A Note on the Italian Constitution of 1948

Date01 April 1951
DOIhttp://doi.org/10.1111/j.1468-2230.1951.tb00199.x
Published date01 April 1951
FEDERALISM AND REGIONALISM
A NOTE
ON
THE
ITALIAN
CONSTlTUTION
OF
1948
DURINU
the fifty years of the Irish Home Rule controversy, from
about
1870
to about
1920,
the question of regional devolution was
one of first-rate political and constitutional importance in this
country. Since the creation of the Irish Free State in
1921
the
English (though not the Scots
and
the Welsh) have almost
for1
gotten that regionalism can be a constitutional issue.
A
great deal
has been said in recent years about administrative regionalism,
and about regions as a cure for the
malaise
of English local govern-
ment, and about geographical regionalism as a reasonably scientific
way
of
classifying human habitats
:
but all this talk has reacted
very little
on
politics and on constitutional theory. Yet the political
importance of these issues has grown, and may grow further
;
and it
is
perhaps time to take another look at the orthodox constitutional
doctrine as
it
has been handed down to us by Dicey.
This doctrine poses the sharp alternatives of Austinian juris-
prudence
;
legal sovereignty is indivisible, therefore in any country
either
it
resides in the central legislature
or
it
does not reside in the
central legislature.'
If
it does not reside in the legislature, the
true sovereign is elsewhere and has delegated his powers separately
to different authorities. There may be
a
constitutional division of
functions between legislature, executive and judiciary
:
or
between
central legislature and local legislatures
:
or
there may (as in the
U.S.A.)
be both divisions. In such cases one may be puzzled to
say where true sovereignty lies: does it lie with
'
We, the people of
the United States
'
or
with
'
we, the nine old men
of
the Supreme
Court
'?
But it is clear that
it
does not lie with the central legis-
lature, as sovereignty in the
U.K.
lies with Parliament. The magic
of the British constitution resides in the Sovereignty of Parliament
and in the Rule
of
Law, two interlinked ideas
:
it is logically impos-
sible to mitigate the Sovereignty of Parliament except by constitu-
ting
a
new sovereign. To do
so
would be Federalism, and
Federalism would be a disaster to English interests as well as a
revolutionary change in the constitution. This is the theme which
Dicey pursued in almost all his later works.2 The doctrine, though
1
Dicey in his eighties seems to have mellowed
on
this point,
as
on
some others.
In
Thoughts
on
the
Scottish
Union
(19'20)
(p.
100)
he
admits that the Austinian
doctrine need not be true
as
an account
of
a
real situation, and
was
not true
of the relations between
the
Scottish Parliament and General Assembl
from
1690
to
1707
:
his claim is only
that
inconvenience will result if it is not fofiowed.
1
England's
Case
against Home
Rule
(1886);
Let,ters
on
Unionist Delusions
(1887);
A
Leap
in
the
Dark
(1893,
reissued
1911);
A
Fool's
Paradise
(1913).
Thoughls
on
the Scottish Union
(1920)
is
n
much more open.minded
and
stimiilnting
ererciae
on
(hc name theme.
182

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