Public Law Second Part PDF

**Public Law** Prof.ssa Tania Groppi Summary of Second part of the Course **Chapter 7 -- Forms of Government** *Definition and History* The "form of government" describes how political power is shared among a country's main institutions and how they interact. It defines who decides on public po...

**Public Law** Prof.ssa Tania Groppi Summary of Second part of the Course **Chapter 7 -- Forms of Government** *Definition and History* The "form of government" describes how political power is shared among a country's main institutions and how they interact. It defines who decides on public policies, aiming to achieve specific goals, while the Constitution sets limits to prevent excessive power in anyone branch of government.\ This ensures that Parliament and the Government follow rules and respect constitutional goals, but still have the freedom to schedule and balance priorities as needed. To classify different forms of government, scholars look at constitutional rules, additional regulations (like electoral laws), and actual practices. The idea of a form of government depends on separating powers, meaning that legislative, executive and judicial roles are distinct. If all powers were concentrated in one body, the form of government would simply mirror itself. Historically, the first significant form of government was the constitutional monarchy, which emerged in the United Kingdom in the late 17^th^ century, with the king sharing power with Parliament and independent judges. This form reflected the separation of powers: the monarch and Parliament jointly influenced political decisions, but they had different bases of legitimacy (the monarch by dynasty and the Parliament by election). Initially, voting was limited to a small number of citizens. In continental Europe, similar shifts took longer. Monarchs in countries like France, Belgium and Germany began sharing executive power with a government, through ministers answered to the king, not Parliament. Legislative power was with Parliament, but the monarch could veto laws.\ Parliaments often had two chambers, one elected and one appointed by the king. Judicial independence was limited, as the judiciary typically operated under royal influence. This historical evolution set the foundation for modern constitutional governments with a separation of powers. *Box 27 -- "Government"* *In English, the word "Government" can mean different things:\ Sometimes "Government" refers to all parts of the State, like when we say "federal government" or "regional government". However, in this book, the term "State" will be used instead for this meaning.\ "Government" can also mean the main institutions that set the political direction for the State. This is the meaning used when discussing "Forms of Government" in this chapter.\ Finally, "Government" often refers specifically to the part of the State that has executive power, often called the "Cabinet" in parliamentary systems. In Italy, this includes the Council of Ministers, the Individual Ministers and the President of the Council of Ministers.* *The Parliamentary form of Government* The parliamentary form of government evolved from the constitutional monarchy and is defined by a relationship of trust between the Government and the Parliament. There are five key points to remember: 1. Independence from Monarchy: overtime, the government gained independence from the monarchy and became accountable to Parliament Instead. This shift started in Britain, where the Prime Minister's role began during the reign of King George I when he stopped attending cabinet meetings. A leading minister took over as coordinator eventually becoming known as the Prime Minister. 2. Dual Confidence: initially, the government needed the trust of both the monarch and Parliament. However, as voting right expanded, the monarch's power faded, and the government's confidence depended solely on Parliament. This British idea that "the King reigns but does not rule" emerged, meaning the monarch held ceremonial roles but didn't control policies. 3. Challenges with Broader Representation: in the 19^th^ century, as voting rights expanded and political diversity grew, Parliaments reflected a broader range of social issues, which made it harder for governments to remain stable. 4. "Rationalized" Parliamentarism: some countries, starting with Austria in 1920, began to formalize (or "rationalize") these relationships in written constitutions to improve stability. For example, Germany and Spain gave more power to their Prime Ministers (premiership or chancellorship) by allowing them to manage minister appointments and dismissals and introduced rules like the "constructive vote of no-confidence", where the Parliament could only replace the Prime Minister (or better, the government) if elected a new one at the same time. 5. Impact of Party Systems: the stability of parliamentary governments depends on the party structure. In systems with two main parties, governments tend to be stable and effective. In contrast, multi-party systems often lead to weaker governments because they rely on coalitions, which can make decision-making and stability more challenging. *The Presidential form of Government* The presidential form of government was first introduced in the United States in the late 18^th^ century, based on a strict separation of powers. Here are its key features: - Single Executive Leader: the President is both the Head of State and Head of Government, elected directly by the people, giving them democratic legitimacy and independence from Parliament (congress). This differs from parliamentary systems where the government needs Parliament's approval. - No confidence Requirement: because the President is elected by the people, there is no need for a "vote of confidence" from Congress, and the President cannot dissolve Congress before its term ends. - Checks and Balances: the system is designed to balance power between the President and Congress, preventing abuses. For example: congress can investigate government actions and impeach officials, including the President, if they are guilty of serious crimes. Senate approval is required for important appointments, such as Supreme Court of Justice. - Presidential Veto: the president can veto laws passed by Congress, but Congress can override this veto with a large majority. - "Divided Government" and "Lame Duck": when congress is controlled by a different political party than the President, it can be hard for the President to pass policies. In these cases, the government can become "stuck", similar to parliamentary systems with weak leadership.\ On the contrary, the expression "Imperial Presidency" refers to a coincidence of two majorities. - Global Influence: the US presidential model has inspired other countries, especially in Latin America, Africa, Asia. However, in many places, it has been modified, sometimes leading to a concentration of power in the President's hands, called "hyper-presidentialism", which has led to authoritarian governments in some cases. *The Semi-Presidential form of Government* The semi-presidential form of government combines elements from both parliamentary and presidential systems, aiming to balance the power between Parliament and a strong executive. Here's a breakdown of its main features. - Dual Executive Structure: in this system, there are two main leaders- the president, who is directly appointed by the people and holds significant executive power, and a Prime Minister, who leads a Cabinet that is accountable to Parliament. - Flexible Balance of Power: the President and Prime Minister share power, but the influence of each can shift. If the President's political party also controls Parliament, they hold more power. However, if the President faces an opposing majority in Parliament (a situation called "cohabitation"), the functioning of the system can get stuck because of tension between the two bodies and the role of the president is considerably weakened. - French Model: France's fifth republic, established in 1958, is a well-known example of semi-presidentialism. The French President has substantial authority, appointing Prime Minister, directing foreign policy and even dissolving Parliament under certain conditions. - Global Influence: Inspired by France's success, many countries have adopted the semi-presidential system, including Portugal and several nations in Eastern and Central Europe. In summary, the semi-presidential system provides a flexible way to balance executive power, adapting to political changes and preventing excessive dominance by either the Parliament or the President. *The Directorial form of Government* The directorial form of government distributes power among a small group rather than placing it in a single monocratic figure of constitutional standing.\ Key features include: - No Single Leader: there is no central figure like a president or prime minister. Instead, executive power is shared by a group (a "Directory" or "council"), avoiding concentration of power in one person. - Shared Responsibilities: in this system, political power is divided between an elected (by universal suffrage) Parliament and a council that acts as both the government and the head of State. - Swiss Model: Switzerland is a modern example of this system. Its Federal Council, made up of seven members elected by Parliament, shares power equally and cannot be dismissed by Parliament. The Swiss system is unique because of the country's small size, diverse communities, and strong use of referendums, which make this model less suited for larger or more complex democracies In summary, the directorial system emphasizes shared executive power and suits nations with strong traditions of direct democracy. *The Prime Ministerial Form of Government* The "Prime Ministerial" or "Neo-Parliamentary" government model is a hybrid system where the Head of the Executive is elected directly but still depends on the confidence of the legislature.\ In this system, if either the Head of the Executive or the legislature loses stability, both must resign, triggering new elections for both (aut simul stabunt, aut simul cadent).\ This model was first tried in Israel in 1992, however, due to different factors Israel switched back to a parliamentary system in 2001.\ In Italy a similar model was introduce in 1993 for Municipalities and Provinces, later for Regions. *Electoral Systems and Forms of Government* The way a government operates is closely linked to its political system, which is largely shaped by electoral laws. These laws determine how people choose their representatives, with the electoral system being the method that turns votes into seats. Thera are two main types of electoral systems: 1. Majority System: the candidate with the most votes in a small district wins all its seats. This approach tends to produce clear majorities, making It easier to form stable governments. However, it often leaves out smaller parties, which can oversimplify political representation and discourage participation. 2. Proportional System: seats are divided among parties based on their share of the vote in larger districts with multiple seats. This system better represents diverse political views but often requires coalition governments, which can be unstable and vulnerable to small parties influencing decisions. To balance these effects, as a result of electoral engineering, many countries use hybrid systems that combine elements of both. For instance, Italy has used systems that add "thresholds" (minimum vote percentages) to limit very small parties or a "majority bonus" to give extra seats to the leading party. While these methods aim to improve stability, they can sometimes be misused by ruling parties to hold onto power, especially in times when democratic principles are weakening. **Chapter 8 -- The Italian form of Government** *The Origins: from the Kingdom of Italy to Fascism* In the 19^th^ century, Italy's government evolved much like other European monarchies. Starting with a constitutional government, Italy became a parliamentary system by 1861. This meant that the elected Chamber of Deputies had a say in who could be appointed as a government leader. However, during major political crises, the king took back some control, such as in 1922 when he appointed Mussolini after the "March on Rome" and again in 1943 when he accepted Mussolini's forced resignation. Until 1919, Italy's government wasn't heavily affected by its election system, as voting was restricted, and Parliament mainly represented elites. Over time, reforms brought universal male suffrage in 1919, allowing broader public participation. This shift led to the rise of "mass-based political parties", like the Catholic and Socialist parties, and the introduction of a new proportional voting system. In a context of governmental instability, between 1919 and 1922, the Fascist Party, though initially holding few seats, gained power through Mussolini's appointment in 1922. Once in power, Mussolini's Fascist government introduced the "Legge Acerbo", a new election law then used in the 1924 elections that granted two-thirds of seats to the party with most votes, as long as it received at least 25% of the national votes. This law allowed the Fascists to dominate Parliament, pushing Italy towards an authoritarian regime. *The Parliamentary Form of Government in the Constitution* When Italy's new government was being planned, a parliamentary system was the clear choice. This was already set in motion by a temporary 1946 law (the Provisional Constitution, adopted during the so called "transition period") and was strongly supported by Italy's main political parties (the Communists, Socialists and Catholics). The constituents recognized that political fragmentation had led to instability in the Kingdom of Italy, which eventually allowed Fascism to take power. To prevent a repeat of what happened, they approved a proposal to adopt a parliamentary system but aimed to include some rules to keep Parliament from becoming too divided and ineffective.\ However, these checks were minimal, making Italy's parliamentary system less strictly regulated (compared to Germany or Spain) as stated In Art. 94 of the Italian Constitution which regulates the relationship of confidence between the Government and Parliament. That's why the Italian form of Government is defined as a weakly rationalised parliamentary form of government. The main parties wanted an election system that supported democracy and allowed for a variety of political views. They chose a proportional voting system, which matched the one used to elect the Constituent Assembly. This choice reflected their desire to restore Parliament's importance after years of Fascist rule, which had concentrated power in the government. Lawmakers (the constituents) decided not to make the proportional voting system a fixed part of the Constitution, though they included several rules in the Constitution that show a preference for it. This left room for potential future adjustments to the election system. *1948-1994: "First Republic"?* In Italy's first election after the new Constitution (1948), the Christian Democrats (DC) won nearly half the votes, beating a Communist-Socialist alliance. Seeing the votes, Italy was a polarized, two-sided political system (DC and Communists and Socialists with 31% of votes). To secure their hold on power, the ruling parties passed the "Cheating Law" in 1953, promising a bonus of extra seats to any party coalition with the most votes. However, in the 1953 election, the coalition led by the Christian Democrats narrowly missed the threshold, so the law's bonus wasn't applied and was quickly repealed, returning Italy to a proportional system. For the next four decades, Italy's government remained unstable, with frequent changes; 42 Governments in just nine legislative sessions. Government crises were never the result of a parliamentary vote of no-confidence, but always took on an extra-parliamentary dimension. Italy became known for its extreme multiparty system. Both far-left (communist) and far-right (neo-fascist) parties were kept out of governing coalitions, leaving the center (DC) to work with shifting minor partners. Starting in the 1980s, attempts to stabilize the government by reforming the political system repeatedly failed. With the end of the Cold War, communist parties became more viable in Italian politics. Meanwhile, a major corruption scandal ("the "Clean Hands" operation) exposed widespread corruption in the long-ruling parties (financed by entrepreneurs) which led to the collapse of the "First Republic". *After 1994: "Second Republic"* Major changes begin: Italy's political system, characterized during the 11^th^ legislature by the appointment of "technical" governments, underwent a complete transformation.\ Two referendums (1992, 1993) pushed for reforms to the 1948 electoral laws, leading Parliament to pass a new mixed electoral system (called the "Mattarellum"). This system combined majority voting for three-quarters of seats with proportional representation for the rest. The new system encouraged a more two-party structure, with elections in 1994, 1996 and 2001 leading to clearer political majorities. However, political parties became too personalized, small parties had veto power and there was no way to ensure a stable government through each legislative term. The lack of an actual majoritarian and bipolar turn clear all the limitations of using electoral systems as instruments to affect the functioning of the form of Government. Seeking stability, Parliament introduce Law no. 270/2005 that returned to a proportional system with adjustments, including thresholds for small parties and variable majority prizes.\ The Law applied differently for Chamber and Senate, the majority bonus was awarded nationally for the Chamber and regionally for the Senate. Elections in 2006 and 2008 showed the continued trend towards bipolarism. However, the 2013 elections introduced a more fragmented political scene with three main coalitions, leading to frequent breakdowns in alliances and breakdowns, comporting significant party switching by members of Parliament known as "crossing the floor". *The Electoral Law no. 165/2017 and recent political developments in Italy* In Italy the 2005 electoral system was found unconstitutional by the Constitutional Court in 2014.\ The Court ruled that two parts of this system were against the constitution: the majority prize, which gave extra seats to the leading party in both the Chamber of Deputies and the Senate, and the blocked electoral lists, which prevented voters from choosing individual candidates. In Judgment no. 1/2024, Italy's Constitutional Court ruled that the majority prizes in the electoral system were unconstitutional. Although meant to promote government stability, these prizes unfairly limited Parliament's representativeness and voter choice, as they lacked a minimum threshold for awarding extra seats and could create different majorities in the two chambers. The Court also criticized blocked electoral lists for not allowing voters to pick specific candidates. In response, Parliament introduced a new electoral law, known as "Italicum" (no. 52/2015), focused only on the Chamber of Deputies. Italicum was later reviewed by the Court, which found parts of it unconstitutional in 2017, specifically concerning the runoff voting and rules for multiple candidacies. After the Italian Constitutional Court declared the previous electoral system unconstitutional, Parliament enacted the "Rosatellum Law" (no. 165/2017), a mixed electoral system that applies to both legislative chambers with minor adjustments. In this system, roughly a third of seats are awarded through a majority while the rest are assigned through proportional representation across larger districts. A 2020 reform reduced the total seats in both chamber (400 in the Chamber of Deputies and 200 in the Senate), leading to adjustments in district sizes. Each voter has one ballot paper for the elections. To limit excessive fragmentation, the Rosatellum law set threshold of 3% for single parties and 10% for coalitions (as long as one coalition party meets 3%). The law also mandates gender balance, requiring no more than 60% of candidates to be of one gender, aiming to increase female representation. In the 2018 elections, this system resulted in a tripartite division: two main coalitions (center-right and center-left) and the Five Star Movement (Movimento Cinque Stelle). Forming a government was challenging due to this split, ultimately leading to a coalition between the Five Star Movement and the League (La Lega), with Giuseppe Conte as Prime Minister. However, political differences soon led to Conte's resignation for two time in a row.\ During the COVID-19 pandemic, a "technical" government presided by Mario Draghi was established. The government was called to manage the crisis and above all its economic consequences. Once again, because of internal problems, the Government resigned. In the 2022 elections, the center-right coalition won a majority of seats, despite not having a majority of the popular vote, due to Rosatellum's majority-leaning structure. **Chapter 9 -- The Political institutions of Representative Democracy in Italy** *Background: The Political Institutions* In Italy's parliamentary system, the power to make political decisions is divided among several institutions: the Parliament, the Government and the President of the Republic. Each plays a distinctive role: - Parliament: is the legislative body (made from Senators and Deputies). - Government: responsible for implementing laws and managing the country's day-to-day operations. - President of the Republic: has a unique role, balancing between political influence and ensuring constitutional order. This position isn't easy to categorize because the President acts as both a decision-maker in certain situations and a safeguard for a constitutional stability. *The Parliament* In Italy, Parliament is the main legislative body of the State, responsible for making laws. It has two parts, known as bicameral system: 1. Chamber of Deputies 2. Senate of the Republic Both chambers have equal power, meaning they must agree on legislation for it to pass and are both elected by direct universal suffrage. This setup is called a "perfect bicameral system". The Chamber of Deputies has 400 members, and the Senate has 200, following a recent reform in 2020. Voters for both chambers must be now at least 18 years old.\ To be elected, candidates must be at least 25 for the Chamber of Deputies and 40 for the Senate. Members of the Chamber of Deputies are elected based on a national vote.\ Members of the Senate are elected based on regional votes, through this primary affects how voting districts are organized. Both chambers have the same powers (with minor differences) and both have a five-year term. The President of the Republic can appoint up to five lifetime senators who have made significant contributions to Italy. Former Presidents of the Republic automatically become lifetime senators unless they decline. While the Constitution outlines Parliament's basic structure and rules, each chamber sets its own detailed procedures, like internal regulations, to manage its daily operations. *Box 29* *The autonomy of the Chambers in Italy's Parliament allows them to govern themselves independently, protecting them from interference by other branches of the government. This autonomy includes several key prerogatives or special powers that were originally created to shield the Parliament from control by the monarchy or government.\ Today, however, these powers are sometimes seen as outdated "privileges" that could conflict with the rule of law.\ So, as said, each chamber has the power to set its own internal rules and procedures, they control the election and disqualification of their members without outside interference.\ Members have certain protections, such as indemnity (protection from being sued for actions in Parliament) and inviolability (protection from certain legal actions).\ Law enforcement cannot enter Parliament buildings without permission from the Chambers.\ The Chambers furthermore control their own budget and decide how to use their funds without oversight from outside bodies.\ A unique aspect of this autonomy is "autodichia" or "domestic jurisdiction", which means that any internal disputes (such as employment issues) are resolved by internal bodies within each Chamber.\ This principle prevents the Judiciary from intervening in Parliament's internal matters. However, this self-contained system raises concerns about the potential impact on individual rights and is debated as possibly limiting fairness.* The Constitution sets some rules for how Italy's two parliamentary Chambers are organized and operate: 1. Term of office: each chamber has a maximum term of five years, known as a "legislature", from its first meeting to its natural end. However, the President of the Republic can dissolve Parliament early, ending the legislature sooner. This power can't be used during the last six months of the President's term, a period known as the "white semester". 2. Open Sessions: sessions are generally open to the public, who can attend by sitting in galleries. The proceedings are also recorded and published online. However, each Chamber can decide to hold a closed session If necessary. 3. There are also some Quorum Requirements: a majority of members must be present for any session or vote to be valid. Decisions usually need a simple majority (more than half of the present) to pass, unless the Constitution requires a higher threshold, known as "qualified majority". 4. Parliament in Joint Session: sometimes, both Chambers meet together as a single body to perform specific constitutional duties. This joint body includes all Members of Parliament and has the following key functions:\ - Electing the President of The Republic; Art. 83.1\ - Attending the President's swearing-in ceremony; Art. 91\ - Electing one-third of the members of the Constitutional Court and the High Council of the Judiciary; Art. 104.4\ - Impeaching the President of the Republic if needed; Art. 90.2\ - Selecting citizens to join the Constitutional Court members in the President's impeachment trial. Art. 135.7 5. Leadership and Location: the President of the Chamber of Deputies presides over the joint sessions, which are held in the Chamber of Deputies' building and follow its rules. *Organization of the Chambers* The Italian Parliament is made up to Chambers, each with a structured internal organization to help them work independently and effectively. Pursuing to Art. 63.1, when sitting for the first time after its election, each Chamber elects a President who represents the Chamber, oversees its operations, maintains order and its chair's office.\ For both chambers, qualified majorities are required in the first ballots. For the president's election, the Chambers attempt to achieve a broad consensus among political parties. If this fails, a simple majority vote is used. The President's first task is to represent the Chamber and express its will. He also directs the working of the chamber, to ensure that assembly carries out its functions properly and that the internal administration runs correctly.\ They work with leaders of various Parliamentary Groups to set the Chamber's definition of the calendar of business and decide on the priority of issues to be discussed. Members of Parliament must join a Parliamentary Group, which can function as political parties or factions pursuing their own interests.\ Members who do not choose a group are placed in a "Mixed Group".\ Groups need a minimum number of members, currently 20 Deputies and 6 Senators, with some reductions starting from the next legislature. The Conference of Parliamentary Group Leaders is made up of leaders from all Parliamentary Groups, organizes the work agenda for each Chamber and allocates time for parliamentary activities. Moreover, there are different type of Committees: 1. Standing Committees: permanent bodies whose members are appointed by each chamber in a number that reflect the size of each parliamentary groups. They all focus on different sectors. 2. Special Committees: these are temporary "ad hoc" committees formed to review specific bills. They may be established in one or both Chambers. 3. Committees of Enquiry: these are committees with investigative powers to examine public issues, similar to a court, but without making final judgments. Bodies appointed by one or by both Chambers. 4. Select Committees: permanent committees focused on maintaining the Chamber's internal rules and independence. Examples include the Committee on Rules and the Committee for Elections and Parliamentary Immunity, which addresses judiciary regulations for actions involving MPs, like searches or arrest.\ This structure allows the Italian Parliament to manage its responsibilities, address public concerns and maintain legislative independence. 1. Legislative Function: the set of activities through which the parliament produces or helps produce legal norms.\ Pursuing to Art. 70, the Parliament crates laws and other legal rules, this process is shared by both Chambers.\ Pursuing to Art. 138, the Parliament can also amend the Constitution, following specific procedures.\ Pursuing to Art. 64.1, each Chamber follows its own internal rules to organize and function effectively. 2. Political Direction: this function is exercised with the Government.\ The Constitution requires the Government to have the vote of confidence of both Chambers.\ Parliament uses motions, resolutions, and recommendations to guide the government.\ \ Motions are documents concerning all or certain aspects of the government's action. The document is discussed and then a decision is taken, whether to approve, reject or modify the document. If the vote is approved, the government is politically obligated to follow it.\ Two key examples are the motion of confidence and the motion of no confidence.\ \ Resolutions are similar to motions, these are often proposed by a single member and provide the government with guidance on certain issues.\ \ Recommendations accompany main documents like bills and clarify how the government should interpret or apply them. 3. Information and Control: parliament monitors government actions and gathers information using: - Interrogations: formal questions for the government to explain its decisions or plans, often on important issues. These are submitted and discussed in the assembly. - Questions: these are similar to interrogations but less formal, allowing any MP (Member of the Parliament) to request information from a government minister (such as a taken action or a specific subject). - Question Time: these are scheduled sessions for MPs to ask immediate questions to government members, introduced as part of reforms in the 1980s. According to Art. 82 each Chamber may conduct enquiries on matters of public interest (appointing the already said Chamber of Enquiry).\ Furthermore, Permanent Committees can hold hearings with Members of the Government to seek clarification on administrative and policy issues. *The Government* The Italian Government is the main body responsible for guiding and implementing the country's political direction and overseeing state administration. It is made up of three organs defined by Art 92.1 of the Constitution: President of the Council of Ministers, Ministers, Council of Ministers (both President and Ministers). These said bodies are necessary, others may be created but are considered "unnecessary" therefore are not stated in the Constitution. The role of the Government is to develop a policy plan that reflects the majority in Parliament, aiming to address the priorities of the people.\ The Government creates and enacts laws, regulations and policies to carry out its program.\ The Government ensures that public administration meets the goals set in its plans. The Council of Ministers, led by the President of the Council, is responsible for setting the Government's general policies and deciding on key issues, like bills or seeking vote of confidence from Parliament.\ Meetings are formally led by the President but may include informal discussions.\ The president oversees government policy and ensures consistency across different ministries but does not have formal power over the other Ministers (cannot fire them).\ The President advises the President of the Republic on Ministerial appointments and is tasked with coordinating activities among the Ministers to keep policies aligned.\ Each Minister typically heads a specific sector (health or education), managing its administration. Ministers without a ministry still hold certain responsibilities given by the President of the Council. *Formation and Accountability of the Government* The Italian Constitution gives only a brief outline for forming a government, stating that the President of the Republic "shall appoint the President of the Council of Ministers..." as said in Art. 92.\ However, nothing is stated about how the President comes to appoint the President of the Council of ministers. In the Traditional Process of Government Formation, when Italy used a proportional voting system, the President of the Republic played a larger role in picking a suitable candidate to leads as President of the Council.\ This was done through consultations with political and social leaders, including former presidents, heads of Parliament, party leaders and sometimes union and economic group representatives. In the Modern Process with Clearer Election Outcomes, since 1993, electoral reforms have created a more direct link between election results and government formation. Parties now often declare a candidate for President of the Council before elections, allowing voters to see who may lead if the coalition wins. *Box 30* *The President of the Republic has an important role in creating a "technical government" when Italy faces a serious crisis. This government is made up of experts rather than politicians and is intended to handle difficult situations with skill-based leadership. Despite this, a technical government must still gain the support of the majority in Parliament through a confidence vote.* Once appointed, the President of the Council of Ministers and other Ministers must first take an oath of loyalty (Art. 54) to the Republic before officially starting their roles. However, they cannot fully exercise their power until Parliament give them a vote of confidence (motion of confidence). Within ten days, the new government presents its plans to Parliament and members vote openly, with a simple majority needed for each chamber. The confidence can be revoked (removed) by a motion of no-confidence. This must be signed by at least one-tenth of a chamber's members.\ The government can also link a vote of confidence to specific bills. If Parliament rejects such, the government must resign. Over time, this has led to the practice of maxi-amendments, where the government uses a confidence vote to push through large, unchangeable amendments, limiting Parliament's input. The Government is accountable in two main ways: 1. Legal Accountability: Government members can be held legally responsible for actions taken in office. They are civilly liable for any harm caused in their duties and, if they break laws they are criminally liable even after leaving office. 2. Political Accountability: Politically, the government must maintain confidence in Parliament and can be removed through a no-confidence vote. *Box 31* *In Italy's constitutional design, the President of the Council of Ministers is considered a "first among equals". However, due to their role, they have gained a more central and influential position. Since 1994, changes in the electoral system have mad this role even more prominent, recognising the President as the leader of the winning coalition party.* *The President of the Republic* The President of the Republic of Italy plays a crucial role as the Head of State and the symbol of national unity.\ This position is designed to promote stability in Italy's parliamentary government system, where the President can act as a mediator in political disputes and ensure constitutional order.\ The president symbolically represents the unity of a State community that shares a set of common values. The 2^nd^ part of the Constitution is dedicated to the President of the Republic. Pursuant to Art. 83.1, the President of the Republic shall be elected by Parliament in joint session and by regional representatives. The election is not preceded by a presentation of the candidates, or a debate and the vote is secret. The President must be at least 50 years old, Italian and enjoying civil and political rights.\ The President servers a seven-year term, allowing them to remain independent from the shifting in political majorities in Parliament (Art. 85.1).\ The President is involved in approving laws, appointing high officials, accrediting diplomats, and has the power to dissolve Parliament under certain conditions. In case of major political crisis, they can decide whether to call new elections or attempt to form a new government. As stated in Art 86, should the President be unable to perform his duties, they shall be carried out by the President of the Senate. The President also appoints five Members of the Constitutional Court and Senators for life.\ The President receives diplomatic representatives and ratifies international treaties.\ The President has the command over the armed forces.\ Finally, as already mentioned, the President of the Republic appoints the President of the Council of Ministers and the Ministers. Furthermore, he has the power to dissolve the Chambers for any reason (must be motivated). *The Accountability of The President of The Republic and the Countersignature* The President of the Republic is politically "irresponsible", meaning they are not personally liable for decisions made in their presidential duties. However, all acts of the President must be countersigned by a minister to be valid, this ensures that the Government is responsible for presidential actions. There are three types of acts: 1. Formally presidential but essentially governmental acts, where the minister confirms the action. 2. Essentially and Formally presidential, where the countersignature shows that the Government acknowledges and takes responsibility for the act. 3. Complex acts: such as dissolving Parliament, where the countersignature shows the collaboration between the President and the Government. The President is not accountable for actions like appointing judges or making personal statements, which do not require countersignature. They can only be held responsible for serious crimes. In the latter case, the President can be impeached by the Government, judged by the Constitutional Court. **Chapter 10 -- The Judiciary** The modern constitutional state is based on two main ideas: 1. Decisions are made by a majority rule 2. Some decisions are kept out of politics and are instead handled by institutions of guarantee. Institutions of guarantees are independent bodies that are not influenced by politics or elections. They make decisions based only on the law and must explain their reasoning clearly, without being swayed by political pressures. These institutions ensure that certain rights and rules are protected. regardless of political considerations. Key guarantors of the Constitution are: - The Constitutional Court, which ensures laws follow the Constitution - The Judiciary, which applies the law to resolve disputes and has become increasingly independent from politics. - The President of the Republic plays a role in overseeing political decisions and ensuring they align with constitutional principles. In addition, independent authorities, like the Antitrust Authority, the Data Protection Authority and the Authority for Communication, also act as guarantee bodies. *Judges in Common Law and in Civil Law Traditions* The role and functioning of judges have evolved thought the history of constitutionalism, influenced by different historical periods and regions. *Box 32* *Scholars categorize legal systems into "legal families" based on factors like their history, sources of law, legal training, practises and unique legal customs. This field of study is known as "Comparative Law".* *The main distinction is between civil law and common law. Civil law, originating in continental Europe, relies heavily on written codes and statutes. Common law, developed in England and spread by British influence, relies more on judges' rulings and precedents, with written laws playing a lesser role.* *Italy's system is part of the civil law family, so most of its laws come from formal, written sources.* After the French Revolution, the civil law system took root in France and across continental Europe. In this system, judges have a limited role: they are seen as "the mouth of the law", only applying the law to cases without creating new laws or binding precedents. Judges must decide every case they handle. The UK developed a different approach with the common law system, where judges have more flexibility. They interpret and apply the law, often setting legal precedents that other judges must follow. Thus, judge-made law is a key part of common law systems. Italy's legal system follows the civil law tradition. Historically, Italian judges had limited independence, especially under the Statuto Albertino and later during the Fascist Regime, where judges' independence was severely restricted. The Italian constitution was designed to ensure strong judicial independence, which today is one of the highest in the world. *Constitutional Principles on Judiciary* The principles relating to the judiciary and jurisdiction are contained in both the first and second part of the Constitution. It is possible to read them in dual perspective: from the perspective of individuals and from the perspective of institutions. The Italian Constitution includes principles for the judiciary that reflect both rights for individuals and organizational guidelines for the legal system. From the Individual's perspective, Art. 24 establishes the inviolability right of defence at every stage and level. The right of defence guarantees that a person facing legal action has the ability to contest the evidence, challenge the action taken against them and present their side of the story. Art. 111 defines the right to a fair trial with an impartial judge and equal defence rights. A trial must be conducted on the basis of the principle of cross-examination between the parties: the defendant and the party harmed by the crime are placed on equal terms. The article also establishes the principle of the obligation to include a statement of reasons for all judicial decisions. Art. 25 guarantees that everyone is judged by a pre-established court, preventing cases from being reassigned unfairly. From the Institutional Perspective, Art 104.1 states as the judiciary is an independent branch of government and shall not be subject to any other.\ Article 101.2 says that members of the judiciary shall be subject only to the law. The independence and autonomy of the judiciary are fundamental. Judges operate independently of each other and from other branches of government (internal and external independence). Internal Indepence concerns the organization of the judiciary and its functioning. There is no subordination of judges to other superior judges (art 107.3 "members of the judiciary are distinguished only by their different functions"). Each judge is the direct and definitive holder of the judicial function: the ruling of each judge represents the final decision in the dispute. External Independence concerns the relations between the judiciary and the other powers of the State. Pursuing to Art. 104 External Independence is reinforced by the High Council of the Judiciary (HCJ), established by the Constitution to oversee judges' careers, appointments and much more.\ Summarizing, the purpose of the HCJ is to guarantee the autonomy and independence of the judiciary. Judges are appointed through exams, and they are limited in political activities and participation in associations that could compromise their impartiality (Art. 98.2). *Structure of the Italian Judiciary* The Italian judiciary has a structured system for handling civil and criminal cases: Ordinary Courts (handle general cases): 1. Justices of the Peace and Courts: they handle first-instance cases, based on the case value (for civil) or offense type (for criminal). Cases can then be appealed to higher courts. 2. Courts of Appeal: they review decisions from lower courts and handle appeals in both civil and criminal matters. Appeals against the judgments of the Courts of Appeal can be appealed to the Court of Cassation. If not done within the time limit the decision becomes final and said "res judicata". 3. Court of Cassation: this is the highest court with final authority. This court ensures that the law was correctly interpreted. Its main functions can be distinguished as appeal and nomophilacy. - Appeal: the court adjudicates on appeals from the courts of appeal. In the exercise of this function, it doesn't carry out a third level of judgment but rather exercises a judgment of legitimacy: it verifies the correct interpretation and application of the law in the judgments of the courts of appeal. - Nomophilacy: the court of cassation ensures the uniform interpretation of the law at national level. Furthermore, as stated in Art. 102.2, it also prohibits the establishment of extraordinary or special judges. Special Courts (do not belong to the judiciary system): 1. The Regional Administrative Court (TAR -- Tribunale Amministrativo Regionale) and the Council of State: they handle disputes involving public authorities (TAR is the first and Council of State is the second instance, which decision is final). 2. Court of Accountants: deals with public financial or accounting issues. 3. Military Courts: in times of peace, they address military offenses by armed forces personnel. In the Italian Constitution the Public Prosecutor is also part of the judiciary. Pursuing to Art. 112, the Public Prosecutor has the obligation to initiate criminal proceedings. They ensure law enforcement, fairness in justice and protect rights in cases.\ Moreover, Art. 108.2 ensures the independence of the Public Prosecutor. *The Judiciary in the Contemporary State* In the modern Italian State, the judiciary has shifted from merely enforcing laws to actively protecting citizens' rights. There's been a profound change in judicial activity and a shift of the judiciary from "guardian of the law" to "guardian of rights". This change happened partly because the legislative and political branches have struggled to keep up with complex societal issues, such as labour laws, family matters, bioethics and environmental issues. Judges are nowadays the most suitable institutions to answer the new questions of this dynamic pluralist society. - They are required to decide on cases without delay - Their decisions aren't subject to accountability except in rare cases - They don't depend on political budgets to decide cases - Courts have accessible processes for the public to pursue legal action - Judicial decisions are often made faster than political ones However, relying so heavily on the judiciary has led to overburdened courts and long duration of trials. Even if the reasonable duration of trials was introduced into Art. 111 by the 1999 Constitution, no improvements have been made. The European Court of Human Rights has repeatedly criticized Italy's lengthy trials as unfair. **Chapter 11 -- The Source of Law** *General Features of the Sources of Law* This chapter focuses on the sources of law in the Italian system, which are the ways that legal rules are created. The term "sources of law" is like a metaphor, imagining laws as flowing from a "spring". In modern systems, laws don't just control behaviour, they also define how new laws are made. There are three main categories of legal sources: 1. **Sources on the production** define how laws are made 2. **Sources of production** actually produce laws 3. **Sources of cognizance** inform the public about the laws created Sources of law are created in two main ways: through acts or facts. Acts are laws that are created deliberately, following specific rules. They are legally valid if made by an authorized body, and effective if they serve their intended purpose. They need validity and efficacy. Facts refer to customs and traditions that gradually become recognized as law through repeated practice. In civil law systems (like Italy), most laws come from acts rather than customs.\ The Italian system has grown more complex, with new laws being created by international bodies, the European Union, and regional authorities, alongside those by the Italian government. This tendency has been referred to as a crisis in the role of the State as a "monopolist" of the production of legal rules. With so many sources, conflicts can arise when two laws contradict each other. These conflicts, called "antinomy", are resolved by principles like hierarchy (criterion of hierarchy). In the hierarchy if two laws conflict, the rule from the "higher" source prevails.\ Imagine this hierarchy like a pyramid, here higher levels override lower ones. If a lower-level law conflicts with a higher one, it is considered invalid and removed from the legal system.\ This removal is retroactive, meaning any effects the invalid rule has are erased, except in cases that have been settled by a final judgment.\ So, violating the principle of hierarchy results in the invalidity of the inferior rule and therefore in its annulment. The effects of the annulment are both erga omnes and ex tunc. If a source without the proper authority tries to regulate something, this is seen as violating the system's hierarchy, because it goes against the authority assigned by a higher law. According to the criterion of competence, the rule laid down by the competent source prevails.\ For instance, if a regional law covers a matter that only the State should regulate, it violates the Italian Constitution's rules about State and regional authority. A violation of the principle of competence always constitutes a violation of the principle of hierarchy. The chronological criterion applies when two laws from equally ranked and competent sources contradict each other. In this case, the newer law overrides the older one. It is normal that rules succeed each other with the passage of time in order to adapt to the current situation.\ Changes over time are natural and necessary to keep laws up to date.\ The old law still applies to situations that happened before the new law came into effect.\ This replacement is called "abrogation" and can happen in three ways: 1. Express Abrogation: the new law explicitly lists which old laws it replaces. 2. Tacit Abrogation: the new law overrides an old one due to conflict. 3. Implicit Abrogation: the new law fully covers the subject, replacing any previous law on that topic. *Box 33* *Conflicts in law can sometimes be solved through interpretation, which is the process of finding the meaning of legal text. In Italian law, the term provision (disposizione) refers to the exact written words of a rule, while a norm (norma) refers to the intended meaning or principle behind those words that guides behaviour.* *Interpreting a law means determining the norm (meaning) from the provision (text). Often, the meaning is clear but in cases where the wording is vague or ambiguous, judges must interpret the law to resolve issues. This process is, called statutory interpretation.* *Interpretation is not always straightforward, as meaning can vary depending on factors like the law's purpose, time and context. This means interpretation is often an evolving process adapting to new cases and societal changes.* *International and European Sources: Introduction* Italy's legal system is open to international and European laws, allowing these external sources to supplement its national laws. This openness reflects Italy's view of itself as an "open Constitutional State", which respects global cooperation and shared sovereignty. Italy's Constitution, particularly Articles 10, 11 and 117.1, allows international and EU laws to become part of the Italian legal system. Article 11 plays a key role by stating that Italy rejects war and agrees to limit its sovereignty to promote global justice and peace (pacifist principle). This has led Italy to join major international organizations, like the United Nations (UN), NATO and the Council of Europe. Article 117.1 further clarifies that Italian and regional laws must respect EU laws and international obligations, making these external laws binding within Italy's legal system. *International Sources of Law* In International law, the main sources are universal customs, general principles of international law and international treaties. Article 10 requires Italy's laws to align with widely international laws. This includes customs and principles like state immunity, human rights and obligations.\ Any antinomy between Italian primary sources and such norms results in a constitutional illegitimacy. For international treaties that Italy signs (international treaty law) there is no automatic adoption. Instead, once an international treaty has been negotiated, it must be ratified by the President of the Republic. Once ratified, treaties are transposed into domestic law, typically through an executive order. The Constitutional Court has ruled that if an Italian law conflicts with a treaty, the treaty takes precedence.\ Treaties, however, hold an "intermediate" status between regular laws and the Constitution. If an Italian law conflicts with a treaty, it indirectly violates Article 117.1 of the Constitution and it must be annulled since considered unconstitutional. *European Sources of Law* The European Union (EU) creates laws that are binding not only for member countries but also for people within those countries. European law is divided into two types: primary and secondary law. - Primary EU law includes the EU's founding treaties, which set out its main principles, powers and structures. These treaties are the foundation of EU law and hold a higher status than secondary laws. - Secondary EU law consists of specific rules created under primary law.\ They include: **\ Regulations**, which are binding for all member states and apply directly without needing any additional national laws, they tend to be characterised by generality and abstractness and enter into force automatically.\ **Directives**, do not have direct applicability. They are exclusively addressed to the Member States, on whom they impose an obligation to achieve a result and a deadline for compliance.\ **Decisions**, which are binding but only for particular recipients (so they lack abstractness and generality), like specific countries or organizations. Recommendations and opinions are non-binding. Through recommendations, the EU bodies call upon States to comply with a certain behaviour; through opinions, they communicate their point of view on a given matter. When there's a conflict between Italian law and EU law, the resolution depends on whether the EU law is self-executing (immediately applicable). If an Italian law conflicts with a self-executive EU law, Italian courts must ignore the Italian law and apply the EU law instead.\ This principle comes from the Italian Constitutional Court, which treats EU and Italian legal systems as separate but coordinated, applying EU law only in areas within the EU's authority. However, if EU law violates Italy's fundamental constitutional principles or rights, the Italian Court can reject it. If there's a conflict between Italian law and a non-self-executing EU law, the Italian Constitutional Court must declare the Italian Law unconstitutional to resolve the conflict. *Domestic Sources of Law* The Italian legal system has a hierarchy of domestic sources of law, structured as follows: At the top of the hierarchy is the Constitution and constitutional laws, which are the highest sources of authority and provide the foundation for all other laws. Primary sources of law are just below the Constitution. These laws are created following constitutional procedures and include: ordinary laws (statutes) passed by Parliament, Government acts with the force of law, Referendums that repeal existing laws. The rigidity of the Constitution implies two consequences: 1. The principle of closed number of primary sources: all sources falling within this category must be expressly provided for by the Constitution. 2. The principle according to which the only limits applying to the legislator are those established directly by the Constitution. If a primary source of law is inconsistent with the Constitution, only the Constitutional Court can declare it "unconstitutional" and annul it. A statute is a normative act, passed by both Chambers, revised by the President of the Republic and then published in the Official Gazette. A statute is the "ordinary" primary source of law. The legislative process (as stated in Art 70) is very complex.\ According to Art 71, legislative initiative shall belong to the Government, to each member of the Parliament and to those entities and bodies on which it is conferred by constitutional law. The people may also initiate legislation by proposing a bill drafted in articles and signed by at least 50.000 voters. However, most successful laws come from the Government since government's bills are often drafted to support the majority's political programme, on which the relationship of confidence is based. Once the bill is submitted to one of the two Chambers the deliberation process begins according to Article 72. The process for passing a law includes several steps and procedures, each outlined in the constitution or parliamentary rules: 1. After a bill is introduced (the methods are the one said before), it is assigned to a relevant Standing Committee by the President of the Chamber. The Committee studies the bill, may gather information from the Government and can amend or rewrite the text if needed. 2. The Approval procedure can 1. In the Normal Procedure, the Committee examines the bill and amends it if needed. Once the examination (which can involve the government and other committees too) is completed, the Committee submits a report proposing the approval or rejection of the text. This process is required for constitutional matters, delegations of legislative power and ratifications of international treaties. 2. In the Decentralised or Deliberative Procedure, in which is provided for Article 72.3, the Committee can fully approve the bill without a vote from the whole Chamber. However, if the Government or a minority requests, the bill can revert to the normal procedure. 3. In the Drafting Procedure the Committee finalizes the bill's text which then goes back to the Chamber only for a simple approval or disapproval of the latter, without further changes. This procedure is rarely used. 3. The last step is the entry into force of the new text.\ \ According to Article 73.1 Laws shall be promulgated by the President of the Republic which has one month to sign the new law (if he accepts it). The President can also refuse to sign and request the Chambers to reconsider the bill.\ \ Promulgation is then followed by the publication in the Official Gazette of the Italian Republic. It becomes legally binding after usually 15 days in order to make everyone aware of the new law(s). This period is known as "vacatio legis". *Acts of the Government having Force of Law* The Constitution allows the Government to create laws in special situations through two main types of decrees with legal force: **Legislative Decrees** and **Law Decrees**. Both types are exceptional measures meant to address specific needs under parliamentary oversight. **Legislative delegation (legislative decrees)** is realised through the combination of two distinct procedures: an ordinary legislative procedure, concluded with the Parliament that delegates the exercise of the legislative power, and the approval of a normative act, deliberated by the Council of Ministers and issued by the President of the Republic. Legislative delegation therefore consists in the temporary transfer of the legislative function to the Government. Indeed, according to Article 76 of the Italian Constitution, Parliament can authorize the Government to make laws on a particular subject for a limited time. However, the parliamentary law delegating the exercise of legislative power shall determine: 1. The precise subject matter to be regulated by legislative decree. 2. Principles and Directive Criteria. 3. Limited time frame (it is not possible to delegate the exercise of legislative power permanently or without expiry date). The Government must respect all the limits imposed on it by the enabling act. It's pivotal to say that limits exist concerning the possibility of delegation. Government itself cannot be delegated to amend the Constitution (Art. 138). Legislative Decrees are commonly used for enacting European Union laws into Italian law. According to Article 77, **law decrees** are used in cases of urgent necessity (such as emergencies or crises) by the Government which can issue law decrees, bypassing Parliament initially.\ Article 77 permits this only in extraordinary situations where immediate action is required. The Government must then submit the law decree to Parliament on the same day it is issued and the Parliament has 60 days to either approve or reject it. If Parliament does not convert the decree into law within this timeframe, the decree becomes invalid retroactively. This mechanism ensures that the decree only has temporary power unless confirmed by Parliament.\ The law decree is therefore called "paradoxical source" since it will surely disappear after 60 days, either because it was converted into law or because it was not converted into law and thus lost validity. Both type of decrees, the Legislative Decrees and the Law Decrees, are regulated to prevent abuse of power. Law decrees are only valid if they meet the "extraordinary necessity and urgency" standard. The President of the Republic has a role in verifying these conditions before issuing a decree.\ Moreover, even when the decree-law has been converted, it can always be submitted to the judgment of the Constitutional Court for further analysis. *Box 34* *Although law decrees are meant to be used in urgent situations, their use has significantly increase in recent decades. This shift is due to Parliament's inability to quickly address the needs of the Government. One common practice is "reiteration", where the Government issues a new law decree with same content as the previous one just before it expires.* *However, the Constitutional Court ruled against this practice in a 1996 decision, stating It violated the Constitution.* *Despite this, problems have continued and attempts by the Parliament to stop these have been largely ineffective.\ Finally, if a law decree doesn't meet these standards of clarity and relevance, it can be considered unconstitutional, even if changes are made through amendments in Parliament.* *Abrogative Referendum* The abrogative referendum, outlined in Article 75 of the Italian Constitution, is a form of direct democracy that allows citizens to vote on whether to repeal a law or government act. If the majority votes to repeal, the law is no longer in effect from that point onward. This is considered a primary source of law because it directly changes the legal framework. Before and after the Constitution's adoption, the idea of the referendum was met with scepticism. Initially, it was the only type of referendum allowed, but it was rarely used for many years.\ It wasn't until 1970 that the legislation on abrogative referendum was passed, and even then, political groups were reluctant to use it. The Referendum can target entire laws or parts of laws, but there are some restrictions. For example, laws related to taxes, budgets, amnesty, pardon or the ratification of international treaties cannot be repealed by Referendum. The process of initiating a Referendum involves several steps: 1. The initiative must be brought by 5 regional councils or 500,000 voters. Most often, citizens gather the signatures, forming a committee of at least ten people. 2. The central referendum office carries out a check on the legitimacy of the request. If there are any issues, the committee has time to correct them. 3. The Constitutional Court then decides if the request is legitimate. 4. If the request is admissible, the President of the Republic, with the Council of Ministers' approval, sets a date for voting, usually between April 15 and June 15. 5. There are two different quorums: a participation quorum (a majority of eligible voters must participate) and a functional quorum (a majority of the voters must favour repeal for it to pass). 6. In the case of abrogation, this is declared by decree of the President of the Republic. *Secondary Sources of Law. Executive Regulations* Secondary sources of law are rules that are not as powerful as primary sources like the Constitution or ordinary laws, but still play an important role in shaping legal systems. The most common type of secondary source in Italy is Government regulations, these are rules made by the Government to help enforce and apply primary laws. For example, a law passed by Parliament might require detailed guidelines or rules for it to be enforced properly, and these rules are usually created through Government regulations. While the Constitution does not directly give the Government the power to create regulations, it does mention it in Article 87.5, as part of the President's duties. Additionally, Article 117.6 of the Constitution establishes that the Government can issue regulations only on matters that fall under the State's executive legislative power.\ This means that the Government can make rules about things that the national government controls, not things that fall under regional or local authority. Government regulations are based on laws passed by Parliament, and they help clarify these laws how should work in practice. Unlike primary laws, which are strictly defined in the Constitution, secondary sources like regulations are more flexible in number and scope, and they are created as needed. However, they must still follow the principle of legality, meaning they must be consistent with the law.\ \ This system is different from other countries like France (for example), where the Constitution itself outlines who can create laws and regulations.