[lecture 17/03]

CONSTITUTIONAL LAW:
CONTRACTUALISM: society is constructed by a contract, a pact.  Hobbes, Lock and Rousseau.
While the holistic perspective consider that society exists in nature, indeed all 3 of them talk about the state in nature.
In a logical perspective there is a space in which people were not reunited in their natural state, like Lock describes it as
the war state.  in this perspective, the natural state is a state without fighting, so HOW DO WE GET TO THIS
STATE? => we have to make a contract.
If we are holistic, we see life as a gift which I have to take care of and the state can put death penalty on it, while if I
have an individualistic perspective life is mine and mine only, so here the state cannot put the death penalty on it.  all
this issue never finds a solution in just one perspective, there are different perspectives. No country adopts only one
perspective between holistic and individualistic, they usually adopt a mix of both.  the point of academic study is
indeed to understand the theoretical foundations on one hand, and on the other hand study the solutions given in
different countries and be able to understand the theoretical foundation of this practical solution.
LEGAL SOURCES: THE CONSTITUTION ESTABLISHES THE FOUNDATIONS FOR
OTHER NORMS IN THE LEGAL SYSTEM
Legal source= any act or fact that gives origin to a norm valid in the legal system. So, any act of the parliament is a
source of the law, the constitution itself is a source of the law, along with administrative acts, customary law: the 2
elements of this are:
1) diuturnitas: the repletion of the act and the actual observation of the norm
2) opinion iuris: we consider that we are doing that because we consider to be bound by it, even though there is
no rule stating so.
For ex., in international law, customary law is still very important because the idea that states are obliged to respect
what they have signed is on customary law, indeed, there is no legal norm that states that if a state signs a treaty, then it
is bound by it.
Normally, the legal sources are acts.
Along with the constitution, other legal sources of a country are: statutory law, acts adopted by the parliament or by the
legislative power, administrative acts.  this is the very legal system normally in every country. The idea is that in
these 3 levels, no level can obstruct what has been established by other levels.

1. Constitution
2. Legislative power’s acts
3. Administrative acts
So, the constitution establishes how the legislative power has to act in order to adopt legally binding acts. Ex: in the
art.1 of the United States establishes how the congress works, how they vote to adopt legislative acts.
The constitution establishes all the procedures to adopt legislative acts and so on.
Considering these 3 levels, the constitution refers mainly to the adoption of legislative acts. Normally it does not refer to
much on the adoption of administrative acts, because legislative acts are those who then decides about administrative
acts.
The constitution usually defines itself as the supreme law of the land, indeed, we can see how it is the constitution
itself the one to establish how the legislative power must work.
Constitution can be of 2 types:
1. Flexible constitution: it can be modified, and any legislative act can be adopted without any particular
procedure, the Italian statute adopted by Alberto, before the constitution, was flexible. That’s why during
fascism many laws were adopted which went against the main principles of the statute, even though it
contained just a few articles concerning fundamental rights.
2. Rigid constitution: these establish a specific procedure for their own modification, along with other things. So,
the constitutional text cannot be modified by adopting just an administrative act, but there is a procedure to
follow if we want to change it.
The American constitution establishes a way to be amended for example, indeed there are amendments which are
additional to articles which are needed, for example, to amend the constitution.
The idea that the constitution establishes the adoption of legislative and administrative acts and that these cannot violate
the constitution because the constitution itself provides a way to amend itself, makes no sense without the analysis of a
judicial body.

This is given the power to control that legislation does not violate the constitution, indeed, it can happen that the
legislative power adopts an act which goes against the constitution, so we need an act in order to solve this situation. 
“REVIEW OF LEGISLATION” is the remedy to see whether the legislation has violated the constitution or not, and if it
did violate the constitution the judicial body has the power to establish that that legislation is null envoy.
JUDICIAL REVIEW OF LEGISLATION
The review of legislation was born in the United States 1804, with a famous judgement on the case of “Marbury vs
Madison”.  Marbury was appointed as judge by the former president of USA, but the president concluded his formal
period of presidency before formalizing the appoint of him as judge, the new president Madison refused to formalize the
appointment of Marbury as judge. So, Marbury presented a suit against Madison asking the supreme court to order
Madison to sign the final formal act for his appointment as judge. There was a law adopted by the congress that gave
the supreme court the power to order the new president to sign the act, so when Marbury presented this suit before the
supreme court, it was a court order, he did that based on a legislative act based on the congress of USA that established
the possibility for a person finding himself in this situation to ask the court for a court order. The process starts and the
court finds the sentence written by Marshall, the judge of the supreme court at the time, he states 2 things:
1) Marbury is right, he has the right to be formalized as judge, so actually it was wrong that Madison refused to
formalize his appointment. So, Marbury had all the rights to be formally appointed as judge
2) IS THE REMEDY THAT MARBURY CHOOSE THE RIGHT REMEDY IN ORDER TO ACHIEVE HIS
GOAL? = the court finds that actually the legislation adopted by the congress indeed allow Marbury to get a
formalization to be judge, but it also finds that that law of the congress was actually in contrast with the
American constitution, because art.3 of the constitution establishes the competences of the supreme court of
the USA and establishes that the supreme court has no other competences than those established in the
constitution.

So, according to this, the supreme court had not the power to adopt a court order as Marbury was asking because it was
not a competence established in art.3 of the American constitution. The supreme court was entitled to adopt such a court
order based on an act of parliament, but not based on act of the constitution. So, Marbury was asking the supreme court
to do something based on a legislative act and not based on the constitution.  the interpretation of the American
constitution is that: “if some power of the supreme court is not included in art.3 of the constitution, then the court has no
such power”. So, the court could not exercise the court order requested by Marbury, even though the supreme court
states that Marbury was right. The first judgment in which a court adopted the review of the constitution.
So, at the end of the day, Marbury lost the case, even though he was right, formally he was not allowed to appeal the
supreme court. So, the right of Marbury was not protected, because the protection of his right would have meant to go
against the constitution.  this principle, the fact to not respect someone’s right even if they are right, because it goes
against the constitution, was invented with this case.
After this case, all other judges were obliged to disregard legislation in contrast with the constitution.
In other systems, some particular judges are established with this specific purpose of declare the legislation null envoy
if in contrast with the constitution.  there is a shared way of exercising judgement about this in all America.
Therefore, in common law (shared) country the system works, while in civil law (concentrate)countries we have
constitutional courts specifically designed to solve such problems.
Many countries in the world provide for a mix of these 2 systems, in Italy we have the concentrated system.
In the shared system, if the judge of the first instance considers the law to be inapplicable, we can always try an appeal
and get to the second instance.
While in the concentrated system, if a judge decides that a law is against the constitutions there are no appeals available
to us to use in order to get what we want.
CAN THE IDEA OF CONSTITUTION EXIST BEYOND THE BORDERS OF
NATIONALISM?
Normally, when we refer to a constitution, we are referring to the constitution of a country, so does constitutional issues
only exist on the national dimension or are they also present beyond the borders of the nation?
DOES THE EUROPEAN UNION HAVE A CONSTITUTION? => formally, it only has some treaties, especially 2
borders treaties, that are like a primary law in the European Union. The idea that the EU should have a constitution was
considered years ago, it was also drafted a constitutional treaty but then it never entered in force because it was
rejected by some of the states. Formally, none of these treaties are a constitution, but substantially, can we say that some
constitutional elements are present into the EU? => we can justify the fact that there are constitutional elements in the
treaty of EU, because: we have said that the constitution is a concept built on 7 contents, so in order to justify that EU
without having a formal constitution, has some constitutional traits, we should consider each of the 7 contents and see if
they apply to some basic constitutional elements.

We can see that there is the:

- Definition of the public power => the 1° content of the concept of constitution is present
- It has a catalog of rights, there is a charter of fundamental rights (are those included only into a constitution)
adopted by the EU => the 2° content of the concept of constitution is present
- A united substantial nation is debatable, this content of the concept of constitution is not quite present in EU
 - Definition of the constitution itself as the superior law is another content not quite present in EU, because there
is no actual constitution
- The content concerning the constitution establishing how the legislative power can adopt legislative acts
- The court of justice has the power to control that the legislation respect the EU
So, some elements of the concept of constitution exists even though there is no former constitution.