Issue N.1 of 2018 January / March

Simposi

  • Sabino Cassese «The Great Voices from Afar»: Constituent Ideals and Constitutional Norms Abstract

    Abstract

     

    In these introductory pages, salient aspects of the long preparatory works
    on the Constitution are explored, highlighting the significance of the examination
    of cultural sources and of the constituent ideals registered within the
    constitutional norms, which are the subject of the contributions published in
    this special issue of the Rivista.

  • Chiara Giorgi The Principle of Equality: Political Cultures and Constitutional Debate Abstract

    Abstract

    Equality assumed constitutional status with its enshrining in Article 3, paragraphs 1 and 2. This constitutional principle of equality was elaborated by prominent Socialist, Catholic and Communist figures in the Constituent Assembly, who drew upon their own experiences and reflections as well as on the debate surrounding the Beveridge Report. The article aims to retrace the dynamics of both of these developments, illustrating the main sources of inspiration of the new principle of substantial equality.

  • Fulvio Cortese Education and the Italian Constitution: Roots, Topics and Outcomes Abstract

    Abstract

     

     

    The article aims to provide an overview of the Italian Constituent Assembly’s debate on education, school and teaching. The first part describes the political and cultural roots of the Italian pedagogical debate and the positions expressed in the Assembly by its most significant political and intellectual members. This discussion highlights both the central role played by the resolution of the historical problem of the legal position of confessional
    schools in Italy, and the influence that this theme had on the possibility to deal with many other related aspects. The second part of the article highlights how the interpretation of the Constitution’s provisions on education illustrates the original weakness of the constitutional compromise.

  • Maurizio Cau Between Discontinuities and Survival. The Legacy of Corporatism in Constituent Culture Abstract

    Abstract

    The end of the Fascist regime led to the decline of the corporative model, one of the core structures upon which Fascist propaganda and institutional revolution had developed. Unanimously condemned, corporatism was quickly erased from public discourse, but continued to influence political life and legal thought in Italy throughout the late 1940s. On one hand, it bore a negative influence, representing an anti-model within the definition of new democratic structures; on the other, some of the reasons for its creation continued to reverberate in the republican context. Corporatism arose before the advent of Fascism, and some of the cultural elements that had fostered its development (especially Catholic culture) enabled the partial perpetuation of the reflection on corporatism, albeit completely breaking it away from Fascism. An analysis of the programmatic frame of some political parties (Dc and Msi) and of some parts of the Constituent Assembly’s debate (the proposal of a Senate of interests, the foundation of the Cnel, the definition of the republican model of the trade union) allows us to retrace some elements of the corporatist
    discourse of the years following World War II.

  • Leonardo Pompeo D'Alessandro Management Boards: the Aspirations of the Resistance and Constitutional Norms Abstract

    Abstract

    The issue of workers’ participation in company management reached the Constituent Assembly after a period of renewed centrality during the Resistance, when, in an attempt to create a new model of economic development, it was decided to establish management boards. The theme was at the core of the political, legal and economic debate throughout the transition to republican democracy, becoming one of the unsolved problems of the intense period of institutional renewal that characterized the early postwar years. The article reconstructs how the subject was elaborated by the political cultures and social forces at the time, and the steps leading to its introduction into the Constitution by means of Article 46.

     

  • Nicola Giovanni Cezzi Liberalism and Economic Planning in Italian Constituent Culture Abstract

    Abstract

    In studying the Italian constitutional culture on economic planning, the context (here, the years between 1943 and 1948), which was characterized by the contingencies of a wartime economy and the rediscovery of political freedom, requires a prior examination of the term «planning» meant in political debates. On one hand, it could indicate the interventions to support reconstruction; on another, the elaboration of multi-year strategic plans; on yet another, the rationalization of the long-standing presence of the State in the Italian economy. Similar definitional problems arise with regard to the conception of liberalism advanced from time to time: orthodox liberalism, neoliberalism, social-liberalism, third ways, a mixed system, etc. The following summary lines can be traced: in the Socialist-Communist context, the initial display of moderation (expressed especially in terms of the priority granted to political liberty) was replaced, once the Constitution was approved, with sharp opposition, with strong criticism of how the tools for planning had been perverted. On the neo-liberal side, the orthodoxy expressed through the polemics on even the mere use of the word «planning» gave way, once the constitutional text was endorsed, to a complete absence of any embarrassment in admitting the tool. In the political middle ground, the Christian Democratic ideals on the balances between market and public power remained steadfast.

     

     

  • Massimiliano Gregorio Disciplining Parties: Constitutional Cultures Compared Abstract

    Abstract

    The constitutional role of political parties is one of the most typical features of the European constitutions of the second half of the twentieth century, requiring the elaboration of a constitutional notion of the political party. This article therefore aims to examine this conceptual elaboration in Italy, in the years between 1943 and 1948, beginning with the constitutional theories of the late 1930s and ending with the work of the Constituent Assembly. In that debate, which was not straightforward and whose outcome was far from obvious, both jurists and the parties themselves took part, displaying however different approaches and—more importantly—different constitutional cultures.

     

  • Marco Macchia The «unstable» foundations of constitutional bicameralism Abstract

    Abstract

    This article aims to describe how the two-chamber solution developed and the reasons for its establishment, to shed light on the historical roots of this institutional framework. Three phases are identified: the pre-constituent debate, the ideas contained in the documents of the Ministry for the Constituent Assembly on the structure of the legislative chambers, and finally the work of the Constituent Assembly itself. The institutional solution of equal and perfect bicameralism, unique in the European constitutional scene, is not particularly systematic. The attempt to provide a rational foundation for bicameralism is difficult: indeed, it is a two-chamber parliament, but it is unicameral in functional terms because the chambers are undifferentiated; ultimately, it was reached because of the cross-vetoes opposed by the parties. Indeed, each mutually feared each other’s victory and deep divisions ran between the political forces.

     

  • Giulio M. Salerno The Figure and Role of the Head of State in the Prerepublican Debate (1943-1947) Abstract

    Abstract

    With regard to the figure of the Head of State, this article analyzes, first of all, the positions that emerged during the public discussions held between the fall of Fascism in 1943 to the institutional referendum of 1946, especially among the political forces. Next, the article examines the most significant contributions provided by the members of the Constituent Assembly, to understand the opinions and the interpretative options characterizing the Constituent Assembly’s approach to the role of the Head of State. In terms of perspective, the considerations expressed by the Constituent Assembly on the role are compared with the actual development of the office.

     

  • Rita Perez The «Nightmare of the Dictatorship of the Past» and Trust in the Government Abstract

    Abstract

    The article traces the development of the Parliamentary motion of confidence in the Italian legal system. The motion, as a tool for regulating relations between the Parliament and the Government, gradually acquired constitutional significance, even without any written provisions to the effect, as early as 1848. The twenty years of Fascism and the consequent suppression of the Parliament mark a point of arrest in the development of the Parliamentary motion of confidence. When the Fascist regime fell, decreto legge luogotenenziale («lieutenant law decree») no. 98/1946 (second provisional Constitution) regulated, for the first time, the Parliamentary motion of confidence and its procedures. The motion was subsequently approved by the Constituent Assembly, thereby becoming part of the Italian Constitution.

  • Guido Melis Before and After the Constituent Assembly: the Weak Government Abstract

    Abstract

    The word «Government», understood as institution, is not used in the Statuto Albertino. It began to appear in scholarly debate at the end of the 1800s, influenced by other European models. The First World War was the era of «leading governments». The reform magnified the Presidency of the Council, with the Parliament becoming relegated to the sidelines. During the years before the Constituent Assembly, the topic re-emerged, but only in a marginal way. In 1944, and again in 1945, Vezio Crisafulli wrote that the pre-Constitution regime suffered from a defect in legitimation, because the Government ruled without a Parliament. Giorgio Amendola believed that such legitimation could be found in the C.L.N. However, the Constituent Assembly left this idea aside. Calamandrei considered the introduction of a strong government, which would be balanced by local autonomies. Among the Socialists, Massimo Severo Giannini was the only one to also consider the government’s apparatus, that is the public administration. The Catholics mostly ignored the question of the government. Within the Constituent Assembly, two concerns prevailed: first, to avoid government instability, and at the same time, to avoid the risk of a tyrannical government from developing.

  • Antonella Meniconi Towards the Independence of the Judiciary (1944-1948) Abstract

    Abstract

    The long-standing history of the judiciary, of which the so-called «Grandi » law of 1941 was the epilogue, left the new democratic state, in its transition from Fascism to democracy, with a problematic legacy. The Italian Constitution was, in general, the result of a convergence between Catholics, Communists and Socialists; however, on the theme of justice, an important exception may be identified. Indeed, in this field, the contribution of experts such as Piero Calamandrei, who had elaborated his own conception of self-government as early as 1921, and the role of the high judiciary, which influenced the work of the Constituent Assembly at different stages, were decisive. The final text reflected the judiciary’s attainment of autonomy, while remanding the question of its full independence to the future.

Articles

  • Sabino Cassese The Alternate Fortunes of «L’Ordinamento giuridico» by Santi Romano Abstract

    Abstract

    «L’Ordinamento giuridico» by Santi Romano is a work that, as may be known, has earned its author great success posthumously; however, it should not be forgotten that the book was initially met with silence and much criticism. Today, it is possible to recognize that this work, far from being a contribution of general theory as defined by Romano himself and later, partly so, by Giannini, is a key with which to read historical phenomena steeped in ideological value, and at the same time, a polemic move against the purism of his day. In addition, it is an attempt to draw different areas of public law back to unity, while also making it independent of private law. All these observations explain why this work has always had, for better or for worse, great influence both on numerous Italian scholars and abroad, although it received only a late recognition.

     

Bibliographic review

Vincenzo DI CATALDO, A che cosa serve il diritto, Bologna, il Mulino, 170 p.,
ISBN: 9788815273840 (Elisa D’Alterio)

Vittorio COCO, Polizie speciali. Dal fascismo alla repubblica, Roma-Bari,
Laterza, 2017, 219 p., ISBN: 9788858129135 (Guido Melis)

Sergio LUBELLO, La lingua del diritto e dell’amministrazione, Bologna, il
Mulino, 2017, 271 p., ISBN: 9788815265449 (Hilde Caroli Casavola)

Katalin KELEMEN, Judicial Dissent in European Constitutional Court. A Comparative
and Legal Perspective, Routledge, Oxford-New York, 2018, 207
p., ISBN: 9781472482235 (Aldo Sandulli)

Ronald C. KEITH, Zhiqiu LIN e Shumei HOU, China’s Supreme Court, Londra
e New York, Routledge, 2016, 227 p., ISBN: 9781138657175 (Giorgio Mocavini)

 

Note bibliografiche a cura di Francesco Albisinni, Hilde Caroli Casavola, Bruno Carotti, Sveva Del Gatto, Fabio Di Cristina, Rita Perez, Giuseppe Sciascia, Giulio Vesperini

 

 

News

 

A Conference on Actuality of the Constituent Work (Vicenzo Desantis)

A meeting on «Public law and private law in public administration» (Ludovica
Sacchi)

A Conference on Public Management at Luiss University (Simone Neri)

The General States of the Landscape (Michele Bray)

The Legal Regime of Motorways (Alessandra Salvato)