From a constitutional standpoint, a lot of water has passed under the bridge since the first edition of this textbook was published a decade ago. After the fall of the fourth Berlusconi Government in November 2011 Italy has had five prime ministers. The fifth, the incumbent Prof. Giuseppe Conte, presides over a "Yellow-Green" coalition composed of the Five Star Movement and the Lega, an utter novelty for the Italian political system that has led many observers to claim that Italy has entered its "Third Republic". A recent attempt to reform the Constitution under the Renzi Administration was soundly defeated in a referendum on 4 December 2016. In the meantime, since 2008, Parliament's electoral law has been changed four times either by laws approved by Parliament or by judgments of unconstitutionality handed down by the Constitutional Court thus leaving comparative constitutionalists across the globe in no doubt that Italy has become the fatherland of "electoral engineering". One could continue for several pages with a chronicle of constitutional events that have occurred over the last ten years, but what one should be left in no doubt about is that a new edition of Introduction to Italian Public Law was long overdue. Each chapter has not only been updated, but the authors have also taken into account the precious feedback of thousands of students that have studied this book over the years.
PREFACE 2nd EDITION p. XIII
PREFACE 1st EDITION » XV
CHAPTER ONE
CHARACTERISTICS OF THE STATE
Giuseppe Franco Ferrari
1. Nature and Categories of Legal Systems p. 1
2. Legal and Non-legal Norms: Structure and Relationship » 4
3. The State: Constitutive Elements and Brief Historical Outline » 6
4. Values and Principles » 9
5. People » 11
6. Citizenship » 14
7. Territory » 16
CHAPTER TWO
TRENDS IN THE DEVELOPMENT OF THE ITALIAN STATE
Giuseppe Franco Ferrari
1. Premise p. 21
2. Globalisation and Multi-level Constitutionalism » 24
3. State and International Law: Alternative Solutions and the Italian
Option » 26
4. The European Legal Order and its Historical Development » 27
CHAPTER THREE
FORMS OF STATE AND FORMS OF GOVERNMENT
Justin Orlando Frosini
1. Terminological Premise p. 33
2. Forms of State and Forms of Government: Historical Aspects and
Development p. 34
1. The Feudal Society – 2. The Absolute State – 3. The Liberal
State – 4. The Democratic Pluralistic State – 5. Alternatives to
the democratic pluralistic state – 5.1. Totalitarian and Authoritarian
States – 5.2. The Socialist – State
3. Unitary, Federal and Regional States » 41
1. Allocation of Legislative Power – 2. Allocation of Judicial
Power – 3. Representation in the Upper House – 4. Constitutional
Amendment Powers – 5. Statutes of Autonomy or
Constitutions? – 6. No Decentralisation without Taxation?
4. Forms of Government: a Synchronic Analysis » 46
1. Parliamentary Executive – 2. Presidential Executive – 3.
Directorial Executive – 4. Semi-presidential Executive
CHAPTER FOUR
PARLIAMENT
Lorenzo Cuocolo
1. The Structure: “Perfect Bicameralism†p. 55
2. Distinguishing Features of the Chamber of Deputies and the
Senate » 57
3. Electoral Systems, Incompatibility, Inelectibility and Checks on
Powers » 59
4. The Status of Members of Parliament » 62
5. Parliament’s Autonomous Powers » 64
6. Internal Organisation of the Chambers of Parliament » 65
7. Joint Sessions of Parliament » 68
8. The Functions of Parliament » 68
CHAPTER FIVE
THE GOVERNMENT
Antonello Tarzia
1. Historical Profile of the Parliamentary System p. 71
2. The Government in the Italian Constitution: Structure, Formation,
Organisational Principles and Functions » 73
1. Formation Procedure – 2. Bodies, Organisational Principles
and Functions – 3. Non-necessary Governmental Bodies
3. Relationship with Parliament » 86
4. Auxiliary Bodies » 88
CHAPTER SIX
PUBLIC ADMINISTRATION
Antonello Tarzia
1. Introduction: Administration and “funzione amministrativa†p. 93
2. Constitutional principles on Administration » 96
1. “Diritti soggettiviâ€, “interessi legittimi†and Judicial Review
3. Administrative measures » 102
1. Features of the administrative measures – 2. Administrative
measures other than “provvedimenti†– 3. Elements of the
administrative measures
4. Administrative procedure » 105
5. Illegality » 107
1. Non-existence and nullity of administrative measures – 2.
Voidability (“annullabilità â€) – 3. Mere irregularities – 4. Special
powers of the Administration to grant administrative
remedies by itself
6. Review of invalid administrative measures » 113
1. Appeals before the Administration (“ricorsi amministrativiâ€)
– 2. Appeals before the courts
7. Changes in the administrative system » 114
1. Decentralisation and the Reform of Title V, Part II of the
Constitution – 2. Independent Authorities and Administrative
Agencies – 3. Administrative simplification
CHAPTER SEVEN
THE REGIONS
Lorenzo Cuocolo
1. Autonomous Territories in the Italian Constitution p. 117
2. Special Regions » 118
3. Ordinary Regions and the Initial Development of Italian
Regionalism » 119
4. Waves of Constitutional Reform: the Reform of 1999 » 121
5. The Reform of 2001 » 124
6. Regional Financial Autonomy » 128
7. Regional Organisation » 129
8. Local Government » 131
9. Requirements of Loyal Cooperation in the New Multi-centred
System » 133
CHAPTER EIGHT
THE PRESIDENT OF THE REPUBLIC
Oreste Pollicino
1. The Role of the President in a Comparative Context p. 135
2. The Role of the President of the Republic under the Italian
Constitution » 137
3. Subjective Requirements, Election and Term of Office » 138
4. Classification of the Key Constitutional Attributes of the President
of the Republic in Relation to the Powers of the Italian State » 141
5. The Tripartition of Presidential Acts » 142
1. Formally Presidential Acts which are Substantively Governmental
– 2. Formally Presidential Acts which are also Substantively
Presidential – 2.1. Appointment of Five Constitutional
Judges and Five Life Senators – 2.2. The Granting of Pardons
and the Commuting of Punishments – 2.3. Request for a New
Deliberation of a Law – 2.4. The Sending of Messages to the
Chambers and the Power to Express Opinions – 3. Substantively
Complex Acts – 3.1. Appointment of the President of the
Council of Ministers – 3.2. Early Dissolution of the Chambers
6. Irresponsibility of the President of the Republic: the Ministerial
Countersignature » 150
7. Presidential Offences » 152
CHAPTER NINE
THE JUDICIARY
Oreste Pollicino
1. Autonomy of the Judiciary: Innovativeness of the Constitution p. 153
2. The “Single Judiciary†Principle and its Exceptions: Special
Judiciary » 154
3. Principle of Functional Independence » 156
4. Institutional Independence of the Ordinary Judiciary: the Superior
Council of the Judiciary » 158
1. Institutional Independence of the Special Judiciary
5. Constitutional Principles of Judicial Process » 161
6. Organisation of the Ordinary Jurisdiction: Judging Magistrates
and Public Prosecutor » 162
1. Public Prosecutor
7. Liability of the Judiciary » 165
CHAPTER TEN
CONSTITUTIONAL JUSTICE
Justin Orlando Frosini
1. Terminological Premise p. 167
2. Models of Constitutional Review » 168
1. The Genesis of Judicial Review: Dr Bonham’s Case – 2. The
US Model of Constitutional Review – 3. The Austrian Model
of Constitutional Review
3. Structure, Composition and Appointment of Constitutional or
Supreme Courts » 171
4. The Salient Features of Constitutional Review » 172
1. What Constitutional Body carries out Constitutional Review?
– 2. When is Review carried out? – 3. How can a
Constitutional Petition be lodged with a Constitutional or
Supreme Court? – 4. What Types of Decision can be Taken? –
5. What Effects do the Decisions of Constitutional or Supreme
Courts have? – 6. Other Functions of Constitutional or Supreme
Courts
5. Composition, Functioning and Jurisdiction of the Italian Constitutional
Court » 178
6. Constitutional Review in Italy » 179
1. Justiciable Acts – 2. The parameter of judgment 3. The
Proceedings – 3.1. The Incidenter Proceedings – 3.2. The
Principaliter Proceedings – 3.3. A Third Proceeding? Constitutional
Review of the Statutes of the Ordinary Regions – 4.
The Types of Decision 4.1. Decisions of Inadmissibility – 4.2.
Judgments of Acceptance and Dismissal – 4.3. Interpretative
Judgments – 4.4. Manipulative judgments – 4.4.1. Judgments of
Partial Acceptance – 4.4.2. Substitutive Judgments – 4.4.3.
Additive Judgments – 4.4. Exhortative Judgments
7. The other functions of the Italian Constitutional Court » 190
1. Resolution of jurisdictional disputes – 1.1. Resolution of
jurisdictional disputes between branches of government – 1.2.
Resolution of jurisdictional disputes between the State and the
Regions – 2. Impeachment of the President of the Republic – 3.
Judgment of Admissibility of Abrogative Referendums
CHAPTER ELEVEN
ITALIAN SOURCES OF LAW
Arianna Vedaschi
1. Sources of Law Deriving from Forms of Government and Forms
of State p. 195
1. Sources Related to Production and Sources of Production – 2.
Sources of Cognizance – 3. Acts and Facts
2. Interpretation » 197
3. Conflicts and Techniques of Resolution p. 198
1. Criterion of Chronology – 2. Criterion of Hierarchy – 3.
Criterion of Competence – 4. Criterion of Specialisation
4. Constitutional Statutory Limits » 200
5. Types of National Sources » 201
6. Constitutional Sources » 202
1. Constitution – 2. Constitutional Amendment Laws – 3.
Procedure
7. Primary Sources » 205
1. Ordinary State law – 1.1. Procedure – 1.1.1. Who has
legislative Initiative? – 1.1.2. Exercise of Legislative Initiative
– 1.1.3. Deliberation – 1.1.4. Integration of Effectiveness – 2.
Acts having Force of Law – 2.1. Legislative Decrees – 2.2. Law
Decrees – 3. Forms of Anomalous Delegation – 4. Abrogative
Referendum – 4.1. Procedure – 5. Rules of Constitutional
Bodies – 5.1. Parliamentary Standing Orders – 5.2. Rules of
Other Constitutional Bodies
8. Secondary Law Sources » 216
1. Government Regulations
CHAPTER TWELVE
REGIONAL AND LOCAL GOVERNMENT SOURCES OF LAW
Arianna Vedaschi
1. Regional Autonomy and the System of Legal Sources p. 219
1. Statutes of Regions with Special Forms of Autonomy and
so-called Statutory Laws – 2. Statutes of Regions with Ordinary
Forms of Autonomy – 2.1. Procedure – 2.2. Position in the
System of Legal Sources
2. Legislative Power: Regional Laws » 222
1. Procedure – 2. Legislative Power of Regions with Special
Forms of Autonomy
3. Regional Regulatory Power » 224
4. Local Autonomy and the System of Legal Sources » 225
1. Statutes – 2. Regulations
CHAPTER THIRTEEN
EUROPEAN SOURCES OF LAW AND THEIR RELATIONSHIP
WITH DOMESTIC SOURCES OF LAW
Arianna Vedaschi
1. Law of the European Union: Principle Distinctions p. 229
1. Primary and Secondary Sources of Law – 2. Principle of
Attribution and Principle of Subsidiarity
2. Types of Sources of Law p. 231
1. Non-binding Acts: Recommendations and Opinions – 2.
Binding Acts: Regulations, Directives and Decisions – 3. Soft
Law
3. Relationship between European Law and Italian Law » 234
1. Influence of Primary Sources of European law – 2. Influence
of Secondary Sources of European Law: Directives – 3. Influence
of Secondary Sources of European law: Regulations
CHAPTER FOURTEEN
FUNDAMENTAL RIGHTS AND FREEDOMS
Giuseppe Franco Ferrari
1. Historical Perspective: Rights and the Evolution of Constitutionalism
p. 239
2. Generations of Rights » 241
3. Individual Rights » 243
1. Personal Freedom and Related Elements – 2. Personal
Domicile – 3. Freedom of Correspondence and Information – 4.
Freedom of Movement, Residence and Expatriation
4. Rights of the Public Sphere » 246
1. Freedom of Assembly – 2. Freedom of Association – 3.
Freedom of Religion and Creed – 4. Freedom of Expression
5. Social Rights » 251
1. Education – 2. Healthcare – 3. Welfare – 4. Housing
6. Economic Rights » 254
1. Right to Property – 2. Freedom of Enterprise – 3. The
Market and Competition – 4. Trade Union Rights
7. Political Rights » 257
8. Constitutional Duties » 259
LIST OF CONTRIBUTORS p. 261
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