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IXth IACL World Congress – Workshop 12: Constitutions and financial crisis
“Shock constitutionalism”? The financial crisis and the state of emergency as a form of
government: the impact on the European constitutional doctrines and the application in the
Italian case
Gaetano Marzulli
Introduction – The Euro Crisis and its state of emergency
The 2008 financial crisis, the worst from the 1929 Great Depression1, has been turned in the
2011 in the crisis of the euro, the European common currency, often inappropriately called “the
crisis of the sovereign debts”. But «beyond its economic impact», the 2011 Eurozone crisis «has
been producing new constitutional stories»2.
The aim of this article is to analyze this consequences under both the point of view of the
supranational constitutional integration and of the general theories of the constitutionalism.
In this analysis the impact of the crisis in Italy will be took as a case study to show the dynamics
of the rising of a “neo-democratic”3 model in the so called Western “established democracies”4.
The crisis will be analyzed in particular bearing in mind the fundamental role, in this
constitutional evolution, of the peculiar position of a State that is a part of an Union in which there
is a common monetary policy but many different fiscal policies and also the “political facts” which
have a real burden in the shaping of the new constitutional forms of government that are a direct
consequences of the crisis.
Under this point of view, it will be analyzed the reconceptualization of the “fiction” 5 that founds
all the modern constitutional systems: the differences between law and politics, and the paradox of

Ph.D, University “Aldo Moro” of Bari, Italy.
The International Monetary Fund said it since its outlook in the World Economic and Financial Surveys, April 2008
(see it online at http://www.imf.org/external/pubs/ft/weo/2008/01/weodata/index.aspx); ex multis, in academic writings,
see A. Maddaloni, J.L. Peydrò, Bank Risk-Taking, Securitization, Supervision and Law Interest Rates: Evidence from
the euro area and the U.S. lending standards, in Review of Financial Studies, Vol. 24, 2011, 2121 ss.
2
Cfr. Xenophon Contides, The Global Financial Crisis and the Constitution, in Xenophon Contides (eds.),
Constitutions in the Global Financial Crisis. A Comparative Analysis, Ashgate, Farnham (Surrey, UK), 2013, 1, (italics
in the original), who explains that to compare the current recession to the 1929 Great Depression would be a mistake
form a constitutional perspective because now democracy operates differently the function of the constitutions have
evolved and so have state functions and the global economy.
3
In the sense intended by Connor Gearty in Liberty and Security, Polity Press, Cambridge, 2013.
4
This definition was introduced in the Italian comparative constitutional studies by Paolo Biscaretti di Ruffia, in
Costituzioni straniere contemporanee – Le Costituzioni di dieci Stati di “democrazia stabilizzata”, Giuffrè, Milan,
1994, 6th Edition.
5
In the sense intended by John A. G. Griffith, The Political Constitution, in Modern Law Review, Vol. 42, 1979, 1,
according to «the political world mingles with the real world in strange ways, for the make believe world may often
mold the real one. In order to be viable, in order to serve its purpose, whatever that purpose may be, a fiction must bear
1
the constitutional forms which order the constituent power6 in the government of the day. In these
times of “postdemocratic regimes”7, and in particular in Europe in this time of “crisis”, this fiction
seems to be replaced by the “state of emergency” 8 in which the difference between the pouvoir
constituant originaire and dérivé is losing its meaning.
The perspective under which this crisis will be analyzed in the Italian case study is initially
influenced, even in the title, by the very popular Naomi Klein’s “Shock doctrine”9, for the
application of the “shock and awe” doctrine of rapid dominance10 to the economics and politics,
and, by this way, to the Constitutions. Of course, the well-known Klein’s reportage is journalistic,
oversimplified and not academic; but for the purpose of this work it is helpful to describe the
contrast between the emergency policies and the basic principle of the modern constitutionalism on
the ultimate question, the question of the “last word” on the political decisions. Indeed, to answer
this question there is no necessity to assume that the “shock” has been provoked by the decisionmakers themselves: the objective of this analysis is claiming that the decisions were not democratic
in the sense designed by the Constitution, and then, due to this lack of (constitutional) democracy,
ruinous.
Given that, it is possible to understand how the shocks can jeopardize the constitutional process
beyond its intrinsic resilience, only on the basis of verified facts and data and without any
hypothetical journalistic or historical reconstruction, which is not in the extent of this research.
This analysis will be set in three part. In the first one, it will be described, in general, the current
status of the European well-established democracies after the consequences of the asymmetric
effects of the global financial shock and the relationship between this current situation and the
political and constitutional doctrines of government of the recent past. In the second part there will
be described the reaction to the euro crisis of the constitutional system and the uselessness of the
dominant European legal doctrines in this context. The third part will analyze the specific case of
some resemblance to fact. If it strays too far from the fact, the willing suspension of disbelief collapses. And conversely
it may collapse if facts stray too far from the fiction that we want them to resemble Because fictions are necessary,
because we cannot live without them, we often take pains to prevent their collapse by moving the facts to fit the fiction,
by making our world conform more closely to what we want it to be. We sometimes call it, quite appropriately, reform
or reformation, when the fiction takes command and reshapes reality».
6
See Neil Walker, Post-Constituent Constitutionalism? The Case of the European Union in Martin Loughlin, Neil
Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford, Oxford
University Press, 2007, 247 ff.. For an effort to separate the liberal democratic constitutionalism from the exercise of
the constituent power in European constitutional perspective, see M. Kumm, The Best Times and the Worst Times –
Between Constitutional Triumphalism and Nostalgia, in P. Dobner, M. Loughlin (eds.), The Twilight of
Constitutionalism?, Oxford, Oxford University Press, 2010, 201 ff., esp. 212.
7
See Colin Crouch, The Strange Non-death of Neo-liberalism, Polity, Cambridge (UK), 2011; Id., Post-democracy,
Polity, Cambridge (UK), 2004.
8
See
Jonathan
White,
Emergency
Europe,
in
Political
Studies,
2013,
available
at
http://onlinelibrary.wiley.com/doi/10.1111/1467-9248.12072/abstract
9
Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism, Picador, New York, 2008.
10
This idea come from the military strategy illustrated in the report by Harlan K. Ullman and James P. Wade, Shock
and Awe. Achieving Rapid Dominance, National Defense University Press, Washington DC, 1996.
Italy, the most important country – for the dimension of its economy – struck by the euro crisis, in
which the crisis had the major constitutional consequences.
Part One – The illusion of the last Constitution?
In the aftermath of the end of the “short century”11, it was said that the history – or, at least, the
mankind’s ideological evolution – was ended12, and the Western democratic liberal capitalism
would have been universalize all over the world as the system which was (ethically, politically,
economically) better than any of the other alternatives.
It seems very meaningful that, after the 11/9 attack to the United States and the criticisms about
the naiveté and undue optimism of this academically luck conception, in the light of the menace to
the democracy not only from external attack but also from the inner authoritarian drift13, imposed
by the new post-Cold War “under siege” status, his Author, rejecting the links between his thesis
and the foreign policy of President George Bush and the American hegemonic strategy, asserted
that he «believe that the European more accurately reflects what the world will look like at the end
of history than the contemporary United States»14.
Effectively, in those days, the European governments were working on the Treaty of Lisbon,
which could be defined a sort of “last Constitution” for the society imagined by Fukuyama: a
Constitution that dare not speak its name15 and therefore “post-democratic”16 and “post-political”17,
which founds a universal and homogenous super-state essentially based «on balanced economic
growth and price stability, a highly competitive social market economy, aiming at full employment
and social progress»18.
11
See Eric J. Hobsbawm, The Age of Extremes: The Short Twentieth Century, 1914–1991, Vintage, New York, 1996.
Y. Francis Fukuyama, The End of History and the Last Man, Free Press, New York, 1992.
13
Y. Francis Fukuyama, America at the Crossroads: Democracy, Power, and the Neoconservative Legacy, Yale
University Press, New Haven, 2006.
14
Y. Francis Fukuyama, The history at the end of history, in The Guardian, 3 April 2007, available at
http://www.theguardian.com/commentisfree/2007/apr/03/thehistoryattheendofhist).
15
The new and current European Treaty, the Lisbon Treaty of 2009 has abandoned the definition of “Constitution” in
its name. The Treaty of 2004, abandoned after the negative referendums in France and the Netherlands, was called
“Treaty Establishing a Constitution for Europe”. In new Treaty, the term “Constitution” disappeared, despite the high
degree of similarity between the two treaties, for which the new are defined only a “cosmetic” reform: according to
Valery Giscard d’Estaing, the former President of the Convention on the Future of Europe, the European Council has
agreed only cosmetic changes to the rejected constitution to avoid the risk of further referendums on ratification: see
Reform treaty: cosmetic changes to avoid referendums, says Giscard d’Estaing, Intergovernmental Conference, 17-072007, available online at http://www.europarl.europa.eu/; therefore the two Treaty (the “constitutional” one and the
current one) are «almost the same» (see Jacques Ziller, Il nuovo Trattato europeo, il Mulino, Bologna, 2007).
16
See Colin Crouch, Post-democracy, cited above, 2004.
17
For analysis of “post-politics” that engages with Carl Schmitt, see the work of Chantal Mouffe; for example, The
Return of the Political, Verso, London, 1993.
18
Article 3.3 of the Treaty on European Union. As Joerges and Rödl have explained, the conceptual content of the
social market economy, which is to a large extent a product of German neoliberal philosophy (with an emphasis on the
idea that social protection measures had to be marktkonform and thus consistent with the competitive order), albeit an
emphatically humanistic brand of neoliberalism, was generally lost on those at the European Convention of 2002-2003
who secured its inclusion in the Constitutional Treaty. Christian Joerges, Florian Rödl, “Social Market Economy” as
12
But the history continued, and the Treaty of Lisbon ratification process was stopped in June of
2008 – exactly as the “constitutional” Treaty in 2005 – with a so old fashioned tool of constitutional
democratic tool like the referendum, in Ireland, the only country in which the referendum to ratify
the Treaty was binding, due to a specific constitutional rule and a Supreme Court who guards the
popular sovereignty as a constitutional value19.
Later, in the October of 2009, the referendum in Ireland was repeated, repeated and it gave a
positive result, which unlocked the ratification process and the new European Treaty was in force as
of December 1st 2009.
Unfortunately, one year before, another and definitely worst crisis exploded in the United States,
symbolically represented by the announcement of the decision of the Lehman Brothers Holdings to
file for Chapter 11 file for Chapter 11 of Title 11 of the United States Bankruptcy Code.
The global financial and economic crisis affected the constitutional process of the European
Union even more than the “constitutional failure”20 determined by the rejection of the
“constitutional” Treaty after the French and Dutch referendums in 2005.
In fact, the financial crisis had highlighted the insurmountable contradictions of the European
constitutional construction as a supranational Union in which there is a common monetary policy
but many different fiscal policies and a deep democratic deficit.
The effects of the great recession stroke the democracy in constitutional state at its heart, but in
the European Union, the so intense interdependence of the Member States, due to the common
currency, led the constitutional process to a sort of a “constitutional recessionary spiral”, in which
the constitutionally dubious measures adopted by the Government on the basis of the state of
emergence, to avoid a “doomsday scenario”, continuously evoked in the political discourse and by
the mainstream media (that would be, in the catastrophic – but also really questioned – prophecies,
the “exit” of a State from the system of the common currency), led to a worst situation, and request
new extra ordinem measures, that seems to be more probably not only unconstitutional but anticonstitutional at all.
Therefore, the shock constitutionalism, used as a form of government, changed the financial
crisis, under the constitutional perspective, in a democratic crisis.
Europe’s Social Model?, in Lars Magnusson and Bo Stråth (eds.), A European Social Citizenship? Pre-conditions for
Future Policies in Historical Light, Peter Lang, New York, 2005, 125.
19
See Gaetano Marzulli, Direct democracy by judges? The Irish Constitution and the approach of the Courts to the
referendum as a model in comparative perspective, in E. Carolan (eds.), The Constitution of Ireland: Prospects and
Perspectives, Bloombsbury Professional, Dublin, 2012, 255 ss.
20
Mark Brandon has described four distinct type of constitutional failure: the failure of constitutionalism; the failure of
a Constitution; the failure of a constitutional order; a failure of constitutional discourse. In his analysis he pointed out
that success in one domain of constitutional failure can contribute to failure in another and vice versa: Mark Brandon,
Free in the World: American Slavery and Constitutional Failure, Princeton University Press, Princeton NJ, 1998, 1822.
The most prominent sign of this democratic crisis is the rising, all over the Europe, of the “grand
coalition government”21, that suddenly had replaced the majoritarian aspirations of a most efficient
democratic government, in the formula of the “democracy of the alternance” 22, which characterize
the two-party (or the bipolar-party) system, changing the fundamental, in the constitutional
perspective, «system of interaction resulting from inter party competition»23.
This formula is very widely used in Italian political debate to indicate the majoritarian electoral
system adopted in 1993, as the result of a referendum held in 1992 and as a consequence of the end
of the “bipolar world”. In fact, during the Cold War the main opposition political party, the Italian
Communist Party, was excluded from the possibility to take the Government, due to its connection
to the U.R.S.S. Communist Party and the participation of the Italian Republic to the Atlantic
Alliance. The effect of this exclusion, called “conventio ad excludendum” by an Italian
constitutional lawyer24, was that all the governments since the birth of the Republic were dominated
by the Christian Democratic Party, until to the collapse of the precedent party system and the rise of
the “post-ideological” parties.
In the new system, born after the election of the 1994, often called in Italy “the Second
Republic”, the new electoral system25 designed a majoritarian system, in which the many different
parties, characteristic of the Italian politics, were forced to ally to win the election in two big
coalitions (the Centre-Right coalition and the Centre-Left one) which were alternate at the
government.
The constitutional basis of this system was the supposed best efficiency of the “two-coalitions
party system” ruled by the majoritarian electoral rule, which defined a winner immediately after the
elections, than the consociational party system in which, after the elections, due to the absence of
the majoritarian rule and a proportional electoral system, nearly always no one party (or coalition of
parties) obtain the majority of the seats in Parliament, and so parties need to ally also with parties
with different political agendas, in order to have the number of members of the Parliament
21
See Luigi Volpe e Maria Daniela Poli, Rappresentanza politica e “situazioni di eccezione”: i governi di “grossa
coalizione”, in Nomos. Le attualità del diritto, vol. 3, 2012, available online at http://www.nomosleattualitaneldiritto.it/nomos/saggi/luigi-volpe-e-maria-daniela-poli-rappresentanza-politica-e-situazioni-di-eccezione-igoverni-di-grossa-coalizione-2/
22
See, Luca Verzichelli, Maurizio Cotta, Italy: From “Constrained” Coalitions to Alternating Governments?, in
Wolfgang C. Müller, Kaare Strøm, Coalition Governments in Western Europe, Oxford University Press, Oxford, 2003,
433 ff.
23
See G. Sartori, Parties and Party Systems: A Framework for Analysis, Cambridge University Press, Cambridge,
1976, 43-44.
24
Leopoldo Elia, who used this expression in his seminal essay on the forms of government: see Governo (forme di), in
Enciclopedia del Diritto – Volume XIX, Giuffrè, Milan, 1970, 634 ff., 658.
25
Leggi 4 August 1993, nn. 276-277, called “Legge Mattarella”, from the name of its main proponent Bernardo
Mattarella, which is currently a member of the Italian Constitutional Court.
necessary to support the Executive. In brief, in Italy, after the fall of the Berlin Wall, there was a
transformation, from the consensus democracy to the majoritarian one26.
This development is not only Italian, of course: the shifting to the majoritarian democracy in
which the party winner of the elections takes all and identify itself with the Executive, has
characterized the evolution of many countries in Europe: the most evidence in this sense is maybe
the affirmation of the semipresidentialism in the new States of the Central East Europe, the so
called “new democracies born after the collapse of the U.R.S.S.27.
Despite the great differences between these constitutional systems, the majoritarian system is
founded especially on an element: the conflict. In particular, in this case, the conflict is between the
two major political forces of the State, that compete in the election to lead the government. In the
current Eurozone politics the difference between these forces are disappeared not only in the facts,
which means in the implementation of their political programs, as Chantal Mouffe has well
described in his work28, but also in the forms, which means that a right-left coalition party now is
the government party in many European countries.
The function of the conflict is to guarantee the democracy of the political order itself, because,
by the electoral competition, the people can impose their idea of the society, expressed by the party
that will take the government. At the next elections, there will be a new competition and the part of
the society excluded will be able to take the government without violence but only by the means of
the political competition.
The opinion according to the consensus democracy model actually is not really democratic and
so it is worse than the majoritarian one was sustained by Karl Popper, who argued that the twoparty systems, such as found in the United States and Great Britain, are superior to proportional
representation systems; he reasoned that in a two-party system voters are more easily able to assign
failure or credit to a particular political party, that is, the one in power at the time of an election.
This in turn fosters self-criticism in the defeated party: «under such a system […] parties are from
time to time forced to learn from their mistakes»29. For these reasons, government in a two-party
26
See Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, Yale
University Press, New Haven, 1999; G. Bingham Powell, Jr., Elections as Instruments of Democracy: Majoritarian and
Proportional Views, Yale University Press, New Haven, 2000.
27
This model was adopted in Bulgaria, Lithuania, Poland, Romania, Russia, Slovenia, and Ukraine but was yet the
model of Austria, Finland, France, Iceland, Ireland, and Portugal: see Robert Elgie, Semi-Presidentialism in Europe,
Oxford University Press, Oxford, 1999.
28
See Chantal Mouffe, On the Political, New York, Routledge, 2005, in which the Author, starting from the
assunptions of the Schmittian theory of the political antagonism, tried to explain the development of right-wing populist
parties as a reaction to the lack of choice which is given to citizens; for a systematic account see also Mark Wenman,
Agonistic Democracy. Constituent Power in the Era of Globalisation, Cambridge, Cambridge University Press, 2013.
29
Karl Popper, All Life Is Problem Solving, Routledge, London, 1994, 97. In contrast, Popper argued that proportional
representation systems typically produce multiple parties and coalitional governments in which no single party has
control of the government. This makes it difficult for voters to assign responsibility for public policy and thus elections
system better mirrors the trial-and-error process found in science, leading to better public policy.
This thesis of Popper’s political philosophy was shared also in political science and constitutional
law30.
Actually, the conflict between the two different traditional political and ideological vision of the
society, was always governed by the European economic “constitution”, that means the European
Treaties and all the secondary European law, which during the development of the EU legal and
constitutional system, gained the “primacy” (the so called primautè) on the other sources of law in
the member States31. Therefore, the conflict was always “governed” under the European
(para)constitutional supremacy, the order which we are now calling the (supposed) “last
constitution”, which leaded the political and economic process in a clear direction, essentially freemarket oriented32. Nevertheless (or, maybe, for that very reason), the opinion on the superiority of
the majoritarian polarized political system are currently dominant in the European political and
constitutional discourse, more oriented to the goal of the “outcomes” of the democracy, and
especially of the improving of the quality of the decision making, then to the basis of democracy,
that is its legitimacy33.
In contrast to this very shared opinion, the answer of the European countries to the constitutional
crisis derived from the financial and the economic one, are “coalition governments” in which the
traditional ideological cleavages between the right wing and the left wing are substitute by an
ideology that resembles the well-known public law concept of Ausnahmezustand, the state of
exception34.
are less meaningful and government less responsive. See also Id., The open society and its enemy revisited, in The
Economist, 307, 1988, 19 ff.
30
Abbott Lawrence Lowell argued in this way since 19 th century, in Governments and Parties in Continental Europe,
Houghton Miffin, Boston, 1896. See also William H. Riker, Democracy in the United States, Macmillan, New York,
1953; Maurice Duverger, Which is the best electoral system?, in Arend Lijphart, Bernard N. Gorfman (eds.), Choosing
Electoral System, Preager, New York, 1984, 31-39.
31
See, among others, Karine Caunes, La nature du système juridique européen. Retour sur le principe de primauté, in
Jacques Ziller (ed.), L’européanisation des droits constitutionnels à la lumière de la Constitution pour l’Europe, Paris,
L’Harmattan, 2003, 285 ff.; Joseph H.H. Weiler, Un’Europa cristiana. Un saggio esplorativo, Bur, Milan, 2003; Id., In
Defense of the Status Quo: Europe’s Constitutional Sonderweg, in Joseph H.H. Weiler, Marlene Wind (eds.), European
Constitutionalism Beyond the State, 2003; Mattias Kumm, The Jurisprudence of Constitutional Conflict: Constitutional
Supremacy in Europe before and after the Constitutional Treaty, in European Law Journal, Vol. 11, 3, 262 ff., 2005.
32
On the consequences of this interpretation in the European jurisprudence, see Emilios Christodoulidis, The European
Court of Justice and “Total Market” Thinking, in German Law Journal, Vol. 14, 2013, 2005 ff.
33
Some studies had applied this model to the constitutionalism, to demonstrate the economic efficiency of the
majoritarian electoral system combined with the presidential form of government, which would entail a significant
reduction on the public expenditure, compared with a constitutional system characterized by the combination between a
proportional electoral law and a parliamentary form of government: see Torsten Persson, Guido Tabellini, The
Economic Effect of Constitutions: What Do the Data Say?, Massachusetts Institute of Technology Press, Cambridge
(Massachusetts), 2003. For a critical reexaminations of this thesis see Stefan Voigt, Empirical constitutional economics:
Onward and upward?, in Journal of Economic Behavior & Organization, vol. 80, 2, 319 ff.
34
See Carl Schimtt, Political Theology: Four Chapters on the Concept of Sovereignty [1922], University of Chicago
Press, Chicago, 2005, and its interpretation by Giorgio Agamben in State of Exception. Homo Sacer, II,1 [2003],
In the European countries oriented to a bipolar system in which the two political forces clashes
to lead the government, after the elections held during the euro crisis, the results were alliances
between the two political forces (parties or group of parties) that were theoretically “mutually
exclusive”, considering the difference between their programs and due to the ideological cleavages
(right-left). The essential cause of these “strange alliances” is the rising of the “anti-system parties”
that all over the Europe are winning the elections, making the “electoral doomsday scenarios” that
forced the traditional parties, usually direct competitors in the elections, to join each other to sustain
a very strange coalition government.
This is happened in Belgium, after the 2010 elections, where, due to the win of the New Flemish
Alliance, there was an unprecedented political crisis and an incapacity of the political forces to
form a new government coalition, that lasted for the record time of 541 days, until the birth of a
government which includes the Liberal, Socialist and Christian Democratic parties from both
Flanders and Wallonia and excluded the New Flemish Alliance.
After the Portugal in 2011 elections – with a voter turnout which was the was the lowest in
Portuguese election history –, given the election result and the impossibility of forming a majority
government with parliamentary support from a single party, the Social Democratic Party
established an agreement for a majority government with the conservative and Christian-democratic
People’s Party.
The results of the 2012 Greek elections was constitutionally even more unusual. With a voter
turnout which was the lowest since the 1950 also there, after the vote of the 6th of May, the two
major centre-left and centre-right parties, respectively the Pasok and the New Democracy, obtained
less than the half of votes which they obtained in the elections of 200935. The impossibility of
forming a government, in the particular financial Greek situation, led to new general elections
immediately, on 17 June 2012: the result was, once again, a coalition government which included
the left parties with unwavering a pro-European agenda (Pasok and Democratic Left), under the
leadership of the centre-right party New Democracy.
In the 2013 Italian general elections, the bipolar system born in 1994, was overturned due to the
unexpected electoral triumph of the new anti-establishment Five Stars Movement, which take
almost the same vote of the two major parties (the centre-left Democratic Party and the centre-right
University of Chicago Press, Chicago, 2005, where he draws upon Schmitt’s analysis of state sovereignty to argue that
the exception has, over the course of the twentieth century, become a «paradigm of government».
35
In the 2009 elections, Pasok had obtained 43,9% of votes and the New Democracy 33,5%. In 6 May 2012 elections,
Pasok obtained 13,2% and the New Democracy 18,5% which means that the amount of their votes was less than the
votes of the minor in 2009. Meanwhile, the left party Syriza quadrupler its vote and came second (16.8%) and the ultranazionalist Golden Dawn eneterd parliament for the first time. See Xenophon Contides, Ioannis A. Tassopulos, The
Impact of the Financial Crisis on the Greek Constitution, in Xenophon Contides (ed.), Constitutions in the Global
Financial Crisis, cited above, 195 ff., 197.
People of Freedom), giving to the Italian politics a “tri-polar” system despite the bipolarism induced
for almost twenty year by the electoral laws. Also there, the impossibility of forming a government
for the coalition parties of centre-left provoked the paralysis of politics for two months, until the
formation of a grand coalition of the Democratic Party and the People of Freedom, which fiercely
fought each other during the electoral campaign.
In other European countries, the “crisis general elections” were less traumatic, due to a sort of
predisposition to the grand coalition of their system.
The Dutch centre-right / centre-left coalition government formed after the 2012 election in
Netherlands, has the same prime minister of the precedent, which however collapsed over the
austerity budget, which means Eurocrisis36. In Austria, the grand coalition of Sozialdemokratische
Partei Österreichs (social-democratic) and the Austrian People’s Party (conservative Christiandemocratic) retaines the government after the vote last September and after the election in the same
month, in Germany Angela Merkel continues to lead the government as chancellor for the third
time, forming a new Große Koalition with her Christian Democrats (centre-right) and the
Sozialdemokratische Partei Deutschlands (centre-left).
The rising of the grand coalition all over the Europe is the most prominent symptom of the
failure of the described “last constitution”, the post-democratic government of the European Union,
in which democracy is assured by the alternation of the opposing political forces, which
encompasses this way the inherent and necessary conflict of democracy under an “a-constitutional”
treaty, that has not any answer to the will of radical change in politics clearly requested by the
people by the typical tool of a representative system of government, the elections.
Part 2 – The Nomos of the Euro in the Constitutional Law of the Ius Publicum Europeum
The impact of the financial crisis on the European order and the current scenarios requests a
reexamination of the constitutional discourse under a new perspective, different by the one
dominant until now.
Despite the efforts provided by the constitutional lawyers to answer to the euro crisis, after the
exactly recognition that the financial crisis in the Union is basically a crisis of democracy, with a
sort of idealistic “more perfect Union” founded on «democracy and justice»37, it seems that the very
reason to guarantee legitimacy to the political choice of the governments is now the state of
exception caused by the Euro crisis.
36
See Catherine Cheney, Collapse of Dutch Government Brings Eurozone Crisis From Periphery to Core, in World
Politics Review, 25 April 2012, available at http://www.worldpoliticsreview.com/trend-lines/11889/collapse-of-dutchgovernment-brings-eurozone-crisis-from-periphery-to-core
37
See Miguel Poiares Maduro, A New Governance for the European Union and the Euro: Democracy and Justice, in
Challenges of multi-tier governance in the European Union. Effectiveness, efficiency and legitimacy, European
Parliament
Policy
Department,
2013,
27
ff.,
available
online
at
http://www.europarl.europa.eu/activities/committees/studies.do?language=EN
If in the aftermath of the rejection of the “constitutional” Treaty, the aspect of the European
integration project and its sustainability was muffled in the political debate, and the new and current
European Treaty was adopted in silence whilst the European Courts (the Court of the European
Union of Luxemburg and also the European Court of Human Rights of Strasbourg) and other
supranational institutions continue quietly laying the legal constitutional framework of the Europe38,
onward and upward approaching aggressively the national sovereignty of the member States39.
But when the financial crisis exploded, striking asymmetrically the interdependent – but far
from a really functional integration – economic systems of the Member States, the political
justification for the “higher lawmaking”40 – which introduced in the European constitutional order
new instrument of governments (the European Financial Stability Mechanism, the European
Financial Stability Facility, the European Stability Mechanism and the Outright Monetary
Transactions program)41 and even very prominent new constitutional rule, able to change radically
the fundamental character of the State Constitutions (the balanced-budget amendment) – seems to
be, essentially, founded on the “apocalyptic” consequences of any other alternatives to those
political choices.
Given that, it is not surprising to see the reemergence of Carl Schmitt’s thought, even in the
work of the scholars who describe his doctrine as the darker legacy42 of the 20th century
constitutionalism. In the new EU constitutional doctrine, due to the political development in short
above described, may be possible identified a new “nomos”, as described in the Schmittian
masterwork43, the nomos of the euro.
Schmitt remarkably used his theory of the “political theology”, according to «all significant
concepts of the modern theory of the state are secularized theological concepts»44, to find out the
38
See Anne-Marie Burley, Walter Mattli in Europe Before the Court: A Political Theory of Legal Integration in
International Organization, vol. 47, 1, 1993, 41 ff.
39
See in general, Hans-Wolfgang Micklitz, Bruno De Witte (eds.), The European Court of Justice and the Autonomy of
the Member States, Intersentia, Cambridge, 2012; Oreste Pollicino, Giuseppe F. Ferrari, The Impact of Supranational
Laws on the National Sovereignty of Member States, with particular regard to the judicial reaction of UK and Italy to
the new aggressive approach of the European Court of Human Rights, in Comparative Law Review, Vol. 3, 2011, 1-37;
Oreste Pollicino, A Further Argument in Favour of the Construction of a General Theory of the Domestic Impact of
Jurisprudential Supranational Law. The Genesis and the First Steps of Echr and Eu Legal Orders, in Comparative Law
Review, 3, 2012, 1-29.
40
In the sense intended by Bruce Ackermann, who describe it as “constitutional politics” requested in the
“constitutional moments”, see Constitutional Politics/Constitutional Law, in Yale Law Journal, Vol. 99, 453 ff., 1989;
Id., We the People: Foundations, Harvard University Press, Cambridge (Mass.), 1991; Id., We The People:
Transformations, Harvard University Press, Cambridge (Mass.), 1998.
41
See Ledina Gocaj, Sophia Meunier, Time Will Tell: The EFSF, the ESM, and the Euro Crisis, in European
Integration, Vol. 35, 2013, 239 ff.
42
Christian Joerges, Navraj Singh Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National
Socialism and Fascism over Europe and Its Legal Traditions, Oxford, Hart, 2003.
43
Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum [1950], Telos Press
Publishing, Candor, NY, 2006
44
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922], University of Chicago Press,
Chicago, 2005, 36.
original meaning of the territorial borders in the supreme aim of the Christian Roman Empire, the
defense of the “katechon”, the “Restrainer” of Antichrist mentioned in II Thessalonians 6-7, which
was the limit in opposition to apocalyptic invasion of the enemies of the Christianity, and that
became, in the Westphalian secularist nation-state order, the justification of the defense of the
national “Territory”, the cardinal element in the modern theory of the International Law, which
formed the modern State with the “People” and the “Sovereignty”.
The conception of the nomos of the earth as the supreme rule of the European constitutional
order ended with the reemergence of the “discriminatory conception of war” reaffirmed with the
invasion, by the United States, of the European territorial sphere, during the World War I, in the
name of an assumed “superior” and “universal” values of liberal democracy, that not casually,
founds today the Treaties of the European Union (the “constitutional” and abandoned Treaty of
Rome as well as the “a-constitutional” and in force Lisbon Treaty). The definitive overcoming of
the Schmittian Nomos and of the jus publicum europeum came at the end of the World War II, with
the birth of the bipolar world before, and the imposition of the global world, and it could be
perfectly represented by the European Union, initially born to create a space without frontiers for
money, goods, workers and people, beyond the limits of the precedent nomos of the earth.
In the new global constitutional order, the economic theology45 has replaced the political one
and the most constitutional revolution in this sense in Europe seems to be the introduction of the
euro, a common currency without State, that has eroded the nation states sovereignty in the
fundamental field of monetary policy just in those States where the modern, secularist, Westphalian
conception of nation state was born.
Therefore, the euro preservation justified the decisions took in the state of exception determined
by its crisis, beyond the Constitutions of the Member States, as the Bundesverfassungsgericht has
recently argued in its first preliminary reference to the European Court of Justice 46. The
preservation of the euro «whatever it takes»47 became the economic equivalent of the defense of the
borders in the political theology of the Westphalian order, which is the modern version of the fight
against the kat-echon in the medieval Christian Roman Empire.
After the euro, the deluge: this seems be the message transmitted by the European mainstream
media and politicians, that, as the ultimate political justification, overreach the rule of the
45
See Giorgio Agamben, The Kingdom and the Glory. For a Theological Genealogy of Economy and Government,
Stanford University Press, Redwood City (CA), 2011;
46
See the special issue of German Law Journal, dedicated to the The OMT Decision of the German Federal
Constitutional Court: German Law Journal, Vol. 15, No. 2, 2014, available at http://www.germanlawjournal.com/
47
See Speech by Mario Draghi, President of the European Central Bank at the Global Investment Conference in
London, 26 July 2012, available online on https://www.ecb.europa.eu/press/key/date/2012/html/sp120726.en.html
supremacy of the Constitutions of the Member States, transforming the jus publicum europeum in a
new “shock” constitutionalism.
This message can explain the radical change in the European State member politics, where the
rise of the “grand coalition” model of government seems to take the role of new “holy alliances”
against the “ultimate evil” which is the crisis of the common currency, that has to be fought because
“there is no alternative”: the absence of alternatives designed this way justify the alliances between
parties ideologically opposing, and often, competing in the same electoral campaign from which the
grand coalition government is formed.
To justify the developing of the European integration and the primacy of the EU Law under a
constitutional perspective, the dominant European constitutional scholarship has addressed different
doctrines, that have a common denominator: their “irenic” nature48.
The common roots of these doctrine could be find in its “neo-institutionalist”49 approach,
characterized for its attention on the force of the “normative fact” which creating the institutional
normative order and becomes the source of the authority of law.
The most famous and well examined in the European constitutional scholarship among these
theories is probably the theory of the constitutional pluralism, elaborated by Neil McCormick in the
aftermath of the Maastricht Treaty adoption and the successive “normative facts” like the German
“Maastricht Urteil” and the French and Denmark referendums, in the context of the affirmation of
the primacy of the European Community law in the United Kingdom50, governed by the Dycean
dogma of the Parliamentary sovereignty and the Austinian legal positivist tradition.
The question that he posed at that moment, questioning sovereignty51, sounds a living matter in
the context of the economic crisis: «What, […] is the answer to the question whether, in Austinian
terms, Parliament has become obedient to Europe under a not very explicit threat of economic evil –
a sanction of a kind – in the event of doing that which it is said Parliament is as free as ever to
do?»52. From this question, MacCormick reconsidered the Hartian concept of the “rule of
recognition”, finding out in the institutional fact of that «not very explicit threat of economic evil»
48
This definition come from a seminal essay in Italian constitutional scholarship, by Massimo Luciani, titled
Costituzionalismo irenico e costituzionalismo polemico, in Giurisprudenza costituzionale, 2006, 1643 ff., in which the
Author addressed critically the development of supranational European law in its effort to remove the consolidated
categories of modern constitutional law from the constitutional discourse to replace them with an “irenic”
reconstruciton, and claimed for a renewed, critical and “polemic” constitutionalism to defend them.
49
See N. MacCormick, O. Weinberger, An Institutional Theory of Law. New Approaches to Legal Positivism,
Dordrecht, Reidel, 1986.
50
With the famous case Factortame Ltd v Secretary of State for Transport (No. 2) (1991), in which the House of Lords
confirmed that the effect of the European Communities Act 1972 was that Community law has supremacy over all UK
law (in this case, the Merchant Shipping Act 1988), even in the face of Parliament’s express intention to contradict
Community law.
51
See Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, Oxford
University Press, Oxford, 1999.
52
Neil MacCormick, Beyond the Sovereign State, in Modern Law Review, Vol. 56, 1993, 1 ff., 3.
the very reason of the primacy of the laws derived from the European constitutional order in its
pluralist conception.
Therefore, the nomos of the euro, which means the preservation of the common currency (and
the institutional order which is founded on it) seems to be the new “rule of recognition” to justify all
the measures adopted to obey to this aim, and the “grand coalition government” are the political
representation of the constitutional order derived from it.
This new landscape challenged hardly the reconstruction of the European legal doctrines
founded on the “irenic” framework of the «constitutional traditions common to the Member States»
which from results the «general principles of the Union’s law»53, in which the idea of European
community as a rights-based community54 plays a special role in the theoretical construction aiming
to legitimate the of the sui generis community of European States. This legitimation depends on the
overtaking of the constitutional supremacy, which by definition means that the constitution is the
highest law of the land. In this perspective, the pluralistic doctrines of a more flexible use of the
constitutional law categories55 have been crossed the traumatic experience of the rejection of the
constitutional Treaty, as well as politics and people in their respectively Member States, and the
integration process went on until the current crisis, when the constitutional question posed by the
process could be ignored no longer due to the impact of the crisis on the irenic and light
constitutional framework maybe too much optimistically designed by the pluralist doctrines.
It is pretty simple, in a politically irenic framework, answer to the question on the ultimate
authority of the European constitutional order designing a legal pluralistic, human rights based
order especially in the academic debate, where «its participants have long taken the inevitable for
granted»56. But things radically change when the Europe constitutional landscape once again
become characterized by a fierce clash between sovereignties of the still existing European nation
states, in which the solidarity values of the States “united in diversity”, had replaced by the
relationship between creditor States and debtor States, whom have aims irreducibly incompatible.
Given that, when the European Union became an agent of fierce and stern forms of austerity
which have catastrophic effects on the economics, dramatically affecting the lives of the citizens in
53
According to the Art. 6 par. 3 of the Treaty of the European Union, on which see Felix Ekardt, Daniel Kornack, Of
Unity and Diversity and Inherent Tension: Interpreting the European Union’s New Architecture of Fundamental Rights
in Columbia Journal of European Law, Vol. 16, 2010, 89 ff.
54
Notoriously proposed by Peter Häberle, who has developed his thesis, that proposes a model of “public”
interpretation of the Constitution, in his works since Verfassungslehre als Kulturwissenschaft, Berlin, Duncker &
Humblot 1982.
55
See, among others, Neil Walker, Reframing EU Constitutionalism, in J.L. Dunoff, J.P. Trachtman (eds.), Ruling the
World? Constitutionalism, International Law, and Global Governance, Cambridge, Cambridge University Press, 2009,
149 ff., S. Besson, Whose Constitution(s)? International Law, Constitutionalism, and Democracy, in ibidem, 381 ff.
56
See Alexander Somek, Postconstitutional Trety, in German Law Journal, Vol. 8, 2007, 1121 ff., 1123, for whom the
“inevitable” in this case was the acceptance, by the people, of the European “constitutional” Treaty in the 2005
referendums.
the name of the fiscal consolidation of the so called “sovereign debts”, with very doubtable
legitimacy, the answer to the critical question for Europe – how can loyalty to the EU be generated?
– become really problematic in the neo-institutional and pluralistic perspective57.
Therefore, politics in the Eurozone has rapidly shifted on the “state of emergency”, founded on
the nomos of the euro, in the effort to justify its choices – showed to the public opinion and in the
political debate as choices with no alternatives – and to “protect” them from the electoral process
adopting extra ordinem constitutional measures, which are binding also in the next time of
“ordinary politics”: the Treaty on Stability, Coordination and Governance in the Economic and
Monetary Union – so called “Fiscal Compact” – is the most prominent of these measures.
Viewed from this perspective, the rising of the so called antisystemic or anti-European political
parties all over the Europe, opposing the grand coalition government, maybe indicates that
democracy is not yet dead in Europe. In the next part the dynamics of the shock constitutionalism
and the application of the nomos of the euro will be analyzed in the context of the Italian
constitutional system, which is particularly consistent as a case study in this analysis, due to its
fundamental importance in the dynamics of the whole of the Eurozone.
Part 3 – The nomos of the euro in action: the Italian constitutional reaction to the Euro
crisis as case study
Italy is the third country, for dimension of its economics and so, for the financial participation to
the European Union and the Banca d’Italia is the third contributor of the European Central Bank58.
Given that, the Italian system crisis was the very testing ground for the European Union and its
institutions capacities to preserve the European common currency, due to the fact that the capacity
of all the measures implemented before the Italian debt crisis were enormously scarce for the Italian
economy.
The Italian ratio of public debt to the Gross Domestic Product, was notoriously one of the higher
in the world, since the entry into force of the Maastricht Treaty economic convergence criteria59,
when it was yet almost the double of the maximum consented (121,84% in 1994). Since then, this
ratio constantly decreased, to fit the criteria imposed by the European Union, thanks to several
reforms in the public administration and welfare system, until the explosion of the international
57
See M. Loughlin, Constitutional pluralism: An oxymoron?, in Global Constitutionalism, Vol. 3, 2014, 9 ff., in which
the Author, revisiting the constitutional pluralist doctrine (especially as elaborated by Neil MacCormick and Neil
Walker) under the problematic perspective of the problem of the authority, poses this critical question at 21.
58
See the European Central Bank capital subscrption, at https://www.ecb.europa.eu/ecb/orga/capital/html/index.en.html
59
In particular, the rule on the annual government deficit which imposes to the Member States that the ratio of the
annual government deficit to GDP must not exceed 3% at the end of the preceding financial year and the rule on the
government debt, which dictates that the ratio of gross government debt to GDP must not exceed 60% at the end of the
preceding financial year, introduced by the Maastricht Treaty at article 109j later renumbered to become article 121.1 of
the Amsterdam Treaty and later renumbered again to article 140 of the Treaty on the functioning of the European Union
which are referred to the Protocol n. 13 on the convergence criteria.
financial crisis60, most notably caused especially by the “housing bubble” in the United States,
which lead to the financial contagion all over the world. At that time, the ratio of the Italian public
debt was decreased to the minimum level since the entry into force of the Maastricht Treaty
(103,28% in 2007), despite the really weak economic growth that the country is experiencing since
the entry into force of the European common currency.
Then, the global financial crisis of the private debt (the “subprime mortgage crisis” and its
consequences in the global financial system) affected Italian economics, reducing the GDP, with a
consequent decline in tax revenue, and imposing an increase in public spending in order to deal
with the liquidity crisis faced by the banking sector and the difficulties facing the private sector
(related to the economic crisis and also to the “credit crunch”). As a consequence, the level of the
ratio of the public debt in 2011 came back near to the 1994 level (120,70%).
And then, in 2011, the financial and economic crisis turned in something different, showing
itself in the political debate and media representation and this way making an emergency situation
which fill the air, creating the perception of a terrible danger for the security and the stability of the
Italy and the whole Eurozone not only under the economic viewpoint.
The most important social representation of this presumed terrible danger is “the spread”,
financial term used to indicate the difference between two bond interest rates, which in the context
of the euro crisis is the difference between the government bond of a State (i.e. Italy) and the most
reliable bond, the Bundesanleihe (the German Federal government bond, abbreviated in “Bund”)
which represents the European benchmark to assess the government bonds. It entered in the
common language of the European countries when the euro crisis created high level of difference
between bonds on the financial markets, which usually do not should be possible in a monetary
union due to the common guarantee for their solvency offered by the Central government (which
means by the State Central Bank, as “lender of last resort”).
During the summer of 2011, the spread became a national obsession61, a sort of “doomsday
thermometer” to gauge the proximity to the financial apocalypse. This situation was described by
media and politicians frightfully as “the pit”, with a generic allusion to a “State bankruptcy” which
has not effective foundation in the data elaborated by the official Italian and European financial
watching institution. Actually, the “pit” could be the “exit from the euro”, which means the return
to a national currency under the control of the Italian government and its Central Bank: this danger
of course affected the spread between Italian bonds and the German bunds, because the return to a
60
See Tania Groppi, Irene Sipigno, Nicola Vizioli, The Constitutional Consequences of the Financial Crisis in Italy, in
Xenophon Contides (eds.), Constitutions in the Global Financial Crisis, cited above, 89 ff., especially 90.
61
See Dan Liefgreen, Armorel Kenna, Italians Obsessed by ‘Lo Spread’ as Advance in Bond Yields Makes Headlines
in Bloomberg, 14 november 2011, available at http://www.bloomberg.com/news/2011-11-14/italians-obsessed-by-lospread-as-advance-in-bond-yields-makes-headlines.html
national currency could provoke a devaluation of the currency and so, of the value of the Italian
bonds, which was the same monetary policy adopted in many European and Western country in
response to the financial shock provoked by the crisis.
Additionally, a similar situation was happened yet in 199262, when the financial speculation
attacked the sovereign debt all over the Europe, and that time, in response to that attack and the
consequent financial emergency many extra ordinem measures were adopted63 provoked the exit of
the Italian currency from the European Monetary System established in 1979 to prevent large
fluctuations relative to one another, which represented the “waiting room” for the euro. After the
1992 crisis and implementation of the measures in response to the international speculative attack,
the United Kingdom withdrew the European Monetary System on 16 September 1992, and Italy
did the same the day after, with relevant, but not apocalyptic, consequences for their economics.
But the European Monetary Union is quite different, and the interconnection between economics
and monetary policy definitely more strictly, then, as we have seen above, under the rule of the
nomos of the euro the possibility of the withdrawal from the euro is viewed as the ultimate evil, the
equivalent the emergence of the Antichrist in the economic theology.
Therefore, during the 2011, the spread between Italian bond and German bunds has increased
from 173 basis point (4 January) to 528 (30 December). The increasing begun in the end of June,
when the level came to 224 basis points, and continues during the summer. On the 5 August the
ECB sent a letter to the Italian government, in which it describes neoliberal policies asked “for the
Europe”, to deregulate the economy, to introduce more flexibility in employment and to increase
the privatization. It is noteworthy the fact that Italian citizens had expressed directly the will to
abrogate the laws on the privatization of the local public services and of the integrated urban water
management, through a really participated referendum64 some days before, on the 12 and 13 June
62
In The Constitutional Consequences of the Financial Crisis in Italy, cited above, the Authors referred to that
economic and financial crisis too, describing it as «another deep crisis, which did not lead to any kind of constitutional
consequences (at least from the formal point of view)»: in fact, also due to that deep crisis, Italian system changed from
the proportional to the majority, with the hard consequences on the party system and role of the executive described
above.
63
Especially significant in that occasion, also under a legal viewpoint, was the notorious budget law called “lacrime e
sangue” (Italian for “tears and blood”) and the article 7 of the decree law n. 333, 11 July 1992, which withdrew the
0,6% of the Italians assets directly from their private bank accounts, without any announcement, consent request or
distinction between the value of the money on the bank account.
64
Provided by the article 75 of the Constitution, the Italian abrogative referendum requests a “structural quorum” for its
validity. If the majority of electors (50 per cent + 1 of the total) do not vote on the referendum day, which according to
the law has to be different from the election day, the entire procedure is invalid, regardless of the results (according to
the art. 75.4, Italian Constitution). This feature is very important because, since the middle of the ’90s, the opponents of
the referendum used electoral abstention strategically and they campaigned for abstention in referendum day instead of
asking for vote “no”: in this way, they can add the votes of opponents to the absentees who usually do not vote and if,
for example, fifteen millions of citizens vote “yes” for a referendum and no one vote “no”, the referendum is invalid
and supporters of “no” win the consultation, only due to the fact that less than majority of electors casts its vote: see
Vincenzo Uleri, On referendum voting in Italy: “YES, NO or non-vote?” How Italian parties learned to control
referendums, in European Journal of Political Research, Vol. 41, 863 ff, 2002.
2011, so the ECB requests went in the opposite direction to the political will expressed in the
referendum.
In November the “danger” of the collapse of the euro seemed to become more concrete.
In the end of October, at an European Union summit, the international creditors of the Greece
agreed a second EU bail-out deal, which imposed new and stern conditions in an austeritydevastated country. Then, George Papandreou, Greece’s prime minister, unexpectedly announced a
referendum to approve it, terrifying the European partners (and especially the German Chancellor
Angela Merkel and the French President of the Republic Nicholas Sarkozy) and the international
financial markets.
Some days after, the referendum was called off and Papandreou government was replaced by a
new executive leaded by the technocrat Lucas Papademos, former vice President of the ECB. The
passage from a direct democratic initiative to legitimate the measures decided for the Greece to a
technocrat government is also noteworthy to understand the constitutional value of the nomos of the
euro, which denies and undermines democracy on the justification of the state of emergency.
Meanwhile, a similar development was in Italy, where the government sustained by the majority
of parliaments that winning the elections in 2008 was replaced in these days by a technocrats
government, due to the fact that the spread level reached its maximum, at 574 points on 9
November, when the President of the Republic Giorgio Napolitano appointed as a senator a vita65
the former European commissioner Mario Monti, that was going to become the technocrat President
of the Council of Ministers (the Italian prime minister), after the resignation of Silvio Berlusconi on
12 November.
This way, in one of the weaker country of the Eurozone and in one of the stronger, the grand
coalition in the name of the preservation of the euro came to the government in November 2011,
and they are still there, in different forms but still due to the nomos of the euro.
Under the constitutional viewpoint, one of the most prominent consequence of the euro crisis in
Italy is the reaffirmation of one of the most famous and discussed Schmittian thesis, according to
«sovereign is he who decide the state of exception»66.
In the Italian constitutional design the Head of the State is a very prominent figure, to which the
Constitution reserve a position before the Executive and the same number of articles67. In the euro
Therefore, the referendums of the June 2011 were the first valid since the 1995, and so, they were very important in the
Italian constitutional developments.
65
The “senatore a vita” (senator for life) is a honorific member of the Upper Chamber of the Italian Parliament, which
is a President of the Republic at the end of his term, or is appointed for civil merits and excellence in a field by the
President of the Republic, according to the article 59 of the Constitution.
66
Carl Schmitt, Political Theology, cited above, 5.
67
In the second part, after the title I («The Parliament»), there is «The President of the Republic» (title II, articles 8391), before «The Government» (title III, articles 92-96).
crisis this role seems to be emerged in the constitutional context as the Schmittian sovereign, due to
its peculiar position in the Italian constitutional system. In this system, this figure directly derives
from the Constant’s conception of the monarch who reigns but is not able to make policy, the
«pouvoir neutre et modérateur»68. This conception of the President of the Republic in the
parliamentary form of government was criticized by the Italian doctrine, that in his “realistic”
analysis had revealed the impossibility of the depoliticization of this institution69. Also assuming
this premise, it is possible to see how, during the euro crisis, the constitutional powers and
attributions of the President of the Republic Giorgio Napolitano has been expanded until their limits
and beyond, due to the situation created by the state of exception.
After the crisis of the Berlusconi Government in 2011, Napolitano excluded the possibility to
call the anticipated elections and created the technocrats government sustained by a vast majority of
the Parliament, in which the opposition joined the electoral winning parties. This choice has the
confirmation of the Parliament, that gave the confidence to the Government, according to the art. 94
of the Constitution, but the role of the President of the Republic in this case was so prominent that
gained him the monarchic title by the most distinguished outside observers70.
In the light of the birth of the Monti Government, and the role that the panic created by the
spread as above described caused in the public opinion and in the political parties, it seems to the
Italian constitutional doctrine that the article 94.1 of the Italian Constitution, according to «the
Government must have the confidence of both Houses», has been radically transformed, in the
“living” Constitution, this way: «the Government must have the confidence of the markets»71.
68
«Le pouvoir exécutif, le pouvoir législatif et le pouvoir judiciaire, sont trois ressorts qui doivent coopérer, chacun
dans sa partie au mouvement général : mais quand ces ressorts dérangés se croisent, s’entre-choquent et s’entravent, il
faut une force qui les remette à leur place. Cette force ne peut pas être dansl’un des ressorts, car elle lui servirait à
détruire les autres. Il faut qu’elle soit en dehors, qu’elle soit neutre, en quelque sorte, pour que son action s’applique
nécessairement partout où il est nécessaire qu’elle soit impliquée et pour qu’elle soit préservatrice, réparatrice, sans être
hostile. La monarchie constitutionnelle crée ce pouvoir neutre, dans la personne du chef de l’État. L’intérêt véritable de
ce chef n’est aucunement que l’un des pouvoirs renverse l’autre, mais que tous s’appuient, s’entendent et agissent de
concert»: Benjamin Constant, Principes de politique applicables à tous les gouvernements représentatifs, [1815], De la
liberté chez les Modernes: ecrits Politiques, Paris, Librairie Générale Française (Le Livre de Poche), 1980, 280.
69
In this sense, see Carlo Esposito, Capo dello Stato in Enciclopedia del Diritto – Volume VI, Giuffrè, Milan, 1960, 237
ff.
70
See Rachel Donadio, who called him «“Re Giorgio”, or King George for his stately defense of Italian democratic
institutions and the outsize albeit behind-the-scenes role he played in the rapid shift from the cinematic government of
Silvio Berlusconi to the technocratic one of Mario Monti» on the New York Times, 2 December 2011, available at
http://www.nytimes.com/2011/12/03/world/europe/president-giorgio-napolitano-italys-quiet-powerbroker.html?pagewanted=all&_r=0 . According to Tania Groppi, Irene Sipigno and Nicola Vizioli, in this crisis «as a
consequence of the difficulties facing the Italian political system, the President of the Republic became the main actor
on the stage»: see The Constitutional Consequence of the Financial Crisis in Italy, cited above, 102.
71
See Antonio Ruggieri, L’art. 94 della Costituzione vivente: «il Governo deve avere la fiducia dei mercati», in
Giuseppe De Vergottini, Tommaso E. Frosini (eds.), Percorsi costituzionali,Vol. 2/3, dedicated to the theme Alla
ricerca del buon governo, 2011, 15 ff. The Author, in the second footnote, explain that he was dubious on the
opportunity to title its essay «the Government must have the confidence of the markets and of the European Union», but
he preferred that title because the confidence of the European Union is direct consequently to the markets one, so these
two types of confidence are factually the same thing.
Thanks to the large consensus of the political parties united in the grand coalition and of the
newness of the technocratic government for the public opinion – who was deeply and generally
pervaded by a fierce “antipolitical” sentiment against the old political class –, Monti Government
did many reforms in the way indicated by the ECB in its letter, making austerity measures to
contain the public spending, increasing the taxation and hardly cutting the welfare state.
As anticipated above, the most important of this reforms, under the constitutional viewpoint was
the introduction of the balanced budget amendment in the Constitution72, defined «unique in the
history of the constitutional amendments in Italy» because «it is very rare that such revisions are
brought about through government initiatives», with a process «relatively fast» and the majorities
«very large»73. Another very important act of the Monti Government was the ratification of the
Fiscal Compact, in July 2012.
During the 2012 the decreasing of the spread from the level which contributed to the Berlusconi
Government’s resignation to a lower level, seems to confirm the necessity of the change of the
government and the efficacy of its measures. But the spread come back at the same level of the
highest moment of the crisis at the end of July, despite the adoption of the austerity measures
requested from the European Union and the work of the Monti Government. Only after the
announcement of the Outright Monetary Transactions by the ECB, in September 2012, that
factually change the role of the European Central Bank making it more similar to the other Central
Banks lender of last resort, the spread has decreased and are decreasing also currently. This fact,
with the devastating consequences that the austerity measures provoked on the economics in Italy
and in the other country of the Eurozone74, changed the judgments of the politicians and the public
opinion about the Monti Government and its work. At the end of 2012, the Monti Government
resigned, due to the factually
no-confidence expressed by the People of Freedom party, in
proximity of the term of the legislature.
In this new political situation, the general elections of February 2013 gave an unexpected
results. In the system designed to be bipolar, with the right wing parties and left wing parties that
contended the majority of votes, a new political actor, the “antisystemic” and protest Five Stars
Movement, came on the stage and realized almost the same result of the two major parties, taking
about the 25% of votes in its very first political election, a result with no precedent in the history,
72
The constitutional amendment is a very complex procedure, provided by the article 138 of the Constitution, due to the
character “rigid” of the Italian Constitution and then it need a strong political will to their implementation, see Tania
Groppi, Constitutional Revision in Italy: A Marginal Instrument for Constitutional Change, in Xenophon Contides
(ed.), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and USA, Routledge, New
York, 2013, 203 ff.
73
See Tania Groppi, Irene Sipigno and Nicola Vizioli, The Constitutional Consequence of the Financial Crisis in Italy,
cited above, 92.
74
See Olivier Blanchard, Daniel Leig, Growth Forecast Errors and Fiscal Multipliers, in International Monetary Fund
1/2013, January 2013.
that determined the situation in which the election failed to deliver any party or group of parties a
political majority. This situation represented an authentic “constitutional blind alley”, because, on
one hand the high level of polarization of the parties during the electoral campaign seemed to deny
any possible government agreement and, on the other, in this period of time coincided to the “white
semester”, the last semester of the term of the President of the Republic in which, according to the
art. 88.2 of the Constitution, he could not dissolve the Houses of Parliament75.
In this very strange and with no precedent situation, Italy remained substantially without a
government, until the new election of the President of the Republic by the Parliament, which was in
April, two months after the general political elections.
In this occasion, the two traditional party of right wing and the left wing, converged on the same
person, with an agreement which represented the premise of a government agreement 76. But due to
the unexpected revolt of the members of the Parliament of the center-left Democratic Party with
their secret vote against the President designed by the leader of the party Pierluigi Bersani, in
accordance with the leader of the center-right party Silvio Berlusconi, after the failure of three effort
of election, for the very first time in the history of the Italian Republic, Giorgio Napolitano has been
reelected for a second term as President of the Republic.
This fact has importance for this analysis of the Italian prolonged “state of exception” for two
reason: first, also if the reelection of the President of the Republic was not expressed forbidden by
the Constitution, it is considered unfit to the Italian constitutional system for the long duration of
the term and a constitutional custom against the reelection77.
This time, the President Napolitano explicitly connected his new mandate to the realization of
specific reforms necessary, in his view, for the country, which is of course a statement that
transform the Head of the State which guarantees the Constitution and the fundamental process of
75
Art. 88.2 states: «The President of the Republic cannot exercise said right during the last six months of the
presidential mandate, unless said period coincides in full or in part with the last six months of Parliament».
76
Because the President of the Council of the Ministers is appointed by the President of the Republic, and especially in
this particular context it was clear that this decision was fundamental to found the majority to sustain a new executive.
The person initially designed in the accordance between the leader of the center-right party Silvio Berlusconi and the
center-left one Pierluigi Bersani was the former President of the Senate Franco Marini.
77
The term for the President of the Republic is fixed in seven years, according to article 85.1 of the Constitution and to
unbind this term to the term of parliamentary legislature (five years) and associate the Head of the State election to the
political competition of the day.
Furthermore, the rule of the “white semester” of the art. 88.2 cited above was created to avoid that a President of the
Republic solve a Parliament in the proximity of its election to help the formation of a new Parliament oriented to his
reelection.
Finally, in the last period of his mandate, in 2006, the former President of the Republic Carlo Azeglio Ciampi received
from many political actors and also from a part of public opinion, the request to continue his work and to accept a
second mandate as Head of the State, but he refused, due to his age but also an objective consideration: the President of
the Republic was never reelected, and this has made a «significant custom» that «is good to not break», because due to
the long duration of the term it is unfit to «the republican form of State»: see President Ciampi’s statement on the
renewal of his mandate, 3 May 2006, available online at
http://www.quirinale.it/qrnw/statico/expresidenti/ciampi/dinamico/comunicato.asp?id=29126
the parliamentary democracy in a head of the government with a specific and politically oriented
program to execute.
Then, his mandate had assumed characteristic scarcely compatible with the role of guarantee,
who has a political direction intended not as the “political direction of the Head of the State” (which
means the supreme guarantee of the unity of the nation and the protection of the fundamental
principles of the Constitution), but as the political direction of a faction against another one, and
precisely of the faction of the grand coalition which opposes the other parties of the opposition,
which in the new scenario means essentially the “antisystemic” Five Stars Movement.
This position has been manifested particularly in some “esternazioni”78, in which Napolitano
defended the birth of the grand coalition government as a choice with no alternatives. This trend
may be culminated when he declared, before the general elections of the February 2013, what will
be happened after the elections, affirming that the path of the future government was yet decided
and that the parliament and the executive of the future legislature (not yet elected) would never
refuse to execute its commitments to European Union79.
This is not a neutral assertion, because in the 2013 political campaign, the nature, the legitimacy,
the opportunity of the commitments agreed with the EU and if and how to execute them was exactly
the most eminent political question: therefore, the Head of the State, provided to defense of the
weaker political forces against the abuse and the tyranny of the majority according to the
Constitution, took part for a faction (the pro-European agenda one) which was the political majority
at that time, and which would be the majority again, also due to his intervention. This
transformation of the function and the role of the President of the Republic, from the neutral
guarantor of the Constitution to a political actor committed to the stabilization of the political
system during the crisis, to the factually guarantor of the political majority faction is one of the most
evident and significant consequence of the enduring “state of emergency” provoked by the euro
crisis to the Italian constitutional system.
78
The “esternazioni presidenziali” (“presidential expressions of opinion”) has been defined in the Italian constitutional
docrtine as a specific presidential power, used by the Head of the State to put pressure on the government or the
Parliament on a specific topic and bring it to the attention of the public opinion – due to the prestige of his institutional
role – by the mean of his informal “moral suasion”. See Maria C. Grisolia, Le esternazioni presidenziali, in Rivista
dell’Associazione
italiana
dei
costitutionalisti,
n.1/2011,
30
November
2011,
available
at
http://www.associazionedeicostituzionalisti.it/articolorivista/le-esternazioni-presidenziali; Angioletta Sperti, La
responsabilità del Presidente della Repubblica. Evoluzione e recenti interpretazioni, Giappichelli, Turin, 2010; Mario
Dogliani, “Il potere di esternazione” del Presidente della Repubblica, in Massimo Luciani, Mauro Volpi (eds.), Il
Presidente della Repubblica, il Mulino, Bologna 1997, 221 ff.; Mauro Tebaldi, Il Presidente della Repubblica,
Bologna, Il Mulino, 2005, 261 ff.; Michele Buquicchio, Esternazioni e responsabilità giuridica del Presidente della
Repubblica, in Archivio di diritto costituzionale, 1997, 72 ff.; Temistocle Martines, Il potere di esternazione del
Presidente della Repubblica, in Gaetano Silvestri (ed.), La figura e il ruolo del Presidente della Repubblica nel sistema
costituzionale italiano, Giuffrè, Milan, 1985, 135 ff.; Gustavo Zagrebelsky, Il potere di esternazione del Presidente
della Repubblica, in Il Corriere Giuridico, 1991, 709 ff.
79
See Vincenzo Lippolis, Giulio M. Salerno, La repubblica del Presidente. Il settennato di Giorgio Napolitano, il
Mulino, Bologna, 2013, 171.
After his reelection, a new grand coalition government – the Letta Government under the prime
minister Enrico Letta –, again sustained by the opposite parties of right wing and left wing, was
immediately formed, after two months of total uncertainty on the future of the government and
apparent impossibility to made a long term executive.
The most significant example of the shifting of the presidential office to something beyond of
the temporary ruler of the government during a contingent situation in the real political leader of the
permanent state of emergency are maybe the vote on the individual motion of no-confidence80
against the most important ministers of the Letta Government81, when he said, in an official
ceremony, before the vote, «if Letta Government falls, there will be unrecoverable repercussions»82.
80
In Italy the President of the Council of Ministers cannot remove the Ministers of his government. Then, after a
leading case of the Italian Constitutional Court (decision n. 7 of 1996, called “Mancuso case” from the name of the
plaintiff minister), it is possible for a House of Parliament fill a motion of no-confidence against a single minister and
not against the government at all, which provoked, if it is approved by the House proponent, the legal duty of the
resignation for that single minister. This motion of no-confidence is called “individual motion of no-confidence”). See,
among others, Sergio Bartole, Il caso Mancuso alla Corte costituzionale, in Giurisprudenza costituzionale, Vol. 41,
1996, 67 ff.; Giuseppe Consolo, Governo parlamentare e sfiducia a un singolo ministro, in Rassegna parlamentare,
Vol. 38, 1996, 525 ff.; Giuseppe U. Rescigno, Il “caso Mancuso”, ovvero della inesistenza dei casi di scuola, ovvero
ancora del dovere dei giuristi di rispondere ai quesiti giuridicamente possibili, in Diritto pubblico, Vol. 2, 1996, 235
ff..
81
In these cases, he used his personal political force directly to influence the parties of the Parliament. In the first, in
July 2013, against the Minister of the Home Affairs Angelino Alfano, who is also the deputy President of the Council of
the Council of the Ministers, who is the leading figure of the center right party. Due to the worries about a possible
break of the government agreement between the two major parties if the center left party would vote for the noconfidence with the Five Stars Movement, Napolitano before the vote warned about the risks and dangers of any
government different from the Letta one. Angelino Alfano was considered, as Minister of the Home Affairs, responsible
for the “case Shalabayeva”, the deportation to Kazakhstan of the wife Alma Shalabayeva and her six-year-old daughter
of Mukhtar Ablyazov, a prominent dissident and former banker who was in hiding. The case touched the international
and Italian public opinion due to the status of the women kidnapped, who were not dissident but only his wife and his
very young child. After the esternazione of the President of the Republic, the individual motion of no-confidence
against the Minister promoted in Parliament by the opposition was rejected.
A situation very similar happened again only few months after, in November, when the Minister of Justice Anna Maria
Cancellieri was accused of using her power and influence to release from prison Giulia Ligresti, under arrest for a big
bankruptcy fraud and daughter of the Italian business man Salvatore Ligresti, who is a friend of the Minister, due an
intercepted phone call of the Minister to his partner in which she assured her interest and support to Ligresti family, a
very rich family owner of big companies of building and insurance. Also in this case, the public opinion was
particularly affected, due to the general situation of prisoners in Italy (which is also under judgment of the European
Court of the Human rights for overcrowding in Italian prisons) and the message of disparity of treatment thanks to the
friendship of the Minister of Justice. Also in this case, the political parties were oriented against the Minister, but the
President of the Republic invoked the necessity to reject the motion of no-confidence in order to assure the continuity of
the Government and the motion was rejected.
82
This happened during the “ceremonia del ventaglio” (ceremony of the fan), an official ceremony of the Italian
constitutional tradition to honor the two President of the Houses (the Italian speakers of the Houses), see Intervento del
Presidente
Napolitano
alla
cerimonia
del
Ventaglio,
18
July
2013
available
at
http://www.quirinale.it/elementi/Continua.aspx?tipo=Discorso&key=2744.
Some days after, the President Napolitano sent a letter to the most important Italian newspaper, the Corriere della Sera,
to answer to the former President of the Chamber of Deputies Fausto Bertinotti, who accused him of abuse of his
presidential power in guaranteeing the grand coalition government, titled “The Parliament is free to decide with no
prejudice for democracy”, see Lettera del Presidente Napolitano al direttore del “Corriere della Sera” pubblicata con
il titolo “Il Parlamento è libero di decidere senza danneggiare la democrazia”, 24 July 2013, available at
http://www.quirinale.it/elementi/Continua.aspx?tipo=Discorso&key=2746,
If the grand coalition government falls, the alternative could be a government with an
“antysistem” party, which means, following the reasoning until now analyzed, that there is no
alternative to the grand coalition government.
“After the grand coalition government, the deluge”, the message expressed by the Italian
President of the Republic in their “not so new clothes” for the similarity of this interpretation of the
presidential role to the Schimittian one, which sounds a living matter in the interpretation of the
contemporary constitutional issues in Italy during the euro crisis.
Conclusions
In the European political debate, the «theorem of the sovereign debt»83 has a prominent role,
which has consequences also in the constitutional debate. The idea that the euro crisis depends on
the crisis of the public debt of the single European Member States is dominant, but it is very
misleading, because the cause crisis financial crisis which originated the euro crisis is, on the
contrary, the highly risky private debt diffused all over the global financial system through the
sophisticated financial instrument. Then, the crisis is the consequence of the failure of the market
and not of the failure of the State84.
The welfare State designed in the European social model and adopted by the Keynesian
Constitutions of the post-Second World War constitutional wave could have very deep criticisms
but it is not the cause of the current financial and economic crisis, which actually is caused by the
financial deregulation and the lack of control in the movement of capitals in the global arena of the
neoliberal model85.
The theorem of the sovereign debt is useful to mislead the attention from the real cause of the
crisis, and maybe also from the real solution: the other Western countries (United States, United
Kingdom, Japan) in fact, had used their monetary sovereignty to adopt anticyclical measures in
order to contrast the recession, which is impossible in the Eurozone, where the monetary
sovereignty is in the hands of the scarcely legitimate European Union institutions.
83
In this sense see Alvaro Cencini, Italy’s sovereign debt crisis and the euro area: diagnosis and remedy, 21 June 2012,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2097738
84
In this sense see Alberto Bagnai, Crisi finanziaria e governo dell’economia, in Costituzionalismo.it, 3, 2011,
available at http://www.costituzionalismo.it/articoli/406/
85
The theorem of the crisis of the sovereign debts can be questioned simply take a careful look to the spread – which
according to the theorem gauges the degree of the reliability of the public debt – of the different States of the Eurozone
to discover that the dynamics contradict the theorem. These dynamics were very similar since the begin of the euro
crisis, in Italy and in Spain, even if the amount of the public debt ratio in Spain was at 65,2% of the GDP, at the level
provided by the Maastricht criteria and near the debt of Germany and France but it did not avoid the euro crisis in
Spain, as observed by the Spanish constitutional lawyer who, quoting the economist Paul Krugman defined the Spain «a
prisoners of the euro», see Francisco Balaguer Calejón Crisi economica e crisi costituzionale in Europa, in Biagio
Andò, Fausto Vecchio (eds.), Costituzione, globalizzazione e tradizione giuridica europea, CEDAM, Padova, 2012,
338.
These economics consideration needs to this constitutional analysis to illustrate that the “there is
no alternative” response to the crisis is a theorem without foundations itself. Economic analysis is
beyond the scope of this work, but in this purpose it is not really important to show how is the better
alternative to solve the euro crisis because to demonstrate the fallacy of the assumption of the shock
constitutionalism it is sufficient affirm that there is an alternative, that is the object of the
democratic choice, in the forms provided by the Constitution. In fact, of course, under the
constitutional perspective, this no alternatives idea, yet widely criticized about the European Union
governance86, is firstly the contradiction of the basis of the constitutional democracy: the
democratic possibility of the choices between two or more alternative of government policy. This
type of government without alternative, which is all over the Europe, under the rule of the nomos of
the euro, in a constitutional and democratic state is possible only in the state of the emergency, in
which the Schmittian sovereign manifests itself to impose its agenda by the mean of the shock
constitutionalism.
This type of government based on the state of emergency is not new in this time into the well
established democracies, because it was adopted in the aftermath of the 11 September 2001, when
the menace of the global war to the terrorism replaced the old nomos with a new one, in the drift of
what has been called “neo-democrcy”87. Ten years later, the menace which is able to overreach the
constitutional guarantees and the established rights of the European social model took the form of
the euro crisis, originated by the financial crisis, but the consequent constitutional dynamics seems
similar.
These dynamics affected not only the development of the form of government and the
relationship between the different constitutional actors and institutions – as showed in the Italian
case with reference to the role of the President of the Republic – but also challenged the ambitious
theoretical construction of the constitutional pluralism, on which the constitutional primacy of the
European law was funded, and claim for a new assess of these theories, in a perspective not only
“irenic” as the dominant one until now, but also “polemic”, in which the role of the conflict has to
be revaluated and has to be the core of the constitutional analysis.
In his recent critical reexamination of the European constitutional pluralism, Martin Loughlin
make a comparison between the ascendancy of the concept of political pluralism during the first
decades of the twentieth century and the constitutional pluralism at the begin of the twenty-first,
concluding «that although it may be going too far to treat the concept as an illustration of Marx’s
86
See C. Joerges, M. Weimer, A Crisis of Executive Managerialism in the EU: No Alternative?, in G. de Búrca, C.
Kilpatrick, J. Scott, Critical Legal Perspectives on Global Governance. Liber Amicorum David M. Trubek, Hart,
Oxford, 2014.
87
See note 3.
adage that history repeats itself first as tragedy then as farce, constitutional pluralism is no better
able to resolve the issues that sundered the earlier incarnation of pluralist thought»88.
In the light of the analysis of the application of the shock constitutionalism to the Italian system
and the development of the social and economic crisis provoked by the financial one all over the
Europe it could be possible to hope that who said that the farce is sometimes worse than the
tragedy89 was wrong. Meanwhile, it could be wise taking the question poses by the financial crisis
to the European constitutionalism and the European constitutional systems seriously.
88
See Martin Loughlin, Constitutional pluralism: an oxymoron?, cited above, 11.
The concept is remarkably explained by Slavoj Žižek: see for example First As Tragedy, Then As Farce, Verso,
Brooklyn, NY, 2009.
89