confidence
• If a Minister resigns there are two possibility: he is replaced or the
President of the Council replaces his/her functions. But the
resignation would lead to a crisis of Government

Relationship with Parliament
The relationship of confidence is the core of the Parliamentary form of
government. The policy is determined both by the Parliament and the
Government
The instrument the Government has available:
• Power to adopt law decrees and legislative decrees and approve
regulations
• Power to direct State admnistration activities to implement the
programme
• Power to influence parliamentary activity both in its planning and in
its actual legislative iter

Government’s instruments to influence
parliamentary activities
• Parliamentary standing orders guarantee the Government a

definitive period of time in which examine bills it proposes for
carrying out its programme
• No more the principle of unanimity in setting Parliament’s agenda: in
the Chamber of Deputies the agenda is approved with the three
quarters of presidents of parliamentary groups; in the Senate by the
Conference of Parliamentary Groups and the Speaker

Government’s decisional power in
sensitive sectors
• Foreign policy (relationship with other nations). International agreements are
negotiated by the Government (the law authorises the ratification) or sometimes
directly stipulated by the Government
• Military policy (article 78: “The Chambers decide on states of war and confer the
necessary powers on the Government”
• Intelligence and security powers (to protect democratic institutions)
• Economy and finance power: the Government presents to the Parliament the
Financial System Stability Assestment
• EU policy: the Government represents the Italian State in the Council of the
European Union

The vote of confidence
• The Government may request to Parliament a specific vote of
confidence, for one law suggested by the Government, because of
its importance or because the G. is afraid it will not able to garner
enough political consensus otherwise.
• In this way the Government forces the political majority to support it
• A parliamentary vote of no confidence means the Government must
resign

Motion of no confidence
• Even if the Parliament voted the starting/initial vote of confidence to
the Government, the Parliament may always vote a no confidence
vote presenting a motion.
• This motion needs one-tenth of the members of either Chamber
• At least three days must pass before it can be discussed in Parliament
• Motion of confidence requires open voting

Public Administration
• A body in service of the Government, instrumental in choosing
objectives in areas of public interest, in accordance with constitutional
principles
• While the legislative and judiciary branches only look after public
interests indirectly, administrative function produces concrete
provisions for citiziens
Example: the law determines how public health will operate; judiciary
ensures observance of that laws and public administration produces all
the measures and services which make it possible to access public health

Discretional power of public administration
• While the legislator has a large margin of self-determination and is
limited only by the Constitution (political power), the administrator
has the faculty to choose the way and the means to safeguard public
interests within the margin established by the law (discretional
power)
• The law determines public interests, objectives and then assigns a
public institution (State, Regions, local bodies) to achieve the
objectives

Art. 5 Const.: the principle of autonomy
• The Republic, one and indivisible, recognizes and promotes local
autonomies; implements in those services that depend on the State
the fullest measure of administrative decentralisation; and accords
the principles and methods of its legislation to the requirements of
autonomy and decentralisation.
• the principle of a. enables sub-state entities to choose their own
political orientation whithin the framework of the Constitution and
the state law

Art. 97: principles of efficiency and impartiality
• Public offices are organized according to law, so as to ensure
efficiency and impartiality of administration
• The law (primary source of law) determines geleral rules and the
secondary sources of law the organisational details
• Administrative measures that conflict with laws may be disapplied by
an ordinary judge or declared null by an administrative judge

Administrative procedure
• Law n. 241/1990: procedural principles valid for PA
• Trasparency (the procedure open to participation of subjects who

have a qualified interest in the administrative decision)
• Efficiency: little use of organisational and financial resources as

possible
Principles governing public administration:
principle of legality
• Any public power must be founded on legal provisions that create it

and establish its powers
• Public Administration can only act according to the law
• If not, judicial review

Principles governing public administration:
principle of impartiality
• Carefully pondering all the interests to be sacrificed on the way of
pursuing public interests
• Avoiding any discrimination in the choice of interests (unreasonable

preference for some interests to the detriment of others)
• Political neutrality of public officials, who are exclusively at the service

of the Nation
Principles governing public administration
• The principle of public competition for appointment to public
administration (art. 97.3 Cost.)
• The obligation of public officials to be at the sole service of the
Nation (art. 98.1 Cost.)
• Principle of responsibility: Officials and employees of the State and public
entities are directly responsible, according to criminal, civil and administrative
laws, for acts committed in violation of rights. In such cases the civil responsibility
extends to the State and the public entities (art. 28 Cost.)

Elements of administrative measures
(provvedimenti)
• Subject: the PA competent to adopt the decision

• Object: the thing or the person on whom the administrative measure
will produce its legal effects (ex. the expropriated land)
• The contents: what the act provide for (ex. hiring a public employee)
• The causa: the act’s institutional function or purpose
• The forma: it expresses the will of the Administration, usually written
Distinction between lawful rights and legitimate
interest
• A characteristic of italian administrative law, unique in the western
world
• The lawful right (ex.: right to property) is the full expression of law,
guaranteed erga omnes before the ordinary judges
• The legitimate interest is the right to annulment of the unlawful

administrative measure before the administrative court (ex: the
interest of a candidate partecipating in a public competition to have a
proper evaluation, without inequity)

Distinction between lawful rights and
legitimate interest
• Protection of rights and compensation for damages caused by private
citizens or Public Administration is before ordinary courts
• Protection against unlawful, disproportionate, unreasonable

administrative action is before the special judge for Administration:
administrative judge
• Two judicial circuits

Distinction between lawful rights and
legitimate interest
• Administrative courts of first instance (TAR) are established in each
Region; the Consiglio di Stato shall have appellate jurisdiction, as it is
the judicial body charged to oversee the legality of administrative
action
• Ordinary judges for civil and criminal matters

The President of the Republic
• The Head of the State in almost all contemporary systems represents
national unity, both externally and internally
His position differes, however, whether the legal system is a republic or

a monarchy (form of State)
… and the characteristics of its form of government

The Head of the State in Europe
• In Belgium, Great Britain, Luxembourg, Norway, The Netherlands, Spain and
Sweden, the Head of the State is a monarch. All those are democratic systems,
characterised by the principle of the division of powers (the monarchical power is
not absolute).
• His power is legitimised by hereditary right or by a popular election
• It dipends on the form of government:
1) presidential
2) semi-presidential
3) parliamentary

Head of State in presidential, semi-presidential and
parliamentary form of government
1) In presidential systems, the Head of the State is directly elected by the people
(USA) and he is also the Head of the Executive
2) In semi-presidential systems (France) the Head of the State is elected too, but
there is the distinct role of the Head of the Executive.
3) In parliamentary systems the Head of the State is excluded from the political
power circuit between Parliament and Government (confidence) and he is the
guardian of the Constitution, the balancer of the powers of State, the neutral
power, upholder of the State in moments of crisis. In those cases he is elected
by a representative college (Parliament in expecially composition)

The Head of the State in Italy
• The referendum of 2 June 1946 was in favour of the Republic
• The form of government, in the intentions of the members of the
Constituent Assembly, was parliamentary system (order of the day
Perassi)
• His role is regulated by constitutional norms, by constitutional
practices and habits and by the interpretation given to the role by the
various Italian Presidents of the Republic

Election of the Italian President of the Republic
• He is elected by the Parliament in joint session (Chamber of Deputies and Senate)
and in addition three delegates for each Region (except for Valle d’Aosta, which
has only a delegate). In that way his basis of legitimacy is extended and he could
better represents the national unity
• In order to avoid that the President could be the merely expression of the
parliamentary majority will, there is a rather high deliberative quorum (in the first
three ballots casts, is necessary the two thirds of the electors and from the forth
ballot onwards an absolute majority)
• The vote is secret (as is the rule in the Italian Constitution for all votes concerning
single individuals)

Art. 85 Cost
• The President of the Republic is elected for seven years. Thirty days
before the expiration of the term, the President of the Chamber of
Deputies (the Speaker) shall convene a joint session of Parliament and
the regional delegates to elect the new President of the Republic. If
the Houses are dissolved, or are to be dissolved within three months,
the election shall take place within fifteen days of the meeting of the
new Houses. In the intervening time the powers of the President are
prolonged.

Concerning legislative power
• Appoint five life senators

• Send messages to the Chambers
• Before promulgating the law, request a new deliberation regarding such
law
• Dissolve in advance the Chambers (he cannot exercise such power in the last six
months ohis term office, unless those six months coincide enterely or in part with the last
six months of the term office of the Chambers)
• Convene each Chamber for a special session
• Call the elections of the two Chambers and fix the date of their first
meeting
• Call referendum
• Promulgate laws
Art. 74
• Before promulgating a law, the President of the Republic, in a
message outlining his motives, may request a new debate of the
Houses. If the Houses once more pass the bill, it must be
promulgated.

Concerning executive power
• Appoint higher State officials
• Commander of the Armed forces
• Shall declare war when it has been resolved upon by Parliament
• Ratifies international treties
• Shall accredit and receive diplomatic representatives
• Shall authorise the submission to Parliament of bills proposed by the
Government
• Issues decrees having value of law and governmental regulations
• Shall confer the honours of the Republic
Concerning judicial powers
• Shall chair the Superior Council of Judiciary
• May grant pardons and commute punishments
• Appoint five judges to the Constitutional Court

Art. 89
• No act of the President of the Republic is valid if it is not signed by
the proposing Ministers, who assume responsibility for it. Acts that
have legislative value and those others laid down by law shall be
countersigned also by the President of the Council of Ministers.

Art. 90 Cost.
• The President of the Republic is not responsible for the acts
performed in the exercise of his duties, except for high treason or
plots against the Constitution. In such cases he is impeached by
Parliament in joint session, with an absolute majority of its members.

The Tripartition of Presidential Acts
• Formally presidencial acts which are substantively governmental
(acts having the force of law and governmental regulation, which take
form of a decree of the President of the Republic)
• Formally presidential acts which are also substatially presidential
(appointment of five constitutional judges and five life senators,
granting of presidential pardons, sending messages to the Chambers)
• Substantially complex acts (appointment of the President of the
Council of Ministers and early dissolution of the Chambers)

The Judiciary
• In It. Constitution: an autonomous and independent branch of
government not subject to any other (art. 104): independence of the
Judiciary
• The Fascist regime simply reinforced the model that already existed in
the liberal period, by subjecting the Judiciary to the executive power

Principle of a single judiciary and its exceptions
• The Constituent Assembly assigned judicial power only to ordinary
judges, who would act both as judges and public prosecutors
• Exceptions: Council of State (second instance) and Regional
AdministrativeTribunals (first instance) have jurisdiction on controversies
arising between citizens and public administration, and the protection
of legitimate interests.
• Court of Accounts: jurisdiction over public accounts and pensions

Principle of functional independence of the judge
• Art. 101 It. Const.: «Judges shall be subject only to the law» (not be
subject to other powers, as the Executive). They shall obey the law
(act by the Parliament). Separation of powers
• Art. 106 It. Const.: «Members of the Judiciary are appoited on the
basis of public competitive state examinations»
• Art. 107: «Judges shall be distinguished by function only». The
Judiciary does not have a pyramidal organisational structure

The Superior Council of the Judiciary
• The ordinary Judiciary’s self-governing body
• composed by (one third) «lay members», appointed by Parliament
and (two-thirds) «gowned members», elected by and among ordinary
judges
• Art. 105 It. Const.: «The CSM has the sole right to appoint, assign,
move and promote members of Judiciary and take disciplinary actions
against them».

The Superior Council of the Judiciary
• To protect the autonomy and independence of the ordinary
judges from other powers of the State, especially the
executive power
• To administer the activities affecting the professional career

Constitutional Principles of Judicial Process:
the Fair Trial Clause (art. 111 Const.)
• In 1999 Constitutional Amendment Law n. 2 introduced that principle, inspired by
the same principles as those provided for by art. 6 of the 1950 European
Convention on Human Rights (ECHR), ratified by Italy in 1955.
• Impartial third party status of the judge
• Each trial shall be based upon the equal confrontation between parties: the
principle of confrontation, the basis for estabilishing proof in criminal trials
• Reasonable duration of the trial. On the contrary Italy has been condemned
numerous times by European Court of Human Rights for the excessive duration of
trials (violation to the right to a fair trial)

Constitutional Court in Italy
cortecostituzionale.it english text
• It is an «ad hoc» body (for the first time with Republican Const.), not
part of the Judiciary, with specific functions
• It is composed of 15 judges: five appointed by the Parliament in joint

session; five by the President of the Republic and five by the Supreme
Courts: Court of Cassation (Italy’s Supreme Court of ordinary
Judiciary’s system), Court of Accounts and Council of the State

Italian Constitutional Court Functions
• 1) the constitutional review of laws and acts having force of law
(legislative decrees and law decrees)
• 2) jurisdictional disputes between branches of government within
the State and jurisdictional disputes over the allocation of powers
between State and Regions
• 3) judgments concerning accusation against the President of the
Republic for high treason and attempting to overthrow the
Constitution
• 4) the power to decide the admissibility of referendum as provided
for by art. 75 of the Italian Constitution

Constitutional review
• Art. 134: The Constitutional Court shall decide: Controversies on the
constitutional validity of laws and acts having the force of law
adopted by the State and the Regions.
• The Constitutional Court stated that constitutional amendment laws can also be
the object of constitutional review.
• On the contrary, secondary sources of law, such as government regulations,
cannot come under review
• European law and parliamentary standing orders are also excluded

There are two proceedings to institute judicial review
before the Constitutional Court
• 1) Central Government and Regions could claim directly before the

Court (the Government may lodge a claim against a Regional law that
in its opinion is in conflict with the Constitution, and also the
opposite)
• 2) a judge could file a claim during a regular trial, if he/she doubts the
constitutionality of the law has to apply. In this case a citizen could
indirectly files a claim before the Court (if he or she is part of a trial
and if the judge agree with the party on the question of
unconstitutionality).

Indirect proceeding
• The question of unconstitutionality may be raised by one of the two
parties or ex officio by the judge
• The parties cannot file their claim directly with the Constitutional
Court: the review is incidental
• The judge has to verify that two conditions are met before
suspending the case and referring the issue to the Constitutional
Court, by an order
• 1) the question of unconstitutionality is relevant to the case
• 2) the question of unconstitutionality is not clearly unfounded

Direct proceeding
• Art. 127 It. Const.: The State and the Regions have sixty days
following the publication of the law in the Official Journal to lodge a
claim with the Constitutional Court
• by a complaint

Decision of the Court
• Judgment: a final and unappealable decision terminating the
proceeding.
• The decision taken by the Court is a comparative judgment on the
basis of which it compares the laws that are presumed to be
unconstitutional with the provisions of the Constitution that are
presumed to have been violated
• The judgments by which the C. Court declares a law unconstitutional
have general effect (erga omnes)

The parameter of judgment
• Constitution and constitutional law
• Sub-constitutional parameters indicated by the Constitution itself
• «Interposed parameters» between the act under scrutiny and the

Constitution: customary law, European directives, Concordat between
Italy and the Holy See

Fundamental Types of judgments
• Judgments of acceptance: judgments with which the Constitutional
Court accepts the question of unconstitutionality and declares the
challenged provision to be unconstitutional
• Judgments of dismissal: judgments with which the C. Court dismisses

the claim and rules that the law is not in contrast with the
Constitution

Types of judgments
1. Interpretative judgments: the Court declares the unconstitutionality of
a specific meaning of the provision: «the law is unconstitutional, in the part in
which it provides that…»
2. Manipulative judgments:
• Judgments of Partial Acceptance
• Substitutive judgments
• Additive judgments

Manipulative judgments
• The Court does not just declare the unconstitutionality but modifies
or integrates the challenged provision
• Considered by scholars an intereference on the part of the Court with

the legislative power of the Parliament
Resolution of Jurisdictional Disputes
• Disputies between branches of governement: «bodies that have the
competence to express the final will of the branches of government
they belong to». Disputies with a «constitutional tone»
• The notion of branch of government does not correspond to the
exercise of the conventional legislative, executive, and judicial functions,
but is more complex: President of the Republic, Superior Council of the
Judiciary…
• The object of the dispute may be administrative and judicial
• The Court will declare that function X shoud be exercise by body Y
• The Court may declare the annulment of the concrete act that
provoked the dispute

Resolution of disputies between the State and
the Regions
• Usually the object of the conflict is an administrative act
• The President of the Council of Ministers will file the claim on behalf of the State,
while the President of the Region will file the claim on behalf of the Region
• The claim has to be lodged with the Constitutional Court within sixty days of the
publication (or notification) of the act that caused the dispute
• The Court will resolve the dispute by declaring who competence belongs to (the
State or the Region) with consequent annulment of the disputed act

Impeachment of the President of the Republic
(it never happened)
• It. Const. states (art. 134) that Constitutional Court shall decide on accusations
made against the President of the Republic
• The President of the Republic is not responsible for acts carried out in the
exercise of his duties, save in case of high treason or attempts to overthrow the
Constitution
• The impeachment procedure is divided into two phases: the first stage in joint
session of the Parliament (the overall majority of members must vote in favour of
impeachment), the second one before the Constitutional Court (in this case the
Court shall comprise sixteen additional members, who shall be drawn by lot from
a list of citizens elected by Parliament every nine years)

Judgment of ammissibility of abrogative
referendums
• It is a fourth function assigned to the Court by Const. Law 1/1953: the
Court will decide whether requests to hold an abrogative referendum,
as provided for by art. 75 Const., are admissible
• The function of the Court is to ensure that the referendum request

does not violate one of the limits of admissibility contained in art. 75,
and in the case law of the Constitutional Court itself

Sources of law
Difference between:
• Sources on production: rules on the production of law: they indicate
the competent authority to deliberate law and the procedure
• Sorces of cognizance
• Sources producing law or sources of production
The Italian Constitution indicates which sources produce law and the
so-called primary sources, which, in turn, regulate inferior or so-called
secondary sources.
Pyramid: Constitution, primary and secondary sources of law

Sources of law: acts and facts
• An act is a law if it is adopted during the exercise of power conferred
to a competent body by Constitution, following the rules on
procedure and substance, established by law
• Facts and traditional customs may have legal effect if:

• behaviour remain unchanged over the passage of time
• Perception that certain social behaviour is obligatory and if not
respected, is punishable

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European and Italian Public Law

Prof.ssa Giovanna Razzano

• Introduction to Italian Public • P. Costanzo L. Mezzetti A. Ruggeri,

• The slides projected during the

European and Italian Public Law Giovanna Razzano Pagina 2

Oral test (in presence or remote, it depends on the

European and Italian Public Law Giovanna Razzano Pagina 4

• What is the difference between Law and Right?

• What is the task of Politics?

• positive law: (lat. positum= established)

European and Italian Public Law Giovanna Razzano 6

• Plato connects human laws and human justice (nomos) to a nature

• the government that exceeds its attributions or usurps the attributions

• the tyrant justifies disobedience

• lex iniusta non est lex (‘unjust law is not law’)

• Justifies both, since it is a foundational and a critical theory

• As a critical theory, it justifies civil disobedience when positive law

European and Italian Public Law Giovanna Razzano 12

• Where: in Europe and North America

• What: West constitutions and international declarations recognize

• for instance Italian Constitution, art. 2: «The Republic recognizes and

• Law is a general word and its meaning usually is referred to a legal

• Justice has a meaning related with philosophy and especially with

• There is a link between law, right and philosophy

• The basis of a just legal system in human nature, in reason not in a

• Santi Romano (Italy) and Maurice Hauriou (France): institutionalistic

European and Italian Public Law Giovanna Razzano Pagina 16

• It can be defined as a concentrated legal system, territorial in nature,

• According to the democratic constitutionalist theories (Nineteenth

• Principles refer to the fundamental ethical and moral choices of a society

• The principles of the Constitution have an «elastic» formulation open to possible

European and Italian Public Law Giovanna Razzano 18

• Principles as means to reach goals or objectives, which are the values

• The specific principles largely shared by a society, influence the

• The Constitution is the central fulcrum in which principles are ordered

• They are legal norms of superior level respect to a simple law:

• They have a greater degree of generality than other norms

• A fundamental nucleus of constitutional principles that deserve

• There are also no written principles, that can be inferred by the

• In the experience there are many legal systems

• not only the State:

• The European Union (EU)

• The European Convention on Human Rights (ECHR)

• Relationship qualified by norms

• Political power and authority within the group

• Coercion to ensure legitimate exercise of power: sanctions,

European and Italian Public Law Giovanna Razzano Pagina 24

European and Italian Public Law Giovanna Razzano Pagina 25

• Internally: the State power is not limited but rather unconditional:

European and Italian Public Law Giovanna Razzano Pagina 26

Sovereignty belongs to the people, which exercises it in the

European and Italian Public Law Giovanna Razzano 27

• Convention of Montego Bay (Jamaica)1982 on the Law of the Sea:

• The territory is the area in which legal norms are applicable

European and Italian Public Law

• Those who are governed/governed ones

• Between Eighteenth and Nineteenth centuries, American and French

• Theory of the people as creator of State’s will (citizen not a passive

European and Italian Public Law Giovanna Razzano Pagina 29

European and Italian Public Law Giovanna Razzano Pagina 30

European and Italian Public Law Giovanna Razzano Pagina 31

The development into the contemporary State model follows a long

• In the Middle Ages the organization of the feudal system was