State of emergency: set aside the rule of law, they govern “off the cuff”
One of the questions that many ask themselves these days is the following: "But does the rule of law still exist in Italy?" There are many answers, ranging from a fideistic "certainly!" to the dubious and widespread “Boh?”. Let's start with the basics. In principle, assuming that the general guidelines still apply, the sources of Italian law have always been schematically indicated with a pyramid, at the top of which are the Constitution and constitutional laws; immediately below the constitutional provision, the European laws and the community regulations were inserted, then, going down to the base, respectively the ordinary law (formal and material), the regional laws, the regulations and, finally, the customs to indicate with these are the legal sources of lesser authority and applicability.
Having said this, leaving aside the doctrinal diatribes on the use or abuse of constitutional laws, which remained very few until the last years of the last century, we could already ask ourselves whether the Constitution, enthusiastically defined as the most beautiful in the world, especially by those who do not never read – not even in passing – any other and does not seem to know entirely or in detail even ours, is truly at the top of our pyramid of current regulations. What could be the answer, probably, the greatest element of confusion lies precisely in the pyramidal structure of the many (too many) laws that govern us, where a widespread popular sentiment tends to put every coercive disposition on the same level because it pays attention to the substance, that is to the consequences for those who do not adapt to the norm. Well yes, gentlemen, because the law is just coercion of the state for the protection of common interests. Also on this point it would not be bad to go into depth but it would go beyond the limits of this chat, so I will limit myself to asking you a simple question: in a "just" law must the protections of fundamental rights or sanctions for those who violate these rights prevail?
Probably, in a wholly imaginary state of law, the solemn listing in the supreme State Charter of rights as the common heritage of all the associates should be enough to make these rights so obvious and authoritative as to not even give rise to the hypothesis that they can be compressed beyond measure. if not denied completely. On this point, the general consideration for which, if the sense of the State (the one with a capital "S") is not perceived, the laws that come from it can be of no use to us. In other words, as claimed by Cicero to Machiavelli and many others, if the State is not perceived as a common brotherhood of associates who have given themselves rules, precisely these rules, that is the laws, will be perceived as an imposition from above. and nothing more. Already here we could get lost in a real river of social theories that then branch off in a thousand divergent streams and we should, at least for the sake of completeness, even bother the theorists of anarchist thought, understood as an extreme rejection of the very idea of the state, but it will suffice to refer only to the above cited pyramid structure of the sources of our law, at least to understand if today such schematization still makes sense.
If I had to answer this last question in a draconian way, I would say no: it no longer makes sense. In our country, the whirlwind progression of social events of the last fifty years has profoundly changed, in fact, the true structure of our nation and we have passed, to give a concrete example, from the enormous weight that they had, in the last thirty years of Novecento, the trade unions (which I remember never having been sources of law nor, still today, not even registered associations), when the consultation of the social partners was unanimously considered essential and unavoidable for presidents of the Republic and presidents of the Council, to the curious statements of our current prime minister, Mario Draghi, who just yesterday, at least verbally, reversed the rules of the game.
Judging by the very recent and solemn statements of Draghi, it seems that Parliament has the obligation to guarantee the government's persistence in office and not vice versa, that is, to conform the work and the legitimacy of the government itself to the will of Parliament, however it may be. compound. It is useless to remark and scream to repeat that the scientific technical committees are not foreseen by the Constitution and the super-commissioners and the control rooms are equally unknown to it. By now we too last poor people who studied on the texts of Costantino Mortati for the examination of constitutional law have lowered our weapons, arms and, sometimes, even breeches. The frightening uproar of rules that overlap and contradict each other to propose some legal prop of convenience for certain very heavy, government measures, unacceptable and limiting freedoms, which we believed to be irrepressible, cannot be considered a rational application of law (forgive me inveterate habit of writing it with a capital "D").
Let's be honest: all this chasing, denying, updating to horas of ever new and glowing rulings of a government now hegemonic over all forms of parliamentarism, belongs to that "state of emergency" that we could well define " state of emergency". At least so we admit that, because of this emergency, it is allowed to play dirty, putting aside our old and now pathetic hierarchy of the sources of law, to govern off the cuff. Because exactly what they seem to be doing: they rule off the cuff. All this in the name of what, about a year ago, I jokingly baptized myself as the “pandemically correct” principle, according to which it is possible and permissible to make a mockery of every established rule.
We are living in very difficult times and not only because of the cursed virus and the economy that is falling apart; we even hear, not too far from our borders, loud and growing noises of war, a war that could degenerate also because of a much weaker international diplomacy than that which preceded the last two world wars. Speaking of war, do you know what recurrence will be on March 16, 2022? Exactly eighty years have passed since, although Italy had already been at war for almost two years, our civil code, still in force today, came into force. In the middle of the world war we were able to draw up the highest civil law, with a civil code that remains among the most effective and long-lived in the world. This took place in the middle of the war, thanks to a Parliament that functioned fully, despite the fascist regime being at its peak and without inventing and derogating from anything that was not foreseen by the Albertine Statute, then in force as the supreme Constitutional Charter. A big difference huh? Other people, all things considered. God help us.
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This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL https://www.atlanticoquotidiano.it/quotidiano/stato-di-emergenza-messo-da-parte-lo-stato-di-diritto-governano-a-braccio/ on Mon, 21 Feb 2022 03:53:00 +0000.