Public Law, Diritto pubblico

PUBLIC LAW

Public law is the branch of law which determines and regulates the organization and the functioning of the State and

other public bodies, both internally and in relation to private individuals. It deals with the relationship between State

and private individuals.

Public law: part of the law that deals with the Constitution and functions of the organs of central and local government,

the relationship between individuals and the State and relationship between individuals that are concerned directly to

the State.

Public law for economics: seeks to correct the outcomes of a free market system by means of economy and social

regulation.

Main terms

− State: the only public body with sovereignty, the legal system having general end and objectives which exercises

sovereign power over a specific territory, to which the subjects or participants belonging to such system are

necessarily subject and subordinated.

− Sovereignty: the quality of having supreme, independent authority over a geographic area. It is the ability to

make decisions independently, lack of legal subjugation to other parties. Is the right to exercise control over a

territory and full control of the borders. Joining the EU means losing national sovereignty, while the principle

of non-interference in the internal affairs of other States is limited in the age of globalization: States are

conditioned by external international facts.

− Constitution: all the States are based on a fundamental text, the Constitution. The Constitution can be modified

and updated to fulfill the needs and keep up with the necessity of the evolving system. It has 139 articles, divided

into general principles, State organization and general dispositions. It deals with the functions of the organs of

central and local government and the relationship between individuals and the State.

− Rule of law

− Separation of power: condition for democratic country.

− Democracy: separation of powers, respect of freedoms and rights, decisions are taken by the people through

representatives (members of Parliament freely voted and elected), respect of all the kinds of minorities (political,

religious..).

− Sources of law: all the aspects of life are regulated by sources of law (Constitutional laws, decree laws,

legislative laws..).

− Forms of State and forms of government: In Italy we have as a form of State the relationships between powers

and citizens, between State and individuals (Forms of State: democratic = Italy, socialist = Cuba, China,

theocratic = Vatican, Iran, Afghanistan. Form of government: in Italy, democratic form of State, we have

parliamentary form of government. Parliamentary = Israel, Italy, semi-presidential = France, presidential =

USA, direct democracy = Switzerland).

− Constitutional review: bodies that can check and change the content of the Constitution.

What is the State?

Costantino Mortati says that: “The State is the legal system having general ends and objectives which exercise sovereign

power over a specific territory, to which the subjects or participants belonging to such system are necessarily subject

and subordinated”.

− Legal rules: established by the only body that has the force of the law, the force to make these rules applicable

and respectable. If there is a violation, you will be punished and condemned by the judge. Established by the

STATE, which is the only body that has the power of sovereignty. These are coercive rules meaning that their

respect is ensured by the State itself.

− Social rules: ex rules in a family, in a classroom...

There are 3 main elements to define a State and we must need all of them to characterize a State:

− Sovereign power: the presence of an authority able to exercise power and carry out political activities. The

State has strong authority. Ex: UK decided to be full sovereign, this is why they went through Brexit, leaving

the UE.

− Specific territory: well defined geographical area, so the authority and the power must only be exercised in

this specific territory. All the decisions must be applied within the boarder.

− The subject (people): refers to a specific community inside the territory.

The territory of a State includes: airspace, territorial sea, floating territory (civil/military aircrafts and ships), subsoil

and dry land within national borders. There are specific borders that must be respected.

The State includes:

− People: citizen with possess of citizenship and possibility to exercise sovereignty (art. 1 Constitution). It is the

condition of being bound to a given State from which every individual receives certain rights and to which

he/she is forced to respect certain duties.

Citizenship in Italy: People can directly exercise their power of citizens (sovereignty), for example they can

vote, they can make some sort of decisions, such as the possibility to decide to approve or not a specific law

(referendum) even though the parliament has already approved it. In this case the citizens (based on the majority)

have the power to make the law valid or not. It can be: ius sànguinis (“law of the blood”), ius soli (“law of the

soil”), ius conubii (“conjugal law”).

− Population: sum of individuals who reside on a territory (citizens, foreigners and Stateless persons).

− Nation: people who share a common language, culture, ethnicity, history, religion... In Italy only one official

and common language, culture and so on... Canada for example has 2 languages (English and French) and 2

different religions (Catholic and Anglo-Saxon).

All the 3 elements (territory, people and sovereignty) must coexist: the lack of even on element is enough to deny the

existence of a State.

Sovereignty

Sovereignty is:

− The quality of having supreme, independent authority over a geographic area.

− The ability to make decisions independently, lack of legal subjugation to other parties.

− The right to exercise control over a territory.

− Full control over the borders, if you do not have it, you have lost sovereignty (Italy decides for Italy and USA

decides for USA).

The sovereignty of the State MUST exist, otherwise it would not be a State. In the global era, can we still consider

sovereignty an absolute value?

Joining the EU means losing national sovereignty, it means renouncing part of your sovereignty.

WHY? Because some tops are not decided upon the member States but are decided by the UE organization (ex:

competition, immigration, environment...), so NOT decided independently by the member State. The member State,

when subscribed the Treaty of Lisbon of 2009, they decided to “give away” part of their sovereignty power/authority in

order to ensure peace, fairness and justice.

Article 11 of Italian constitution: States that Italy renounces to the FULL sovereignty and that some topics will be

regulated by UE (ex: right of privacy + GDPR).

Article 11 → “it agrees, on conditions of equality with other States, to the limitations of sovereignty necessary to a

system that ensures peace and justice among Nations”.

Factors that render sovereignty a relative value: Limitation of sovereignty

− Presence of international organization (UE) - joining EU, article 11 etc...

− There is a condition of respecting global human rights written in the international agreement, in the contracts

(civil law).

− The principle of non-interference in the national affairs of other States is limited in the age of globalization:

States are conditioned by external international facts.

Sovereignty crisis

The concept of State sovereignty has undergone significant re-evaluation since the mid-20th century due to global

economic and political integration. In the 21st century, globalization (a multifaceted process leading to a single,

interdependent world) has further reshaped this traditional understanding. Traditionally, sovereignty was defined as:

− The "full and indivisible power of a State within its territory."

− The "supreme authority and independence of a State to govern itself without external interference."

− Encompassing the right to make and enforce laws, control internal affairs, and determine both domestic and

foreign policy.

− Emphasizing legal and political autonomy within territorial boundaries, allowing a State to act as an independent

entity internationally.

However, there is "sovereignty crisis" driven by the realization that no State can fully protect its citizens from global

crises (economic, financial, information threats, environmental problems). This necessitates a re-evaluation of

traditional views.

Impact of globalization on sovereignty:

− Political globalization: manifests in the creation of international organizations and institutions (e.g., those

addressing climate change or international security) that regulate global relations and promote international

cooperation.

− Social and cultural globalization: spreads ideas, cultural values, and social norms through new media, leading

to cultural convergence and transcultural identities.

− Erosion of borders: globalization contributes to blurring national borders and clear lines of national Statehood.

However, the are some contradictory effects:

− Benefits: provides access to global markets, new technologies, and international interaction, potentially

fostering economic growth and social progress.

− Challenges: Can undermine traditional governance mechanisms, limit a State's ability to independently resolve

issues, and challenge sovereignty based on territorial integrity and political independence.

Key actors challenging traditional sovereignty:

− Transnational corporations: with branches across many countries, their economic power can exceed that of

individual States.

− International organizations: play a critical role in shaping sovereignty by developing international norms and

standards that influence both international relations and domestic policies.

Adaptation and resilience: States that successfully integrate into global processes by using technology and cooperation

to strengthen security, economy, and social stability are more likely to maintain or even strengthen their sovereignty.

Conversely, ignoring global trends risks isolation, vulnerability, and loss of influence. States must be flexible,

innovative, and open to cooperation to adapt.

The critique of sovereignty as a concept:

− Historical criticism: jurists like Hans Kelsen (1925) suggested the term should disappear from international

law due to its problematic historical role.

− Modern criticism: Professor Don Herzog criticized the concept as "obsolete, confused and pernicious" in "our

politics and law," particularly referring to the United States.

Sovereignty in the context of the European Union:

− EU Member States remain sovereign: despite the EU possessing certain delegated sovereign rights from its

members, it is not sovereign under international law because it is not a State. International law attributes

sovereignty exclusively to States.

− Lack of Kompetenz-Kompetenz: the EU lacks the right to autonomously determine the scope or expansion of

its own competencies; these are limited and defined by treaties, with remaining competencies retained by

Member States.

− Max Huber's definition: if sovereignty means a State's right to exclusively exercise typical State functions

within its territory, then each EU Member State is sovereign, as it is the sole entity performing these functions

in its respective territory.

− Modern view: the State is no longer seen as an absolute, supreme power but rather an "intermediate structure"

within a “Stufenordnung of universal law," part of a continuous sequence of legal communities from

international to local levels.

Constitution

The Constitution is the fundamental law of a country, a set of fundamental legal-political rules that gives identity to a

political regime. It is useful for the separation of power.

Power without limits leads to corruption and dictatorship; therefore, we need rules, which are provided by the

Constitution.

The Constitution is the supreme law (meaning that all other sources of law must respect it) that establishes, organizes

and empowers the government. It has constrain power, so it announces what the nation is to citizens, other nations and

the government. It can’t be changed, it is rigid.

If a law conflicts with the Constitution, we have many and various tools that will “protect” the constitution and make

sure that no laws will be in contrast with it (tolls such as constitutional courts). If it is in contrast, this law will be

annulled since it cannot contrast with the Constitution.

It is used to maintain a strict division between the institutions in power and the neutral institutions (tribunals..). Each

Constitution must contain some provisions which protect minorities (political, cultural and religious) and freedoms.

It is connected to the rule of law that, in its most basic form, is the principle that no one is above the law it sets out.

Elements of democratic State

− Separation of power: characteristics of a democratic State. It is important in order to avoid risks, such as

favoritism and abuse of power. Concentration of power implies the presence of a specific person that has all the

power to do whatever they want. The separation of power avoid this problem.

Separation of powers refers to the division of government responsibilities into distinct branches to limit any one

branch from exercising the core functions of another. The intent is to prevent the concentration of power and

provide for checks and balances.

• Legislative power: Parliament (approves laws) that must be an elective body. There is one exception when this

power is given to the body of the executive power. This situation is called a democracy deficit.

• Executive power: Government.

• Judicial power: Magistrature (independent body).

− Elections: free and fair elections, power are chosen through them. Also used to avoid that specific people will

maintain power for too long

− Rigid constitution: in general, except for the UK, both in the EU and the USA, the Constitution cannot be

amended easily, so we need a specific procedure in order to modify the Constitution. The rigid Constitution is

one which cannot be easily amended (primacy of the Constitution) and this is the case of Italy. The UK has a

flexible Constitution and, in this case, we speak of parliamentary supremacy.

How to modify the Constitution

Article 138 of the Italian Constitution → describes the mechanism to amend the Constitution. Constitutional

amendments must be approved two times by both chambers with an interval of no less than 3 months. In the second

vote, each chamber is obliged to approve it with an absolute majority of its members (more than 50% of all members,

not just those present). If each chamber does not reach this majority, the law does not pass. If they reach the absolute

majority, the law is not automatically submitted to a popular referendum: it can be submitted to a referendum only

if requested within three months by 1/5 of the members of a chamber, 500,000 voters, or 5 Regional Councils, meaning

that the final approval may be given to the sovereign people (il Popolo). If there is a larger majority, meaning 2/3, we

won’t have a referendum. In this case, the law is definitively approved and promulgated without the possibility of a

referendum.

Limits in the modification

Can all Italian constitution can be emended? Respecting article 138, can we establish the monarchy instead of the

republic through an amendment?

No, because the formal republic can’t be modified at all because of article 139 (the last one), neither through particular

procedures. Article 139 is the essence of the constitution, so if we modify it, we destroy the Constitution.

− Majority: democracy is based on the concept of democracy that involves the protection not only of majorities

but also minorities. Democracy is based on democratic Constitution so democracy is connected to separation of

powers, protections of minority, free and fair elections.

The Constitutional Law

Constitutions are binding on everyone in the State, including ordinary law-making institutions. It postulates the rule of

law → the rule of law, in its most basic form, is the principle saying that no one is above the law, everyone must respect

it. It sets out:

− The form of government and the separation of power (executive, legislative and judiciary and it also sets out

the competent bodies of these powers).

− The relationships between the people and their government and the rights and the duties of the people.

In most countries constitutional law is included in a written document (we don’t have it, but it doesn’t mean that it is

just based on costumes). A written constitution is written down in the form of a single book (it’s not a collection of

documents).

An unwritten/uncodified constitution: fundamental rules of government are kept in several historical charters, laws,

customs, legal precedents...NOT a single book.

Italian legal system and national sources of law

The Constitution establishes and delimits the powers of government, lays down the principle of political engagement

(forms of political and civic participation) and determines the relationship between the citizens and the State.

− Constitution (Supreme principles).

− Laws regarding Constitutional amendment, other Constitutional acts.

− Primary sources (Ordinary law, Decree-law, Legislative decree, Regional law, Abrogative referendum).

− Secondary sources (Executive regulations).

The layout of a typical Constitution

− Preamble: we do not have it in the Italian Constitution, but for example the French one has it (composed of the

declaration of rights + Constitution of 1958)

− Preliminaries: description about sovereignty, rules about specific and general sovereignty, information about

name and territory of the State, rules of citizenship, State values, respect of minorities etc... Do we have a

preliminary in the Italian one? YES, WE DO! It is made of 12 articles that are included in the preliminaries!

Ex: article 11 States about the possibility of taking part of a war, we can intervene just to protect our border.