Riassunto esame Fundamental rights, Prof. Cossiri Angela Giuseppina, libro consigliato The Constitution of Italy. A Contextual Analysis, Lupo Cartabia

Introduction to constitutional law

Constitutional law is traditionally divided into four topics:

• Sources of law (statutes, etc.)
• The government, understood as the whole bodies which exercise a legitimate power in a determinate territory
• Constitutional justice or adjudication
• Fundamental rights

Constitutional law is closely related to the constitution. But, what is it?

Perspectives on the constitution

Descriptive perspective

The constitution can be understood as a sort of summary of the fundamentals of the legal system in a country. From this point of view, we are able to understand how the specific country is organized and works. The constitution is intended as the basic structure of that country.

Political perspective

The constitution is viewed as a political manifesto, representing fundamental values and programs in a country. The preamble of the constitution of the US constitutes such a manifesto, a political program for the future.

Prescriptive perspective

The constitution is considered a normative text, basically intended as law. For the Italian Republic, the constitution represents the superior, higher law of the state. In other words, it is intended in a prescriptive manner. Both the Italian and the US constitutions serve as political manifestos.

Notwithstanding the lack of a preamble, Article 1 of the Italian constitution states: "Italy is a democratic Republic founded on labor." It represents a political program.

Interdisciplinary views on the constitution

Sociologists and political scientists look at the constitution in a descriptive way, historians and philosophers in political terms, and lawyers in a prescriptive way. It is necessary to keep the prescriptive nature of the constitution separate from the descriptive and political approaches. The purpose of a lawyer is to understand the lawfulness in accordance with the constitution or not. He has to derive legal consequences, starting from the constitution.

The constitution as a higher law

How was the constitution understood as a higher law of the country? This idea is connected with the specific historical period in which the modern constitution started to emerge (the 19th century). The idea of the constitution as a fundamental law was promoted by the philosophical and political movement of modern constitutionalism.

In this period, constitutions established a new political system, which was different from the one that was accused of being unjust. Therefore, it started to spread the idea of the constitution as a political manifesto, able to change society. Moreover, the constitution acquired its role in declaring the law. They devised a plan of legitimate rule which endowed legal force.

Importance of modern constitutionalism

Why is modern constitutionalism so crucial for the modern era?