The last scientific pages by Giorgio Berti mix with a skilful hand a learned doctrine and a melancholy
mood. Looking backwards to his first steps as a student at the University of Ferrara, and afterwards
as a scholar of public law, he travels over again the cornerstones of his thinking that consists
of a different way of looking at the administrative law as a complex system which springs up from a
society that has the ambition of governing itself in a perennial struggle and compromise with an authoritative
The article explores the general prospects of «Italian commercial law» in the age of economic
globalization, going back to the process which led to the unification of the two codes, ended with the
promulgation in 1942 of the Italian civil code and with the so called «commercialization of civil law».
In particular, the article discusses the issue of the special role – and thus the conceptual independence
– of commercial law, which at the dawn of the XXI century has been regaining importance among european
The article analyzes in a critical prospective Italian Constitutional Court jurisprudence on tax
law within the last fifth years. A particular attention is given to the serious problems of policy influence
in this matter. The article also analyzes new laws’ violations to the Italian Constitution, with
special regard to the several remissions of tax liability: the Court has always saved them, with the justification
that the remission of tax liability is pre-ordered to acquire more income to the State and to
avoid actions. The Auctor hopes a new jurisprudence of the Court specifying and confirming the principle
of equal treatment in tax law.
In this paper the author presents his opinion on the concept of work according with some recent
innovation in Italian labour law. He holds a specific legal meaning of the constitutional rule
written in the article 1 of the Italian Constitution: «Italy is a democratic republic founded on the
work». In the opinion of Mario Napoli, article 1 finds its factual conditions in the concepts of enterprise
and market. But the whole regulation is based on the person who works, i.e. on the working
people. The author links his opinion on article 1 to the content of articles 2 and 3 of the Italian
Constitution, which deals with fundamental rights and equality of treatment, and to the «first part»
of Italian Constitution, in particular to principle and rules on the economic relationships (Section III).
The connection between Constitution and contractual freedom underlines several and opposite
settlements changing from assertion of a strong link between the two terms of the connection to
negation of any connection, till getting to reach a recovery of fundamental value of our economic Constitution
in a responsible fulfilment of the contractual freedom.
In this article the author points out some peculiarities of Sergio Cotta’s philosophical thought,
which, through a double leave-taking (from Hegel and from Kelsen) and a distance-keeping (from
Capograssi), interprets the legal phenomenon as the perspective giving normative meaning to the human
existence conceived as a relational structure. The author underlines, above all, how Cotta works
with a methodological approach based on sources coming from different scientific fields (anthropology,
logics, psychoanalysis, linguistics). In this way, Cotta emphasizes the ontological structure of the
existence as the existential legitimating foundation of the legal phenomenon.
In Part I of this study the author reviews an «initial reading» of essays by Luigi Mengoni, putting
them in their context and indicating the main contents. Readers are reminded that the part of
Mengoni’s work commented on in this article dates back to 1958 and was written in an important historical
moment for Italy as far as economic development was concerned. It was an age when heady
ideals stimulating the social reconstruction of the nation, based on the new democratic and republican
Constitution ratified in 1948, were rampant. The author identifies five topics Mengoni dealt with in
this piece of research, namely: industrial capitalism, managerial capitalism, corporate social responsibility,
constitutional economic order, «mitbestimmung». The commentator scrutinizes Mengoni’s
analysis which indicates ownership or «proprietà» of companies, full management control over firms
giving the power to fix objectives and relations with the market in particular with regard to relationship
with labour, as crucial fields of research. In Part II of this study the present writer proposes an
«updated reading» of Mengoni’s essay demonstrating that in changed current circumstances it still
constitutes a valid, modern approach to the problems governing the regulation of the business sector
and more generally speaking of the economy. During the actual financial capitalism phase these problems
can still be explained and managed taking into account Mengoni’s analysis. However it appears
evident that the conflict of interests is a new instrument and a sector of research which absolutely
must not be underestimated. Mengoni’s updated analysis, re-examined in a contemporary context, underlines
many critical points of law regulating the economy that legislators have so far failed to review
and modify adequately. This factor is particularly relevant in the field of the market for the transfer of
ownership of firms, of the role of the banks and of the regulations controlling the conflict of interests.
Above all in this write-up it appears manifest that Mengoni’s work highlights, thus increasing our
awareness, that neither labour nor rule of law are such as to be determined or conditioned in a predominant
way by market mechanisms.
The legal position of places of worship in Italy has changed profoundly, but religious practice
has changed even more, as a new religious pluralism has taken root. Among the most important problems
are those of churches owned by the «Fondo Edifici di Culto»; legal constraints on usage; different
concepts of worship in the recently arrived religions. Moreover, the privileges granted to Catholic
churches are being curtailed and identical rights are being extended to other religions. Yet the denominations
of the immigrant communities, although representing significant numbers of adherents,
are unable to profit from the provisions of the law, since they themselves are not juridical entities and
are not duly recognised as such by local authorities. Some denominations constitute themselves as associations
or non-profit-making organisation (ONLUS) in order to enjoy legal benefits. This often
leads to disputes between property owners and religious bodies. The article considers the contradictions
arising from this situation and sets forth proposals for fair and equal legislation concerning places
In the 1930 edition of the Italian Criminal Code, only a few rights were afforded to party consultants;
the new 1988 Code, in a more prosecutory approach, introduced a new profile for party consultants,
quite similar to the role played in common law Courts by expert witnesses. The party technical
consultants have therefore achieved brand new chances to defend their hypothesis, even in cases in
which no expert witness has been performed. The Author, after an analysis of the roles played by defense
consultants, General Attorney consultants, and expert witnesses, together with their differences
and analogies, carries on his personal considerations in order to define the party witness liability limits,
describing in detail which criminal offences could apply. As Judges appear even more aware of
scientific evidences, it becomes inevitable to detect, in consultant «malpractice» cases, the possible criminal
liabilities relating to every technical consultant or expert that have played a role in the process,
no matter which party he works for. The Author concludes that, in most cases, only a few criminal offences
are consistent with the role of expert witness; nevertheless, an analogical criterium is not allowed
by the Criminal Code and the same criminal offences are not consistent with party consultants.
The duty of political solidarity enunciated by article 2 of the Constitution (beside the economic
and social one) first of all implies that the actual political forces accept and agree with the original
«constitutional pact of solidarity» which, although the extinction of parties that originally drew
it up in 1948, our democratic coexistence is still now based on. The same principle of political solidarity
refers to the Parliament as the privileged institutional arena, in which, beyond every legitimate
contrast on the political issues, the every day competition between the parliamentary majority and the
opposition, both responsible of the national policy, takes place.
Ethical products, preferred by the critical consumer, imply social accountability and respect for
the environment. The conformity of ethical products concerns «how» it is manufactured rather than
«what» is sold to the consumer. This kind of warranty creates for the first time an unavoidable link
between the sale B2C and the B2B supply chain. New general purchase conditions must be applied in
the supply chain in order to fulfil the ethical warranty. A breach of this kind of warranty could be
sanctioned as unfair commercial practice according to Directive 2005/29/EC.
This article concerns the current relation between rule of law and public administration, especially
its power of organizing bureaucratic departments. Traditionally, the debate was if the organisation
of public departments fell under either Parliament or Government competence; however, this
power was in general believed subjected to the rule of law. This paper shows how since 1988 the privatisation
of power of organizing and its equalization to private employer’s power have changed the
perspective on this matter. The analysis explains how the rule of law deals with this power.
Public administration today is defined in an objective way, appreciating activities and aims to
reach, rather than the subjective belonging to a particular area. Public aims can be achieved through
private forms, such as government controlled companies. Thus, these private subjects enter the administrative
world and are, consequently, subjection to state Audit Court control.
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