An Italian Federalism?: The State, Its Institutions and National Culture as Rule of Law Guarantor Author(s): Louis F.

Del Duca and Patrick Del Duca Reviewed work(s): Source: The American Journal of Comparative Law, Vol. 54, No. 4 (Fall, 2006), pp. 799-841 Published by: American Society of Comparative Law Stable URL: http://www.jstor.org/stable/20454519 . Accessed: 18/11/2011 06:23
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LOUIS F. DEL DUCA AND PATRICK DEL DUCA*

An Italian Federalism?-The
and National Culture

State, its Institutions

as Rule of Law Guarantor

Italy presents a nascent federalism, inventing its Regions to ad dress national political blockages. Evolving relations between Re gions and State, plus supranational union, illustrate roles and origins of Italy's State institutions and constitutional rule of law. As the State invents Regions and embraces Supranationalism, its institu tions and cultural values assure continued guarantee of fundamental constitutional principles. Electoral reform, referenda, New Deal-style authorities and judicial activism, all within Italy's historically founded consensus on the constitutional rule of law, reinforce the State and strengthen its role of guaranteeing such rule of law. As Italy continues its experiment of evolving from a unitary to a decentralized, federal-type constitutional democracy, its national judiciary and civil service, along with its legal culture which includes national organiza tion of legal education and professions, support its institutions in as rule of law. Italy's experience may yield suring the constitutional other States' redefinition of federalism, e.g. Argentina, insights for Brazil, Mexico, and Russia, as they address challenges of applying the constitutional rule of law, while confronting change.
I. FEDERALISM VIA REGIONALIZATION AND SUPRANATIONALISM

Italy offers an ongoing story of State transformation. Its nascent federalism combining Regionalization and Supranationalism is cen
*
Scholar,

Respectively,
Penn State

Professor
Dickinson

and Edward
School of Law,

N.
B A.

Polisher
Temple,

Distinguished
J.D. Harvard,

Faculty
Dott. di

Giur. University
UCLA Law J.D. Harvard, versity LaRosa-Ames,

of Rome Law School; and, Partner, Manatt

BA. Harvard, Universit?

Phelps & Phillips LLP;

School Professor, Adjunct laurea in giurisprudenza The authors thank Institute. Paolo Mengozzi, Yves

D.E.A. Universit? de Lyon II, di Bologna, Ph.D. Uni European Lucia Berman, George Gardbaum, Stephen Mathias Arthur Susan Reimann, Rosett, Many,

Schmidt and Richard Steinberg, the participants in the Apr. 6-7, 2006 joint meeting of the American and Italian Societies of Comparative Law at Penn State Dickinson School of Law, and faculty colloquia at UC Davis, UCLA, and Loyola law schools, for
critique, as well as Penn State Dickinson School of Law students for research assis

tance: Vieri Canepele (LL.M. 2005, Studio Legale Canepele), Daniele Ferretti (LL.M. candidate 2007), Cristina Franchini (LL.M. 2004, doctoral candidate Universit? di Firenze law faculty), Gianluca Gentili (LL.M. candidate 2007) and Sofia Marchiafava (LL.M. 2005, Studio Legale Plantade Posi e Associati).

799

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tral to this transformation, and the State's survival in the face of and Italy's abundant political impasse. As Italy regionalizes the State's premier role becomes increasingly to supranationalizes, funda assure the rule of law in conformity with its Constitution's The achievements of constitutional governance mental principles.' merit celebration by Italians accomplishing them, as well as legal and political science students of federalism, aspiring leaders of nomi nally federal countries transitioning to multi-party democracy, and even the international development community engaging so-called The State's ongoing transformation sub-sovereign governments. is a key to what and Supranationalism through Regionalization makes Italy work as a democratic society under the constitutional rule of law. Italy's legal system since World War II offers two superficially dissonant, but intimately related, constants: (1) sustained evolution in the attributes of local, national and supranational levels of govern ment; and (2) consistent respect for the rule of law in conformity with its 1948 Constitution's "fundamental principles." The Constitution's fundamental principles have constrained and shaped the governmen tal evolution, and that evolution has more deeply rooted the funda mental principles. labels its opening articles "fundamental The 1948 Constitution principles." Among them are: popular sovereignty "exercised in the forms and limits of the Constitution;" recognition of human rights; equality of citizens and religions before the law; and Italy's conform ity to international law, as well as promotion of local autonomies and Italy's Constitutional Court de advancement of linguistic minorities. fines the notion of fundamental principles even more broadly. Faced of a Bolzano Provincial Council in 1988 with the constitutionality member's immunity from prosecution for having disparaged the Ital ian flag, the Court procedurally dodged the question, but declared, with aMarbury v.Madison bravura: The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential con tent either by laws of constitutional amendment or other laws. Such are principles that the Constitu constitutional tion itself explicitly contemplates as absolute limits to the power of constitutional revision, such as the republican form [of government] (CONST.art. 139), as well as principles that, although not expressly mentioned among those not subject
1. This is a novel response on the role of the State to questions See Governance and regionalism. in Transition & David (Miles Kahler in the Age Activities New State in a world of in a Global A. Lake eds., of Liberaliza

supranationalism globalization, Political Authority Economy: after The State Statism: 2003); tion D. Levy (Jonah ed., 2006).

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AN ITALIAN FEDERALISM?

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to the principle of constitutional revision, are part of the su preme values on which the Italian Constitution is based.2 of Court's articulation and protection The Constitutional "supreme" and "fundamental" constitutional principles, including through its work as arbiter of disputes between State and Regions, contribute significantly to the State's assurance of the constitutional rule of law. Modification of electoral rules and recourse to national referenda, plus creation of "new Deal"-style authorities to assert State power in management of markets, also add to such assurance. and Supranationalism have proceeded concur Regionalization rently with redefining the State's essence, paradoxically reinforcing its role as guarantor of the constitutional rule of law. Earlier in It aly's post-war history, Regionalism seemed to some merely a political party game tomaintain power.3 However, both Regionalization and Supranationalism with time appear to be contributing to distill the State's premier purpose to the highest level, namely, assuring the constitutional rule of law. Under the 1948 Constitution, Italy's legal system has addressed intimidating challenges in the face of sustained political blockages, including industrial revolution, urbanization, entrenched bureau cracy, stagnant political classes, corruption, organized crime, and ter rorism of right and left. These challenges unfolded as Italy's political parties and governmental institutions struggled to define themselves in a new republican and eventually European environment, initially in the cold war and subsequently in the post-cold war era. As civil society rapidly evolved to greater dynamism, heterogeneity and pros perity, Italian politics often appeared locked in insoluble impasses. With growth and ongoing political blockage, the stakes increased in construction (or as here asserted, reconstruction through deconstruc tion) of the Italian State in a rule of law framework consistent with Italy's ultimately its 1948 Constitution's fundamental principles. disastrous experience of fascism and the consequent post-war politi cal system's mediation of conflicts by avoiding crisp choices (which exacerbated national political impasse), reinforced centrality of the constitutional rule of law to the restructuring process unfolding as a mechanism for working around political impasse.
no. in law, ?2.1, cost, 1146 of Dec. 2. Corte considerations 15, 1988, judgment no. 2. The Court "funda serie sp?ciale of Jan. references Gazz. Uff. 11, 1989, prima of constitutional in support rule of law in various mental" and "supreme" principles and Italian law. between the relation e.g. to define contexts, Community European text note 118. See starting infra

3. Yves Many, The Political Dynamics

Regionalism Giorgio ney G. Berti, Tarrow, in European La riforma La crisi Politics dello italiana 482

of Regionalism:
(Roger Morgan regionale,

Italy, France, Spain,

ed., in Luigi 1986), endorsing & Sid Graziano

in

18 1-28, stato-La vicenda (1979).

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REINFORCEMENT

A.

Italy's National

Electoral System and Political Parties

From the 1948 Constitution's adoption, Italy employed propor tional representation to impede any one political party dominating national life.4 Accordingly, Parliament closely reflected the various parties' electoral strength through the post-war period. Nationally, proportional representation electoral representation fragmented among parties, making government practical only by broad coalition. In contrast, individual party or narrow coalition governance of Re gions and municipalities was common. When the Communists' de facto exclusion from national power became apparent, they became Regionalization proponents.5 Like wise, as the Christian Democrats recognized that they would main tain national predominance with coalition partners, they delayed implementing the 1948 Constitution provision for Regional govern ment.6 The Communists maintained a fifth to a third of national vote from 1948 to 1992; however, fearing a Communist agenda that might include irrevocable Stalinist control, the other parties excluded them from national government until 1996, notwithstanding the 1973 "his toric compromise" of cooperation between Communists and Christian Democrats.7 Because of the long-standing exclusion, the same politi cal class governed Italy from 1948 through 1992 despite frequent elections and reconstitution of coalition governments.8 By 1996 the world changed, and the bulk of the Communists, following the Berlin wall's collapse, mutated into the Partito Democratico della Sinistra's social democracy.9 The pattern of national center-left coalition gov ernments further changed as the tangentopoli scandals exposed their entrenched corruption.10 Starting in the 1990s, Italy wrestled with ways to render its elec toral mechanisms more decisive. In 1993, it determined to elect its Parliament on a predominantly first-past-the-post system." Another
4. See Alberto Pasolini Zanelli, The Electoral Reform
ity System, Republic: in Transition: in Italy The D. 1997 Edmund The Long Road Lectures from Pellegrino Politics Janni (Paolo ed., 1998). note 5. M?ny, supra 3, at 14-15. 6. Id. at 15-16. I PARTITI DELLA RePUBBLICA. 7. LUIGI LOTTI,

in Italy: Towards aMajor

the on First to the Second Italian Contemporary

La

POL?TICA

IN ITALIA DAL and

1946 Socialist

AL

1997 (1997).
8. For 59 governments, Christian Italy's predominantly see www.cronologia.it/governi2.htm. from to 2001, 1948 coalitions, note 9. See Lotti, 7. supra Democrat

10. See, e.g., Antonella Delia Porta, A Judges' Revolution? Political Corruption and the Judiciary in Italy, 39 Eur. J. Pol. Res. 1 (2001). 11. By Apr. 14, 1993 referendum, 82 percent of the 35 million voters, Ministero
dellTnterno, http://referendum.interno.it/ind_ref.htm, 315 members. three-fourths of the Senate's no. 130 of June nos. 276 and Laws 5, 1993. DPR 277 endorsed majority 170 of June 5, 1993, of Aug. Uff. 4, 1993, Gazz. no. election of Uff. Gazz. no. 183 of

2006]

AN ITALIAN FEDERALISM?

803

1993 reform provided direct popular mayoral election in larger mu nicipalities (with a run-off between the two leading candidates absent a first round majority), thereby allowing new talent entry into Italian politics.12 In 2005, Italy returned to the proportionality model for national elections for the Chamber of Deputies and Regional results for the Senate.13 To address conflicting objectives of promoting electoral co alitions, assuring Parliamentary majorities able to govern, and pro tecting linguistic minorities and smaller parties, the proportionality is subject to thresholds to receive seats as well as premiums for re ceiving the most votes.14 A June 2006 referendum rejected an amendment of Italy's Con stitution.15 The amendment under the heading of "devolution" (nom inally greater health, education and public safety powers to Regions) would have encouraged parties to campaign through coalitions whose leader would become Prime Minister, as well as redefined Parliamen tary roles.16 Under the amendment only the Chamber of Deputies would ordinarily have considered legislative matters constitutionally reserved to the State, and undertaken confidence votes to unseat Prime Minister and Government.17 The renamed "Federal Senate of the Republic" would have considered only legislation within concur In each rent State and Regional power, plus budget legislation.'8 case, the other House could propose modification, but the initial
Aug.

ties (472 of 630), i.e. run-off of the two leaders absent a first round majority, with
allotted 81 of Mar. proportionally 25, 1993, art. to parties 6, Gazz. with Uff. at no. least 72 4 percent of Mar. 27, of national 1993. See

6,

1993

then

implemented

"first-past-the-post"

election

of three-fourths

of Depu

seats remaining vote. Id. 12. Law no.

Bruno Dente, Sub-National Eur. Pol. 176 (1997).

no.

Governments

in the Long Italian Transition,

303 of Dec. 30, 2005,

20(1) W.
ord. supp.

no. Uff. 13. Law no. 270 of Dec. 21, 2005, Gazz. 213. In Apr. 14. Id. 2006 abroad first Italian residents an idea raised Law reforms. the 1993 electoral with no. 4 of Jan. Law no. 1 of Uff. 5, 2002; Constitutional of Jan. Law no. 1 of Jan. 23, 20, 2000; Constitutional

24, 2001; DPR no. 104 of Apr. 2, 2003, Gazz. Uff. no. 109 of May 13, 2003; Law no. 270 of Dec. 21, 2005, supra note 13. Ballots in the four "in the world" districts may be
cast by candidate La name, unlike conferma for domestic la vittoria candidates dell'Unione, elected La by

of Parliament, elected members no. 459 of Dec. Gazz. 27, 2001, no. 15 Uff. Jan. 17, 2000, Gazz. no. 19 of Jan. Uff. 2001, Gazz.

list. Id. The close election

chosen. Cassazione

lent significance

to the 12 Deputies

and 6 Senators
(Apr.

position

on party

so
19,

Repubblica

2006). 15. Referendum,

of percent Parliament, majorities triggers 16. 17. 18.

il trionfo del No, La Repubblica

(June 26, 2006). Of the 53.6

voters eligible participating, when the amendment adopting a referendum, Gazz. to obviate Referendum Law, 32. contro supra note

Id. 61.7 the amendment. percent rejected as Constitutional to reach failed the Law, no. 269 of Nov. See text infra Uff. 18, 2005. quorum ampiamente superato, La

note 27. The Court of Cassation

satisfied. Constitutional Id. art. 14, Id. art.

then for the first time found all three referendum

devolution: 15.

Repubblica

(Mar. 14, 2006).

1, 14.

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House would retain the definitive vote.19 In limited matters, con cerning national maintenance of "civil and social rights" and "electo ral legislation, governmental entities and fundamental functions of Municipalities, Provinces and Metropolitan Cities," both Houses would vote.20 The failed constitutional amendment exemplifies ongoing re course to changes of procedure to address political impasse. Its prin cipal advocate was the Lega Nord, a key part of the then-governing Berlusconi coalition. Its Parliamentary approval cemented the Lega to the governing coalition, while scheduling the confirmatory referen dum just after pending elections left open whether the amendment would ever take effect. The amendment would have offered new pro cedural paths for political accommodation, but not directly altered balance of power among political forces. Although not in this in stance yielding institutional development, this pattern is ingrained in the successful institutionalization of Regionalization and Suprana tionalism in Italy. B. National Referenda

Increased recourse to referenda coincides with the breakdown of uninterrupted center-left coalition governments and intensification of hollowing out the State's role in the 1990s, from below by Regional ization and from above by implementation of Italy's European obliga tions. The referenda reaffirm the national electorate's voice while to address political questions. Italy affording a decisive mechanism as a Republic by a June 2, 1946 referendum on Republic vs. began Monarchy (the Republic prevailed with 54 percent).21 The next refer endum was not until 1974 (a failed referendum to revoke a law al lowing divorce), followed by 1978 referenda on antiterrorism measures and political party finance, 1981 referenda on terrorism, life imprisonment, right to bear arms and abortion, and a 1985 refer endum on pensions, and from then through 2003, Italians were called 12 times to vote on 41 referenda.22 From its 1948 inception, Italy's Constitution has contemplated two national referendum types: national law abrogation and recon sideration of constitutional amendment.23 Each allows a disgruntled political minority of sufficient relevance direct recourse to the na tional electorate.
19. 20. 21. 22. Id. Id. Ministero Id. and statute dell'Interno, http://referendum.interno.it/ind_ref.htm.

art. 75, Const, art. 23. Const, 138. Regional Respectively, territory modification involve referenda of those also concerned. may directly art. Const, art. 123. 132, Const,

Respectively,

2006]

AN ITALIAN FEDERALISM?

805

An abrogative referendum, on petition by 500,000 voters or five Regional Councils, achieves total or partial repeal of a law or an act having force of law if a majority of the electorate votes and a majority of valid votes cast supports it.24 Tax, budget, and treaty ratification laws, plus amnesties and pardons, are not subject to abrogative referenda.25 are by Constitutional amendments laws, ap Constitutional proved by each house of Parliament twice, at least three months apart, by absolute majority of each house the second time.26 Should the second vote be a lesser majority, the amendment is subject to pop ular referendum triggered within three months of its publication by one fifth of the members of a house, 500,000 voters, or five Regional Councils.27 Once the referendum is triggered, the measure is valid only if approved by a majority of those voting.28 C. New Deal Institutions In the 1990s, Italy focused on invigoration of the State by imple menting antitrust, energy, securities, telecom, and privacy authori ties on the US New Deal model of independent regulatory with technical expertise. European Community direc commissions tives motivated reform of national law in the relevant subject matters together with the creation of the new authorities, a kind of State in stitution not previously present in Italy and divorced from the State's existing bureaucracy.29 CONSOB (Commissione Nazionale per le Societa e le Operazioni di Borsa-National Commission for Companies and Securities Ex change Operations), Italy's first independent regulatory authority, addresses Italy's securities markets.30 While recognized as strength ening capital markets with greater transparency and minority share holder protection, it has by no means addressed all issues. For example, notwithstanding CONSOB and the Communication Regula
art. 75. Const, 25. Id. The Constitutional tional Law no. 1 of Mar. 11, art. 26. Const, 138. On tion's fundamental principles 27. Id. 24. 28. Id.

Court resolves Uff. 1953, Gazz. the Constitutional from amendment,

over issues. Constitu such disputes no. 62 of Mar. 14, 1953. Court's of the Constitu protection see text supra note 2. starting

29. See Patrick Del Duca & Duccio Mortillaro,

to European Community Law: di Electric un mercato and

The Maturation

of Italy's Response
Sector Institutional

Telecommunications nei servizi pubblici,

Innovations,
e creazione

23 Fordham
amministrativa

Int'l L.J. 536 (2000); Lucia Musselli,

Direttive
Diritto

comunitarie
Amministra

tivo 79 (1998). 30. Created by Law no. 216 of June 7, 1974, Gazz. Uff. no. 149 of June 8, 1974; enhanced by Law no. 281 of June 4, 1985, Gazz. Uff. no. 142 of June 18, 1985, ord. supp., including to implement EEC Directives nos. 279 of Mar. 5, 1979, OJ L 66/21 (Mar. 16, 1979), 390 ofMar. 17, 1980, OJ L 100/1 (Apr. 17, 1980) and 121 of Feb. 15, 1982, OJ L 48/26 (Feb. 20, 1982).

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tory Authority (Agcom),31 questions were raised by Silvio Berlus coni's service as Prime Minister while owning the half of the Italian broadcasting sector outside State control.32 Other independent authorities are: Regulatory Authority for Electricity and Gas,33 which has overseen introduction of competition into Italian electricity markets; Authority for Protection of Personal Data;34 Antitrust Authority;35 Authority for Oversight of Public Works;36 and National Commission of Guaranty of Implementation of the Law on Strike in Essential Public Services.37 The varied means to select their members are formally intended to assure inde pendence,38 but only time will reveal their adequacy to prevent
31. supp. Law no. no. 191/L. and 249 of July 31, 1997, Gazz. Uff. no. 177 of July 31, 1997, ord. supp.

no. 154/L; DPR no. 318 of Sept. 19, 1997, Gazz. Uff.
Agcom publishing is to assure sectors. For broadcast, and competition telecommunications,

no. 221 of Sept. 22, 1997, ord.

citizen in the telecom, rights it addresses Commission

Directives no. 338 of June 28, 1990, OJ L 192/10 (July 24, 1990), and no. 301 of May 16, 1988, OJ L 131/73 (May 27, 1988).
32. See Aldo Fontanarosa, Rai eMediaset, padrone ?nico, La Repubblica (July 6,

2004); Council of Europe Resolution (May 26, 2005).

33. (internal 17, 1990) Created electricity by Law no. 481 of Nov.

1387 (2004); Silvio Berlusconi,

14, 1995; by D.L. and Gazz. no. Uff. 79 no. 270 16, Council

The Economist
of Nov. 1999, 18, Gazz. 1995, Uff.

it addresses

European Directive
market, of

no. 92 of Dec.

19, 1996, OJ L 27/20 (Jan. 30, 1997)

of Mar.

no. 75 ofMar. 31, 1999); Council Directive

(transparency industrial gas

implemented

no. 377 of June 29,1990,

electric prices);

OJ L 185/16 (July
Recommenda

tion of Apr. 21, 1983, OJ L123/40 (May 11, 1983) (gas pricing); Council Recommenda tion of Oct. 27, 1981, OJ L 337/12 (Nov. 24, 1981) (electricity pricing).
34. Created

supp. no. 3, prompted by Council Directive 1995).

35. and Law Created by Law no. 57 of Mar. no. 5, 287 2001, of Oct. Gazz.

by Law

no.

675

of Dec.

31,

1996,

Gazz.

Uff.

no.

5 of Jan.

8,

1997,

ord.

no. 46 of 1995, OJ L 281/31

no. 22, 240 of Oct.

(Nov. 23,
13, 1990, by

Uff. 10, 1990, Gazz. no. 66 of Mar. Uff.

2001,

Council Regulation no. 4064 of Dec. 21, 1989, OJ L 395/1 (Dec. 30, 1989). 36. Autorit? per la Vigilanza sui Lavori Pubblici, contemplated by Law no. 109 of
no. 41 of Feb. Uff. ord. supp., commenced fol 19, 1994, 11, 1994, Gazz. activity no. 284 of Dec. Law no. 415 of Nov. Uff. ord. supp. 18, 1998, Gazz. 4, 1998, di Garanzia Commissione Nazionale dell'Attuazione delta Sci sullo Legge Pubblici created opero nei Servizi Essenziali, 12, 1990, Gazz. by Law no. 146 of June no. 137 of June no. Uff. Uff. 14, 1990, amended 11, 2000, Gazz. by Law no. 83 of Apr. 85 of Apr. 11,2000. In order 38. of creation: has a president and four members, named (1) CONSOB Feb. lowing 37.

prompted

by President
isters presidents on Strike who elect

of the Republic decree on Prime Minister

Law no. 216 of June

proposal, after Council ofMin

deliberation.

note (2) The 7, 1974, supra 30, art. 1(3); name the nine members of the Commission of Parliament's Houses jointly or labor in Essential not be political Public who may and leaders Services, a president from their number for one three-year term. Law no. 146 of June

12, 1990, supra note 37, art. 12; (3) The presidents of Parliament's Houses jointly name the Antitrust Authority's four members and president, the Minister of Industry
names its Secretary works oversight General. Law no. Law 287 no. of Oct. 109 10, of Feb. 1990, 11, supra 1994, note supra 35, note art. 36, 10(2),

11(5); (4) The presidents

public

of Parliament's
authority,

Houses

jointly name the five members

of the
art.

4(2); (5) The three member Authorities for (a) Electricity and Gas and (b) Communica tions, are named by President of the Republic decree after Council ofMinisters delib
eration, advance Nov. 14, following two-thirds 1995, nomination Minister, by the relevant subject matter vote of the relevant committees. Parliamentary note of Parliament (6) Each House supra 33, art. 2(7); constrained by no. 481 Law of two of appoints

2006]

AN ITALIAN FEDERALISM? and bureaucratic

807 and party

"agency capture" by regulated entities

"colonization."
TO III. DEVOLUTION REGIONS Under the 1948 Constitution, Italy is comprised of 20 Regions,39 The Constitution accorded divided into provinces and municipalities. five outlying Regions (Friuli-Venezia Giulia, Sardinia, Sicily, Tren tino-Alto Adige, and Val d'Aosta) so-called Special Statutes, which af forded them some immediate autonomy reflective of comparative self-suffi geographic isolation, prior legislative and administrative It did so to co-opt greater de ciency, and linguistic minorities.40 mands for autonomy or even independence.41 Although the regions of Italy have two-thousand-year plus histo ries as distinct cultural and political entities, the 1948 Constitution drew on them only in a limited fashion; its Regions have no exact correspondence to homogeneous historical realities. They correspond neither to the seven entities from which Italy was unified in the 1860s,42 nor do they correspond in any comprehensive way to prior entities. For example, Rome as capital of the Papal States had an experience divergent from parts of its Lazio Region outside the Papal States. Further, many areas were long controlled by foreign powers, some of whom were "Italian" powers, e.g. Venice's Republic. The his tories of Italy's component parts are much longer and more varied than those of the British colonies that united to become the original 13 states of the United States. However, unlike the 13 American col onies that more or less simultaneously rebelled against British rule to create a confederation, Italy's Regions in their present incarna tions have not joined to create a State. Rather, the State through its
data protection. Law no. the four member for personal Authority note supra 34, art. 30(3). Law no. 3 of Dec. 39. Const, art. 131. Constitutional 27,1963, as the 20th Region. Jan. created Molise 4, 1964, 40. Const, art. 116. See Constitutional Law no. 1 of Jan. 31, 675 of Dec. Uff. Gazz. 31,1996, no. Uff. 3 of no.

Gazz.

1963,

29 of Feb. 1,1963, for Friuli-Venezia

Uff. Gazz. no. 133-3 Uff. Gazz. Gazz. Uff.

Giulia; Constitutional

Law no. 3 of Feb. 26,1948,

no. 58 Mar. Uff. for Sardinia; D.L. no. 455 of May 15, 1946, Gazz. 9, 1948, Law no. 2 of Feb. converted into Constitutional of June 26, 1948, 10, 1946, no. 58 of Mar. for Sicily; Law no. 5 of Feb. 28, 1948, Constitutional 9, 1948, no. 670 of Aug. no. no. 62 of Mar. Uff. and DPR 31, 1972, Gazz. 16, 1948,

301 of Nov. 20, 1972, for Trentino-Alto

1948, Gazz. 41. See, Uff. e.g., no. 59 of Mar. Carlo 10, 1948, Giuseppe Marino,

Adige; Constitutional
for Val Storia d'Aosta. del

Law no. 4 of Feb. 26,

siciliano: 1943

separatismo

1947 (1979). For the treaty basis for autonomy

of Trentino-Alto Adige and its prov

e al see Lorenzo centro inces Trento Ai dell'Italia and Bolzano, D?liai, confini I At the Frontier in Nation, Federal of Europe, of Italy and at the Centre dell'Europa ism and Democracy: and the American The EU, Italy Federal Experience 19-24

(Sergio Fabbrini
42. Daniel many and the

ed., 2001).
of Structuring Federalism the 57-78 State: (2006). The Formation of Italy and Ger

Ziblatt, Puzzle

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institutions continues to birth and shape its Regions political and governmental units.

as meaningful

law professor who was a Gaspare Ambrosini, a constitutional member of the Constituent Assembly that drafted the 1948 Constitu tion and of the Corte Costituzionale from its inception through 1967 (and eventually its president), defined the concept of "Regional State" in a 1933 essay, republished in 1944.43 He distinguished such a State from unitary and federal states as characterized by constitutional guarantees of Regional autonomy founded in a national constitution. Anticipating Italian realities of national political impasse which have driven the development of Italian Regionalism in recent decades, he observed that the Regional State, with reference to Austria in the period 1867-1918 and the Spanish Republic under its 1933 Constitu tion, arose as a new form of State from "practical needs," just as the federal state was born in the United States when its present federal constitution replaced the prior Articles of Confederation in 1787. Although the 1948 Constitution directly granted even the non Special Statute Regions legislative powers for limited matters such as agriculture, public works, tourism and urban planning,44 the Regions were little more than paper entities even after the first Regional Councils for ordinary statute Regions were elected in amendment dis 1970.45 Moreover, until the 2001 Constitutional no power to impose taxes; they de cussed below, the Regions had pended solely on State revenue sharing.46 Even the fundamental challenge of the south's economic lag behind northern Italy was ad dressed through the 1990s principally by direct State subsidies and initiatives outside the framework of the economic development Regions.47
43. Gaspare Ambrosini, Spagna-Germania-U.R.S.S. 44. Const, art. Autonom?a (1944). Regionale e Federalismo: Austria

to 2001. from 1948 117, effective no. 61 of Mar. 108 of Feb. Uff. (electoral 17, 1968, Gazz. 6, 1968 no. 27 of May Uff. Law no. 281 of May 22, 1970; DPR mechanism); 16, 1970, Gazz. no. 12 of Jan. nos. nos. 7-11 of Jan. 1-6 of Jan. Uff. 15, 15, 1972; DPR 14, 1972, Gazz. no. no. 24 of Jan. Uff. Uff. 22, 1975, Gazz. 27, 1972; Law no. 382 of July 1972, Gazz. 45. Law no.

220 of Aug. 20, 1975.

46. of Health On Region Care finances preand post-2001 reform, see Marco Fund, del Italy: Annunziata Selected del & Ist

v?n Sz?kely, The Evolving Role of Regions

Services, in International

in Italy: The Financing

Monetary

and Management
Issues, 7 ottobre I

IMF Staff
ismo fiscale

Country
nella

Report

No. 00/82, 95-102

italiana:

(July 2000); Piero Giarda, // federal

referendum

Costituzione

le conseguenze

Fiscal Federalism

in the Italian Constitution:

The After-math

of the October 7th Refer

and the American and Democracy: Federalism The EU, Italy in Nation, endum, 105-18 Le Federal Experience Alessandro Fabbrini ed., 2001); Petretto, (Sergio ENTRATE DELLE REGIONI E DEGLI ENTI LOCALI SECONDO IL NUOVO ART. 119 DELLA CoSTI econ?mica tuzione: text 82. un'analisi See (2003). infra note Carlo 47. See Trigilia, POLITICHE NEL MeZZOGIORNO Sviluppo (1994). senza autonom?a. Effetti perversi delle

2006]

AN ITALIAN FEDERALISM?

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the Regions were fruitful venues for expression and Nonetheless, concentration of divergent political views.48 Notably, the opposition Communist party assumed power in some of Italy's principal cities and a few of its Regions. Emilia Romagna, as a prominent example, became known as prospering through its many family enterprises that relied on the efficiency and honesty of Communist-dominated and the Region, as well as its his governments of its municipalities torical traditions of social capital.49 A. Region-Building by Legislation

A 1977 Presidential Decree represented an initial significant step towards staffing the Regions: it moved several thousand State employees to the Regions, but left them dependent on State revenue transfers.50 Legislative activity of 1997-1998 initiated major restruc turing, but did not close the process of establishing a more robust legal and financial foundation for the Regions. This round was asso ciated with the rise of the Lega Nord political party, that sought fuller devolution of powers to Regions so as to free its northern home base from what it saw as the millstone of net State transfers of re sources to address the south's economic development.51 The center right coalition's reliance on the Lega Nord to maintain government leadership further pushed the issue of governmental structure to the

fore.
Legislation of 1997 broadly "conferred" Regions, provinces and "all functions and administrative duties relative to municipalities care of the interests and promotion of the respective communities' de velopment."52 Excluded were subject matters parallel to those exclu in the subsequent to State sively reserved 2001 legislation constitutional amendments.53 The conferral was to be in observance of "subsidiarity," the European law concept that the lowest effective level of government should act.54 Recognizing that effective "confer ral" required substantial implementation activity, Parliament dele gated to the Government the power to issue implementing decrees,
48. Franco For dimensions along Federalismo, Eur. which Regional Regionalismo L.F. et 65 autonomy e Riforma progressively emerged, dello Stato (1996), see re

Pizzetti, 12 Tul. e.g.,

viewed by Martin A. Rogoff, Federalism

Experience, 49. See, & Crv. D. Putnam Robert

in Italy and the Relevance

(1997). al., Making Democracy

of the American
Tradi

Work?Crvic

tions in Modern Italy (1993). 50. DPR no. 616 of July 24, 1977, Gazz. Uff.
nunziata 51. & See Law Id. Sz?kely, Thomas no. art. 59 3(1), note 46, at 86. supra The Lega Nord W. Gold, of Mar. 4. On 15, 1997, art. 1(2), see and Gazz.

no. 234 of Aug. 29, 1977. See An

Contemporary Uff. no. 63 Politics of Mar. 17, in Italy 1997. Com

(2003).
52. 54.

53. Id. art. 1(3), (4) and (5). See text infra note 75.
subsidiarity, Treaty Establishing

munity, art. 5, OJ C 340/3 (Nov. 10, 1997); Nicholas 11 Eur. L.J. 308 (2005). Subsidiarity,

the European

Barber, The Limited Modesty

of

810

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including to further rationalize the State public administration.55 To address the ongoing need for legislation and budgetary reallocation, the law created a Parliamentary Commission of 20 senators and 20 deputies to opine on transfer issues.56 A second law, focused on sim plifying various aspects of Italian administrative law and procedure, promptly followed.57 The Government issued its implementing legislative decrees in early 1998, systematically identifying the matters forwhich adminis trative responsibility was transferred to Regions and other local gov ernments, and those for which it remained with the State.58 Among matters shifted away from the State were economic development, en vironmental regulation, infrastructure, land use, local police and so cial services.59 Another such decree addressed health care reorganization, in Italy principally a government service. The decree confirmed health care as provided locally, but subject to State control.60 In the 1997-1998 activity, the State granted Regions increased staff and responsibilities. But even so, Regions found themselves without meaningful budgetary autonomy and without their own tax power.61 Regions exercised discretion over far less than half their ex penditures: even now, health care, as to which Regions function es sentially as conduits for transfer of State funds to local health units and hospitals, constitutes over 60 percent of their total outlays.62 B. Constitutional Reform to Enhance Regional Powers

Constitutional amendment in 2001 addressed division of powers between Regions and State.63 Although Parliament duly adopted it twice, the second time with the two-thirds majority to obviate a refer endum, the majority held a referendum in any event, to bolster popu lar attention to expansion of Regional powers.64 Although electoral
55. Id. art. 1(1), 11(1).

56.
the

"[N]amed respectively
of Deputies, no. 112 Gazz. no. 115 art. of Mar. Uff. of Mar.

by the Presidents
of the Uff. 2,

of the Senate of the Republic and of

Parliamentary groups," 21,1998, id. art. 5. no.

Chamber 58. D.L. Id. D.L. Const,

on designation 31,1998, no. 116 Gazz. of May Gazz.

57. Law no. 127 of May

77, rectification 59. 60. 61. 62. 63. Nov. tional

15, 1997, Gazz. Uff.

no. 113 of May

no. 92 of Apr.

17, 1997.
ord. supp.

1997. no. 96 of Apr. See Uff. 1998.

Annunziata Constitutional

119, & Sz?kely, Law

31, in effect no. no. 31,

1998, from

Uff.

27,

1948

to 2001. 83. infra note no. 248 of Oct. Regions) 1, 2001 and (special

note supra 46, at 88-89. 3 of Oct. 18, 2001, Gazz. 299 of Dec. 22, Gazz. Uff.

24,

2001,

following Regional president direct election introduced by Constitutional

Uff. 22, 1999, Gazz. no. 2 of Jan. Law each Fusaro, 2001, 1999 (ordinary no. 26 of Feb.

Law no. 1 of
Constitu statute

Regions). 64. Barbera

Previously, & Carlo

was amendment adopted La sovranit? popolare,

without See referendum. di Diritto Corso Pubblico

Augusto (2004).

2006]

AN ITALIAN FEDERALISM?

811

participation in the October 7, 2001 referendum was only 34 percent, 64 percent of those voting ratified it.65 The 2001 amendment created a new Constitution Title V, titled Previously, Regions were to is "Regions, Provinces, Municipalities." sue "legislative norms" within a specified list of subject matters "in the limits of the fundamental principles established by laws of the State," provided that such norms were not "in contrast with the na tional interest and those of other Regions," and Parliament could delegate to the Regions the power to issue implementing norms.66 The prior text considered Regions and other local government enti ties the base of a pyramid hierarchically presided by the State. The new Title V describes Regions and other local governments as having, within their own spheres of activity, equal dignity with the State.67 A Region's constitution is its Statuto (Statute), which "in har mony with the Constitution," determines its form of government, or ganization and operation.68 A Region is governed by a popularly elected Regional Council.69 The Giunta is the Region's executive body, appointed by its popularly elected President.70 If the President fails a Regional Council confidence vote by an absolute majority of the Council members, called by at least a fifth of the Council, the Council is dissolved for new elections, and the Giunta's mandate is revoked; resignation of three fifths of the Council achieves the same result.7' The 2001 constitutional amendment suppressed the State com missar assigned to each Region to "oversee" coordination of State and functions.72 However, the State may still Regional administrative (1) to as substitute itself for Regions and other local governments: sure respect of international and Community obligations; (2) in cases of grave danger to health and public welfare; and (3) to protect legal or economic unity, particularly essential levels of services concerning civil and social rights.73 As part of the constitutional glue bonding
65. 66. 67. Provinces, See Ministero Const, art. Const, art. note 11. supra dellTnterno, to 2001 amendment. 117, prior is constituted 114 now provides: "The Republic and the State." Cities, Regions Previously Metropolitan

by Municipalities, it provided:

"The

Republic is divided into Regions, Provinces and Municipalities." 68. Const, art. 123. The Regional Council may modify a Regional Statute by ab solute Council majority in two votes at least two months apart, which the State has 30 22,1999, art. 3, supra note 63. If a 50th of the Region's voters or a fifth of the Regional Council triggers a referendum, the modification is valid only if approved by a majority
of votes 69. Regional 70. 71. 72. Uff. 73. cast. Const, Id. Const, Id. How Regions art. 122. 121, member art. art. of Oct. art. 126. 124, 24, 120. abrogated 2001. by Constitutional Law no. 3 of Oct. 18, 2001, Gazz. may Council remains to be seen. will recraft their charters distinction To promote and State, between Regions serve not also in Parliament. 122. Const, art. a days to challenge before the Constitutional Court. Constitutional Law no. 1 of Nov.

Const, no. 248 Const,

812

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54

State and local governments, the procedures relative to such substi tution are to be defined in accord with principles of "subsidiarity" and

"loyalcollaboration."74
The 2001 amendment: (1) reserves the State exclusive legislative power in limited matters,75 (2) enumerates matters of concurrent State and Regional legislative power,76 subject to State legislative de termination of "fundamental principles," and (3) grants Regions legis lative power in every other matter.77 Regions may not restrict free circulation of persons and goods, nor may they limit the right to work.78 The 2001 amendment subjects State and Regional legislative power to the Constitution, "as well as the restrictions derived from the [European] Community order and international obligations."79 As to administrative matters, the 2001 constitutional amend ment further embraces subsidiarity. Administrative powers are at tributed to municipalities, unless, "to assure their unitary exercise," they are conferred to provinces, metropolitan cities, Regions and the State on the basis of "principles of subsidiarity, differentiation and adequacy."80 The arrangement as to administrative matters under the 2001 amendment contrasts with the previous regime which granted Regions administrative functions except for those of "exclu sively local interest," attributable by State law to provinces, munici palities or other local entities.81 The 2001 reform clarifies that Regions and other local govern ments set their own budgets and have their own resources, including their own taxes, albeit "in harmony with the Constitution and accord
74. 75. tion; nancial Id. For Constitutional Court to matters reserved the Republic between State competition; election entities; law; criminal, citizenship; customs duties, weights note 108. starting relations; immigra and fi money; confessions"; defense; religious resources of financial taxes, among equalization order and safety, than local adminis other public so civil and administrative and welfare justice; application, the State are see text infra international

Among "relations markets;

governmental trative police; cial security; computer and ents;

and measures; and statistical "informational, of local, Regional and State administration data"; public pat and cultural environment art. 117. Const, patrimony protection. are "international matters 76. Among concurrent Union and European relations of Regions"; labor in of scholastic trade; law; "education, autonomy foreign excepting coordination

stitutions and with exclusion of professional education and formation"; professions; of health; civil protection; nutrition; research; sport protection regulation; "govern ance of territory"; civil ports and navigation net and airports; major transportation of communication; and national distribution works; regulation production, transport of public of energy; accounts social harmonization and coor supplementary security; tax system; of public and valorization dination finance and of cultural and environ mental Id. goods. 11. Id. 78. 79. 80. Unitarie: rente," 81. Const, Const, Const, art. art. art. 120. 117. 118. See Nazionale Paolo Caretti, al Principio e La Corte di Sussidiariet?, Regioni la Tutela delle 32 Le Regioni 587-603 Esigenze 381-90

dall'Interesse

(2004), Lorenza Violini,

Leale Collaborazione Const, art. 118,

/ Confini d?lia Sussidiariet?:

e "Strict Scrutiny," 32 Le in effect 1948 to 2001. from

Potest? Legislativa

uConcor

(2004).

2006]

AN ITALIAN FEDERALISM?

813

ing to the principles of coordination of public finance and tax sys in State taxes tem."82 They are to participate proportionately concerning their territory,83 while State law is to establish an equali zation fund for distribution to entities with lesser tax capacity per inhabitant (Regions limiting exercise of their taxing authority risk less ability to tap it),84 and the State may selectively direct further resources.85 Regions and other local governments may incur debt "only to finance expenses of investment," and no State guarantee is allowed.86 The available statistics suggest that Regions are exploring use of their augmented powers of taxation to build revenue bases,87 albeit from a rickety foundation. Regional revenue bases include taxes on business activity, which Regions may adjust upward or downward by about 30 percent from the nationally set base and differentiate in ap plication by taxpayer category,88 personal income taxes collected through a Regionally adjustable surcharge on income declared for State income tax,89 and dedicated shares set by State law in national value added tax90 and gasoline excise tax revenues,9' as well as mis
82. 83. Emanuele analisi Rivista Const, Id. note 46. 119. See also supra see statute of special but analogous, particular, rights Regions, e finanza tra finanza II rapporta Barone statale Ricciardelli, regionale: recente sentenza in Tributi Line: della Corte On di una Costituzionale, e delle re del Ministero dell'Economia FiNANZE (June 2006). Regions art. On the

main
care

obligated
obligations. D.L. Const, no.

to apply their share of such funds with first priority to meet health
D.L. 56 art. no. 56 of Feb. 2000, early 18, 2000, art. 8, 9, Gazz. Uff. no. 62 of Mar. 15, of Feb. 119. For note art. 7, supra 83. of new Constitution estimation

2000.
84. 85. tional 18, Title Vs distribu see Annunziata the fund's & and significance, equalization implications note On the Constitutional Court's role in determining supra 46, at 97-98. Sz?kely, see Corte on State cost, judg of Regional limits control funds" "equalization spending, no. 5 no. 49 of Jan. of Feb. Gazz. serie ment Uff. 29, 2004, 4, 2004, prima sp?ciale to State of infrastructure Region challenge targeting (validating Emilia-Romagna funding). 86. Id. Local to securitize and investment bank, 87. One set to support is emerging, investment bond finance capital an of Dexia other receivables. e.g., reports See, Crediop, at www.dexia-crediop.it. available as percent tax receipts of total receipts 33.8 shows Regions' climbing: government tax and

percent in 1999, 37.8 percent in 2000, 38.9 percent in 2001, 39.1 percent in 2002, and
in 2003, with transfers. Istituto 39.8 percent the balance State Tbl.25.6, substantially statistico italiano Annuario 2005 Another set Nazionale di Statistica, (Nov. 2005). own in 2001 of revenues from 49.9 their shows taxation, percent deriving Regions

growing to 58.9 percent in 2002, Fig.3.1, p. 129, Istituto Nazionale di Statistica, Statistiche delle Amministrazioni (3) (2005), pubbliche, Anni 2001-2002, Annuario
with the balance State Regionale 1997, art. transfers. sulle 16, Gazz. Id. 88. Imposta 446 of Dec. 15, value 89. of Feb. added D.L. Attivit? at Tbl.3.1, p. 140 et seq. Produttive introduced ("IRAP"), no. 298 of Dec. Uff. 23, 1997, upheld no. by D.L. by European

Court of Justice, Case C-475/03

tax. no. 446

(Oct. 3, 2006), as not reached by European

88, no. as amended 56 of Feb.

limits on
no. art. 56

18, 2000, 90. Instituted note 83. supra

note art. 50, supra of Dec. 15,1997, note 83. supra statute for ordinary Regions by D.L.

by D.L. 18, 2000,

2,

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cellaneous Regionally set taxes including vehicle registration taxes and hazardous waste disposal surcharges.92 Regions and other local governmental entities are subject to sig nificant State control beyond State establishment of revenue trans fers. In addition to the State power to substitute itself for Regional and other local governments,93 the President of the Republic, having heard a Parliamentary Commission's opinion, can dissolve a Regional Council and remove a Giunta President if they act "contrary to the Constitution or in grave violation of the law," as well as for reasons of "national security."94 Regions and other local governmental entities also remain subject to audit by the national Corte dei Conti.95 Fur ther, the Constitutional Court, as discussed immediately below, has staked a significant role for itself in defining proper State and Re gional activity spheres. The tools for State control of Regions, including the Constitu tional Court's protection and promotion of Regional spheres of activ ity, together confirm classification of Italian Regionalism as a system of Regional autonomy guaranteed by a national constitution, cer tainly not the joining of sovereign states in a federative, federal or supranational union. Conversely, Regions' legislative and budgetary autonomy confirms Italian Regionalism as not the mere decentraliza tion of administrative functions evidenced in unitary states. C. Region-Building by Constitutional Court Decision

Constitutional Court jurisprudence has extensively developed the ramifications of Regional government. Indeed, one of the Court's first decisions invalidated, as incompatible with the Constitution article 120 prohibition on limiting right towork, legislation of the au In the challenged legislation, the tonomous Province of Bolzano. Province, relying on the Special Statute of Trentino-Alto Adige, sought to create a system to regulate artisans that de facto excluded participation of artisans from outside the Region.96 The State may within 60 days of publication challenge a Re Court as exceeding Regional gional law before the Constitutional a Region can challenge a law or act having competence.97 Likewise, the force of a law, either of the State or another Region.98 This mech
91. 3(12), Feb. 92. 93. 94. 95. 96. Instituted Gazz. Uff. 18, 2000, See, See statute for ordinary Regions by Law no. 302 of Dec. ord. supp., 29, 1995, art. 4, 12, supra note 83. Annunziata note supra 126. art. & 73 230. no. Sz?kely, and infra supra starting no. as 549 of Dec. 28, by D.L. art. 1995, no. 56 of

amended

e.g., text

note 46, at 95-96. note 108.

Const, text See infra note Corte cost, judgment

6 of June

15,

1956

(Pr?s.

Cons.

v. Bolzano),

available

at www.cortecostituzionale.it. 97. Const, 127. art. 98. Id.

2006]

AN ITALIAN FEDERALISM?

815

anism, established by the 2001 amendment, superseded the previous mechanism that treated Region and State less equally. Formerly the State could also challenge the Regional Council to re-adopt the chal lenged Regional measure, as well as then ask Parliament to recon sider the measure as substantively inappropriate.99 The Constitutional Court's work has involved a steady stream of cases addressing spheres of State and Regional action. As shown in Figure 1, the Court's pronouncements of all kinds have grown sub stantially over the years with a particular spike in 1988 as the Court cleared its backlog.100
1200 -

600 -X ____;_

1956 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2004

BY COURTPRONOUNCEMENTS YEAR FIGURE 1 CONSTITUTIONAL The Court's web site indexes its pronouncements by the category of "judgments of conflicts of attribution among entities," and this cat egory, which includes disputes between State and Regions, plus po tentially conflicts among Regions, is a steady presence as indicated below. However, it fails to capture a post-2001 increase in Court pro nouncements addressing the Constitution article 117 allocation of re sponsibility between State and Regions. Interrogating the site for "art. 117," which also retrieves other legal material references to an article 117, shows an increasing number of such pronouncements after the 2001 article 117 amendment, as indicated in Figure 2.101 Further confirmation of the post-2001 increase is an Emilia-Ro magna Region listing of Constitutional Court pronouncements that it considered pertinent to defining State and Regional spheres. It shows cases growing from 28 and 53 in 2002 and 2003, respectively,

rejected Regional 100.

amendment to 2001. The constitutional in force from 1948 art. 127, a to void to ask Parliament the prerogative have restored 2006 would 15. note art. 45, supra Constitutional Law, The Court often disposes from www.cortecostituzionale.it. Statistics compiled one decision or order. cases matter with related of multiple by subject the Court's 101. Search for "art. 117" among 25, pronunce yields (pronouncements) in 2005 2001 for years (as reflected through 35, 58, 96, and 109 pronunce respectively a similar with massime but among in text), while the graphic (headnotes) search, 99. Const, June law. 26, 90, to retrieving only and 118 for the Constitution corresponding art. 117-related pronouncements, yields 25, years.

attention 44,

816
120 -

LAW THE AMERICAN OF JOURNAL COMPARATIVE

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100 --80 60 40 20 _ , ' . --7 'l __ _

1956

1960

1964

1968

1972

1976

1980

1984

1988

1992

1996

2000

2004

-Judgments

of conflict of attribution

among entities:

- - -art. 117]

INVOLVING COURT JUDGMENTS FIGURE 2 CONSTITUTIONAL REGIONSAND THE STATE to 109 and 100 in 2004 and 2005, respectively.102 Common issues in this litigation are environmental protection, often concerning waste disposal,103 interplay of national taxation and equalization of Re gional financial resources,104 allocation of powers between Regions and State regarding social security,105 powers ofmunicipalities, prov inces and metropolitan cities,106 and health care.107
Decisioni 102. Emilia-Romagna, Regione dati Banca Titolo V della Costituzione, at www.regione.emilia-romagna.it. available della Contenzioso Corte Costituzionale Costituzionale concernenti Titolo il V,

no. 505 of Dec. art. 117(2)(s). cost, judgment Corte 103. Under Const, 4, 2002 E.g., v. Prov. serie sp?ciale Gazz. Uff. of Dec. (Soc. Ecograf s.p.a. 11, 2002, prima Treviso), no. 49 (voiding on disposal of other Re in V?neto landfills limitation V?neto Region's hazardous waste). gions' no. 296 of Sept. cost, art. Corte Under Const, 104. 117(2)(e). 26, judgment E.g., no. 39 v. Piemonte), serie sp?ciale Gazz. Uff. of Oct. 2003 {Pr?s. Cons. 1, 2003, prima tax exemption for Olympic organizing entity legislation providing (voiding Regional no. 94 of Mar. cost, judgment Corte and alternative (Pr?s. 28, 2003 energy vehicles); no. v. Lazio), 13 (upholding serie Gazz. Uff. of Apr. Cons. 2, 2003, prima sp?ciale business scheme for "historic law subsidy Regional places"). cost. Gazz. art. Corte ord. no. 526 of Dec. 105. Under Const, 117(2)(o). 9, 2002, as inade no. 49 (declaring inadmissible Uff. of Dec. serie 11, 2002, prima sp?ciale a first of a Regional instance compatibility, question concerning posed judge quately to State reservation of constitutional law regulating rents, with publically-subsidized social standards). rights minimum no. 201 of June cost, judgment e.g., Corte See, 117(2)(p). no. 24 (Lombardia of June serie sp?ciale 18, 2003, prima Region of simultaneous of Re State-mandated holding incompatibility legislation limiting to larger municipalities, and municipal councilor unconstitutional); positions gional no. 376 of July of July serie cost, judgment Corte 31, 2002, prima 23, 2002, Gazz. Uff. no. 30 (as Court Title V, Emilia-Ro under the pre-2001 Constitution denies, sp?ciale it to State reform measures, administrative and Liguria magna challenges procedure in law)). Title V (at f5 considerations renewed under amended invites challenges assuring 106. national civil and Under 11, 2003, Gazz. Const, Uff. art. no. 88 of Mar. cost, judgment art. Const, 117(3). 27, See, e.g., Corte no. to 13 (voids State effort serie Uff. of Apr. 2, 2003, prima sp?ciale no. 282 of June cost, judgment Corte of addiction 26, treatments); regulate provision no. 26 (voiding law serie Uff. of July Gazz. 3, 2002, 2002, Regional prima sp?ciale to suspend and electroshock lobotomy therapy). purporting 107. Under 2003, Gazz.

2006]

AN ITALIAN FEDERALISM?

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As an example of the Constitutional Court's action as arbiter of allocation of governmental powers, its decision no. 70 of 2004, ad dressed a challenge by the State to Tuscany Region legislation.'08 With the challenged legislation, the Region claimed the ability to act in place of municipalities and provinces failing timely to approve haz ardous waste remediation plans. In bringing the original jurisdiction action before the Court, the State asserted that the Constitution lim ited such power of substitution to the State itself. The Region coun tered that national constitutional and legislative provisions, as well as European Community directives, afforded it authority to act. The Constitutional Court ruled strictly on constitutional It acknowledged that Constitution article 117(2)(p), as grounds. amended 2001, reserves definition of "fundamental functions" of mu cities exclusively to State nicipalities, provinces and metropolitan legislation, while Constitution article 118(1) delegates all administra tive functions tomunicipalities unless legislation justified on criteria of "subsidiarity, differentiation, and adequacy" allocates competence to a different governmental level. The Court reasoned that because the State power of substitution established by Constitution article 120 derives from the need for State substitution to protect essential State interests as articulated by article 120, such power of State sub stitution is "extraordinary and additive." The Court accordingly con is not exclusive and cluded that the State power of substitution upheld the Regional law. The Court further noted that its pre-2001 of amendment jurisprudence on criteria for State substitution Regions remained valid. The Court concluded that the criteria for a and provinces include Region to substitute itself for its municipalities that the criteria for substitution, both as to substance and procedure, be well defined and that the principle of "loyal collaboration" among governmental levels mandated procedural guarantees to assure that undue exercise of a power of substitution be avoided. By articulating the foregoing legal framework and premising its operation on application of the aspirational principle of conduct con sistent with "loyal collaboration," the Court assumed ongoing respon sibility to assess its application to the facts of whatever case the State or a Region might bring before it. In the instant case, the Court con cluded that the challenged Regional legislation indeed conformed to the framework and dismissed the State's challenge of it. The Constitutional Court further consolidated its pivotal role in the definition of State and Regional spheres by its 2005 ruling'09 on
v. Toscana), no. 70 of Mar. Gazz. cost, (Pr?s. Cons. 2, 2004 judgment no. 10. serie sp?ciale 10, 2004, prima no. 417 of Nov. cost, 109. Gazz. Uff. of Nov. Corte 14, 2005, 16, 2005, judgment no. 46. For similar see Corte no. 88 of cost, judgment serie sp?ciale reasoning, prima no. 11 (Court voided Uff. of Mar. serie sp?ciale Mar. 15, 2006, prima 10, 2006, Gazz. 108. Uff. Corte of Mar.

2005 State budget

law limitation on Friuli-Venezia

Giulia Region's

future ability to

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an original jurisdiction case in which Campania, Marche, Tuscany, and Val d'Aosta challenged the constitutionality of 2004 State legisla tion addressing the national deficit,"0 insofar as such legislation un In dertook to restrict Regional and local budgetary autonomy. upholding part of the challenge, the Court further elaborated the bounds on the Constitution article 117(3) reservation to State legisla principles of public finance tion of definition of fundamental

coordination.
To contain costs, the challenged law purported to limit Regions and local governments to accomplishing procurement either through contracts established by the national treasury ministry, or otherwise The within nationally established price and quality parameters."' Court reaffirmed the principle "constantly affirmed by the jurispru dence of this Court" by which: norms that establish specific limitations relative to individ ual headings of expense in budgets of the regions and the local entities do not constitute fundamental principles of co ordination of public finance, in the senses of article 117(3) of the Constitution, and they therefore harm the financial au article tonomy of expenditure guaranteed by Constitution 119.112 Further, the Court cited several of its recent decisions for the proposition that the State may impose budgetary policy limitations on Regions and local government entities, but only with "discipline of principle," "for reasons of financial coordination connected to national objectives, conditioned also by [European] [C]ommunity obliga tions."1"3 For such limitations to respect Regional and local govern ment autonomy, the Court observed, they must be focused on either
as violating at-will autonomy, Region's Special Statute-guaranteed employees, no. 417 of Nov. in law, among in %5 considerations 14, 2005, others, judgment citing no. 118 of Mar. cost, judgment Uff. of See also Corte here discussed.). 24, 2006, Gazz. no. 13 (upholding Friuli-Venezia Giulia serie sp?ciale Mar. 29, 2006, prima challenge hire

to 2005 State budget

on ground purchase, be assigned generically destination." specific

law provision
that for 1(9.1 social social funds

for State
in areas

funds to promote first family home

purposes considerations

outside State legislative without the above-indicated in law, id.).

"must power of constraint

110. D.L. no. 168 of July 12, 2004, Gazz. Uff. no. 161 of July 12, 2004, ord. supp. no. 122, converted into law with modification by Law no. 191 of July 30, 2004, Gazz.
Uff. 109. no. 178 of July 31, 2004, ord. supp. no. 135.

111.

^[4.1findings

in law, Corte cost, judgment no. 417 of Nov. 14, 2005, supra note in law, Corte cost, judgment no. 417 of Nov. 14, 2005, supra note

112. ^6.3 findings

109. 113. 2004, Dec. Gazz. Uff.

no. 36 of Jan. cost, judgment Uff. of Feb. Gazz. Corte 26, 2004, 4, Id., citing nos. no. 5; and cost, Corte 376 of serie referencing judgments prima sp?ciale no. 1; 4 of Jan. serie sp?ciale Uff. Jan. 13, 2004, 7, 2004, prima 30, 2003, Gazz. no. 3; and, 390 of Dec. serie sp?ciale Uff. of Jan. 21, 2004, prima 17, 2004, Gazz. no. 49. of Dec. serie 22, 2004, prima sp?ciale

2006]

AN ITALIAN FEDERALISM?

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"the amount of the current deficit" or in a transitory manner on "the growth of current expenditure of the autonomous entities." The State can establish only "an overall limit, that leaves the entities them selves broad liberty of allocation of the resources.""14 The first of the two cases just discussed involved a State chal lenge of Regional action; the second, Regional challenge of State ac tion. In both cases, the Constitutional Court ensures that it, as the Italian State's ultimate arbiter of compliance with the national con stitution, is also a key arbiter of the balance of power between the State on the one hand and the Regions, provinces and municipalities on the other.
IV. SUPRANATIONAL UNION-RELEVANCE OF GRANITAL

Major hurdles in Italy's commitment to the European Union in clude: (1) definition of the terms for its courts' application of Euro pean law, (2) addressing its chronic deficiency in legislation to implement European norms, and (3) surrender ofmonetary and fiscal policy authority as it joined the currency union. Annual delegation to the Government of responsibility to issue the necessary measures was the practical expedient to resolve the legislative impasse."15 The Constitutional Court's resolution of the practicalities of the Italian courts' application of European law is however the resounding decla ration of the supremacy of constitutional values. Just as the Court has positioned itself as the arbiter of the boundaries between Region and State spheres of action, it has also in respect of European law established itself as the guardian of Italian constitutional "funda mental principles." In the 1960s, the Italian Constitutional Court and the European Court of Justice took conflicting positions on the relation between Eu ropean Community law and Italian law.1"6 The European Court as serted a monist view under which Community law took supremacy
114. Corte cost, judgment no. 417 ment In the no. 417 of Nov. note supra 14, 2005, judgment 36 of Jan. note 113 at \6 findings supra 20, 2004, on to conclude: of Nov. went the Court 14, 2005, cost, no. Corte 109, citing in law. In judg

instant the provisions do not fix general limits to defi case, challenged to current to expenditures limits but establish for expenditure, they and consultancy to parties conferred outside the admin assignments to expenses for missions relations istration, abroad, representation, public as well as to expenses and conventions, for acquisition of goods and services; cit or studies

limitations
fundamental inadmissible ment. Id. 115. Law no. Mengozzi,

that, regarding
principles invasion 86 of Mar.

individual headings

of expense, do not constitute

an comport manage See Paolo of Treaty

of coordination into autonomy

of public but do finance, of the entities for expenditure

European

no. 58 of Mar. Uff. 9, 1989, Gazz. 10, 1989. the Treaty of Rome to the Community Law: From

Amsterdam 144-46 (2d ed. 1999). 116. See Antonio La Pergola & Patrick Del Duca, Community Law, International Law, and the Italian Constitution, 79 Am. J. Int'l L. 598 (1985).

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over national law. Specifically, it considered the Treaty of Rome to have instituted a new legal order to which national law was subject. As an implication of this view, the Court of Justice asserted that any Italian court must apply relevant European Community law to dis putes before such a court. Initially, the Italian Constitutional Court took the dualist view that European Community law and Italian law constituted two separate legal systems. In the initial formulation of its position, the Constitution Court expressed the view that European Community law would be applied by Italian courts only through a procedure of constitutional judicial review as established by Italy's In practice, this meant that an Italian court would be Constitution. able to apply European law only following the reference of a question to the Constitutional Court and a consequent Constitutional Court decision directing the referring court to apply the European law.1"7 A critical turning point in the Constitutional Court's view was its 1985 Granital decision. There the Court concluded that the dualist view, i.e. the view that the Italian and Community legal systems were separate legal systems, was nonetheless compatible with the routine, direct application of Community law by all Italian courts. Although the Constitutional Court has made clear that what Italy's Constitution establishes regarding "fundamental principles of the constitutional order and inalienable rights of the human person" must ultimately prevail, it has determined that Italy's Constitution, based on its article 11 provision for acceptance of international orga nizations, otherwise allows supremacy of Community law over Ital ian law.1"8 It reached this conclusion by reasoning that the Constitution article 11 acceptance of Italy's participation in interna tional organizations and Italy's ratification of the European Commu nity treaties implied a broad opening to the Community legal system. The Constitutional Court, however, maintained the sovereignty of the Italian legal system and the Constitutional Court's own role as the guarantor of the integrity of the Italian Constitution, by provid ing that any question involving "fundamental principles of the consti tutional order and inalienable rights of the human person" continue to be referred to the Constitutional Court.1"9 The 2001 constitutional amendment that redefined the Regions' role acknowledges the European law view that such law directly ap plies to Regions. It provides that Regions, within their subject mat ter, "participate in decisions directed to the formation of Community
to the Constitutional On question referral no. 170 of June cost, judgment 118. Corte 8, at point June 7 of the considerations 20, 1984, note and supra 116, Bundesverfassungsgericht 117. see text 191. Court, infra note no. 169 of 1984 Gazz. Uff. (Granital), of law. See La Pergola & Del Duca, Federal Constitutional (German

Court), BVerfGE
note supra See 119.

73, 339 (Solange II), at 376, referencing La Pergola & Del Duca,

a conceptually result for Germany. 116, as it reached analogous no. 170 of June cost, judgment note Corte 118. supra 8, 1984,

2006]

AN ITALIAN FEDERALISM?

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normative acts and provide for the implementation and execution of international agreements and of European Union acts," albeit "in respect of the norms of procedure established by law of the State," that are to "regulate the means of exercise of power of substitution [by the State] in case of noncompliance."'120 Of the two parts of this Constitutional acknowledgement, i.e. that Regions have a voice in the formulation of European norms and that they may directly apply such norms, the latter appears of greater import. Indeed, the Treaty on the European Union contemplates at best a consultative role on European legislative activity for the Committee of the Regions that it constitutes.121 Further, even as to the Regions' actions to implement European norms directly, the Constitution expressly preserves the State's various tools to constrain Regional action beyond the bounds of what the Constitution contemplates.122
THE NATIONAL IN THE

V.

INSTITUTIONS'

CONSTITUTIONAL

LEAD ROLE RULE OF LAW

Although Italy is a Regional state and member of a suprana tional community towhich it has ceded significant sovereignty, it re tains elements of national control typical of a unitary state. Its courts are national, as are its legal professions and training. Its civil, commercial, corporate, criminal and family laws remain uniform na tional bodies of law. Its Parliament retains the power to establish essential principles to bound Regional discretion. As discussed, Italy's Constitutional Court, a national institution, remains at the forefront of defining the relationships between Italy's Regions and its central State authorities. The sections that follow lay out how the State, its institutions and its national legal culture, contribute to as suring the constitutional rule of law as Regionalization and Suprana tionalism further develop, and how Italy's history created this
scenario.

A.

History, Post-WWII Constitutionalism,

and the Rule of Law

What is Italy? To respond that it is the country populated by Italians is tomiss much of its richness. Not only is it a country with an extended history of linguistic minorities, it is a country whose pre sent and future involves ever-more immigrants from non-Italian

120.

Const,

art.

117.

121. Treaty on European Union, Part 5, Title I, Ch. 4, OJ C 325 (Dec. 24, 2002).
122. See text supra, starting note 93.

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places.123 Nonetheless, it has ancient and diverse cultural roots wrapped in the rule of law.124 The Roman Empire initially elaborated full bodies of commercial and administrative law.125 In the 11th century, what became the University of Bologna law faculty emerged as a center of renewed study of Roman legal texts. Review and commenting of these classi cal texts brought Bologna to the center of European scholarship and led to the civil law tradition followed in continental Europe and much of Africa, Asia and Latin America.'26 Although France and Germany were the focus of elaborating the civil, criminal, commercial and pro cedural codes in the 1800s, Italian doctrinal writings on the signifi cance and substance of law through this time and into the modern era remained vibrant and influential.127 The factors underlying Italy's foundation as a unitary state with a centralized, but weak national government, colored its subsequent development and contributed to creating its present dynamic of Re gionalism. Camillo di Cavour, Piemonte's Prime Minister, sought a federal Italy constituted from the territories of Tuscany, Parma, Mo dena, Lombardy-Veneto (Austrian occupied), the Papal States and
123. Economie
former Yugoslavia

and political refugees

now form a substantial

from North Africa, Albania

part of Italy's growing

and parts of the

immigration. See

Prospetto 1.1, in ISTAT, Settore Popolazione, Informazioni at http://catalogo.istat.it/20040621_01/volumel.pdf:

Residence permits for some Jan. area total central north of citizenship number principal 1, 1992 % female 100.0 13.3 22.8 9.8 America Putnam e.g., et Frederick U. M. to the al., note supra 49; Parker Walton, Studies The Origins 7.7 39.9 38.3 10.4 58.4 64.2 areas

(10)1, 9 (2004), available

of citizenship Jan. number 1,503,286 100.0 31.1 17.8 9.8 1, 2003 % female 48.3 50.3 30.1 57.5

permits western Africa Europe

648,935

east Asia Central/South 124. 125. 126. (1938); See See,

8.6
note 42. to Introduction

69.3
the Ro Law and

Ziblatt, supra Historical

man Law (Gaunt & Sons, 4th ed. 1994) (1903).

Hermann Charles Kantorowicz, Radding, in the Glossators of the of Medieval Jurisprudence: Roman Pav?a

Bologna
Introduction

(1988); Arthur

von Mehren

& James Gordley,

Civil

Law System:

An

of Law Comparative Study (1977). van den Berg, of European 127. Peter A.J. The Politics A His Codification: of Law tory in the Unification in France, the Hapsburg and the Prussia, Empire, Netherlands and Tuscany with codification (2005). Piemonte, Naples experimented della cultura giuridica moderna: in the early 1700s. Giovanni Storia Tarello, e coDiFiCAZioNE del diritto Assolutismo 207-22 See (1976). also, e.g., Dionisio di Diritto e Dei delitti Corso Internazionale Anzilotti, (1912); Cesare Beccaria, delle pene la democrazia: premesse alla PiERO Calamandrei, Costruire (1764); di diritto processuale: le dalle Piero Corso Costituente (1945); Calamandrei, zioni itiner abruzzesi un Fabrizio CrviLisTi dell'Ottocento: Marinelli, (1931); ario giuridico Di TRA l'Abruzzo Diritto Costituzionale, e la Francia 1889 Principii (2003); (1920). Vittorio Emanuele Orlando,

2006]

AN ITALIAN FEDERALISM?

823

the Bourbon-ruled Kingdom of the Two Sicilies.'28 The States on the Italian peninsula just prior to unification had variously experienced the trauma of Napoleonic invasion and expulsion, Austrian occupa tion, and Bourbon rule. This left them, other than Piemonte, with "divine right" rulers unconstrained by constitutions and elected par liaments, and with brittle, ineffective public administrations.129 Pie monte, of the seven territorial entities on the Italian peninsula, was the furthest along the path to a market economy, with the most de veloped public administration and ability to indebt itself to pay for the best army.130 The internal pressures on it to achieve larger mar kets and to spread its debt load over a larger base incentivized it to seek territorial expansion.'3' Its attempts to negotiate federation with the other territorial entities failed, and its military forays, to gether with Garibaldi's exuberant invasion of Sicily,'32 resulted in the collapse of those entities' governance structures. The band-aid was a hasty "national" referendum, by an extremely restricted slice of society preoccupied with public order, to ratify Italian unification.'33 Hollowness of the rest of Italy's governmental structures and their collapse at unification centralized government in the Piemontese-cre ated State,'34 and consolidated the concomitant vision of the Risorgi mento, a newly unified Italy freed of foreign occupation and

internecinedivisions by grass-roots revolution.'35

Under the banner of Vittorio Emanuele II, Duke of Savoy and ultimately King of Italy, the Piemontesi who led Italy's unification imported French administrative law to assist in building the State by assuring a state of law.'36 This effort was not to assure individual rights, but rather to assure effective administration of State power. The theory of the Piedmontese State reflected in Italy's first constitu tion, the statuto Albertino,'37 was that of a monarch according the
128. note Mario Il See supra 42, at 89-94. e.g., Alberto ZiBLATT, also, Banti, RlSORGIMENTO THE ITALIAN RlSORGIMENTO STUART J. WOOLF, ITALIANO (2004); (1969). as to whether a unitary or federative serve For the political ferment state would best see Pierre-Joseph the cause of a united free from Prou domination, Italy foreign en Italie et l'unit? La f?d?ration (1862). dhon, note 129. supra Ziblatt, 42, at 82, 86-88. 130. 131. 132. 133. Id. Id. Id. Id. at at 97. 99-105. 108, contrasts Italy with Prussia's of "presence least resistance of confronting experience pre-Ger effective institutions" regional political to national unification." Id. at 142. at 57-78.

134. Id. at man unification

states where "the path made federalism of 135. Id. at 57-60. to assure a state of per Carlo

136. The legal history of the Kingdom

tempt law. See Lo

of Italy's first constitution

Statuto Albertino Rome, illustrato

reflects this at
dai lavori 1996). Alber

preparatori

(Presidenza del Consiglio dei ministri,

l'informazione Jemolo & Massimo e l'editoria, Severo

Dipartimento
Luigi Giannini,

per le riforme isti

Ciaurro Lo Statuto ed.,

tuzionali, Dipartimento 137. See Arturo

tino

(1946); Giuseppe Maranini,

Le origini

dello

Statuto

Albertino

(1926); Gior

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populace limited political rights. The statuto Albertino's "flexibility," meaning the monarch's ability to change it at will, was the essence of The fascist State, with popular the Italian State's then weakness. ratification, emerged through this weakness in the 1920s.138 The fas cist State considered itself organized under the rule of law, but obvi ously without the strictures of the 1948 Constitution, particularly without its "fundamental provisions" to protect human dignity and constitutional democracy. The fascist State sought increased centralization.139 Its constit uent administrative units were Italy's 103 provinces, each under a podesta, the government-designated prefect.140 A further element of the fascist project was governance through corporativist associations, the individual bundles in the creation of the Roman fasci which the fascists employed as their symbol of strength and from which they drew their name.14' Establishment of national management, labor, and professional associations worked to overcome regional and other of Italian society, facilitating central direction. Al heterogeneity though fascism may have allowed trains to run on time (Italy was then at rail electrification's forefront),142 it failed not only by involv ing Italy in a war that it lost. It devastated Italian society by stifling aspirations for individual and collective civil rights to the point that Italy's first post-war referendum was to establish itself as a Republic rather than continuing as a monarchy tainted by association with fascism.'43 The 1948 Constitution's fundamental principles react forcefully to the immediately preceding fascist experience. This reaction af fords insight into the central contemporary significance of respect for the fundamental principles of the 1948 Constitution as a social value and the State's role in assuring such respect through the rule of law under the Constitution. The post-war Italian political class embraced
Gio Lo Rebuffa, Statuto Albertino: Statuto Studi Albertino e Fonti (2003); (2004). Dallo Isidoro Soffietti, I Tempi dello

alla 138. See Gianna Bonis Statuto Albertino Costituzione Cuaz, al regime Repubblicana Silvio Dallo Statuto Albertino (1967); Trentin, scista Pizzorusso law professor's (Alessandro 1983) (1929) (Italian trans., analysis fascist in Paris). exile constitutional from system, la conquista del potere 139. See Giuseppe Il fascismo: Bonfanti, (1976); dello totalitario Stato L'organizzazione (1965). Acquarone, prefetti: dei amministrazione Il Fascismo 140. See Luigi Ponziani, MERIDIONALE NELLTtALIA (1965). 141. berto

fa of Al

e pol?tica

ed attributi del fascio littorio Origini (1930). See, e.g., Pericle Ducati, allo ferro vie e modernizza 142. Stefano Dalla citt? Nazionale: Stato Maggi, a Siena tra Risorgimento e Fascismo zione describes Italian rail develop (1994), ment fascism. during See text supra note 21. Constitutional 143. Law no. 1 of Oct. Uff. 23, 2002, Gazz. no. 252 of Oct. the bar, Const, rule revoked transitional Uff. 13, Gazz. 26, 2002, on male of Savoy 298 of Dec. ed. straord., House heirs On the 27,1947, entering Italy. see Stacy Meichtry, of Savoy's current House senior member, The Would-Be of King to be a Royal St. J., (June at 1. Out Wall 27, 2006), Pain, Italy Turns no.

2006]

AN ITALIAN FEDERALISM?

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the rule of law under the Constitution as a central tenet of Italian political discourse.'44 As modern Italy emerged from the dark days of fascism, and evolved from a devastated, heavily rural economy to a prosperous industrial democracy, all significant elements of the Ital ian political panorama found at least nominal embrace of the rule of to be essential to distinguishing law under the Constitution them selves from the fascist era and tomaintaining Italy as a functioning State. The far-reaching changes in social fabric strained the constitu tional structure that Italy adopted in the early post-war years, as well as its dedicated judiciary and its legal culture. Terrorism of the left and right, organized crime, and political corruption presented particular challenges.'45 But, Italy's legal and political institutions more than merely survived these and other challenges; they demon strated resilience in responding to them and have contributed signifi As they did so, a constant theme has cantly to their management. been centrality of the rule of law under the Constitution, assured by institutions of the State. Distinguished post-World War II Italian academics who empha in sized the importance of the rule of law under the Constitution, of cluding with reference to (i) judicial review of constitutionality laws, (ii) Italy-European Community relations, and (iii) federalism and Regionalization, include scholars such as Mauro Cappelletti,'46 Antonio Cassese," 47Giorgio Gaja,'48 Antonio La Pergola,'49 Giuseppe Federico Mancini,'50 Paolo Mengozzi,'5' and Fausto Pocar,'52 among many others. Their work as legal scholars in respect of the Constitu tion, the role of the State, and implications of the constitutional rule
144. See, democrazia svolta (1974); promesso Enrico e.g., Berlinguer, in Italia ed in Europa democr?tica (1972); Alcide il socialismo nella e nella pace Per Per UN GOVERNO DI Enrico (1979); Berlinguer, SULLA democrazia CRISTIANA Idee De Gasperi, di uno democr?tico stato Il com Giorgio La Pira, Architettura (1949); storico: scRiTTi di Gramsci, Longo (Pietro Valenza Togliatti, ed., 1975).

145. The 1978 Red Brigades' kidnapping

murder 146. 55 days later is but e.g., Monica See, available 2004), Cassese 147. e.g., Antonio See, mer Yugoslavia), International (Autumn Gaja 148. e.g., Giorgio See, al diritto Introduzione sion), 149. Antonio See, e.g., al interno dell'ordinamento Tecniche paratistiche 150. Federico 151. 152. (2002); della costituzionali federalismo sul example. Mauro Seccombe, at www.iue.it. one

of Italy's Prime Minister

(1927-2004), Criminal International EUI

Aldo Moro and

Review 26-27 for for Commis

Cappelletti

International (member, Law (2d ed. 2004). Nations United (member, comunitario (2005).

Tribunal Law

La diritto e problemi e sul

e adattamento Costituzione Pergola, internazionale La Pergola, (1961); Antonio delle garantite: riflessioni autonomie com regionalismo (1987). Il diritto operaio sindacale (1976). (1971); Giuseppe

Federico See, e.g., Giuseppe Costituzione Mancini, See, e.g., Mengozzi, supra

Mancini, e movtmento note 115.

Diritto Il Nuovo Internazionale See, e.g., Fausto Pocar, fondamentali Fausto Pocar Norme & Mich?le Tamburini, europea Comunit? (2003).

Prfvato

Italiano e

dell'Unione

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of law, in some instances as Italian and European judges and govern ment ministers, resonated both within and beyond Italy. With this context, the rule of law under the Constitution and re gional autonomy emerge as key themes inmodern Italy. Italian legal scholars label Italy's national constitution "rigid," meaning that in contrast to its predecessor statuto Albertino, the current constitution is not readily amended without broad consensus. In addition to the guarantees provided by the formal procedures to amend the Constitu tion, the Constitutional Court was an essential tool to avoid repeti tion of the sovereign's ability to revoke the constitution at will, as well as of a rising political force to change the nature of the State, as the Fascists succeeded in doing and as itwas feared in some quarters that the Communists would do if they came to national power in post war Italy. The provision for Regionalization itself was also a reaction to the fascist dictatorship's association with a high degree of centralization. 153 Precisely because the Fascists consolidated power with electoral ratification, the 1948 Constitution conceived the rule of law not just legalistically, but rather in the deeper sense of a constitutional rule of law with a court to assure continuing vitality of fundamental consti tutional principles. As the Constitutional Court performs its consti tutionally-defined role as defender and enunciator of Constitutional values in the context of constitutional questions and original jurisdic tion disputes, it has shaped Italian government, including the nature of the relationships between State and Regions, and how Italian courts handle European law. On both topics, the Constitutional Court's role has not been mere service as a referee, but rather defini tion and elaboration of constitutionally grounded legal frameworks that emphasize the State's mediation of the constitutional rule of law. B. National Civil Law Culture

National law, comprised of the Constitution, national legislation and the civil law tradition, predominates in Italy in both formal and practical ways. In a formal sense, the Civil Code, adopted 1942, reinforces na tional uniformity by defining a hierarchy of sources of Italian law, comprised of national legislation, followed by regulations and then law at the usages.154 The 1948 Constitution placed Constitutional head of this list, and added Regional law, which within constitution ally defined spheres may displace national statutory and regulatory, but not constitutional, law.155 European Community law, now Euro
153. 154. by Law 155. note supra 3, at 7. M?ny, art. of the Law in General, Civ. Code, 1, Provisions no. no. 218 of May Uff. ord. supp. 31, 1995, Gazz. text supra Const, art. note 138. See 120. starting

of Law, Sources 128 of June 3,

amended 1995.

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AN ITALIAN FEDERALISM?

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pean Union law, trumps the sources of law identified in Italy's Civil Code by virtue, and on the terms, of its acceptance in Italy through the Constitution's article 11.156 In a practical sense, Italy's continued reliance on civil,157 crimi nal,158 commercial,159 civil procedure160 and criminal procedure'6l codes adopted as national legislation provides national uniformity on that promotes maintenance of a national iden a core of matters tity. 162 Even following the 2001 amendments to increase Regional autonomy, the Constitution expressly reserves to State legislation "jurisdiction and procedural norms, civil and criminal legal frame work, and administrative justice."'163 Moreover, for the time being the abundant legislative production of Italy's national Parliament and Government outside the code framework'64 substantially outweighs its Regions' legislative produc tion. Regions began significant legislation only recently, and the heavy preponderance of national law predates them.165 However, even as Regional legislation grows in importance, a confluence of fac
156. 157. no. 79 See Civil of Apr. text 4, supra starting note 118. no. 262 Cappelletti

Code,

adopted 1942. See

by R.D. Mauro

of Mar. et

Uff. extraord. ed. 16, 1942, Gazz. The Italian System Legal al.,

439-52 (1967). 158. The 1931 Criminal Code (Codice Rocco), R.D. no. 1398 of Oct. 19, 1930, Gazz. Uff. no. 253 of Oct. 28,1930, extensively modified by amendment and Constitutional
Court decisions, continues al sistema as object p?nale of comprehensive I (Gaetano Insolera amendment et al. eds., debate. 2000). Uff. no. 253 sys See Gae

tano Insolera, Progetti di riforma del c?dice Rocco: il volto attuale del sistema p?nale,
in Introduzione

159. Merged
160. of Oct. 161.

1942 with

the Civil Code on its adoption, supra note 157.

1940, Gazz. of the adversarial

Crv. Pro. 28, Code, by R.D. no. 1443 of Oct. adopted and much amended. 28, 1940, A new Criminal Procedure features Code, embracing

tem typical of the United States, took effect Oct. 24,1989. See Louis F. Del Duca, The New Italian Criminal Procedure Code: Italy's Adoption of a New "Adversarial" System
a Historic Marks Convergence 73 (1992); Elisabetta Grande, of Civil Italian and Common Law Criminal Justice: Systems, Borrowing 10 Dick. J. Int'l and Resistance, L.

227 Am. J. Int'l L. 40 (2000).

as "Codes," areas are sometimes and subject published compilations as a Testo ?nico sulle (Unified e.g., the testo ?nico Text), leggi re-adopted text on public sicurezza (TUPS?Unified laws), R.D. no. 773 of June safety dipubblica no. 146 of June Uff. ord. supp. 26, 1931, 18, 1931, Gazz. art. 2001. 163. Const, 117, amended see text supra note level of 164. 26. The next On "Constitutional laws," starting and of "ordinary consists laws," adopted majority, by simple Parliamentary legislation are decreti "acts having the force of law," which delegati (delegated legislativi legisla or decreti Within tive decrees, constitutional D.L.D.) (decree laws, D.L.). limits, legge 162. Unofficial occasionally Parliament 76, which sity and mentarily to issue art. of Ministers the Council laws, Const, authority delegate cases In extraordinary issues of neces decrees. legislative delegated issue decree laws. the Government Unless urgency, may directly parlia art. 77. Delegated 60 days, Const, within ratified they are void ab initia. may then

legislative decrees and decree laws become effective when issued under President of the Republic signature, Const, art. 87, as Decreti del Presidente delta Repubblica (President of the Republic Decrees, DPR). 165. Indeed, a substantial body of Italian legislation predates even the present
1948 Constitution. Hence, reference here to the occasional

cree, R.D.) and even a Regio Editto

Regio

decreto

(Royal

De

(Royal Edict).

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tors will work to preserve influence of national law on key points. They include Italy's Constitution and the Constitutional definition of the State's ongoing role, the national judiciary working predomi nantly in the civil law tradition,'66 and continued reliance on na tional codes for core legal topics of civil, commercial and criminal law. C. National Legal Education and Professions

Italy's legal professions are national and contribute to assuring a national legal culture. Their national quality corresponds to the na tional governance of its law faculties, and the national system to se lect and promote law professors. Moreover, the law faculties' influence in imparting a national legal culture extends beyond the formal legal professions because they train such a broad slice of Ital ian university students, even as only a fraction of such students pur sue formal careers in law. The nationally-defined careers available to university graduates in law include lawyer, State attorney,'67 notary, magistrate (which includes civil and criminal judges and prosecutors), administrative judge, and law professor. A further legal profession, open to univer sity graduates in economics and business, is that of commercialista, a business-oriented advisor intermediate between a lawyer and an ac countant.'68 Specialized training, apprenticeship, and examination are required for each category. Mid-career changes from one profes sion to another are rare. Law schools are among most popular Italian university facul ties.'69 With limited exceptions, they are State schools.'70 Unlike the selective admission system used in United States law schools, which admit holders of a first university degree to law study as a
166. For

see Patrick Del Duca

contemporary

observation

on Lenders,

common in Law

and of

civil

law

system

distinctions,

et al., US Debt Markets Meet

the Emerging Markets:

International

Legal

Faced Border by Cross Challenges and Debt Restructuring (2006). 167. State (Avvocatura attorneys entities, including governmental is required

Insolvencies

practicing lawyer at http://www.giustizia.it/professioni/notai/decnotai.htm. della Giustizia, available as commercialista 168. To qualify in economics and requires university graduation a public and passing examination to enroll after business, three-year apprenticeship

dello the State and most State Stato) represent as a three years' corporations. Generally, experience entrance for the competitive examination. Ministero

in the State registry.

1954; D.L.D. no. 107

DPR no. 1607 of Oct. 27, 1953, Gazz. Uff.

10, 2002, Gazz. Uff. no. 135

no. 34 of Feb. 11,

11, 2002.

of June

of June

169. Recent

12.9 percent 12.8 percent economics and 45,676; statistics, ciology, 11.6 percent in the top three show law faculties enrollments) 40,965 over the five years but no longer the 2003-2004, ject areas through

Italian university -

data (of 2003-2004

enrollments:

political -

science/so
law, sub previ

45,332; enrollment as leader

ously.

ISTAT

(Istituto nazionale

di statistica),
2005, with

http://www.istat.it/servizi/studenti/

As of Jan. 31, 51 law faculties, over law faculties 10,000. enrolling Year Academic Ricerca, 2004-2005, unilav/capitolo3.pdf. in Italy's registered miur.it/scripts/p_prov05/totali.asp.

were students (59 percent female) 235,348 each of the Bari, and Rome Naples Bologna, e della Ministero dell'Universit? dellTstruzione, at Jan. at http://www. data available 31, 2005,

2006]

AN ITALIAN FEDERALISM?

829

graduate subject, Italian law faculties offer open enrollment to stu dents with a secondary school diploma, the maturita earned by pass ing the secondary school exit examination, typically at age 19.17' Prior to reform first implemented 2001, an Italian law degree re quired 26 exams and a thesis, nominally over four years. The reform, consistent with the European-wide Bologna process,172 provides a first three-year university degree, which allows recipients to under take competitive State exams for public administration jobs and to exercise limited legal and administrative professional roles in the State or private sector. A full five-year degree course of study allows access to the apprenticeships and examinations prerequisite to law and notary careers. Although recently universities yer, magistrate, have acquired some latitude to determine courses of study,173 law curricula remain substantially uniform, and their degrees nominally equivalent. Like in most civil law countries, only a fraction of stu dents complete law studies, and indeed a reason to divide the old four-year degree into two steps is to graduate more students with at least an initial degree.174 Even smaller percentages meet additional requirements to become lawyers, magistrates, administrative judges, or notaries.175 To become a professor, a law graduate undertakes a further graduate degree in law and sits for a State examination to become a university researcher.176 With one or more established professors' tutelage, the aspiring academic can hope to win a university aca demic post in national competitions based principally on evaluation of publications.177
170. Private law faculties in Rome include Libera Universit? Internazionale Studi Sociali (LUISS) and Pontifical University for Canon Law, and inMilan, Bocconi Uni
versity, amending various Carlo Law countries, initial Cattaneo no. 910 some

171. Ministerial 172. Building

three-year pean Commission,

decree no. 11 of Jan. 30, 2003, Gazz. Uff.

of Dec. 11, 1969, art. 1, Gazz. Uff. no.

University,

and

Sacred

Heart

Catholic

University.

no. 95 of Apr. 24, 2003

314 of Dec. 13, 1969.

on the June 19, 1999 Bologna Declaration

by Education Ministers

of

are working 40 European countries toward the system of followed second See Euro university degree, by two-year degree. The Bologna Process: Next 2005, Stop Bergen http://ec.europa.eu/

education/policies/educ/bologna/bologna_en.html. no. 509 of Nov. no. 2 of Jan. 173. Ministerial decree Uff. 3, 1999, Gazz. 4, 2000. In 2004, 174. received the new law degrees students 29,648 (mostly three-year but some students the old four-year laurea and a few first degree, finishing degree, to com the new all (24,582) the time contemplated two-year nearly exceeding degree),

plete the respective degrees. Ministero

Laureati ed Esami, Calendar Year vIU2.asp. 175. Most graduates cree no. 176.

dellTstruzione,
available

delFUniversit?

e della Ricerca,

2004,

at http://www.miur.it/scripts/IU/

one year courses to prepare Italian law faculties offer post-graduate or notary to take de State examinations. Ministerial magistrate lawyer, no. 24 of Jan. Uff. 537 of Dec. 31, 2000. 21, 1999, Gazz. no. 258 of Nov. Law no. 230 of Nov. Uff. 4, 2005, Gazz. 5, 2005.

177. DPR no. 117 ofMar. 23, 2000, Gazz. Uff. no. 109 ofMay 12, 2000. Nationally, the law faculty confirmed teaching staff comprises 2438 persons as of Dec. 31, 2005, of whom 1197 (12.4 percent female) were full professors, 472 (34.5 percent female) asso
ciate professors, and 769 (45 percent female) researchers. Ministero dellTstruzione,

830

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National legislation regulates the bar,'78 and an avvocato (law yer) may practice throughout Italy.'79 Until recent legislation abro gated the setting of legal and other professional fees,'80 the Consiglio Nazionale Forense (National Bar Council) fixed allowable fees at a national level for avvocati, although a client could consensually pay
more.181

The centralization of legal services for substantial business activ ities in Milan and Rome contributes to the national character not only of the formal legal system, but also of its practical application. Recent evidence suggests that the larger Italian firms, frequently with a foreign law firm affiliation and typically based inMilan and
deirUniversit?
available

e d?lia Ricerca, Banca dati dei docenti di ruolo, data at Jan. 31, 2005,
converted 5, 1933, no. 24 of Jan. 30, no. 190 of Aug. 13,

at http://www.miur.it/scripts/visione_docenti/vdocenti2.asp. no. 281 of Dec. no. 1578 of Nov. Uff. 178. R.D.L. 27, 1933, Gazz. into law and amended Uff. 22, 1934, Gazz. by Law no. 36 of Jan. art. 2, Gazz. Uff. amended 24, 1985, 1934, by Law no. 406 of July

1985. 179. R.D.L. no. 1578 of 1933, art. 4, following repeal by Law no. 406 of July 24,
1985, linazzo, supra Per note 178, avvocati of R.D.L. un no. 1578 da of Nov. record, 27, 1933, art. 24 Ore 5, 6, supra (Jan. 22, note 2005). 178. In The

2002, Italy's 56 million

gli

population
bilancio

included 129,000 avvocati

Il Sole

(1 per 437). Marco Bel http:/

analogous US ratio in 2002 was 1 per 423. http://www.bls.gov/oco/ocos053.htm;

a lawyer, a law gradu To become /www.census.gov/population/www/popclockus.html. a year's a lawyer two years, ate must to one with reduced under training apprentice no. course note 127 of May art. under Law supra 15, 1997, 17(114), 57, Ministerial no. 537 of Dec. note the State examination. decree supra 21, 1999, 175, and then pass no. 215 of Sept. no. 1578 of Nov. note R.D.L. supra 178, modified 7, 27,1933, by D.L.L. no. no. 61 of Sept. 101 of Apr. and DPR Uff. 28, 1944, 10, 1990, Gazz. 1944, Gazz. Uff. no. 102 of May 4,1990; Law no. 180

112 ofMay 21, 2003, Gazz. Uff.

no. 167 of July 21, 2003; R.D.L. no. 1578 of Nov. 27,

of July

18, 2003,

converting

into

law D.L.

no.

rate is about 50 percent. the passage note years, supra 1933, 178, art. 5. In recent Nazionale Relazione Con See Guido introduttiva, Forense, President, Alpa, Consiglio e mercato at www. correnza Oct. available (Rome, 8, 2005), Convegno professionale, In 1986, the exam, 189 of 9,407 persons taking only consiglionazionaleforense.it. Prospetti Statistici Professionali See Istituto Italiano (1989). Statistica, passed. no. 48 of Feb. art. Uff. Law no. 27 of Feb. the 27, 1997 eliminated 24, 1997, 1, Gazz. as procuratore initial legale. practice period 180. rectified Aug. Uff. Code, no. 223 D.L. of July no. 159 Gazz. Uff. no. Uff. Gazz. 4, 2006, no. 186 Aug. 11, 2006 art. 90 places the initial no. art. 2(a), Gazz. Uff. 153 of July 4, 2006, 4, 2006, no. 248 of into law by Law of July converted 11, 2006, text Gazz. 186 of Aug. ord. supp., coordinated 11, 2006, ord. The Crv. Pro. supp. notwithstanding, abrogation burden of filing expenses, lawyers, experts and other

judicial officers on the moving party in litigation. Civ. Pro. Code, art. 91 and 92 require the judge at final judgment to mandate that the loser reimburse the winner
to adjust leave discretion such but expenses, criteria. appropriateness 181. See http://www.awocati.it/servizi/tariffe/tariffe.htm, no. no. 127 of Apr. Uff. decree 8, 2004, Gazz. The decree defined fee ranges type, by service the award under reasonableness and

confirmed by Ministerial no. 95. ord. supp. 18, 2004, of "particular for matters multipliable and difficulty." the fees transactional for such matters, E.g., importance, complexity to Na and for such matters could be doubled, of "extraordinary subject importance," The maximum fee tional Bar Council Id., annesso F, art. 3(1). opinion, quadrupled. was at issue, matters 3 percent for large transactional of the value (over 5,164,600) not 11. Contingent fees were id., annesso A, art. id., annesso F, art. contemplated, 115 of May

4(1).

2006]

AN ITALIAN FEDERALISM?

831

Rome, are among the most profitable anywhere.'82 Such large, or ganized law firms focus on securities, financial and other business matters, and relative to the bulk of other lawyers practicing in smaller firms or as individual practitioners, collect a share of legal fees disproportionate to their number.183 Italian Notaries draft and authenticate legal instruments includ ing contracts, wills, and corporate charters, as well as real property and other conveyances.184 In particular, the system for tracking cor porate charters and real property ownership is nationally uniform. To become a notary, a law graduate attends one of a limited number of a two-year notary schools, apprentices with a notary for two years and then takes a challenging national examination to earn the as signment to provide notarial services in a specific territory.'85 D. National Judiciary

In addition to the pivotal constitutional role of Italy's Constitu tional Court, the national organization of its ordinary and adminis trative courts reinforces the national character of its justice system. Although ordinary and administrative judicial districts are organized by Region and province, all courts are part of the State. 1. Judicial Activism: Constitutional, Ordinary, Administrative

The State institution most prominently responsible for initial ap plication of the constitutional rule of law in post-War Italy is its Corte Costituzionale. Conceived by Italy's 1948 Constitution, it commenced operation in 1956.186 The Constitutional Court is built on Kelsen's of laws to one central model of limiting review of constitutionality institution with both legislative and judicial attributes. Like its counterparts in Austria, Germany, Spain and various central Euro pean and Latin American countries, it is the only court competent to
182. Marco
parcella,

Cobianchi
113

& Roberto
(Feb. 23, 2006),

Seghetti,
reporting

Legalrisiko:
average

Guerra

tra i re della
revenue in

Panorama

annual

the 43 largest Italian firms over 1.3 million. 1 billion of the 183. Id., reporting such firms billing lected by all practicing Italian lawyers.
del (2002).

partner

8.5 billion annually

delle per Consiglio Associazioni il concorso. Nazionale

col

are 184. notaries. about Federazione There 5,000 at www.federnotai.it. Sindacali available Notarili, 185. Giovanni Casu Codice & Giancarlo Laurini, di interesse notarile per le prove d'esame Norme

Italiana Notaio See

del Notariato

(National Notary Council) web site listing 16 private notary specializa

two 180, no. 223 of July www.notariato.it. D.L. programs: university of notarial also abrogated the national fees. setting no. 1 of June Uff. cost, judgment Corte decision, 14, 1956, Gazz. 4, of

tion schools, and note supra 2006, 186. In its first

June 14, 1956, the Court, after affirming its power to review constitutionality of laws criminal and public adopted even prior to the Constitution, declared unconstitutional safety laws that restricted posting of political announcements.

832

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JOURNAL OF COMPARATIVE LAW

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review constitutionality.187 Kelsen's model introduces judicial consti tutional review of laws to a civil law system otherwise blocked by the post-French revolution distrust of judges' power to do anything other than simply apply code and statutory law. The Constitutional Court has all the powers of an American court to accomplish constitutional review, as it addresses issues arising from all Italian governmental in their norm crea entities' obligation to respect the Constitution tion.188 Italy's embrace of Kelsen's concept, previously applied only inAustria just after World War I and inGermany after World War II, made the Court the fulcrum of declaring unconstitutional significant aspects of fascist epoch legislation contravening liberal concepts of civil and political rights. Its key role paralleled cold war sclerosis of Italy's political life, which impeded consensus for legislative reform of offending fascist era provisions. Fifteen judges serving nine-year terms comprise the Constitu tional Court.189 Consistent with Italian jurists' view that the Court's and judicial power to invalidate laws is a combined quasi-legislative function, the Court is selected one-third jointly by the two Houses of Parliament, one-third by the President, and one-third by the highest ordinary and administrative courts (Court of Cassation, Council of State and Corte dei Conti).'90 Whenever an Italian court determines that an issue of constitu tionality is pertinent to a case pending before it and is "not mani the court must refer such question of festly unfounded," constitutionality directly to the Constitutional Court.19' The initial proceeding remains suspended until the Constitutional Court decides the constitutional issue.'92 In addition, the Court's original jurisdic tion includes conflicts between the State and Regions, as well as among Regions, conflicts between the legislative and executive branches, impeachment charges against the President of the Repub lic, and admissibility of demands for national referenda.193
art. 187. Const, 134. The Rule of Law: Mexico's On other constitutional see, courts, to Expropriation Disputes e.g., Patrick in the Face Del Duca, of Invest

Approach no.

ment Globalization,
188. Constitutional Law of Jan. art. Constitutional tional Court 189. of Mar. 190. of Nov. Const,

51 UCLA L. Rev. 35, 108-09 (2003).

no. 43 of Feb. Uff. 9, 1948, Gazz. 20, 1948; on Constitu note Rules supra 25; General 11, 1953, no. 45 of Feb. Uff. ed. 20, 1966, Gazz. 19, 1966, special no. 62 Law no. 87 of Mar. Uff. 135; Constitutional 11, 1953, Gazz. Law 1 of Feb. no. 1 of Mar. 135; Constitutional no. supra before and Law no. 2 of Nov. 22, 1967, note Gazz. 188; Uff. Law Gazz. no. no. Uff. 294 87 of no.

14, 1953. art. Const,

25, 1967. 191. Constitutional Mar. 11, 1953, art.

Law 23-30,

1 of Feb. art. 1, supra 9, 1948, note 189; Law no. 131 of June the Constitutional further provisions

5, 2003,

132 of June 10, 2003; Constitutional

tional for judgments rules no. 71 of Mar. 1956 24,

Law no. 3 of Oct. 18, 2001, supra note 63; Addi

Uff. Court, Mar. 16, 1956, Gazz. on Court's web page, http://www.

cortecostituzionale.it/ita/testinormativi/fontididisciplina/legge_56.asp#2. 192. Id. art. 193. Const, 134.

2006]

AN ITALIAN FEDERALISM?

833

Subsequent to the initial wave of Constitutional Court activity, Italy's judicial branch undertook a further kind of active judicial role. Post-war Italy lacked the strong Presidential direction and the well developed elites coming from the grandes ecoles that made France's technocratic public administration function.194 Accordingly, and in the face of sustained national political blockage, the Italian bureau cracy became widely perceived as non-responsive. The judicial branch, and to a modest extent also the Corte dei Conti, responded by becoming activist.195 This activism consisted of the judiciary's expansive application of criminal and tort law to negligent acts, and failures to undertake acts required by law, against both private parties and State bureau crats.196 The judicial activism partially palliated the political stale mate that prevented meaningful action by the legislative and executive branches to assure effective action by the State bureau cracy. Although not a complete substitute for good public administra tion, the sometimes clamorous use by the magistrates known as pretori of their power to both prosecute and judge lesser civil and criminal matters197 highlighted the deficiencies of the public administration. In addition, from the beginning of terrorism of the left and right in the 1970s, the magistracy contributed significantly to the fight against terrorism and organized crime. Many judges paid with their In 1983 Rocco Chinnici, the magistrate lives for their commitment. who created the Palermo Anti-mafia Pool, was murdered,198 followed by the 1992 murders ofmagistrates Giovanni Falcone and Paolo Bor sellino.199 The magistracy also played a fundamental role in combat ing political corruption. The "clean hands" investigations produced a so-called "revolution by the judges" to break down the longstanding system of political party finance that fed on the lack of real alterna tion of power in national governance.200
194. plifies France's National School ENA, ?coles the grandes which through e di controllo public delta pubblica of Public France's Administration, administrative in Unita www.ena.fr, elites pass. della exem

195. Patrick Del Duca, II giudice

sostituzione acting

italiano e statunitense:
amministrazione, as compared

il contrasto fra strat?gie di

Giurisdi of American to the deference

zione e Tutela
in place

dell'Ambiente
of the

374 (1986) (Activism of Italian judges with respect to

administration,

judges); Patrick Del Duca, Italian Judicial Activism in Light of French and American Doctrines of Judicial Review and Administrative Decisionmaking: The Case of Air Pollution (Eur. U. Inst., Working Paper No. 89/391,1989). On the Corte dei Conti, see
text 196. infra Id. starting note 230.

197. See infra note 211.

198. 199. 200. See See See www.fondazionechinnici.it. www.fondazionefalcone.it; supra note 10. Salvo Palazzolo, Omicidio Borsellino, pioggia

di ergastoli, La Repubblica

(Dec. 9, 1999).

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JOURNAL OF COMPARATIVE LAW

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2. Ordinary

and Administrative

Courts

A national magistracy, constitutionally guaranteed autonomy from Parliament and Government, staffs the ordinary courts and public prosecutor positions.201 Public prosecutors, known as are career magistrates.202 Procuratori della Repubblica, The Consiglio Superiore della Magistratura (Superior Council of the Mag istracy, "CSM") is the national body that governs the magistracy.203 The CSM's composition is designed to provide national assurance of judicial and prosecutorial autonomy. It is presided over by the Presi dent of the Republic and composed of the President of the Court of Cassation's First Section, and the Court of Cassation's Procuratore Generale (public prosecutor), with the balance of its members magis trates elected two thirds by all ordinary judges, and one third by Par liament from law professors or lawyers having practiced more than 15 years.204 Entrance to the magistracy occurs through a national competitive examination, open to candidates trained in law.205 The CSM is responsible for promoting magistrates.206 The judges who serve on administrative courts are not part of the magistracy; they are part of the executive, rather than the judicial, branch of government. Although not within the CSM's scope, their selection and promotion, on a uniform national basis, is intended to afford them similar impartiality, as well as to assure uniform na tional application of the law that they apply.207 Selection of adminis trative judges, like ordinary judges, is based on educational qualifications and competitive examination pursuant to national leg
201. 202. Const, Const, art. art. roles art. art. 101-05. 102; R.D. to the 2(l)(a), 104-05; first no. 12 of Jan. 30, as Uff. 1941, art. 74, Gazz. magistrates. of July 29, Gazz. Uff. Uff. no. Law 2005, no. ord. 28 of Feb. no. 150 of no.

4, 1941. A 2005 reform limits magistrates'

prosecutorial 25, 2005, July 134. 203. of Mar. 204. Const, three years (g), art. 6, Gazz. Law no.

opportunity
confirmed no. 175 24, 1958,

to switch between judicial and

supp.

195, Mar. of Mar. 44

75 of Mar.

27,

1958; DPR no. 916 of Sept. 16, 1958, Gazz. Uff.

no. 75 Gazz. Uff. 28, 2002, no. art. Const, Law 104-06; Uff. art. no. 105. 261 of Nov.

no. 232 of Sept. 25, 1958; Law no. 44

supra 106(1). on seniority rather more supra of Dec. note 203.

29, 2002. of Mar. 28, 2002, Const, promoted art.

205. Law no. 150 of July 25, 2005, supra note 202, art. 2(l)(b); Law no. 262 of Nov.
Gazz. 5, 2004, 206. Const,

than merit.
831 of Dec.

Law no. 570 of July 25,1966, Gazz. Uff.

20, 1973, Gazz. on based 1034 of Dec. are Uff. no. 333 of Dec. evaluation 6, 1971, of merit. art. 13, 14,

Magistrates

6, 2004; were

no. 186 of July 28,1966; Law no.

Recent reform 150 of July 25, 16, Gazz. Uff. no. allows 2005, 314

principally

rapid promotion note 202. 207. Law no.

29, 1973. no. Law 15 and

13, 1971. The three ranks of TAR judges are: consiglieri, primi referendari and refer
examination. 14. After named State Id. art. four through a primo reason. becomes absent Art. referendario, exceptional no. 186 of Apr. no. 117 of Apr. art. 16 et seq., Gazz. Uff. 27,1982, a primo become Four Id. Four years may 29, 1982. later, referendario consigliere. on senior fill Council of State each consigliere vacancies may years later, by ranking career achievement. Id. ity and endari. Referendari a referendario years, 15, amended by Law

2006]

AN ITALIAN FEDERALISM?

835

islation governing the Regional administrative courts and the Coun cil of State.208 All administrative judges must be graduates of an Italian law faculty, with new judges required to have completed the five-year university study in law; however, they need not be members of the bar.209 The ordinary courts exercise jurisdiction over general civil, com mercial, labor, and criminal matters. Since 1993 they are structured, in ascending order, as Justices of the Peace, Tribunals, Courts of Ap peal, and the Court of Cassation, as follows.210 Justices of Peace (Pretori before a 1998 reform211) are small claims judges of first instance.212 A Justice of Peace's jurisdiction in cludes minor civil213 and criminal214 matters. The Justice of Peace is not a magistrate, but must be a law graduate aged 30 to 70 and pref erably a former judge, lawyer, law professor, police commissioner, or senior public civil servant.215 Tribunali (Tribunals) are general courts of first instance for civil, commercial and criminal matters.216 Each of the 165 Tribunals is
208. DPR no. 214

Regio Editto no. 2417 of Aug. 18, 1831, three decades before Italy's unification, cre It ated the Council of State to address substantive public administration questions.
commenced (All. E), 209. ministrativi Gazz. Law as an Uff. no. 1034 administrative of Apr. of Dec. R.D. 27, 6, no. court 1865. 1971, 1054 no. 2248 to Law of Mar. pursuant no. 1034 Law of Dec. supra 6, 1971, 20, note 1865 207,

of Apr.

21,

1973,

art.

14-20,

Gazz.

Uff.

no.

131

of May

22,

1973.

establishes

the TARs.
art. regionali. note 9-18, supra 207, for Uff. of June 26, 1924, Gazz. am the Tribunali no. 158 of July 7,

1924; R.D. no. 444 of Apr. 21, 1942, Gazz. Uff. no. 114 ofMay 13, 1942; DPR no. 579 of Sept. 29, 1973, Gazz. Uff. no. 254 of Oct. 1, 1973, for the Council of State.
210. 211. certain 212. 213. Law D.L. no. no. of Nov. 21, 1991, art. 51 of Feb. 19, 1998, Gazz. 374 for lesser offenses. art. no. 278 of Nov. Uff. 49, 50, Gazz. no. 66 of Mar. Uff. ord. 20, 1998, Former 1, 44, by Law Crim. supra no. Pro. note 374 art. Code, effective 368. Jan. art. 2, 1993, 27, supp. 1991. no.

48/L, eliminated

the pretore, the traditional first instance judge. Pretore could initiate
of Nov. 21,1991, 160,

prosecutions Law no. 374

created 4700 giudici

supra 214.

di pace

(Justices of Peace).

art. 7, amended of Nov. Crv. Pro. 21, 1991, 17, 35, Code, note 210. note Law no. 374 of Nov. 160; Law no. 468 of Nov. 24, 21, 1991, art. 36, supra no. 293 of Dec. art. Since the Justice Uff. Jan. of 1999, 14, Gazz. 15, 1999. 2, 2002, over crimes D.L. Peace has jurisdiction and misdemeanors solely punishable by fine. no. 274 of Aug. no. 234, ord. supp. no. 166/L of Oct. 6, 2000. As to Uff. 28, 2000, Gazz. arrest of Peace house and public but the Justice such matters, may service, impose not Id. art. 53 and 54. imprisonment. note 210. 215. art. 5(1)(4), Law no. 374 of Nov. 21, 1991, supra over crimes 216. Civ. Pro. art. 9(1). Tribunals exercise criminal Code, jurisdiction or Justice not within Crim. Pro. art. 6. of Assize of Peace Court Code, jurisdiction.

Criminal matters
nal art. Law D.L. special 596. no. no. panels, Two 287 31

subject to more
Corti d'Assise

than 24 years imprisonment

(Courts of Assize), Crim. Pro.

are decided by Tribu

Code, art. 5, and

on

appeal by Court of Appeal

special panels, Courts of Appeal of Assize.

Crv. Pro. Code,

one presiding, and six lay judges them. judges, professional comprise no. 102 of May Uff. of Apr. art. 3, Gazz. amended 10, 1951, 7, 1951, by no. 44 of Feb. of Feb. art. 1, Gazz. Uff. into converted 14, 1978, 14, 1978,

law with modification by Law no. 74 of Mar. 24, 1978 Gazz. Uff. no. 86 of Mar. 29, 1978. Lay judges are secondary school graduates aged 30 to 65. Law no. 287 of Apr. 10, 1951, art. 9, supra note 216, modified by Law no. 405 of May 5, 1952, Gazz. Uff.
no. 105 of May 6,1952; Law no. 1441 of Dec. 27,1956, Gazz. Uff. no. 2 of Jan. 3,1957;

836

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separated into two divisions.217 One comprises single judges who handle all matters within the Tribunal's jurisdiction except those enumerated for the other division, and the other operates with three judge panels to hear criminal matters, plus bankruptcy and certain corporate and other matters.218 Appeals from a Justice of the Peace are to a Tribunal, and ap peals from a Tribunal are to Corti d'Appello (Courts of Appeal).219 From there, issues of law are appealable to the Corte di Cassazione (Court of Cassation), the highest ordinary court.220 Its purpose is to insure the unity and uniformity of national law and to resolve juris dictional conflicts among the civil courts and between the administra tive and civil courts. Unlike Courts of Appeal, only questions of law may be appealed to it.221 The Constitution guarantees the right of appeal to the Court of Cassation of final judgments and intermediate orders limiting personal liberties.222 in The State provides an administrative court headquartered each of the Regions (Tribunale Amministrativo Regionale, a Regional Administrative Tribunal-"TAR") with jurisdiction over administra tive actions in that Region.223 The Consiglio di Stato (Council of State), part of which provides substantive advice on administrative matters, is the supreme administrative court. Three of its six sec tions provide opinions, some binding, to the public administration.224
D.L. no. 31 of Feb. supra, 14, 1978, no. DPR supra; 1978, no. 126. supp. art. 50-bis. Pro. Code, converted into law with modification no. 115 of May Uff. 30, 2002, Gazz. by Law no. 139 of June

74 of Mar.

15, 2002, 217. Civ. 218. Id. no. 51 of Feb. Crv. Pro. art. 341; D.L. 219. art. 73, 74, supra note Code, 19, 1998, no. 211. 26 Courts in three-judge The of Appeal work R.D. 12 of Jan. 30, panels. art. 56, supra note art. 1941, 202, amended 8, 1977, 1, Gazz. by Law no. 532 of Aug. no. 226 of Aug. are responsible Uff. of Appeal for foreign Courts 20, 1977. judgment art. 796. Crv. Pro. Code, recognition. no. 12 of Jan. art. 65, supra 220. R.D. note 202. The Court of Cassation 30, 1941, has 698 members, of four officials General (First comprised supervising President, of Public and First 108 Presidents (of Prosecutor, Waters, Magistrate Consigliere), five-member and 586 Counselors and Associate and is divided into sections) Judges, no. 12 of Jan. R.D. art. 67, supra five note 30, 1941, 202, distributed judge panels, five civil, and seven sections. of all civil, or all crimi among criminal, Representatives sit on a nine conflicts nal, id., to resolve among panels judge panel, jurisdictional art. Civ. Pro. courts, Code, ordinary cial administrative courts, including art. 362. decide Code, They petitions of law or matters of the most "serious 221. 222. 223. Civ. Const, Const, Pro. art. 360. Code, art. 111(2). art. 125. Because 360(1) courts and and 374, and between ordinary the Court of Accounts. Civ. of five judge panels Pro. art. Code, and spe Civ. Pro. on matters 374.

24, ord.

conflicts raising importance."

of the

volume

associated

with

Rome

as

TAR of Lazio, its Region, has five sections. Other Regions with an additional
are: Abruzzi, Trentino-Alto The 224. tions. The its Adunanza Calabria, Adige. Council Council's gen?rale

capital,

the

section

and Lombardia, Sicilia, Campania, Emilia-Romagna, Puglia, Law no. 1034 of Dec. art. note 207. 6, 1971, 1, supra is composed of 111 administrative divided six sec among judges, as does Sections substantive I, II, and III have functions, policy of all 111 administrative (General Assembly), composed judges

2006]

AN ITALIAN FEDERALISM?

837

The other three hear appeals from TARs. About 15 percent of TAR judgments are appealed to the Council of State.225 The administrative courts may annul or modify unlawful admin istrative acts, including of Regions and other local government enti act's ties.226 In some cases, they can evaluate an administrative substantive merit.227 In contrast, an ordinary court can set aside the application of the administrative act in a particular case, but not nul lify it.228 However, both ordinary and administrative courts may now award damages against the State.229 Several special administrative courts exist, of which the most im role is the Corte dei portant in shaping the State's constitutional Conti (Court of Accounts), whose primary functions are review of public finances, auditing, and prosecution of misconduct regarding public assets, extending to all governmental bodies, including Re Its review as a national gov gions, provinces and municipalities.230 ernment entity of local finances is further national assurance of the constitutional rule of law and of the correct conduct of Regional, pro vincial and municipal governments, particularly in respect of fiscal

matters.
E. National Civil Service

Employment in the public administration, of the State, Regions, provinces and municipalities, is by public competition unless other
except those who preside or are otherwise assigned to TARs. The Council's Sections

IV, V and VI plus its Adunanza plenaria (Plenum), comprised of the Council's presi dent plus four judges from each of the three judicial sections chosen by the president, perform the Council's judicial functions. The Council's President decides the number as a Council member is for life. of judges assigned to each Section. Appointment
no. 1054 of June art. note Const, supra 100; R.D. 26, 1924, 209, amended by R.D.L. no. 257 of Nov. no. 88 of Feb. no. 1672 Uff. of Oct. 8, 3, 1924; Law 23, 1924, Gazz. no. 37 of Feb. note 209; Uff. supra 11, 1925; R.D. no. 444 of Apr. 1925, Gazz. 21,1942, no. 135 of June Uff. D.L. no. 654 of May Gazz. Law no. 1018 of Dec. 6,1948, 12,1948; no. 298 of Dec. note Gazz. Uff. Law no. 1034 of Dec. supra 30,1950; 6,1971, 21,1950, 1-7, supra note 210.

207; DPR no. 579 of Sept. 29, 1973, supra note 209; Law no. 186 of Apr. 27, 1982, art. 225. Giovanni Pale?logo, President,
the Italian 226. 227. 1971, 228. R.D. supra Law Administrative art. no. note no. 1054 208. 2248 of Mar. 20, 1865 (All. E), in addition process art. 4, supra note 208. 113. of June 26,1924, art. 27, supra note 209; Law no. 1034 of Dec. 6, Law-suit, Const,

First Section of the Council of State, Steps of

available at www.giustizia-amministrativa.it.

229. Court of Cassation,

available damage

Unified

Session,

judgment no. 13659 of June

to affirming of Court of Cassation administrative and

13, 2006,
court

at www.cortedicassazione.it, caps a seven-year awards,

Constitutional

Court decisions, plus legislation, with authoritative declaration that administrative court jurisdiction is no longer premised on a plaintiffs interesse legittimo (legitimate
interest) concrete 230. in the public administration's proper function, exercise of power" administration. by the public art. Const, See Elio Manuale 100(2). Casetta, but rather the "presence of a di Diritto

Amministrativo

877-94

(2005).

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wise specified by law.23' Regions may not make unfounded excep in finding tions, as the Constitutional Court emphasized unconstitutional a Regional law that would have given priority to job candidates previously employed by the Region.232 A significant por tion of public administration employees are now subject to civil, rather than public law, i.e., employment disputes are resolved by or dinary courts applying the Civil Code rather than administrative courts applying administrative law. Such employees are subject to collective bargaining between representative unions and a State agency.233 Italy's national bureaucracy will continue to dwarf that available to the Regions for the foreseeable future. By one count, the State employs about two million people, while as of 2002 Regions employed the traditional local gov 90,000; provinces 58,000, municipalities, ernment unit, 480,000; and local health and hospital authorities 700,000.234 Although Regional autonomy and responsibilities are in creasing, the weight and simple numerical preponderance of the State public administration challenges Regions in their efforts to de velop their fields of action. Further, turnover in the public adminis tration is slow. Even through the 1970s many of the public administration members began employment with the State well prior to the 1948 Constitution.235 The numerical weight of the State public administration and the continuing political battles as to the direction and Italy's of the State suggest that the process of Regionalization the long adoption of New Deal-style authorities notwithstanding, issues of effectiveness of many parts of standing, broadly-perceived Italy's public administration will remain challenges.
231. Const, art. 97(3).

no. 81 of Mar. 232. cost, judgment Uff. Corte of Mar. 8, 2006, prima 3, 2006, Gazz. no. 10 (invalidates serie 2005 Abruzzo law provision for em sp?ciale Region budget to Regional no basis and career for exception ployment finding advantages employees, access to public to "assuring of the most and meritorious." competent employment in fact, id.). 114.1.1 holdings la rappresentanza delle 233. per negoziale Agenzia pubbliche for negotiating of public administrations). (Agency representation no. 30 of Feb. 6, 1993; D.L. no. 80 of Mar. Uff. 31, 3, 1993, Gazz. no. no. 165 of Mar. Uff. 82 of Apr. 8, 1998; D.L. 30, 2001, Gazz. note 230. See Elio at 146-52, supra Casetta, amministrazioni no. 29 of Feb. no. Uff. 1998, Gazz. D.L. 106 of May 9, 2001.

234. Tbl.1.1 at p. 30, Istituto Nazionale

pubbliche, dell'amministrazione zioni Anni 2001-2002, pubblica a supra vent'anni

di Statistica,
note dal 87. rapporta e della

Statistiche
See Sabino Giannini, dirigenza 2003). and

delle Amministra
Cassese, Giornale pubblica Lo di stato dir no. 3

itto amministrativo

(1) 99 (2000); Stefano Nespor & Federico Boezio, Quanti sonogli

dell'impiego locale Executive Evidence Conference (2d ed. Civil

RIP La rivista impiegati pubblici?, Pietro L'Amministrazione (2005); Virga, 235. See Rodolfo "Rudy" Lewanski, ian Administration: Some Empirical at NISPAcee 9th Annual presented

Servants

Politicians

in Ital paper and the

from Large Municipalities, on "Government, Market

Civic Sector: The Search for a Productive 2001).

Partnership/'

Riga, Latvia

(May 10-12,

2006] VI. WHAT WILL

AN ITALIAN FEDERALISM? ITALY BECOME? WHAT DOES ITS EXPERIENCE

839

OFFER OTHERS?

Italy now defines itself as a Regional and Supranational state. Its Regions have significant administrative, financial and legislative and further en autonomy, assured by the national Constitution couraged by European Union law; it has ceded significant authority to the European Union. To reach this point, Italy has morphed in a relatively brief period from fragmented agglomeration of territories to a unitary state with weak central government (1865), a fascist dic tatorship (1930s), a Republic (1948), and a Regional (1990s) and su pranational constituent (1980s) state. To understand what Italy is and what it may become is to look beyond the ephemeral form of the moment. Italy has its visionary political thinkers, who even if not ulti mately successful in purely Italian politics, offer legacies well beyond remains known for his counsel to the prince,236 Italy. Machiavelli notwithstanding exile by his Medici patrons. The legacy of Alcide De Gasperi, a founder of the now defunct Christian Democratic Party, endures through his contributions to European union.237 In this per spective, debates about who leads Italy at any moment matter less than appreciation of Italian society's consistency and creativity, through the constitutional rule of law, in redefining the State to suit the changing needs of a dynamic and prosperous population, con cerned to respect human dignity and constitutional democracy. Italy's redefinition of the State by hollowing it out from above and below, while reinforcing the State's role as guarantor of the constitu tional rule of law, offers other countries inspiration as they confront similar challenges, albeit each in light of its own unique history and circumstances. For example, Mexico is coming to grips with alterna tion of power, the content to give to its own federalism, and affirming the constitutional rule of law, also in light of its constitution's new rigidity arising with emergence of multiparty politics, all the while experiencing significant economic and social progress.238 Other at least nominally federal countries facing similar challenges include Argentina, Brazil and Russia. The continuing invention of an Italian federalism under the 1948 Constitution is not fundamentally the accommodation of territorial cleavages, i.e., a self-aware minority's concentration in a specific ter
236. Niccol? Machiavelli, Il Principe (Giuseppe Lisio ed., 1900) (1532).
e

237. Giovanni Allara nazionale: Un'Antologia di Discorsi all'Estero, Naturale 238. See e Unit? Del Duca, Europea

e la Pol?tica De Gasperi Inter Alcide & Angelo Gatti, su l'Illustrazione degli 1933-1938 Scritti Vaticana, et al., Del Diritto Giorgio Vecchio 1945-1954 (1990); (1958). note 187. supra

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ritorial area,239 but rather a redefinition of the State to accommodate national political impasse through the invention of governmental levels other than the State itself, accompanied by devolution and del egation of responsibilities.240 Italy's Christian Democrat-led coali could not conceive national tion governments leadership by a Communist party that might turn away from Western Europe and the United States, but the energy of the left-wing opposition excluded from national power found expression in development of Regional and municipal autonomy. More recently, the Lega Nord and voices of the political right crafted a national role from Regional and munici pal foundations. The national political process, although frequently manifesting sustained impasse, has in actuality been creative in affirming the State and its institutions through their deconstruction by Regional The State in the expression of na ization and Supranationalism. tional politics instigates the nascent federalism, and the State's of control assure its unfolding within the institutional mechanisms rule of law. These mechanisms parameters of the constitutional range from the Constitutional Court's role as arbiter of the bounda ries between State and Regional responsibilities, to the veto effects of national referenda, the budgetary controls under the continuing dom inance of State revenue-sharing, and the Corte dei Conti audit of all governmental bodies. The uniformity of national legal culture fur ther affirms the State's continuing role as guarantor of the constitu tional rule of law. Within this framework, the Italian electorate has begun to vote in ways that alternate State governance among politi cal groupings, while simultaneously supporting increasingly vibrant Regional and municipal polities. The Italian State arose as a unitary State because the territorial entities that Piemonte incorporated into the new State of Italy lacked effective political institutions to sustain any federal system.24l More over, the Piemonte regime's elitist character, with its flexible consti tution, paved the way for degeneration into the fascist debacle. In view of this history, the balance struck among the authority of the Regions, that of the national state, and participation in the suprana
239. See Ugo M. Amoretti, and Territorial Cleavages on federalism and (essays Mexico, Nigeria, Russia, in Federalism and Territorial Federalism Cleavages, 2 (Ugo M. Amoretti & Nancy Bermeo 2004) 1-23, eds., in Belgium, territorial Canada, France, India, cleavage and United Switzerland, Turkey, Spain, Kingdom, plus

Italy). 240. Ugo M. Amoretti,

rial Differences, retti & Nancy mobilization of

Italy: Political
and 2004),

Institutions

and theMobilization

of Territo

in Federalism Bermeo eds., the territorial rule

Territorial

and governmental politics tion and constitutional 241. See Ziblatt,

although between cleavage structures consistently of law note 42. analysis.

Cleavages on focusing north with

181-200 (Ugo M. Amo the last decade's "political and recounts Italian south," present State reconstruc

the

supra

2006]

AN ITALIAN FEDERALISM?

841

tional European Union, is a happy one. Although slow in developing, recourse to regionalization under the 1948 Constitution to work around political impasses, is building political capacity for Regional government, ranging through public administration, taxation, and regional politics distinct from national politics. The story of the Ital ian State's Regionalization and Supranationalism is a story of contin uous procedural adjustments to work through and around national level political impasses by newly invented institutions and practices. Since the 1948 Constitution's adoption, Italy's dynamic economic and social evolution confronted its revolving door reshufflings of gov ernments, manifesting an apparently sclerotic political system. This confrontation demanded and found an outlet in transformation of the State through Regionalization and Supranationalism. At the same time, the process of transformation contributed to weaving tightly into the fabric of Italian society the aspirations of the 1948 Constitu tion's drafters for a democratic polity respectful of each person's dig nity through the rule of law under the Constitution. The State's transformation is by no means complete, but the restructuring pro cess, which may continue indefinitely as there remains no shortage of political impasse in Italian public life, has increasingly ingrained the Constitution's fundamental principles into Italian society. The ongo ing evolution of Regionalization and Supranationalism within the constraint of State assurance of the constitutional rule of law affirms and deepens the State's role of assuring the Constitutional rule of law and the application of its fundamental principles. Such was the aspi ration of the authors of the 1948 Constitution, and is increasingly the reality of Italian society.