Giuseppe Ugo Rescigno

Note per la costruzione di un nuovo sistema delle fonti

  • Abstract

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The intention of the work is to reconstruct the essential lines of our system of sources, examining in particular the constitutional characteristics of the Community system/Italian system as a system, the relative separateness of the Community system and Italian system, the laws for constitutional revision and the other constitutional laws, international norms, ordinary national law and regional laws, and regulations (national, regional, municipal, provincial and metropolitan area), as well as the insufficiency of the criteria pertaining to hierarchy and competence for defining the system of sources. The first conclusion reached in the work is that the attempt to reconstruct the system of sources in Italy fails because today (and probably for a long time to come, or for the entire period separating today from new constitutional reforms) the frame that it is possible to reconstruct is in any case full of lacunae and uncertainties. In particular, the bounds delimiting national and regional matters are to be constructed anew; there are divergent opinions on the range and importance of international obligations vis-à-vis the laws and there is discussion over the legal force of the pacts and agreements reached by the Regions with foreign States or territorial institutions within foreign States; it is not clear whether (based on Art. 120 of the Constitution) powers substitutive of the State are admissible at the normative level and, if so, with what acts such powers might be exercised; there is no agreement on the definition of fundamental assigned functions attributed to local government institutions (with consequent uncertainty as to the relations between and among national, regional and local sources regarding such questions); there is a great divergence of opinion over the matter of whom in the Regions has or can have regulatory competencies; the limit of statutory power is uncertain; it is unclear to what extent statutes can attribute power to the electorate by means of referenda; the new constitutional text provides new atypical sources, with a consequent increase in points of conflict and friction between and among these and the typical sources; and other sources, although provided for in the Constitution, are subordinate to forms and means yet to be established. Secondly, the new Title V (and therefore the entire system of sources) is shot through with a serious contradiction between the criterion that governs the distribution of the "legislative" function, which pursues the end of the guarantee and certainty of the attributions, and therefore does not appear subject to modification other than by constitutional amendment, and the criterion that governs the distribution of the "administrative" function, which instead consists of the principle of subsidiarity, and therefore of the continuous possibility to shift an administrative function to higher or lower levels, on the basis of analyses that demonstrate that the solution adopted or that is being proposed is better than any other (until a change in the socio-economic situation and fresh analyses lead to new decisions on the point in question). At the moment it is impossible to say how to govern this contradiction (which is to say, how to somehow reconcile the two divergent criteria): this feature, too, of the new text invokes, as we shall soon see, agreements and compromises involving the interested institutions. A third evident conclusion lies in the ascertainment that the new constitutional text has greatly increased the field of action of the criterion of competence, with a comparable decrease in the field of action of the hierarchical criterion. At the same time the criterion of competence avails itself of expressions contained in the words of the constitutional text that are so vague and generic that only a general consensus among the interested parties or else a consolidated ruling by the Constitutional Court (or by ordinary judges in the matter of normative acts without the force of law) in time will allow (provided that the system has the time and capacity to achieve stability) the substitution of the vague and generic initial wording with definitions and boundaries sufficiently clear, analytical and articulate. The author observes how the underlying trend behind many provisions contained in the new text is represented, on the one hand, by the attempt to attribute the same dignity and the greatest possible autonomy to the different levels of government identified, ranging from that closest to the citizenry all the way to the European Union; and, on the other hand, by the necessary co-ordination among all these levels, always provided that the objective and the model of society is still a coherent, stabile system. Two complementary necessities derive thereby, which in part are implicit in the words contained in the constitutional text, and in part become priority criteria in the interpretation and application of these words. One is the need for fluidity in the same criteria pertaining to hierarchy and competence, as well as every other criterion used to mark the bounds of the various sources - criteria that diminish in clearness and preciseness in order to satisfy the fickle and unpredictable variations in relations between and among the diverse collectivities involved at different levels of government. The other is the need for continuous confrontation among the various levels and for agreement among them, as the principal way (and, at bottom, the only effective way) to guarantee the concord and coherence of the whole. The supreme value in and for the market, competition, is brought into politics and thus also into law (which is the principal instrument of politics): the competition is not so much among the major social groups (employees, capitalists, artisans, farmers, etc.) as among territorial groups horizontally, each of which strained to the utmost to defend its social share and, if possible, to enlarge it. The new law requires soft regulations (this is the "soft law" which is so much talked about and will be talked about more in the future), subsidiarity, multilevel government, governance, arbiters, mild law, equity, case-by-case judgements and principles rather than rules. Here we find all the most recent conceptual and practical paraphernalia that is in the process of replacing the previous model. The question remains as to what extent all this is compatible with the overcoming of the economic and social disparities spoken of in Art. 3, Par. 2 of the Constitution, and with solidarity, a word on everyone's lips. What remains true, however - and here the jurist is most competent - is that as a whole what can be gleaned today from the constitutional text presents serious uncertainties and lacunae, in addition to being contradictory in its inspiring principles and incapable - if in practice it does not prove able to overcome its deficiencies - of forming a system in the true sense of the word.

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