JUS - 2009 - 1

The sixtieth anniversary of the Italian Constitution and of the Universal Declaration of Human Rights gives a chance to reflect upon the growing social demand of new rights. The cause of such demand may be identified, on the one hand, in the success of renewed (relative, historical etc.) natural law theories claiming protection for interests not recognized in positive law, and, on the other hand, in the development of technology: the latter allows to fulfil needs previously impossible to satisfy, but at the same time can be a threat to individual liberties. The courts’ activity is only a partial solution to the problem: and so is the “multilevel constitutionalism” phenomenon - the multiplication of constitutional courts and charters - which does not lack drawbacks and limitations. A strong response can only come from politics, if it will prove to be capable again, as it was in the past, of shared and far-reaching choices.

The Italian Constitution entirely pertains to the modern democratic European constitutionalism. Its fundamental principles demonstrate it’s capacity to positively inspire political and social life in a long and difficult historical period.

The current crisis, although having different origins and being unique in its intenseness, vastness and dissemination, could be attributed to an extreme high level of indebtedness of the western world: which, by the way, has helped to sustain import and industrial development of the emerging economies. The tendency to borrow has been seconded by monetary authorities through a high degree of tolerance towards ever reduced indebtedness premiums, additionally made easier by limited interest rates and liquidity facilitation policies. Banks took the lead in lending, bypassing the normally accepted capital ratios limits and trying to effectively transfer the intrinsic and too often underestimated risk to credit securitization. The bursting of the real estate bubble in USA has disrupted the loans system, with its guarantee of continuity and growth of the credit galore, up to then supported by fast growing housing prices, eventually leading to an extensive number of insolvencies and the well known bankruptcies sequence. The way this crisis evolved highlighted the features of market failure, regulatory failure and supervisory failure. The need has become increasingly evident for a profound change of the financially based economy, fuelled by debt. Governments have already had to intervene in order to bail out credit, financial and insurance institutions, to find new rules for the global financial markets and conduct a coordinated action at the international level. The State has come back as a dominant source in supplying capitals and setting the rules. The implementation of systems able to avoid excessive spreading between finance and real economy has become vital. The need to finance huge and ever growing debts, the general difficulties in economic sectors devastated by drastic reduction and shut down of production and the impressive losses of manpower require to do so. The new set of rules must however continue to secure survival and growth of the economic systems which, nonetheless, could be better implemented through a fair and solidaristic reallocation of resources.

The Author looks into the current financial crisis and its causes, i.e. the massive subprime borrowing and the lack of transparency of the economic operators in creating and marketing huge amounts of unsecured financial instruments. He also points to criminal behaviours, which were favoured by negligent rating agencies as well as insufficient controls by national regulators. Among future remedies, the Author advocates new supranational rules on keeping books and records, using particular care when it comes to company information and strengthening of the controls by public authorities. Compliance with such new rules should be ensured by resorting, when necessary, to severe criminal sanctions.

Credit rating agencies are among the institutions more involved – and blamed – in the recent financial markets turmoil. Although they are more than a century old and play a crucial role in evaluating and disseminating information on financial products, until very recently they had not captured the attention neither of the regulators, nor of the scholars. Both EU and USA are now engaged in setting new rules for credit rating agencies, which, before the crisis, were the only financial players without a specific set of rules and regulations and public oversight. The article shows that the history of credit rating agencies is not only surprising, but also essential to understand the weakness of their peculiar business model. Therefore, knowing better such history could help lawmakers to design the new, more balanced legal framework that will emerge from the financial crisis.

The abuse of right theory is intrinsically contradictory, Roman law does not historically legitimate it, and it does not concern law, but individual and social ethics.

The essay analyzes the difference between strike and exception «inadimpleti contractus», with reference to the activity of the special Authority laid down for the improvement of the Act which regulates strikes in the public sector (Commissione di Garanzia). According to the Author, the public interest to insure in any case essential services lead to the enforcement of the same set if rules.

When dealing «magic» criminal law and criminology cannot help thinking of secrecy and its use as means of exerting and maintaining social power and of law as a protection against any vulnerability stemming from the exploitation of situations which allow people to hide information and keep them secret and mysterious. The common attraction for crime and crime stories has also somewhat to do with the fascination of magic and secrecy. While any «magician» trying to preserve for himself the privilege of «metamorphose» and denying it to other should be kept in check, lawmakers should however avoid using too loosely criminal law against such «hidden persuaders»: legal rules trying to encompass and punish the wide range of these phenomena are exposed to criticism as often lacking the required precision. Current criminal rules (e.g. false pretences, fraud, assault, conspiracy, etc.) should provide an adequate protection against undue influences and manipulations in most situations. Paramount to establish resilience any kind of magic an occult practices are transparency of institutions and a constant public screening thereof, as well adequate spreading of knowledge and education among citizen.

The question about episcopal ordinations without pontifical mandate represents one of the most trichy problems in the relationships bctween the Holy See and the Chinese Government. This being the case, it is more important than ever to reach an agreement between both sides in their own interest.

This article examines the problems of French embassy in Holy See, after the entrance of Italy in Second World War. Are analyzed in particular the proposals of French diplomacy to give international guarantees for Holy See freedom. These indications are developed by Jacques Maritain, French ambassador in Vatican from 1945 to 1948, to reform Lateran Treaty, and give to the Holy See a really international statute. The «Maritain Project» has been definitely surpassed by article 7 of Italian Constitution of 1948, that reminds to Lateran Pacts.