JUS - 2007 - 1

The purpose of the article is to show the double meaning of the expression «iudices ordinarii» in late Roman law sources. The first labels the governors of the provinces not ranked as «proconsules» («rectores provinciarum»), the second indicates the holders of ordinary jurisdiction in juxtaposition with special judges when a jurisdictional issue arises. If the latter fits well with the up-to-date concept of ordinary judges and needs no particular explanation, the former is justified by the more general indication of the province’s governor as «iudex tout court» in contemporary sources and by his fulfilment of first instance jurisdiction characterized by a lower honorary rank, rather than his lack of «iurisdictio vice sacra». It is remarkable that also in the second meaning «iudices ordinarii» indicate to some degree the «rectores provinciarum» amongst the law sources collected in the Theodosian Code.

Many International Conventions of both global and regional scope drafted in the last century concern the rights of the child, which were ignored by Universal Declarations of Rights and by national legislation until the end of nineteenth century. These Conventions establish the principle of the prevalence of the best interest of the child, which is, however, to be considered in the overall family structure. In this regards, it must be pointed out that such International Charters never mention the duties of the child towards his/her family. Such enunciation would help to achieve the «human ecology » of which the family is the first form of appearance.

Through the authentic actuation of the constitutional reform of 2001 it is possible to realize a real tidy-up of the Republican institutions, promoting the autonomist perspective of article 5 of the Italian Constitution. Article 5 of the Constitution, as known, implies growing responsibilities for the territorial autonomies in a system centred on the principle of subsidiariety. This actuation process needs to start and develop in a double direction. First of all, clarifying competences (and respective resources) to be considered as fundamental and belonging to municipalities and provinces. This process must be implemented by avoiding possible centralisms (both of the State and of the Regions) but granting the inalienable national needs. In second place, the actuation process requires an authentic cooperation in between all subjects involved. This cooperation needs to be realized in a mature and pluralistic democracy contest able to overcome those obstacles that in the past have restrained, if not forbidden, administrative and normative decentralization attempts. What is in doubt, though, is that these conditions (that are essentially cultural) will effectively be present.

Under present historical-social age, marked by a plurality of rights asserted at constitutional, international and supernational level, it seems that the concept of “fundamental right” loses consistency and power. This work aims at being a consideration about this case, and especially about the founding principle of the rights, in the sense that it founds a social and legal order, in the perspective of the relation between old and new rights.

Even before its format codification by Constitutional Law 3/2001, the principle of loyal cooperation, has been widely used by the Constitutional Court of Italy as a mean to settle conflicts between State and Regions. Nevertheless, nature and limits of this principle have not been precisely defined and this situation has not been changed by the introduction of a positive specific provision in the article 120 of Italian Constitution. The author attempts to finid a thread in various decisions of the Constitutional Court and trace the main manifesting symptoms of the loyal cooperation principle. Accordingly, the author seeks a connection with principle of constitutional fairness which contributes to regulate relationships between Constitutional bodies and was first given shape by Santi Romano in the beginning of the XX century.

What is the relationship between the condamnation and the damages compensation for the injury of legitimate interests in the light of the «unjust» sentence which leads to the afore mentioned damages? In June 2006 the members of the Court of Cassation - as judges of the jurisdiction - came to a conclusion on the possibility of carrying out a compensatory cause independently from that of the annulment. The author here provides a critical analysis of the motivations cited by the members of the Court of Cassation, showing why he favours the notion of the so-called administrative preliminary.