The judgement n. 52 of the year 2016 represents a turning point for the canon law. This judgement negates the fact that the third paragraph of the article 8 of the Italian Constitution is a rule of procedural democracy serving the first two paragraphs of the constitutional disposition. The third paragraph of the article 8 is a rule of substantial democracy that identifies its reason for being in the balance between freedom (art. 8, paragraph 3 of the Constitution) and authority (article 95 of the Constitution). The procedure for the negotiations is substantiated in the political discretion of the Government. Therefore the judgements of the acts of the negotiations don’t fall under the competence of the Supreme Court, as they are not part of the administrative activity of the Government. The Consulta relativized the limit of the res judicata to the figures directly involved in the matter raised in the petition for the allocation of powers. Therefore the constitutional res judicata doesn’t affect the external relations, thus the religious denominations that don’t have an agreement with the Italian State (Intesa) benefit from the article 8 (first paragraph) of the Italian Constitution. The above-mentioned judgement has a monitory nature, in fact it brings a default action against the Parliament in order to obtain the issuing of a law that will reform the freedom of religion. This decision is defined as ‘additiva di principio’ that is a judgement that identifies an ‘additional’ principle ruling the relations between the State and the religious denominations. This judgement must be subjected to criticism, in fact it is arduous and dangerous to combine the government policy with the relations between the State and the religious denominations apart from the Catholic one. These relations would be subjected to the variable political balance of the moment, that is to the political schizophrenia of the various governmental majorities. However, the Consulta received an original and unexpected support from Hans Kelsen’s spiritual testament, who in his dispute with Voegelin proved, with an intensity revealing his masterly talent, that the secular religions are meaningless.
Fattore religioso e dinamiche stoico-istituzionali. La procedura per le "Intese" ex art. 8 Cost. tra regole del gioco e princìpi di democrazia sostanziale
BARBIERI, Luigi
2016-01-01
Abstract
The judgement n. 52 of the year 2016 represents a turning point for the canon law. This judgement negates the fact that the third paragraph of the article 8 of the Italian Constitution is a rule of procedural democracy serving the first two paragraphs of the constitutional disposition. The third paragraph of the article 8 is a rule of substantial democracy that identifies its reason for being in the balance between freedom (art. 8, paragraph 3 of the Constitution) and authority (article 95 of the Constitution). The procedure for the negotiations is substantiated in the political discretion of the Government. Therefore the judgements of the acts of the negotiations don’t fall under the competence of the Supreme Court, as they are not part of the administrative activity of the Government. The Consulta relativized the limit of the res judicata to the figures directly involved in the matter raised in the petition for the allocation of powers. Therefore the constitutional res judicata doesn’t affect the external relations, thus the religious denominations that don’t have an agreement with the Italian State (Intesa) benefit from the article 8 (first paragraph) of the Italian Constitution. The above-mentioned judgement has a monitory nature, in fact it brings a default action against the Parliament in order to obtain the issuing of a law that will reform the freedom of religion. This decision is defined as ‘additiva di principio’ that is a judgement that identifies an ‘additional’ principle ruling the relations between the State and the religious denominations. This judgement must be subjected to criticism, in fact it is arduous and dangerous to combine the government policy with the relations between the State and the religious denominations apart from the Catholic one. These relations would be subjected to the variable political balance of the moment, that is to the political schizophrenia of the various governmental majorities. However, the Consulta received an original and unexpected support from Hans Kelsen’s spiritual testament, who in his dispute with Voegelin proved, with an intensity revealing his masterly talent, that the secular religions are meaningless.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
