TABLE OF CONTENTS CHAPTER ONE CHARACTERISTICS OF THE STATE. Giuseppe Franco Ferrari

Transcription

1 PREFACE p.ixiii CHAPTER ONE CHARACTERISTICS OF THE STATE Giuseppe Franco Ferrari 1. Nature and Categories of Legal Systems p Legal and Non-legal norms: Structure and Relationship» The State: Constitutive Elements and a Brief Historical Outline» Values and Principles» People» Citizenship» Territory» 18 CHAPTER TWO TRENDS IN THE DEVELOPMENT OF THE ITALIAN STATE Giuseppe Franco Ferrari 1. Premise p Globalisation and Multi-level Constitutionalism» State and International Law: Alternative Solutions and the Italian Option» The European Legal Order and its Historical Development» 28 CHAPTER THREE FORMS OF STATE AND FORMS OF GOVERNMENT Justin Orlando Frosini 1. Terminological Premise p. 31

2 VI INTRODUCTION TO ITALIAN PUBLIC LAW 2. Forms of State and Forms of Government: Historical Aspects and Development p 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» 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» Parliamentary Executive 2. Presidential Executive 3. Directorial Executive 4. Semi-presidential Executive 5 Quintum Genus? The Prime Ministerial Executive CHAPTER FOUR PARLIAMENT Lorenzo Cuocolo 1. The Structure: Perfect Bicameralism p Distinguishing Features of the Chamber of Deputies and the Senate» Electoral Systems, Incompatibility, Inelectibility and Checks on Powers» The Status of Members of Parliament» Parliament s Autonomous Powers» Internal Organisation of the Chambers of Parliament» Joint Sessions of Parliament» The Functions of Parliament» 72 CHAPTER FIVE THE GOVERNMENT Antonello Tarzia 1. Definition and Historical Profile of Institutions p The Government in the Italian Constitution: Structure, Formation, Organisational Principles and Functions» Formation Procedure 2.2. Structures, Organisational Principles and Functions 2.3. Non-essential Government Bodies 3. Relationship with Parliament» Auxiliary Bodies» 92

3 VII CHAPTER SIX PUBLIC ADMINISTRATION Antonello Tarzia 1. Administration and Administrative Function: Introduction p Constitutional Principles» Administrative Provisions and Administrative Measures» Characteristics of Administrative Provisions 2. Administrative Measures 3. Elements of Administrative Acts 4. Administrative Procedure» Flaws in Administrative Acts» Non-existence and Nullity of Administrative Acts 2. Annulment 3. Irregularities 4. Rectifying Invalid Acts and Self-Protection 6. Protection Against Invalid Administrative Acts» Administrative Recourse 2. Judicial Protection 7. Transformation of Administration» Political and Administrative Pluralism After the Reform of Title V 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 Special Regions» Ordinary Regions and the Initial Development of Italian Regionalism» Waves of Constitutional Reform: The Reform of 1999» The Reform of 2001» Regional Financial Autonomy» Regional Organisation» Local Government» Requirements of Loyal Cooperation in the New Multi-centred System» 144 CHAPTER EIGHT THE PRESIDENT OF THE REPUBLIC Oreste Pollicino 1. The Role of the President in a Comparative Context p The Role of the President of the Republic under the Italian Constitution» Subjective Requirements, Election and Term of Office» 151

4 VIII INTRODUCTION TO ITALIAN PUBLIC LAW 4. Classification of the Key Constitutional Attributes of the President of the Republic in relation to the Powers of the Italian State p The Tripartition of Presidential Acts» Formally Presidential Acts which are Substantially Governmental 2. Formally Presidential Acts which are also Substantially 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. Substantially 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» Presidential Offences» 165 CHAPTER NINE THE JUDICIARY Oreste Pollicino 1. Autonomy of the Judiciary: Innovativeness of the Constitution p Principle of a Single Judiciary and its Exceptions: Special Judges» Principle of Functional Independence of the Judge» Institutional Independence of the Ordinary Judiciary: the Superior Council of the Judiciary» Institutional Independence of the Special Judiciary 5. Constitutional Principles of Judicial Process» Organisation of the Ordinary Jurisdiction: Judging Magistrates and Public Prosecutor» Public Prosecutor 7. Liability of the Judiciary» Recent and Future Reforms of the Judiciary» 181 CHAPTER TEN CONSTITUTIONAL JUSTICE Justin Orlando Frosini 1. Terminological Premise p Models of Constitutional Review» 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» 187

5 IX 4. The Salient Features of Constitutional Review p 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» Constitutional Review in Italy» 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 Judgments of Partial Acceptance Substitutive Judgments Additive Judgments 4.5. Exhortative Judgments 7. The Other Functions of the Italian Constitutional Court» 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 Sources Related to Production and Sources of Production 2. Sources of Cognizance 3. Acts and Facts 3.1. Facts 3.2. Sources from Other Legal Systems 2. Interpretation» Conflict and Techniques of Resolution» Criterion of Chronology 2. Criterion of Hierarchy 3. Criterion of Competence 4. Criterion of Specialisation 4. Constitutional Statutory Limits» Types of National Sources» Constitutional Sources» Constitution 2. Constitutional Amendment Laws 3. Procedure 7. Primary Sources» Ordinary State Law 1.1. Procedure Who Has Legislative Initiative? Exercise of Legislative Initiative Deliberation 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 Sources» Government Regulations

6 X INTRODUCTION TO ITALIAN PUBLIC LAW CHAPTER TWELVE REGIONAL AND LOCAL GOVERNMENT SOURCES OF LAW Arianna Vedaschi 1. Regional Autonomy and the System of Legal Sources p 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» Procedure 2. Legislative Power of Regions with Special Forms of Autonomy 3. Regional Regulatory Power» Local Autonomy and the System of Legal Sources» 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 Primary and Secondary Sources of Law 2. Principle of Attribution and Principle of Subsidiarity 2. Types of Sources of Law» Non-binding Acts: Recommendations and Opinions 2. Binding Acts: Regulations, Directives and Decisions 3. Soft Law 3. Relationship between Community Law and Italian Law» Influence of Primary Sources of Community Law 2. Influence of Secondary Sources of Community Law: Directives 3. Influence of Secondary Source of Community Law: Regulations CHAPTER FOURTEEN FUNDAMENTAL RIGHTS AND FREEDOMS Giuseppe Franco Ferrari 1. Historical Perspective: Rights and the Evolution of Constitutionalism p Generations of Rights» Individual Rights» 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» Freedom of Assembly 2. Freedom of Association 3. Freedom of Religion and Creed 4. Freedom of Expression 5. Social Rights» Education 2. Healthcare 3. Welfare 4. Housing

7 XI 6. Economic Rights p Right to Property 2. Freedom of Enterprise 3. The Market and Competition 4. Trade Union Rights 7. Political Rights» Constitutional Duties» 275 LIST OF CONTRIBUTOR p. 277