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

The Purpose of a Lawyer and the Role of Modern Constitutionalism

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. 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 to be 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 endows legal force.

Why is modern constitutionalism so crucial for the modern understanding of the constitution as fundamental law? To answer this question, we should...

take into consideration the key concepts of modern constitutionalism:

1. The idea of establishing a limited government, constraints on the government and bodies who exercised the power to protect the individual and the fundamental rights. Limitations to the state to protect fundamental rights.
2. Enchanting fundamental rights. In the first phase the constitutions dealt only with civil rights (habeas corpus).
3. The idea of avoiding concentration of power in a single body or person, as it was in the period of Absolutism. The idea is to distribute legitimate power to various branches of the government. Two concepts:
   • Checks and balances in the English context
   • The separation of power in the civil law systems. This idea of distinction comes from Montesquieu. If all the power is concentrated in a body, it will not have a limit. The idea is to have different branches, so that they can check each other.
4. The idea is to give people the power to legitimize the government. In the middle ages Kings derived their

legitimation from God, whereas in the period of revolutions the idea of legitimation of power coming from people was introduced. There is a mutual relationship between political power and the constitution. The constitution is the product of a political process, but at the same time the constitution may limit the latter. In legal terms: the constitution must be understood as a set of legal orders. The purpose of these norms is to regulate the establishment and the exercise of political power. The regulations of the constitution are comprehensive: it should cover everything. In addition, the constitution is higher than any other normative texts. The only legitimate source of the constitution is the people, they are the legitimation of it. This leads us to the distinction between constitution and constituent power, the power of people to create political legal norms. The source of the constitution normativity of a constitution lies in the fact that the constitution is adopted by people, who are theconstituent power.The notion of constituent power is the bridge concept which connects the idea of political legitimationand the legal sphere, the constitution.The constituent power is the only free and absolute power.It is pure force, raw power.Normally constitutions are the consequence of revolution,civil wars and social dysfunctionsIn these cases there are no legal constraints on the constituent power.However,it is important to stress out some exceptions.:For instance in Italy there was only one constraint on the constituent power: the constituent assembly, elected by italians.This was imposed by people when in 1946 after the 2WW, and a civil law, decided in an institutionalreferendum between monarchy and republic(2th June 1946).This was before the constitution was adopted.On the same occasion, they both voted for the referendum and the constituent assembly.Therefore, the constituent power is generally a free and absolute power, but there are someexpectations.Apart from legal

constraints, there are non juridical, political constraints. First of all, to enact a constitution requires a broad consensus. In some cases, International recognition is essential. An example is offered by those countries which have revolutions or other phenomena. However, it is not automatic. The constituent power is exercised to create a constituent order, to establish a constitution. The constituent order is limited and kept under check.: ART. 1 comma 2 of the Italian constitution: Example Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution. Here we have the very idea of constituent power: a power exercised within the limits of the constitution itself, a power which is exercised within the limit of constitution and the forms established by it.

DIFFERENT KINDS OF CONSTITUTIONS: Typologies are not used just to describe. The basic idea is that they help us to answer other crucial questions from a legal perspective:

• focus on

Hallmarks of the Constitution

In order to distinguish what is different.

Highlight Historical and Philosophical Background

Important for the interpretation of the constitution.

Support and Solve Tough Cases

Written (codified) vs. Unwritten (uncodified) Constitution

Written constitutions are written texts and legal acts.