[lesson 1]

WHAT IS A CONSTITUTION?
is the highest law, the basic law of the country according to the German definition, so it is also the basis and foundation
of other laws, it is what legitimate other laws.. It is a set of fundamental principles. A constitution regulates the
interactions between the state and the citizens and provides the basics to understand and respect these relations. → !!! it
does not only apply to citizens but also to foreigners!!!
So, it gives the basic rules concerning how we treat common goods. Modern constitutions are divided in 2:
 a general part concerning people
 a second part concerning the organizations of the state
The Constitution according to the USA is defined as the supreme law of the land. As Kelsen said that the constitution
is something else, but as Kelsen passed, we can consider that he was intending the constitution. 
(Human rights: are those included into international treaties. Fundamental rights: those recognised by a constitution.)
For example, the UK has a customary constitution => the constitution here is intended as a concept, and it is not
written down but developed customarily. So, a set of legal customs that establish how the queen or the king is chosen
and the relations of them with the parliament. 
The constitution is not always and necessarily a document, because if it was so, then the UK would not have a
constitution as it does not have a written constitution. Normally, it is a text but more than that it is a concept, so our goal
is to detail the content of the concept of constitution. 
The contents are many and also different, mainly the contents of the constitutions are:
1. it provides a definition of public power and the institution that exercises the public power. When we say
define, we are meaning that there are limitations, we are putting borders to it. So, we refer to both the content
of the structure of the public power but also to the limits of the public power. Historically, one of the first goals
of constitutional law was to establish the limits of the exercise of public power. 
0. sub-content: the constitution also defines how the public power is legitimately exercised. It refers to
the relations between the public powers, between the public power and citizens and institutions.
Public power is legitimate as far as it is elected in a democratic way. So, we have to analyze how the
electoral system works. We also have to keep in mind the division of powers. 
2. the setting of a list of fundamental rights belonging to  the community and for the foreigners staying in the
territory. The limitation of public power not only passes through the separation of powers through institutions
but also there is the division on how they treat people. The constitution is considered to be setting the basic
values / principles of the identity of the community. It is quite common to mention the famous preamble of the
constitution of the USA (“we, the people”), however rights were only added to the constitution with further
amendments, They wanted to create a common ground to establish the identity of the community. → the
constitution is a document providing a form of identity of the nation. 
3. the constitution is the supreme law of a state, it has the highest value within the system of the norms. It is also
the document that establishes how the other norms are established and adopted. 
4. judicial superiority: it establishes a way to enforce its superiority, normally it establishes a supreme court that
among others has the competence that the constitution is respected and not contradicted by others.  

:) THE DEFINITION AND LIMITATION OF PUBLIC POWER: it is one of the most important and historical content
of the constitution. It was issued a constitutional document in which for the first time we can identify a clear definition
and limitation of public power with the separation of power. → in order to be well defined and limited, the power
cannot be concentrated in just the hands of one person but must be divided into different powers and between these a
balance would be created in order for them to be limited. The basic idea is that each power balances and limits the other
powers. 
The idea is that the public powers are divided among the parliament and the lords (search article in UK, art.6?). 
In modern times, the idea of the division of powers took the form that we know today with Montesquieu. → the
executive, judicial and  legislative.
1. legislative: entrusted with the adoption of legislation and assigned to the parliament, so there would be a
popular representation with the creation of laws
2. executive: it was the power that in monarchy remained in the hands of the king or in the hands of his prime
minister, then it is the power given to the president. It is the power of the government. 
3. judicial: it was given to the judicial body, a very first case of the independence of this power happened with . It
is the power to apply the law.
The legislative and the executive power are those powers that exercise the will of the government, the relationship
between these two powers generates what we call forms of government. 
These create the forms of government: parliamentary, presidential and semi-presidential:
1. parliamentary: is one of the first that emerged, UK historically the powers were in the hands of the king, the
general idea was that the kind was directly chosen by God. The UK was one of the first states in the world that
tried to limit the absolute powers of the king in very ancient times, already in 1563 the idea of parliament
began to be born. WHO APPOINTS WHO? => the king (the head of the state)  appoints the prime minister
 (the head of the government) but in order for the prime minister to exercise his powers, he should have the
approval of the parliament (elected by popular vote)→ this is the core idea of the parliament system.  so, three
organs: head of state, parliament (elected by people) and government (is voted non-directly). So, the head of
state is mainly a figure whose powers are mainly constitutional.   In the parliamentary system the legislative
power is in the hands of the parliament, so the government can propose laws to the parliament and it has to
accept them or reject them. Another important power that the head of the state has is to sign the laws passed by
the parliament. And if the head of state finds that something is wrong with the law or something in contrast
with the constitution, he has the power to send the power back to revision. If the government really wants a
law to pass, it presents it to the parliament and the government specifies that the decision of the parliament on
that law will be non confident, if you do not approve this project I will take the vote as non confident towards
the government and we will resign. WHAT IF THE HEAD OF STATE DOES NOT FIND SOMEONE THAT
THE PARLIAMENT ACCEPT? => the only solution would be to call the popular vote from the population, so
the parliament and the government loses because they would not be the ones to choose the prime minister, but
the population would. (British, Italian and many more systems, however each system has its particularity, like
the fact that not all system is a monarchy)
The prime minister can be chosen between the members of the parliament. 
1. presidential: this system was born in the USA. HOW DOES IT WORK?: here both the parliament and the
head of the state are elected, and here the head of state is also the head of the government. This means that they
have direct legitimacy by popular vote, so he does not need the confidence and he elects the secretary of the
government. The parliament is the congress which is divided into 2 houses:
1. the Senate
2. the House of Representative 
The legislative power belongs to the congress, the executive power belongs to the head of the state. 
The American system has become very common in the world. 
1. semi-presidential: it only works in France, it is a mix of the parliamentary and presidential system. In this
system, the head of the state and the prime minister are two different persons, but people elect both the
parliament and the president directly, then the parliament gives its confidence to the prime minister. Given that
the elections do not happen on the same day, it is possible that the political party of the president is not the
political party that has the majority of the Parliament, so it is not necessarily the same political party. → this
situation is called cohabitation. Both of them are given a very important political role, in many cases they are
part of the same party but it is not necessary. The president is the most important figure in this system. The
constitution establishes the competences of these two political figures. The laws are signed by the president,
both the president and the prime minister can propose laws to the Parliament. The prime minister cannot be a
member of the parliament. 

There is then ISRAEL, which is another experience called semi-parliamentary. → the system is a parliamentary
system but with one exception: when the parliament resignt he confidence to the government, automatically new
elections of the parliaments are called, while in normal parliamentary system, when this happens the head of state looks
for another prime minister that could have the confidence of the parliament. 
We have to remember, though, that in every country the parliamentary and the presidential systems can be adapted in
different ways like they could be adapted to a monarchy or to a Republic and so on. 
[lecture 3]
We consider the public power legitimate if it was founded on some sort of popular consent and the way to give the
public power its popular consent is the electoral system = it always existed in many different contexts. The idea that the
elections should be free and universal is quite recent. —> this implies that we have to establish an electoral system,
there are some main forms of electoral systems:
1. Plurality: the main idea of this system was that whoever takes more votes, passes the elections.—> “First the
past the post”. The idea is: people that are allowed to participate in the elections, in different groups based on
territories, the sections were created as many as the individuals that are allowed to vote. Inside each group, the
person that gets more votes, gets elected. But it is not necessary that i get the absolute majority, so the
consequence is that it will be very probable that there would be only 2 candidates, while the others will create a
sort of alliance and choose a person to represent them. —> preferred by the big political forces. 
2. Majoritarian: the difference with the plurality is that the candidate that gets elected has to have 50% + 1 of
the votes. If no one achieves this, we would have round 2 in which the person who gets the most votes will be
elected. 
3. Proportional: the idea is that if we have to elect a general assembly of 100 representatives, we will have
different parties running for the position and people would vote for the candidate they most like. The one with
35% of the vote will get 35% seats in the assembly and so on. The debate arises when we have to decide how
to elect an assembly, normally there are those who are in favor to use the polarity system and those who would
be in favor to use the proportional system. —> preferred by the small political forces because it implements a
better representation. 
The presidential system uses the plurality system while the parliament system uses the proportional system
In Italy we usually tend to do a mix of systems, normally there is always some percentage that is proportional and some
percentage that is plural. 
CATALOG OF RIGHTS: 
There is a difference between: 
 Human rights: those protected at international level by international systems —> a matter of international law.
There are some international organizations which are meant to protect those human rights. 
 Fundamental rights: those protected by some natural constitutions —> a matter of constitutional law. Some
states do not recognize some fundamental rights, so human rights are needed. (?) They do not belong only to
constitutions, but it is very common for constitutions to establish rights for foreign people in the country. Other
kinds of fundamental rights like the right to political participation are restricted only to the citizens of that
particular state. 
Another difference between rights, refers to the content of the rights, we have to talk about the idea of generation of
rights: it was introduced in 1977 by K. VASAK => he was a jurist from Poland. 
He actually identified rights into 3 generations which can be called generation because not only those categories are
different in the content but also different because different content of rights present themselves in different steps in the
evolution of legal history. =>      1° generation
1. Civil rights / liberty rights / negative rights: they are called negative because these are rights against what the
state can do, so they are limitations to the power of the state. So, nobody, not even the state can limit these
powers. —> they are individual rights. The first generation of rights was not limited to this, there was another
category of rights—>
2. Political rights: normally, I was entitled to have freedom rights and political rights. These rights are the right
to elect and the right of being elected. One of the first documents to establish these rights in our legal tradition
was the MAGNA CHARTA  LIBERTATUM established in England in 1215. 
The 2° generation:
1. Social rights: the main characteristics are positive: meaning that the state can make some positive efforts in
order to guarantee the welfare of its citizens. The idea of social rights is strictly connected to the idea of
welfare states. One of the examples of this is the difference between health and healthcare, the state cannot
poison me, cannot do something to harm me, but this is health. When we talk about health care we have to add
to this concept the fact that the state has to positively provide some services in order to guarantee my welfare
even if I have no money to guarantee it on my own. —> also these rights are individuals, everyone has the
right to get some welfare treaties from the state.  WEIMAR CONSTITUTION: was the very first example of a
constitution that has a social impact, it was of 1919.
The 3° generation:
1. Collective rights: the community has the rights. This category was established in 1977, after WWII.
Minorities began to be protected by collective rights. The basic idea that I must be treated the same way you
are treated belongs to the first generation, but the idea that the group which I belong cannot be discriminated
against is an idea of the third generation. 
After VASAK, different scholars pointed out that there were other generations after the third, it goes up until the
seventh, but we have a problem. —> different scholars recognized the evolution after Vasak in different ways, WHAT
KIND OF RIGHTS WERE PRESENTED AFTER 1977?: ex.: the right of digital identity, the right for me to have an
identity on the internet is a new kind of right, it does not fit in the 3 groups of generations. Or environmental rights,
these cannot be qualified in the three generations groups of rights, indeed they are not even “human”. If we are starting
to think that environment and animals have rights, we are no longer talking about human rights, so there would be
another generation but it would not be a human one, while the three generations of rights created by Vasak were all
humans.
[lecture 4, 11/03]
ENVIRONMENTAL RIGHTS
Do we respect these because it is my property and I have responsibility or because if I do not respect these then I might
be destroying the feeding of other people?
The argument concerning the future generations as a reason to protect the environment is used quite a lot. Future
generations can be considered as part of the third generation of rights (collective). Saying that next generations have
rights we are addressing to unborn people, hypothetical being. Are we including the right to generate new beings in a
future time? this is the right to reproduce safely, which means that this aims to protect rights of individuals.
The state imposing limitations to rights in order to preserve the common good is quite accepted and acceptable.
Protection of environment is connected with protection of indigenous communities, for which the environment is very
important. It is like a mother for them especially. Holistic perspective.
In some constitutions, there are articles that recognize the rights of nature. These are not human rights.
All three generations of rights have as direct or indirect subject human beings. For the first time in the new generation
of nature rights human beings aren’t mentioned as subjects. Rights are given to them because they are rational beings.
Possibility to recognize rights and duties to machines and artificial intelligences. Rights of non-human beings.
BEGINNING OF THE CONSTITUTION
A constitution is capable of giving an identity to a community and recognize the basic traits that it gives to that
community.
The constitution is a document that establishes and founds a new nation. The first one used was the one of USA.
Nation and state are two different things. The state composed by different organs is the form through which the power is
exercised. It is the formalized organization of power. The nation is a substantial concept regarding social community
underlying the organization of a state. In the modern age we have the idea of national states  correspondence
between nation and state leads to the idea that for a state there is a nation.
Pluractional states include different nations among themselves. They recognized indigenous communities as nations
within a state. Ex: Bolivia is a state but recognizes different nations in its borders.
Nation
Substantial community underlying a state. Why do people belong to communities? Because they share common values
and choose to be a part of a community, or the parents belong to that community, and I decide to be a part of that nation
too.
Ius sanguinis  citizenship of parents
Ius soli  citizenship of the place where I was born.