Lecture 29 Flashcards
1
Q
Constitutional Rights: Economic Rights
A
- The “Economic Constitution” regulates the
interaction between the Republic and the economy
1. Labourist principle (art. 1 and 4 Cost.)
2. Rights of the workers (art. 35-40 Cost.)
3. Economic rights (art. 41-47 Cost.) - Compromise between two different worldviews in the Constituent Assembly
- The original model envisioned wide margins of
intervention for the State, with forms of protection of property and entrepreneurship - The Economic Constitution contains “mixed”
elements, that can become the basis for a “swing”
model - European integration heavily impacted the
Economic Constitution
1. Progressive evolution towards a more “liberal”
model
2. Planning of the economy
3. State aids
4. Nationalizations
5. Market competition
2
Q
Constitutional Rights: Economic Rights– Labourist Principle
A
- Italy is a democratic Republic founded on labour
(art. 1 Cost) - The Republic recognises the right of all citizens to work and promotes those conditions which make this right effective. Every citizen has the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society (art. 4 Cost.)
- Connection with the democratic principle: labour as a founding element of republican democracy
- Connection with the personalist principle: labour as an instrument to develop the individual’s personality
- Connection with the pluralist principle: different
forms of labour - Connection with the equality principle: labour as a mean to achieve equal social dignity
- Connection with the solidarist principle: labour as a constitutional duty
3
Q
Constitutional Rights: Economic Rights– Rights of the Worker art. 35-36
A
- The Republic protects work in all its forms and
practices - It provides for the training and professional
advancement of workers - It promotes and encourages international
agreements and organisations which have the aim of establishing and regulating labour rights - It recognises the freedom to emigrate, subject to
the obligations set out by law in the general interest, and protects Italian workers abroad - Workers have the right to a salary commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence (minimum guaranteed income as a compensation for the nonimplementation of the labourist principle?)
- Maximum daily working hours are established by
law (statutory limit) - Workers have the right to a weekly rest day and
paid annual holidays. They cannot waive this right
4
Q
Constitutional Rights: Economic Rights– art. 37 (women and children)
A
- Working women are entitled to equal rights and, for comparable jobs, equal pay as men
- Working conditions must allow women to fulfil their essential role in the family and ensure appropriate protection for the mother and child
- The law establishes the minimum age for paid labour (statutory limit)
- The Republic protects the work of minors by means of special provisions and guarantees them the right to equal pay for equal work
5
Q
Constitutional Rights: Economic Rights– art. 38 (welfare), art. 39 (trade unions), art. 40 (right to strike)
A
- Every citizen unable to work and without the
necessary means of subsistence is entitled to welfare support - Workers have the right to adequate means for their needs in the case of accidents, illness, disability, old age, involuntary unemployment
- Disabled and handicapped persons are entitled to receive education and professional training
- Responsibilities under this article are entrusted to entities and institutions established by or supported by the State
- Art. 39 Cost.: right to create and be members of
trade unions
1. Registration / organization on a democratic basis
2. In practice: non-registered trade unions
3. Collective labour agreements - Art. 40: right to strike. Can be limited to protect
rival constitutionally relevant interests (essential
services, e.g.: public transportation, hospitals,
tribunals, cultural heritage, etc.)
6
Q
Constitutional Rights: Economic Rights– art. 41-42 (right to property and enterprise)
A
- Individual economic rights: to own properties / to
start and run an enterprise - Recognized to all persons (also guaranteed by the Art. 16,17 of the EU Charter of Fundamental Rights)
- Once civil rights (liberal State): in the Italian
Constitution they are recognized as economic rights (stronger compression is possible) - Relative reinforced statutory limit (the properties’ and enterprises’ regimes are regulated by statutory laws)
- Human dignity, individual liberty, public utility,
public safety, health and the environment are limits
to freedom of enterprise - Expropriation for public interest with compensation
- Nationalization of enterprises for public interest in the fields of essential public services, energy
sources, or natural monopolies - “Dual system” of public and private properties and enterprises
- Possible coordination and planning of private
enterprise’s activities
7
Q
Constitutional Rights: Constitutional Duties– solidarist principle (rights Vs duties)
A
- Legal basis of constitutional duties: solidarist
principle (art. 2 Cost.)
“The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed.The Republic demands the fulfillment of the fundamental duties of political, economic and social solidarity” - Strong connection between rights and duties
- Duties vs. rights
1. Rights recognize a favorable position: they can be invoked by the individual
2. Duties impose an unfavorable position: the
individual must comply with them - General duty: duty not to infringe on another
individual’s constitutional rights - Special duties: expressly envisioned by the text of the Constitution (close list
8
Q
Constitutional Rights: Constitutional Duties– duty to defend the homeland
A
- Only citizens (connection with the recognition of
political rights) - Defined by the Constitution as a “sacred” duty
- Demands a positive activity: to defend the Homeland in the event of “war” (connection with art. 11 Cost.)
- Justifies mandatory military service (par. 2)
- Opening to non-citizens: voluntary civil service
(Corte Cost. n. 119/2015)
“The defence of the Homeland is a sacred duty for
every citizen. Military service is mandatory within the limits and in the manner set by law. Its fulfilment shall not prejudice a citizen’s job, nor the exercise of political rights. The organisation of the armed forces shall be based on the democratic spirit of the Republic”.
9
Q
Constitutional Rights: Constitutional Duties– Duty of Loyalty towards the Republic
A
- Only citizens (connection with the recognition of
political rights) - Duty to be loyal to the Republic and to observe its Constitution and its laws
- Actual scope of the duty is debated
- Duty to perform public functions with discipline and honor, for those citizens that take on public offices (par. 2)
“All citizens have the duty to be loyal to the Republic and to uphold its Constitution and laws.
Those citizens to whom public functions are entrusted have the duty to fulfil such functions with discipline and honour, taking an oath in those cases envisioned by the law.”
10
Q
Constitutional Duties: Duty to Pay Taxes
A
- Every person shall contribute to public
expenditures in accordance with their capability - Duty of the person (not of the citizen)
- Connection with political rights (no taxation without representation?)
- Connection with the principle of substantial equality. Economic contribute to the general expenditures: redistribution, equalization (personal, territorial)
- Statutory limit (the tax system is organized and
ruled by ordinary laws) - Progressiveness principle (par. 2): more than
proportional tax burden for the wealthier individuals and less than proportional for the poorer ones. Instrument for the redistribution of wealth, with a reduction of the gap between economic situations. The tax system may include non-progressive taxes (e.g. VAT-IVA) under the condition that the overall system still retains a progressive nature
“Every person shall contribute to public expenditures in accordance with their capability.
The tax system shall be progressive.”
11
Q
Constitutional Rights: Constitutional Duties– Other Duties
A
- Art. 4 Cost.: Duty to work / to contribute to the
advancement of the Republic with one’s activities
(not necessarily “work” activities) - Art. 48 Cost.: Duty to vote (moral duty)
- Art. 30 Cost.: Duty of the parents to educate and
raise their children - Art. 34 Cost.: Duty of education
