COMPARATIVE PUBLIC LAW

The system of legal sources

WHAT DO WE MEAN BY SOURCE OF LAW?
● It is anything able to modify the rules of the legal system.
○ They may be written, like the acts of parliament (rules are laid down in written
texts), but also unwritten like observance of customs (rules inferred from a
diversity of elements)
○ We can have customs working at constitutional level
● Montesquieu, developing the ideas of Locke, theorized the division of power:
1) Legislative = is handled by the Parliament (in France it is called Assemblée
Nationale, in the US it is called Congress)
2) Executive power = Government, Cabinet, Consiglio dei ministri
3) Judicial power = Court (judges)
● The three powers must be kept separate in order to guarantee democracy and plurality
● The way the separation of power is achieved determines the differences between forms
of power
○ Ex: in the British system, the leader of the party holding the majority will be the
prime minister, formally chosen by the queen.
○ Uk is characterized by not having a codified constitution, there is only one
document regarded as the constitution.
● Types of sources:
1) Judicial precedents: (Common law) Decision is already rendered in a case
analogous to the case to be decided that is considered a binding precedent.
■ Ex: Roe vs Wade in the US
■ EX: When they sue their landlord, the court must use the previous court's
decision in applying the law. The case can be criminal cases, civil cases or
family cases. The Judiciary makes these laws.
■ It exists in "common rule" systems, in which the decisions judges make
constitute a sort of law.
■ Ex: European Court of Justice is also a common rule system.
2) Legislative act: (vili, Law) The result of a proceeding that may vary in complexity
by which a legislative body draws up a text containing legal rules.
“La bouche de la loi”: French judges are to be considered objective and literal interpreters of
the law which is fixed and untouchable.

Common Law Civil Law

Court judgments are considered legal sources Courts are considered to be “la bouche de la
loi”
Judges are often appointed by the executive
branch or by election Judges are elected through a public
examination system (concorso di
Legal theory has an important but not magistratura)
predominating role
Legal theory has a great importance
HIERARCHY OF LEGAL SOURCES
1) The most important is the Constitution (fundamental source of law)
2) less important is the Primary source of law (acts of
parliament, regional laws approved by singular
regions are as important as the ones chosen on state
level, legislative decrees where an institution has
executive power and manifests legislative power in
cases of emergency like pandemic, law decrees, that
have to pass through the Parliament)
3) less less important secondary legal sources like
local courts ( regulations or byelaws, governments
with no law making powers may adopt them )
4) less less less important are Customs

DECREES
● Law decree: in case of emergency the executive branch can use legislative power and
make a law come into force without the normal iter; however, the Parliament still has to
ratify it within some days (ex. DPCM Conte)
● Legislative decree: the executive branch receives a delegation to use legislative power
in a certain issue, often technical reforms (ex. Tax reforms)

Constitution: the law of laws

A post-WW2 constitution has to have:
● Frame of government, which determines:
○ the relation among the institutional bodies
○ the relationships between the institutional bodies and the citizens
● Bill of rights (the first 10 Amendments to the Constitution)
○ Bill of rights guarantee fundamental rights of citizens
● Positive ex. Bolivian constitution (Bolivia achieved a functioning constitutional order
complete with political parties, interest groups, and an active legislature.)
● Negative ex. 1: Chilean constitution → the politicians are now unhappy with their very
long constitution
● Negative ex. 2: Brazilian constitution

HOW CAN CONSTITUTIONS BE CLASSIFIED?

● CODIFIED CONSTITUTION
United States Constitution 1787; Italian Constitution 1948
● UNCODIFIED (or..UNWRITTEN)
United Kingdom, New Zealand
Unusual cases are Israel, Canada and Sweden
○ Israel doesn’t really have a constitution, there are a series of “basic laws” and
above them the so called “entrenched” laws —> they are superior to basic laws.
Former President of the Supreme Court Aharon Barak determined which were the
parameters for constitutional review
○ Canada, which in 1982, under Trudeau (senior), went through a “patriation
process”: until that year the constitution of the country was contained in the “North
American British Act", which gave Canada independence. With the “Constitution
 Act", the constitution was renamed, a bill of rights and a chart of fundamental
rights were introduced; the English monarch was kept as the Head of the State.
○ Australia and NZ don’t have a bill of rights
○ Sweden has a long constitution divided between a bill of rights and a framework
of government

● FLEXIBLE Constitution: It is said to be flexible when it is more easily amended.

○ The Constitution is formally equal to ordinary laws, therefore the Constitution
may be modified with an ordinary law.
○ (but are legally flexible constitutions politically flexible?)
→ question: could the British parliament abolish the Scottish parliament?
→ answer: Legally yes, politically no
● RIGID Constitution: A constitution is said to be rigid when it is difficult to amend or
change.
○ The constitution is at the top of the hierarchy of legal sources therefore
modifications require a special amendment procedure.
→ entrenched: there are special rules in order to modify the constitution, that
make this action IMPOSSIBLE sometimes (but what about. "unamendability"?
e.g. Eternity Clause in the German Basic Law: it establishes that certain
fundamental principles of Germany's democracy can never be removed, even by
parliament)
→ when Germany was reunified they decided to extend the “basic law”, the law in
western germany, to eastern germany, for political reasons (because they didn’t
wanna slow down the reunification process)
→ Italy has a rigid constitution, it is complicated to change the constitution

● SHORT: constitution exclusively composed of prescriptions on the frame of government

Example: the United States Constitution without the amendments (but what if the fundamental
principles are contained in the preamble? France 1958)
● LONG: constitution includes a detailed Bill of Rights (together with the frame of
government) → newer democracies tend to have a longer bill of rights (≠older
democracies)
Example: The Italian Constitution of 1948; German Basic Law 1949
Some states have a preamble before the actual list of rights starts
Article 13 is the start of the Italian Constitution, the first 12 weren't put into a preamble like other
countries because the first 12 were wanted to have law value
In Italy aspirational articles= doesn't have the same value as the prescriptive ones;
Italy is a democratic republic founded upon labor —> compromise between DC and
communists, that wanted the article to say “founded on workers”

● VOTED: A constitution which is drafted and voted by a constituent assembly (that

could be appointed by the government), constitutional convention or directly by people
(...but also crowd-sourcing, see recent experience in Iceland) → They tried to write a new
constitution “from below” but failed
○ What about inclusiveness in drafting and in approval?
○ Example of Italy: there was a referendum BEFORE the constitution was written
(02/06/1946) in order to VOTE the CONSTITUTIONAL ASSEMBLY and the
choice between monarchy and republic
■ The level of knowledge and professionalism of the 75 people elected was
very high: lawyers, scholars, constitutionalists…
■ During 1,5 years of working on the constitution opposite political forces
collaborated, until the election of 1948 (that was very contented because it
would decide Italy’s geopolitical position)
■ But on January 1st there was no final referendum in which the people
voted on the legitimization of the constitution!
○ Recent case of Chile: this country elected a new constituent assembly to create a
new constitution after the autocratic regime of Pinochet → after 2 years of work
on this new constitution the chilean people voted “no”, and the constitution
remains the old one
○ questions about the drafting of a new constitution:
■ How TRANSPARENT should it be? Should certain decisions be taken
behind closed doors?
Ex. Constitution of the Philadelphia Convention: it was NOT open to the
public
■ Is it right for the constitution to come from the people?
■ Case of Morocco: during the protests of the “Arab’s spring” the king of
Morocco, King Muhammad VI, tried to distance himself from the
authoritarianism of his father → he drafted a constitution in 2011 (opaque
process) and it was technically voted by 90% of the people of morocco
(controversial)
● shifted from monarchy to parliamentary monarchy (hybrid)
● the prime minister has to have the approval of the king and there
isn’t much freedom of speech
● formally voted, de facto octroyée
● king Muhammad VII might have a similar role as Juan Carlos in
Spain, he might pilot Morocco’s transition towards democracy
through reforms
■ Case of Tunisia: when the Arab Spring began, some scholars thought it
represented a “fourth wave” of democratization → it was similar to what
had happened in central/eastern Europe after 1984 (the fall of the Berlin
wall)
● until a few years ago Tunisia was considered to be only success
story of the arab spring; example of best constitution making,
elected constitutional assembly, draft a new constitution without
much interference of the Sharia
● the only bad side was the ambiguous form of government: it had a
semi presidential system, in which the prime minister’s power was
unclear → this lead to democratic backsliding when Sayd took
power, managing to change the constitution from semi presidential
to presidential
● the arab spring proved to be a transition between a regime to
another (like in Egypt, from Mubarak to Morsi, who drafted a new
 constitution without actually improving it and not letting any
egyptian constitutionalist experts get involved)
● OCTROYÉE: A constitution granted by a monarch, historically it is the typical sign of
the passage from the absolute to the liberal (not democratic) form of state
Ex.: Belgian constitution of 1848
Ex.: Statuto Albertino of 1861
● INTERNATIONALLY IMPOSED: A constitution imposed by the international
community
Typical example is the Japanese Constitution of 1947 (originally written by general McArthur and
his advisors, in english) and the Constitution of Bosnia and Herzegovina of 1995 which is an
annex of the Dayton Peace Agreement
Consequence: limitation of military forces
Japan’s ex prime minister, Shinzo Abe, was beginning to wonder whether it was good idea to
keep this constitution
The purpose of this constitution was to make Japan more similar to a republic (stripped the
emperor of his define rights and turned him into a ceremonial figure)
A similar thing happened in Spain: through the constitution the monarchy was reintroduced in
order to make Juan Carlos (Franco’s successor and member of the Borbon family), become
king.
Forma politica: parliamentary monarchy
1981: there is a military coup d’etat in Spain in order to overthrow the democratic government
and to prevent the socialist party from winning the elections
Juan Carlos prevents this from happening: he appears on TV dressed in military uniform and, as
head of the spanish military, orders for the soldiers to stop this revolution —> in this case Juan
Carlos used a remnant of Franco’s government and lets there be lawful elections in which the
socialist party wins
5 years later Spain becomes part of the European Union, thus becoming a democracy

Forms of State and Government

● Forms of State: Relationship between the State (constitutional bodies) & citizens
○ Feudal System
○ Absolute State
○ Liberal State
○ Democratic Pluralistic State
○ Alternatives to Democratic Pluralism
● Forms of Government: Relationship between constitutional bodies (in other words the
way power is distributed)
○ Parliamentary Executive
○ Presidential Executive
○ Semi-presidential Executive
○ Directorial Executive
○ Neo-parliamentary Executive

ìFORM OF STATE : Relationship between the State (constitutional bodies) & citizens
● The relationship between the rulers and those that are ruled over, between the people in
power and the subjects of that power
● It is about the relationship between authority and liberty
● Two different methods of classification:
a) diachronic: analyzed the development of the state over time, that sometimes
follows TRENDS and/or influences other states (legal transplanting) (ex.
Similarities between Italy's Codice Civile and France’s code civile?)
i) Feudal system
1) We cannot really talk of a state stricto sensu because there was a
total identification of the feudal lord (or the King) with the property
of the land and the power he could exercise over the peasants.
2) It was organized on the basis of private agreements, contracts
between individuals —> there wasn’t much res publica
3) The sole aim was the protection the land and its related
possessions (including the peasants) from external attacks

4) The lords had property on the territory and the people, but was it
really sovereignty? (This property could shift easily from one
family to another) —> it was all rather fuzzy
ii) Absolute state
1) Beginning in the Fourteenth Century we have the gradual passage
from a feudal system to an absolute state.
2) Two power shifts play a key role in the move from feudalism to an
absolute state:
(a) first, the shift of power from the feudal lords to the King
(and thus the stabilization of monarchical authority)
(b) Second, the shift of power from land to money.
3) The strength of the absolute state could be seen in the large
centralized bureaucracy and the ability to maintain a large
standing army to expand policies at home and abroad.
(a) Some of the states that we know today were established
very clearly after the peace of Westphalia (1648), that put
an end to the 30 year war—> finally there is a defined
sovereignty over territory and people (the state as a legal
entity)
→ With the Treaty of Westphalia, a new international order
was inaugurated, a system in which states recognize
themselves among themselves and only as States, beyond
the faith of the various sovereigns. The concept of state
sovereignty therefore takes on importance and an
international community is born closer to what we intend it
today.
(b) Example of absolute state: Louis XIV (“L’etat c’est moi”)
—> the power is given to the king from God
(c) Henry the VIII: defender of the Catholic Church
 4) the absolute states enter a crisis 100 years after the peace of
Westfalia and the sovereigns grant constitutions to the people,
volenti o nolenti
iii) Liberal State
1) The reasons that brought about the crisis of the absolute state
were financial, socio-economic and political
2) The passage from the absolute to the liberal state varied
significantly from country to country
(a) UK and US: a gradual passage from the absolute to the
liberal State
(i) Glorious revolution: In the UK the parliament
stopped king James II from making catholicism the
state religion and sent him into exile —> after that
the parliament put his cousin (Mary) and her
husband (William) on the throne
(1) This created a movement of protest, the
Jacobins, that considered them to be
illegitimate; although Jacobitism persisted
into the late 18th century, the Revolution
ended a century of political dispute by
confirming the primacy of Parliament
over the Crown, a principle established in
the Bill of Rights 1689.
(2) Overall, this shift was was quite gradual and
without great political and social traumas;
(ii) In the US it was the logical consequence of the
victorious War of Independence against GB;
(b) France: a violent passage from the absolute to the liberal
State (has a specific date, 1789, that symbolizes this
passage)
(c) In Italy and Germany due to a weak bourgeoisie and strong
aristocratic landowners the birth of the liberal state was the
result of compromise and a “top-down”
3) It was characterized by:
(a) a strong separation between the State and society (the
state doesn’t intervene often in private business) and
between the State and the Church (opposite of absolutism)
(b) the prevalence of individualism
(c) the protection of rights and freedoms —> there had been
some examples of “enlightened absolutism” (Maria Teresa
d’Austria, Federico II) —> they didn’t deny that they had
absolute power, what prevailed was the idea to rule in the
general interest of the people
(d) rule of law —> everybody, even kings and queens, has to
abide by certain rules (their power must be exercised
according the the law)
(i) in the UK this is tied to the concept of parliamentary
supremacy (glorious revolution)
 (ii) in other european countries the rule of law is
reinforced through the constitution (rule de l'égalité,
stato di diritto…)
(e) "minimum state" i.e. with a limited number of functions
(opposite of the absolute state)
(f) based on popular or national sovereignty
(g) founded upon representative government and the
principle of separation of powers (the power of the king is
symbolic → he reigns but does not rule)
(h) a symbol of this passage from absolutism to the liberal was
the adoption of a constitution
iv) Democratic pluralistic State
1) is the result of the slow transformation of the liberal state from a
mono to multi-class society
2) features that need to be highlighted:
(a) the creation of mass parties, which see the involvement of
millions of voters → creations of unions of workers, of trade
unions, of parties that appeal to the proletariat
(i) UK: labor party
(ii) Italy: Socialist and Communist party + Christian
Democratic party (used to be Popular party of Don
Sturzo)
(iii) Germany: SPD + Christian Democratic Union
(iv) Europe: European People’s party (De Gasperi,
Schumann…)
(b) elected bodies as the place of discussion and confrontation
of diverging interest groups;
(c) the recognition not only of liberal first generation rights, but
also second generation social and economic rights
3) especially after World War II, some countries in Europe adopted a
particular type of democratic pluralistic state known as the welfare
state
(a) after WWI many “giants” fell: Tzar Nikolai II, Kaiser Wilhelm
II, the Austro-Hungarian Empire, the Ottoman Empire →
King George V is the last one standing
(b) the reason for this is that these royals proved to be
unworthy to lead their people (for ex. when the italian royals
fled from Rome) → the only sovereign that stood by his
country was the Pope
(c) 1942: William Beveridge wrote the “beveridge report” to the
British Parliament, that for the first time contains the idea of
the welfare state → a particular type of democratic
pluralistic state state that will follow you from the cradle to
the grave
(i) healthcare → the NHS is created
(ii) education → state-run schools become accessible
to all children
 (iii) work-related rights → maximum of hours that
people can work, right to strike, to create trade
unions and to have holiday, minimum wage, social
security, right to maternity leave
→ these policies need funding
Alternatives to the democratic pluralistic State:
v) Totalitarian and authoritarian states
1) They statistically invert the waves of democratization
2) Making a distinction between the two can be hard
3) In totalitarian states there is:
(a) a strong, one-party system that is ideologically
based,
(b) an official ideology
4) In authoritarian states;
(a) the party system is extremely weak
(b) is driven by the lust for power of the individual
leader (nazi germany, fascist italy, fascist japan,
franco’s spain)
vi) The socialist state
1) The constitutional model was based on the abolition of
private property
(a) the monopoly of the state with regard to the means
of production
(b) was thus characterized by strong central
government
→ constitution of Yugoslavia: Tito, along with Egypt
and India’s leaders, wanted to find a “third way” to
communism, to detach himself from Russia
2) socialist state that is also authoritarian: North Korea
3) socialist state that is also totalitarian: Stalin’s Russia
b) synchronic: analyzes a specific moment in time, usually today —> usually
it focuses on a specific element of the form of state, that is the
geographical/territorial organization
i) Unitary States → National assembly (central government) is the
only body that has legislative power → local governments do not
affect that power since their acts are a secondary source of law, in
line with the statute law. Otherwise their acts would be “ultravires”,
going to beyond boundaries
→ second issue: what sort of local government? appointed?
elected? → someone could argue “where does legitimacy come
from?” → remember, not all the players who have power are
elected
ii) Decentralized States: legislative power is decentralized:
1) We have a “normal” parliament and “sub-state” actors also
exercise legislative power
2) who determines what powers pertain to the government and
what powers to the substates? —> the courts
3) we can distinguish between
 (a) Federal states (USA, Russia, Switzerland, Belgium,
Brazil, Canada)
(b) Regional states → everything that is not federal but
decentralized (Spain, Italy, UK)
→ not France because the differents departments do
not have legislative power
4) The distinction is made on the basis of four elements:
(a) extent of the legislative power exercised by the
sub-state entities
(b) existence of a separate branch of the judiciary at
sub-state level
(c) presence of a second Chamber of the Parliament that
represents the sub-state entities
(d) involvement of sub-state entities in constitutional
amendment

“Waves” of democratization and “waves” of

constitutionalization
AFTER WWII → 2nd wave of democratization
● 1947 Japan → McArthur basically drafts the constitution of Japan, that then gets
translated in japanese
● 1948 Italy → Alcide de Gasperi
● 1949 Germany → Adenauer

AN IMPORTANT PARENTHESIS: THE DECOLONIZATION PROCESS

First cases, the real process of decolonisation started in the 60s, when with an act of the
Parliament, the UK started to call back soldiers to the mother country. Two main discussions
started: what about the commonwealth? Should the newly independent country sign the treaty of
Rome (European Coal and Steel community)?
● India 1947
● Pakistan 1947
● Ghana 1957 → first country in Africa to obtain freedom and independence from the
colonial power (also tied to the Suez crisis in 1956 → the UK starts thinking about joining
the European Economic community) and adopted its own constitution and a presidential
form of government
○ Until the 60s, the country was a parliamentary regime, then the constitution was
changed and an alternation between civilian and military presidential
governments was put in place.
○ in the 80s, under the military government of Jeremy Rawlings, the country
realized that foreign aid was needed → they asked loans from the IMF
(international monetary fund) which replied that if they wanted any aid, they had
to start a democrati< )
○ In the 2000s, new election were organized: if he had won (and refused to let the
transition happen peacefully), Rawlings would have begun his third mandate →
he lost and just accepted the result, and the transition was peaceful
 ○ Unfortunately, Ghana is one of the few countries that embraced democracy →
several inverse cases

Third wave of democratization

● The Mediterranean
○ 1974 Greece → after WWII democratic, in 1969 military coup (example of reverse
wave) → in 1974 parliamentary republic
○ 1976 Portugal
○ 1978 Spain → remember the role of King Juan Carlos, who stopped the military
coup
● South America
○ 1983 Argentina
■ their transition to democracy is provoked by the war in the Falkland
Islands in 1982
■ there is a military junta lead by General Leopoldo Galtieri and there was a
great deal of discontent going on in the country (economic crisis)
■ Galtieri thought it would be a good idea to invade the Falklands, in an
attempt to prop up the military government
■ this idea backfires, because the Margaret Thatcher doesn’t back down,
since her economic policies were proving to be a cause of great
discontent in the UK (she wasn’t doing well at all in the opinion polls)
■ winning the war and regaining the Falklands gained her great popularity →
in the general elections of 1983 she wins with a landslide, while in the
same year in Argentina the military junta collapses and we have the
election of the first civilian president in many years, Raul Alfonsin
○ 1988 Chile
■ there is a coup d’etat in 1973 through which the Alenda government is
brought down and we have a military junta lead by Augusto Pinochet →
what happens is that he decides to adopt a new constitution in 1980, that
had provisions in it which would give the possibility to the chileans to
decide if they wanted to keep their leader as president or change it
■ This might seem strange since we are in an authoritarian regime (who
would have the guts to ask for the referendum to take place?); however,
the referendum is promoted in 1988, and Pinochet was defeated in the
electoral campaign
■ From 1988 onwards Chile had a successful transition to democracy
■ For a long time, there had been a discussion by democrats to change the
constitution written by Pinochet, and they thought that a new constitution
needed to be drafted
● the chileans also elected an ad hoc constitutional convention → a
certain part of the electorate, however, didn’t take part in the
election of the body, so it was leaning more toward the
leftist/progressive side
● therefore, the chileans felt like the newly drafted constitution was
not inclusive to the more conservative/moderate parties
● the constitution was also extremely long (300+ articles) and ppl felt
like it was too politically oriented (radically different compared to
the old one) → this is why it was rejected
● Central and eastern Europe
○ 1989 “Sinatra Doctrine” of Gorbachev
■ new age for the Soviet Union
● glasnost → transparency
● perestroika → reforming the system
■ he wanted to reshape the URSS while still remaining socialist
■ In a phone call with the Hungarian prime minister (about the issue of
keeping control of the Hungarian border, because people were crossing
from Hungary (eastern block) to Austria (western block))→ each of the
countries that are part of the Warsaw Pact can do communism “their way”
(like the Frank Sinatra song)
■ Fall of the Berlin Wall → start of the wave of democratization in central
and eastern Europe
■ Yeltsin gets Gorbachev to sign the dissolution of the USSR
○ 1989 Romania: violent transition → the communist dictator was executed in a
public square
○ Bosnia-Herzegovina: war in 1995 → Dayton agreement, Annex 4 the constitution
of Bosnia and Herzegovina
■ Fought for religious reasons: christian catholics, orthodox catholics,
muslims
■ Peace treaty signed by -, leader of the muslim bosnians, -, leader of
Croatia and -, leader of Serbia
■ The constitution of bosnia herzegovina is based on this peace agreement
(it is the annex 4 of the peace agreement)—> it is internationally imposed,
not voted by the people
● It can be defined a “franken-state”: it borrows a lot of content from
other legislation
■ That was probably the only way peace could be maintained in Bosnia
Herzegovina
■ similar to japan’s constitution, given by the US
■ problem: all the sides would like to change the constitution, but the risk is
that changing this precarious system, balanced between these 3 ethnic
groups, would cause chaos
■ The peculiarity of the bosnian system of government is
● its tripod (tripartic/rotating) presidency: now the presidency is
alternated between people from the different ethnicities each
mandate
● a cabinet at state level with ministers
● each of the 2 entities has its government (with a head of
government and ministers)
● the canton level also has cantonial government, with a head of the
executive and ministers, all of it carefully balanced in terms of the
representation of the 3 constituent peoples
→ the cost of public administration accounts for 60% of the GDP of
the country
■ The whole constitutional system is based on this ethnic divide: the three
houses are divided in base of the different ethnicities (the “three
constituent peoples”)
 ■ the country is also divided territorially
● federation of Bosnia Herzegovina → comes from the agreement
between bosnians and croatians, it it is divided in 10 cantons, that
are governed differently in base of the ethnic majority
● serbian Republic → this causes confusion because they sound like
names of sovereign state
● there is also a third state, a small district called Brčko district
■ the international peace agreement is also the opposite side of the
constitution
● from the international point of view it was successful because it
stopped the war
● however, it isn’t a very functional constitution, but changing it is too
risky
■ the constituent peoples are 3: bosniacs, croats, serbs → 2 problems
● exclusion of other ethnic groups
○ violation/limitation of political rights
● prevents mixed marriages from happening (bc you have to adhere
to a specific ethnic group), so that mixed children aren’t born → the
government shouldn’t control the individual’s identity
○ violation of civil rights (identity politics)
○ this violates the freedom of association → you shouldn’t
be obliged to take part in a specific ethnic group, this is an
individual choice
■ 2009: Sejdic (Romani lawyer) and Finci (Jewish lawyer) protest because
they wanted to be able to run for presidency
● the constitutional court of Bosnia Herzegovina doesn’t deny that
it’s a violation of their rights approved in the European Convention
of human rights, but it’s justified by a greater good, in order to
maintain the peace of Bosnia Herzegovina, therefore those
constitutional provisions should stay in place
● the European court of human rights (ECHR) says that, since the
constitution had been signed 15 years before, it should be
changed in order to include other ethnic groups
● however, this reform has never been implemented (typical problem
of international courts)

What moment are we in now? →

4th wave of democratic backsliding?
● Fourth Wave- starting 2010 - collapse of several dictatorships in the Middle East and
North Africa (Arab Spring) → doubts:
○ it was just a continuation of the 3rd wave of democratization
○ Was it democratization or just a wave of regime change? (because not all
uprisings ended ended with a democratic transition, but with just a regime
change) → 12 years later we can say that it was not a wave of democratization
○ the only outlier was Tunisia
● But after the Great Recession many countries have had democratic backsliding
● https://www.cfr.org/article/arab-spring-ten=years-whats-legacy-uprisings
● A new Arab Spring? 2019 -Sudan, Lebanon, Algeria, Iraq
 ● What is the State of democracy today?
● You can consult the Economist Intelligence Unit's Democracy Index:
https://infographics.economist.com/2017/DemocracyIndex/
● https://www.eju.com/topic/democracy-index
● https://www.theguardian.com/world/ng-interactive/2021/jan/25/how-the-arab-spring-unfol
ded-a-visualisation
● Constitutional and political transitions in north africa
○ Tunisia, constitution of 2014 → a street vendor set himself on fire because he
was so fed up with the high taxes he had to pay to the extremely corrupt
government
○ a few weeks later the leader, second president of Tunisia, who had been ruling for
decades, was brought down
○ a scholar from Harvard came to the conclusion that the only actual
democratization happened in Tunisia
■ the 2014 constitution writers won the nobel for peace in 2015, because of
the way the constitution was written
■ in 2021 a law professor (Saied) started criticizing the constitution, and he
wrote another one, the complete opposite of the one written in 2014 (result
of an elected constituent assembly) → he called a referendum on the 26th
of July, extremely hot moment (42℃) → the few people that voted
approved the new, authoritarian, constitution → clear case of democratic
backsliding (from fragile democracy to authoritarian system)

democratic backsliding → we shift towards

ILLIBERAL DEMOCRACY, A CONSTITUTIONAL OXYMORON
● Constitutional liberalism - the limitation of power of the state
● Democracy - accumulation of power and its use by people
● Illiberal democracy - a term first used by Fareed Zakaria in "The Rise of Illiberal
Democracy" Foreign Affairs (1997) to describe countries that initiated transition from
authoritarian regime and adopted free elections but failed to build the liberal institutions
that could guarantee individual rights
● Orban’s Hungary, a christian/illiberal democracy
○ Orban 2014, Illiberal democracy speech: “the defining aspect of today’s world can
be articulated as a race to figure out a way of organizing communities, a state that
is most capable of making a nation competitive. This is why, Honorable Ladies
and Gentlemen, a trending topic in thinking is understanding systems that are not
Western, not liberal, not liberal democracies, maybe not even democracies, and
yet making nations successful. Today, the stars of international analyses are
Singapore, China, India, Turkey, Russia. And I believe that our political
community rightly anticipated this challenge. And if we think back on what we did
in the last four years (when Orban approved the new constitution), and what we
are going to do in the following four years, then it really can be interpreted from
this angle. We are searching for (and we are doing our best to find, ways of
departing Western European dogmas, making ourselves independent from them)
the form of organizing a community that is capable of making us competitive in
this great world-race.”
“In order to be able to do this in 2010, and especially these days, we needed to
courageously state a sentence, a sentence that, similar to the ones enumerated
 here, was considered to be a sacrilege in the liberal world order. We Needed to
state that a democracy is not necessarily liberal. Just because something is not
liberal, it still can be a democracy.”
“the principle of the liberal way to organize a state will not be able to sustain their
world-competitiveness in the following years, andmore likely they will suffer a
setback, unless they will be able to substantially reform themselves.”
○ Orban described his democracy as a “christian democracy” (opposed to “liberal
democracy”)
■ liberal democracies favor multiculturalism, while christian democracy gives
priority to the christian culture
■ liberal democracies are pro immigration, while christian democracy is anti
immigration
■ liberal democracies side with the adaptable family model, while christian
democracy with the christian family model
○ Hungary was declared by the European Union an “electoral autocracy” (rule of
law is not respected)
○ What can the EU do? Art. 7 TEU procedure
■ “On a reasoned proposal by one third of the Member States, by the
European Parliament or by the European Commission, the Council, acting
by a majority of four fifths of its members after obtaining the consent of the
European Parliament, may determine that there is a clear risk of a serious
breach by a Member State of the values referred to in Article 2.”
■ ART. 2 TEU: “The Union is founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law and respect for
human rights, including the rights of persons belonging to minorities.
These values are common to the Member States in society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality
between women and men prevail.”
● Destruction of democracy
1) At the hands of men with guns: during the Cold War, coups d’etat (Argentina,
Brazil, Greece, Nigeria,Turkey, Egypt, Thailand, Guinea just a week ago)
2) At the hands of elected leaders who subvert the process that brought them to
power (Hitler, Chavez, ...)
3) There is no single moment – no coup, etc. where the regime crossed the line into
dictatorship, democracy’s erosion is imperceptible (smart authoritarianism that
uses the“boiling frog technique”)
● How to identify an authoritarianism?
○ We should worry when a leader:
1) Rejects, in words or action, the democratic rules of the game
2) Denies the legitimacy of opponents
3) Tolerates or encourages violence
4) Indicates a willingness to curtail the civil liberties of opponents, including
the media

FORM OF GOVERNMENT: Relationship between constitutional bodies (in other words the
way power is distributed)
● The way the principle of separation of power is implemented
● There are other forces that have been added in modern governments but that aren’t part
of any one of the three forces
● List of forms of government:
○ Parliamentary executive (UK→parliamentary monarchy, Italy→parliamentary
republic, Australia, Germany, Denmark, Japan, Spain, Hungary)
○ Presidential executive (USA, Brazil)
○ Semi-presidential executive (France, Croatia, Romania, Poland)
○ Directorial executive (Switzerland and Uruguay during the 1950s)
● How do we get to this classification?
○ Through slow steps over history, in which the king slowly loses power
■ for ex. America’s government is an elected presidency because they didn’t
want a monarchy
■ in Switzerland the current government is a result of what was imposed to
them by Napoleon, and they kept it → historical transformation
○ “Semi-Presidential”: term invented by Robert Elgie to describe France’s form of
government → three Dispositional Properties that we can use to distinguish
these forms of government:
■ First, whether there is both a head of state and a head of government
or whether just one institution is to be found;
● Presidential executive → one body (the hos and the hog are the
same person)
○ Germany → just one body
● Parliamentary executive → two bodies (they are two different
people)
○ Australia and Italy → there is separation (both head of state
and head of government)
● Semi-presidential → two bodies (they are two different people)
but the PM and the president share the executive power
■ Second, whether or not the incumbents of these institutions are popularly
elected:
● he said “popularly” and not “directly” because in the US the
president isn’t elected directly, but through the electoral college
(the voters vote the “grand electors”, that then vote the president)
○ obtaining the majority of popular votes won’t mean being
elected, for example Trump vs Clinton 2016
● “popular election” ≠ “getting the majority of the popular votes” →
what counts isn’t the number of votes, but the electoral colleges
● a direct election is always a popular election, but a popular election
isn’t always direct
■ Third, whether the incumbents serve for a fixed term.
● In Italy the President of the Council’s (PM) term is flexible, not fixed
→ if the coalition fails, the executive can change without needing
another election
● if there is a vote of no confidence to the mayor, automatically the
regional council gets dissolved and new elections are called → this
can be called the “fifth form” of government, in which the PM is
directly elected (“mayor of Italy”, idea of having the voters elect the
 President of the council of ministers directly) → idea of “aut simul
stabunt, aut simul stantes”
● 1990s: Israel introduces direct elections of the prime minister →
fixed terms for prime minister
● Is there a maximum term for parliament? yes! Italy 5 years,
Germany 3 years… → there can be however early elections, and
the parliament can be dissolved before the end of the term by the
head of state (by the President of the republic in Italy and by the
monarch in the UK, by the speaker of the Reichstag in Sweden, by
the leader of the parliamentary group in Turkey)
● if a Parliament can be dissolved it doesn’t have a fixed term
● The congress cannot be
dissolved → it has a fixed term
and it gets changed/replaced
every election
○ The president cannot
receive a vote of no
confidence, but he can
be impeached
● in the last elections of the president of the European Commission
there was an attempt for parties to indicate their candidate for the
role of president → in 2014 european people party’s Junker
obtained the majority
● in the next election the new candidate for european people’s party
obtained the relative majority but they were the politician was too
far right → he wasn’t given the position of president of the EC
(Ursula Von Der Leyen got it)

1. Parliamentary form of government

○ Historical evolution of the parliamentary form of government
■ Example of the UK (cradle of parliamentary form of government)
● The origins of the parliamentary form of government are to be
found in Great Britain although the Office of the Prime Minister and
the Cabinet has evolved as a matter of political expediency and
constitutional practice rather than by law given that the country
does not have a codified constitution
○ the lines between responsibility between government and
parliament and government and monarch were much
fuzzier, the gov. didn’t have to have the support of the
parliament
○ the constitutional conventions of today are the product of
changes and rules that get implemented through time
without being written
● 1782 (american revolution) is considered an important moment in
the evolution from a constitutional to parliamentary monarchy.
○ Up until that moment the King had the power to appoint and
to dismiss the Prime Minister and the rest of the Cabinet.
 ○ Resignation of Lord North (second photo) after losing a
vote of confidence → he is held accountable for this defeat
and he also felt that resigning was the right thing to do
○ First time a Prime Minister resigns following a vote of no
confidence → up until that moment there was no correlation
between a vote of no confidence and the resignation of a
PM
○ King George III (first photo) realized he had no choice but
to appoint a Prime Minister with majority in Parliament..
○ ...i.e. Charles Watson-Wentworth (third photo) who was the
leader of the largest group in Parliament, the Whigs →
beginning of the idea that the prime minister should be the
leader of the party that has the majority in Parliament
■ this government only lasts 12 weeks
■ but the important thing is this new idea
● Another crucial event occurred in 1832:
○ Approval of the Reform Act → broadening of the possibility
to vote that becomes the shift from classical liberal state to
a democratic pluralistic state (universal suffrage for
males gets introduced)
○ Struggle between Parliament and the Monarch came to a
head.
○ 1834 King William IV (first photo) decided to dismiss the
then Prime Minister Lord Melbourne (third photo) Replace
by the Tory Robert Peel (he doesn’t have the majority of
seats in parliament at all) → bounce back from before, the
King intervenes and decides who will be head of the
cabinet
● in 1935 there are new elections, and, even though the Tories do a
little better, the majority is still held by the Whigs
○ Peel remains PM for a few more months, but since he
doesn't have the majority, he resigns
○ The King doesn't have much choice anymore, so he
appoints the leader of the Whigs as PM → this convention
becomes clearer written down??
● Today Britain’s form of government ??
○ the election is not popular nor direct
○ Parliamentary executive
■ election of parliament
■ relationship of confidence
between the parliament and
government
■ the parliament elects the
head of state
■ In a parliamentary monarchy the Head of State will be determined on a
hereditary basis, while in parliamentary republics the president is elected
by Parliament: in either case he/she is not popularly elected
 ● the one shown in the picture is a parliamentary republic, ≠ Spain
and UK (the head of state is the monarch)
● The term of office of the Head of State is for life if we are in the
context of a parliamentary monarchy or it will be for a fixed term if
we are in the presence of a parliamentary republic whereas the
Head of Government does not have a fixed term
■ The government needs a majority in parliament → minority government:
rather than a grand coalition with different ideas, it’s better to have
something more coherent.
● Minority government: idea that whoever gets a plurality of the votes
is allowed to government (popular in Scandinavia) → “fair play”
approach: they believe that it’s counter productive to have unstable
coalitions of parties that don’t have much to do with each other
○ you don’t need an absolute majority to get a vote of
confidence from the Parliament → for ex. Liz Truss didn’t
need the vote of confidence from Parliament
○ there is , however, the possibility of presenting a motion of
no confidence (only one was successful since WW2)
○ Even though many governments in Italy were voted with no
confidence, only two governments in italy were brought
down in parliament (the first and the second Prodi
government) → he wanted to make accountable all MPs
that voted in favor or against his confidence provision
○ the biggest initiator of laws in Parliament is the government, that wants to follow
his agenda
■ also a member of parliament can propose a law that doesn't have
anything to do with the government’s agenda
○ United Kingdom:
■ in the UK the PM can appoint and dismiss the Ministers → there
usually isn’t division
■ collective cabinet responsibility → every minister in the cabinet has to
follow the ideas/positions of the whole cabinet, so the PM’s → the minister
who disagrees should resign → the last time this happened was during
Brexit, and all the members of the cabinet were given the possibility to
vote freely to remain or to exit

○ Italy: Peculiarity of the italian form of government

 ■ In Italy the Pm doesn't have this power, to prevent a comeback of
dictatorship → what happens if there is dissent/ a minister acts out of line
with the President of the council of ministers?
● he should resign from his role or his party should leave the
coalition
■ in 1994 there was a very particular case: there was a technocrat
government formed by Lamberto Dini, who worked for the Bank of Italy
● he has a serious falling out with the Minister of Justice, Mancuso
● even after he was asked, Mancuso refused to resign, but neither
Dini nor the president of the Republic could dismiss him
● the majority of parliament voted something very peculiar: an
individual vote of no confidence → Mancuso appealed to the
Constitutional Court saying that a singular vote of no confidence
wasn’t legitimate when it was only against one person → the CC
disagreed
● if the government defended the Minister that was accused by the
Parliament, this motion, politically, should cause for the vote of no
confidence to be diffused to the entirety of the government

○ The constructive vote of no confidence

■ According to Article 67, German Basic Law “(1) The Bundestag can
express its lack of confidence in the Federal Chancellor only by electing
a successor by the majority of its members and by requesting the
Federal President to dismiss the Federal Chancellor.”
● In other words if the majority of members of the House have no
confidence in the Chancellor in office they must be capable of
electing a successor in order to replace the Chancellor in office.
● Spain and Israel also have the constructive vote of no confidence
■ Used only twice
● In 1982 the Liberals decided to replace the Social-democratic
Chancellor Helmut Schmidt (first photo) with the Christian
Democrat Helmut Kohl (second photo).
● A similar provision is contained in the Spanish Constitution and
was used in 2018 when Pedro Sánchez (first photo) of PSOE
replaced Mariano Rajoy (second photo) of the Spanish People’s
Party as Prime Minister.
■ The very limited resort to the constructive vote of no confidence in both
Germany and Spain should not lead one to think that it is of limited
importance.
 ■ On the contrary, the very existence of the constructive vote of no
confidence has had at least one paramount consequence: it has worked
as a strong deterrent. In fact, one can legitimately stress that the
knowledge that a government could be replaced exclusively according the
above-described procedure has prevented the appearance of what Italians
would call “crises in the dark”, that is, governmental crisis started by some
parliamentarians and some parties willing to overthrow a government
without knowing if, when, and by whom and by which parties any
government could be formed.
2. Presidential executive
○ the Head of State and the Head of Government are combined into one
institution, the President
○ there is no relationship of confidence between the President and Congress
○ the President is popularly elected
○ the President serves for a fixed term of four years and can be reelected once
○ Teleological interpretation → foto ??
○ on paper, it seems the only form of government that respects the separation of
powers

○ for example, in the USA it seems like the electorate chooses the President and
the Congress
■ however, there is a connection between President and Congress that is
not the vote of no confidence and the power to dissolve the Parliament
(they don’t exist in a presidential executive)
■ the President has veto power, because he embodies both the head of
state and the head of government → the final stage of the legislative
process is the signing of the law by the head of state (for example the
monarch in the UK that gives the “royal assent”, that is more a
formality/symbolic)
● there has been a constitutional convention that says that the
monarch cannot deny the royal assent (because we are in a
parliamentary monarchy)
● In Belgium the catholic king Baldwin didn’t approve the abortion
law → he abdicated for one day in order to not sign the law
● in Italy the president of the republic can decide to not sign a law
and send it back to parliament → this, however, is not a veto
power, because it is a form of constitutional control (not just
because he doesn't like it) → on the other hand, the President of
the US can decide to block a law simply because of political
reasons
● What happens if the parliament re-approves the law? Can it ignore
the President’s decision? → fuzziness, we don’t know because it
has never happened
 ■ the Congress can call for an impeachment, in which the house of
representatives is the prosecutor and the senate is the judge
● in Brazil it is the supreme court that decides if the president is
guilty of high crimes or not → in the US this doesn't happen
because it’s the President that appoints the judges
● the problem deriving from the fact that the process of impeachment
is held by the congress is that we don’t know if it’s effective,
because it’s used like a political process, a vote of no
confidence, instead of a judicial process that has to analyze the
commitment of a crime
○ The electoral college: a system, not a place
■ In the US, the electoral college is presently made up of five hundred and
thirty-eight electors, however, it is important to underline that the
electoral college is not a place but a process: the electors never meet in
joint session at federal level, but solely at state level.
■ Each State has a number of electors equal to the number of its
congressmen, i.e its Senators (always two) plus its Representatives. A
State's delegation in the House of Representatives is determined by its
population.
● Popular vote not to be confused with popular election
Trump Clinton

Popular vote 62,984,828 65,853,514

Percentages 46.1% 48.2%

■ For example California has fifty-three representatives and obviously two

senators therefore it is allocated fifty-five electors, while Wyoming has one
representative and two senators and is thus entitled to three electoral
votes.
■ It should be noted, however, that California has a population fifty times the
size of Wyoming's, but it has only about eighteen times as many electoral
college votes.
● this is because the southern states wanted to count the slaves for
the number of electors so that they could have more seats in
parliament
● they came to an agreement: a slave’s vote counted for ⅗ of a free
man’s vote
● consequence → the bigger states are penalized in comparison
to the smaller ones (for ex. Wyoming)
● that’s why presidents are particularly interested and spend a lot of
times in those states, such as
Wyoming, that are called “swing
states” → they “weight” a lot in the
elections
■ some states, like Nebraska and Maine, use
the plurality system (first-past-the-post), but
 some of the votes are assigned at state level, some others at district
level
■ In 2016 Clinton actually got more votes but lost the
election → that’s because Trump’s translation from
votes to seats was very effective
● In 2000 the election of Bush vs Gore was
completely decided by Florida, that at that time
had 25 votes → after that many americans moved
their citizenship to Florida because they
understood how important it was as a swing state
→ now it counts for 29 votes
■ Other countries with a presidential executive: Argentina
and Ghana
3. Semi-Presidential executive

■ the directly elected head of state appoints the government and has the
power to dissolve the Parliament
○ combines elements of both the presidential and the parliamentary forms of
government
○ there is both a Head of State and a Head of Government
○ the President of the Republic is elected directly
○ the Head of the Government is appointed by the President of the Republic,
but he must have the confidence of the majority of members of the National
Assembly
○ sub-classification of semi-presidential systems
■ semi-presidential systems where the Prime Minister prevails
■ semi-presidential systems which are based on a diarchy or clear
separation of competences between the Prime Minister and his
government, on one hand, and the President of the Republic, on the
other
■ finally there are semi-presidential systems where the President plays a
central role
○ The big pro of semi presidential system is that the Prez and the PM have more or
less power depending on the situation
○ Term invented in 1958 in regards to France’s election of the president → at that
time though, France was in the 5th republic and the President was actually
chosen by the Parliament
■ form of government during the 4th republic was very fragmented because
the center party was very small, there was a center coalition (like Italy’s
first republic) → it was difficult to form government, period of time
characterized by instability
 ■ shift from 4th to 5th republic: crisis caused by the independence (after a
military coup) of Algeria → it wasn’t even a colony, but a part of France’s
territory
■ the constitution was changed in order to give the President more
executive power (but he was still not elected directly)
● the protagonist of all of this is the General Charles de Gaulle
● he thought that the President had to have popular legitimation
■ as soon as the new constitution comes into force, De Gaulle proposes
direct election of the President → he proposes an amendment of the
Constitution
● from election in parliament to direct election
● there’s a procedure to follow in order to make an amendment → it
could only happen with a vote in favor from the majority of the
Senate (but the Senate was against this)
● he used one of the President’s power → he organized a
referendum, in which he asked the people of France if they wanted
to elect the president directly
● Legal issue/question: what can be the subject of a referendum? →
this wasn’t clear in the French constitution, it was implicit that the
referendum couldn’t be an instrument to make an amendment, so
many think this was a breach in the constitution
● at least he was coherent though, because he resigned after his
referendum to modify the senate didn’t pass
■ France today: President Emanuel Macron does not have legislative
majority → the President and the PM don’t belong to the same party
(cohabitation) (like the one with Chirac and Jospin in 1997-2002)
○ Poland: Lech and Jaroslav Kaczynski (right leaning, european skeptic) → they
are twins and one is President and one is PM
■ this government is short lived though, and the PM after (centrist, liberal,
europeist) has very different political ideas compared to Lech
■ It was October 2008 when the Polish delegation to the European Council
seemed to be cramped for space. The Prime Minister Donald Tusk had to
deal with President Kaczinsky's pretension to take part in the meeting.
Fortunately, despite the cost of this whim for the Polish taxpayers (40000
euro to rent a Boeing 737 from the national airline company LOT), the
situation was eventually resolved by the finance minister who wisely
decided to cede his seat to the head of the state in order to avoid further
awkwardness on the international stage
■ The problem was that the Polish semi-presidential constitution is
ambiguous as to which of the two heads of the executive is competent in
the matter of representation in the European Council. Since there was a
substantial difference of view between the pro-European Union, Mr Tusk,
and the Euro Skeptical, Mr Kaczynsky, the other members of the
assembly did not know the official position of Poland.
■ This episode brought to the fore the issues concerning the coordination
of national policies at European level in the case of semi-presidential
forms of governments. It is not a minor problem as, to date, there are
twelve out of twenty-seven states who have adopted this hybrid system
Italian electoral system
● An Electoral System is the set of rules that govern elections and the translation of votes
into seats in parliament (or for the presidency).
● An electoral system is made of:
○ Electoral Laws: all rules and regulations dealing with elections (franchise, timing,
oversight, electoral campaigns)
○ Electoral Formula: the mechanism through which votes are translated into seats
● Peculiar things about this year’s election in Italy
○ for the first time, people aged between 18-21 were able to vote for the Senate
(consultellum, new electoral law)
○ the voting only lasted for 1 day instead of 1 day and a half
○ it was a very odd day to have an election, because the electoral campaign was
held during the summer
○ Par condicio: rule that says that all parties should have the same time on
television → this is why Letta and Meloni didn’t have a public debate
● In Italy the electoral system of Parliament is not provided for in the Constitution, but is
governed by ordinary laws.
● As for the system actually adopted, from 1948 to 1993, it was markedly proportional.
● PROPORTIONAL REPRESENTATION SYSTEMS
○ Multimember districts
■ Constituencies typically correspond to subsections of the country -e.g.
regions
■ If a country is not divided into electoral districts, one country is one
multimember district
A quota or divisor is used to determine the cost of one seat: how many votes a
candidate or party needs to win a seat
○ TYPES OF PROPORTIONAL SYSTEMS.
■ Each party nominates a list of candidates
■ Closed party lists: the order of candidates elected is determined by
parties
■ Open party lists: along with the preferred party, voters may also indicate
their favorite candidate within the party
■ Free party lists: voters have multiple votes that they can allocate either
within one party list or across different party lists
○ LEGGE TRUFFA - THE FRAUD LAW N. 148/1953
■ The most significant attempt to introduce majoritarian reforms was in 1953
(often referred to as the Legge Truffa - the Fraud Law n. 148/1953) which
assigned 65% of the seats in Parliament to the coalition that obtained
50%+1 of the popular vote
■ However in the elections of 1953 the DC and its allies obtained 49.8% and
the law was subsequently repealed
○ THE REFERENDUM AND THE MATTARELLA LAW
■ A clear-cut reform of the electoral system was made in 1993, following a
direct popular referendum promoted by Mario Segni to repeal the
provisions of the Unified Electoral Law that provided for proportional
 election of Senators.

● from ‘48 to ‘93 Italy had a multi party political system, that was very
polarized → there was no true alternation of power, because the
DC was always in government, while the communist party was
always in opposition
● only exception: late 1970s, at the culminations of the years of lead
● 1988: the Berlin Wall changes and the Communist Party changes
its name + Bossi gets elected to parliament
● Tangentopoli comes and the pentapartito dissolves
● in this context the reform by Segni happens → they want to
change the electoral law because in these years it had given life to
a numerous series of unstable governments
■ The result was the adoption of a new electoral system (know as
Mattarellum named after the inventor of this system Sergio Mattarella)
which was a mixed system, under which 75% of total seats were to be
assigned with First Past the Post
■ The remaining 25% were instead to be assigned using Proportional
Representation → they tried to mix representation with governability
■ 1994: Berlusconi goes to Government with a new party called Forza Italia
→ from 1995 to 1996
■ 1996-1998: Prodi Government with Olivo
■ 2001: Berlusconi again
■ 2005: the center-right coalition proposes:
● a rather radical change to the Constitution
● a change to the electoral Law, that changes the Mattarellum
■ 2013: Letta becomes president of the Council instead of Bersani (leader of
the PD)
■ 2014: Renzi becomes pm
○ 2005: LEGGE CALDEROLI OR PORCELLUM, A RETURN TO PR BUT WITH
MAJORITARIAN CORRECTIVES
■ In December 2005 the center-right majority in Parliament approved a new
electoral law.
 ■ This law reintroduced PR based on block lists, to be compiled by the
leaders of the various parties.... but there were some important
«majoritarian correctives»
■ A bonus of extra seats for the coalition that obtained the greatest number
of votes was introduced in order to strengthen the stability of the
parliamentary majority (more governability). The bonus was assigned at
national level for the Chamber and at regional level for the Senate
■ this law was favorable for the center right and less favorable to Ulivo, the
center left → in 2006 the center left wins, but with only 24000 votes
difference but they don’t have the majority in the senate (they had it in the
chamber of deputies) → Prodi becomes president of the council
■ in 2008 there are elections again and Berlusconi wins
■ Results of Italy’s 2013 General Election
● we can really see the effect of this electoral law, bc with only 24%
of majority they get 290 seats, there is the minimum threshold
■ The Constitutional court intervenes
● With decision (1/2014) delivered on January 13,2014, the Italian
Constitutional Court struck down (stroncato) two very contested
aspects of the electoral law for both Houses of Parliament (no.
270/2005):
○ The long closed-list of party candidates running for election
○ The bonus of seats without a minimum threshold
● “Addio porcellum!”
○ THE ITALICUM
■ The Italian Parliament approved a new electoral law, that came into effect
on 1st July 2016
■ It only applied to the Chamber of Deputies because the Renzi
Administration also presented a reform to the Constitution to eliminate the
“perfect bicameral system”
■ Distinguishing features:
● Voting system:
○ Proportional distribution of seats at national level: 100
constituencies divided into 20 electoral districts
○ Lists with a blocked first candidate who may be presented
in up to 10 different constituencies
○ 2 preferences with gender “zipper list”
○ Single threshold of 3%
○ Bonus of seats to the PARTY who gets 40% in the first
round or the most votes in the second round
● Coalitions disappear!
● La legge originariamente prevedeva un sistema proporzionale con
eventuale doppio turno, premio di maggioranza, soglia di
sbarramento e cento collegi plurinominali con capilista "bloccati",
con la possibilità per lo stesso candidato di partecipare all'elezione
in 11 collegi. Nel gennaio 2017 la Corte costituzionale ha
dichiarato incostituzionale il turno di ballottaggio, lasciando
l'eventuale premio di maggioranza per la lista che dovesse
ottenere il 40% dei voti validi al primo (e quindi unico) turno.
 ● L'Italicum non venne mai applicato, essendo stato abrogato in
seguito all'entrata in vigore della nuova legge elettorale nota come
Rosatellum.
■ Italicum is also unconstitutional
● In December 2016 the Constitutional Referendum was defeated
and Renzi resigned
● In January 2017 the Constitutional Court declared the Italicum
partially unconstitutional. In particular it struck down the run-off
election (Judgment 35/2017)
● The 40% threshold in the first round however remained
■ At this point Italy had two different laws for the Chamber and the Senate
● The electoral law for the Senate is the one resulting from
Judgment 1/2014 (defacto a system of PR) while the electoral law
for the Chamberof Deputies is the result of Judgment 35/2017
○ 26TH OCTOBER, 2016. THE ITALIAN PARLIAMENT FINALLY APPROVES
THE ROSATELLUM, THE NEW ITALIAN ELECTORAL LAW.
■ What are the features of this Electoral System?
● The Chamber of Deputies (400 seats after constitutional reform):
○ 147 seats shall be assigned from single-member
constituencies (majoritarian system)
○ 245 seats shall be assigned from plurinominal electoral
districts (proportional system)
○ 8 Seats from foreign constituencies
● The Senate (200 seats)
○ 74 seats shall be assigned from single-member
constituencies
○ 122 seats shall be assigned through plurinominal electoral
districts
○ 4 seats shall be assigned from foreign constituencies
● Thresholds
○ 3% on a national basis, in both Houses
○ Exception: electoral lists referring to linguistic minorities
(in that case, the threshold is 20% in the corresponding
region where the minority is located)
○ Minimum threshold for coalitions: 10% (at least one list
must have passed the 3%threshold: interesting example of
Azione-Italia Viva)
● Lists and constituencies
○ The plurinominal electoral districts shall be formed by
comprising different single-member constituencies.
○ In the plurinominal electoral districts the lists are blocked
(no conflict with the judgment of the Constitutional Court)
○ Nei collegi plurinominali ciascuna lista è composta da un
elenco di candidati, presentati secondo un determinato
ordine numerico: il numero dei candidati della lista non può
essere inferiore alla metà, con arrotondamento all'unità
superiore, dei seggi assegnati al collegio plurinominale (e
comunque non inferiore a 2), né può essere superiore al
 limite massimo di seggi assegnati al collegio plurinominale
(e comunque non superiore a 4). In tal modo, con l'intento
di superare le censure della Corte costituzionale alla legge
Calderoli si prevede che i candidati nei collegi plurinominali
proporzionali siano di fatto indicati in liste corte (appunto tra
i 2 e i 4 nominativi) in modo da essere singolarmente
riconoscibili dall'elettore.
● Alliances and coalitions
○ Lists support a single candidate in the single-member
constituencies
○ But they can field different candidates in the plurinominal
electoral districts
● Other features
○ Only one ballot paper
○ Split voting is prohibited: it is not possible to vote for a
candidate in a single-member constituency and then vote
for a different list in the plurinominal electoral district.
● PLURALITY SYSTEMS: SINGLE-MEMBER DISTRICT PLURALITY (SMDP)
○ aka First Past the Post (FPTP) Systems
○ One of the most popular majoritarian systems in the world
○ Voters cast a single vote for a candidate in a single-member constituency
○ The candidate with the most votes is elected- absolute majority is not necessary

The Bonobo Sisterhood: Revolution through female alliance

● 17th november, egea library, 17.00, book talk by diane rosenfeld
● Bonobos: species of chimpanzees, separate from them because they developed on the
other side of congo
Introduction:
● My backgrounde
○ she has been teaching at harvard since year 2000
○ she studied female jurisprudence
● The book
● The work
Chapter 9
● she met an anthropologist who explained how monkeys and humans will practice
violence against their female “reproductive resources”
● they designed together a course on sexual coercion
● she introduced bonobos to her and the fact that they eliminated male sexual coercion
through female-female solidarity
● it’s not the end of sex, but the end of unwanted sex!! the male bonobos leaves the female
alone if she doesn’t seem as enthusiastic about the act, but this only happens in 30% of
the times
● the rates of rape and sexual violence don’t change depending who’s in power → it’s a
problem of the system
Chapter 1
● (she read the first 3 pages)

The eu
Lesson plan
1. Defining the EU - international organization or State?
2.The evolution of the EU treaties
3.Key historical traits - defining the Project of EU
Integration
4.What is a Form of Government and what are the main
Forms of Government at the national level?
5.The EU Form of Government
6.Case Study on Dialogue between CJEU and National CCs
7.Conclusions

Is the European Union an international organization?

● Yes, formally it is:
● It is the product of an international agreement among States, but it is a very avant garde
international organization, providing a new model for transnational relations
○ its institutions are more powerful than those of conventional international
organizations
○ its law has direct effects on individuals, while international law obligations are
typically directed to states only (Weiler)

Is the EU a State?
● The EU is not sovereign like a State, but
● it has acquired some fundamental federal qualities:
○ E.g. the enforcement of its law is unique among international organizations and
more similar to that of a Federal State
■ The Court of Justice of the EU (CJEU) established the principles of
Supremacy (EU law is hierarchically superior to national law) and Direct
Effect (citizens can rely on EU Law directly before a national judge without
need for implementation)
○ E.g. it has exclusive jurisdiction on monetary policy in the Eurozone
● A hybrid between a Confederation and a Federation?

Does the EU have a constitution?

● Not technically
● Attempt at providing the EU with a constitution failed (2004), but…
● the Treaties have a Constitutional character:
○ CJEU in Les Verts v. EU Parliament (1986) defines the Treaty as "The Basic
Constitutional Charter of the EU" (para. 23)
● Since the Treaty of Nice (2001), the EU also has a Bill of rights: European Charter of
Fundamental Rights