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Messineo, Donato (2009) IL CONTENUTO ESSENZIALE DEI DIRITTI FONDAMENTALI NELLA GIURISPRUDENZA COSTITUZIONALE. Tesi di Dottorato , Università degli studi di Ferrara.

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    The thesis summarizes the results of a research on the Wesensgehaltgarantie of fundamental rights in Italian and European case-law. I looked at the issue from three different perspectives. First, I analyzed the theoretical grounds of the inalienable core of constitutional rights. The principles of social pluralism and tolerance in my view constitute such grounds. Secondly, I argued that the inalienable core of fundamental rights boils down to the value of human dignity, and I investigated its meaning in European law. Finally, I placed my inquiry in the context of federalism, and I analyzed the conflicts between central and local legislators about the competence to enact laws aiming at the realisation of substantive equality. The research starts from the observation that only some constitutions provide for the protection of an inalienable core of fundamental rights as a guarantee for the individual against limitative regulations introduced by the legislature. Yet, this guarantee seems to belong to the very essence of democratic political systems, whose focal point is considered to be the respect for every human being as such. This is probably why judges and scholars tend to affirm the existence of the guarantee in every legal system, even in those where the notion is not spelled out in the text of the Constitution. Another reason for the spread of the inalienable core-discourse in European caselaw lies in the deeper and deeper contacts among different legal systems fostered by the development of the European Union. The European Union has been developing like a common environment where every judge operating in a particular member state can draw on the methods of judicial enforcement of human rights worked out by other judges, regardless of their nationality. After all, the spill-over of rules and forms of protection from one system to another seems to be strongly ‘encouraged’ by certain common provisions, like art. 6.3 of the Treaty on E.U. The guarantee of an inalienable core of fundamental rights expresses the existence of a hierarchy among the values recognized by the Constitution. Such hierarchy itself derives from the philosophical grounds of Constitutionalism and from a particular conception of the relation between the state and the individual: indeed, it was Constitutionalism which lead to the assumption that the state should be seen to exist for the sake of the individual and not vice-versa. The inalienable core of rights is tied to constitutional provisions protecting human dignity: human dignity is not a right itself, but adequate protection of human rights is likely to improve the chances that the individual will realize one’s natural aspiration to have her or his dignity respected. The claim for protection of human dignity requires malleable interpretations of constitutional provisions regulating the relations among different branches of the state. When it comes to protecting the hard core of certain constitutional rights, judges might even be required to point out the illegitimacy of an act of the Parliament by themselves, instead of reporting the question to Constitutional Courts – which is otherwise mandatory in many constitutional systems. This solution is sometimes unavoidable, if the length of the trial before the Constitutional Court would definitely compromise the interest of the claimant, and a violation of human dignity is alleged: this might happen, for example, when a worker is challenging the legitimacy of an act that is suspect of violating her/his constitutional right to a decent and timely remuneration. The existence of an inalienable core of fundamental rights does not imply that some rules or some interests of the individuals having the most elevate worth will always get prevalence over contrasting interests owned by other subjects. In first place, in each legal system many interests are considered to be part of the inalienable core of fundamental rights: thus, the chances are that homogeneous interests belonging to different owners collide from time to time, and judges are often required to manage such clashes. Proportionality review often serves as a tool for solving this kind of conflicts. There is one more reason for rejecting the thesis that some rules are absolute and deserve unlimited application. Such an idea would be in contrast with one the fundamental implications carried by the pluralist nature of contemporary societies: indeed, contemporary democracies blend the right of the majority to rule together with the right of minority groups to exist and to grow their consensus. Eventually, nowadays minorities will become tomorrow’s majorities and will be able to modify some aspects of the existing legal structure. The state has the duty to produce the legal conditions under which such perpetual competition may be carried out. If the inalienable core of fundamental rights were filled up with cumbersome meanings and if the state petrified the rules corresponding to the dominant world-view, the right of actual minorities to produce changes in law and society would be depleted and even emptied out. Thus, even the fundamental principles which form the basis of a legal system must be considered as intertwined with historical changes and are open to long-term modifications. Judges and scholars are required to read the transformations of society, to sift the evolution of philosophical thoughts and the affirmation of new scientific theories in order to extract juridical consequences out of such changes. European Courts showed to assume different meanings of human dignity. Sometimes this has happened because the concept has been invoked by claimants with regard to very different cases and situations. After all, it is common for jurists to lay out variable notions of the same concept, when it is evoked to solving a wide range of questions. Anyway, not every notion of dignity can be welcome, but only the ones which are compatible with the constitutional principle of tolerance. The choice of specific balancing models and tools by courts does not depend on the way fundamental rights are worded out in constitutions, charters or treaties, but it is something that has to do with the cultural assumptions held by interpreters (that is, by judges). Italian Constitutional Court has often failed to address a modicum of specific services that the state should grant to every person as a minimum standard endowed with human dignity. The Court has chosen a different strategy, evaluating the constitutional prohibition of discriminations, which served as a legal basis for the extension of certain public services to newer and newer beneficiaries. This strategy allowed the Court to protect individual rights without castrating the general power of local authorities to select a particular set of public services to be distributed to the public. I argue that addressing a modicum of public services that the state ought to offer to the individual as a necessary means to make her or him able to realise the natural aspiration to dignity is easier for judges than it is for constitutional courts. Poverty and need can actually be identified only in front of a specific set of facts: the legislature may fail to ‘grab’ and assess specific situations by means of general and abstract regulations. Sometimes an act of the Parliament generally considered to be ‘appropriate’ or ‘convenient’ may fail to address rare or exceptional contingencies: this would not be a good reason to challenge its legitimacy, and its elimination by an erga omnes judgement would be a disproportionate remedy. The above considerations should pave the way to a broader acknowledgement of the powers of Courts of first instance in the direct implementation of constitutional rights norms (while such powers are generally neglected, if not denied at all, by scholars in European civil-law systems). A case study on the decisions of Italian Constitutional Court may show a somehow surprising link between social services and the freedom of choice of the individual about her/his destiny. The Court has occasionally cast a light on some public services that are necessary to create the conditions under which an individual is able to be ‘lord of his fate’: namely, the Court has affirmed that basic health-care should be granted to people suffering from diseases as far as it is requested to renew their hope for survival. Hope for survival has been considered one of the most elementary implications of human dignity, whose protection represents the object of a duty of solidarity bearing down on the state as well as on third parties. Scholars are paying more and more attention to human dignity, probably because of two concurring reasons: not only the content of human dignity is vague and amorphous, but evoking it is a powerful instrument for courts. Indeed, European judges often tend to skip the articulated reasoning entangled in the review of proportionality and replace it with (arguable) intuitions about the requirements of human dignity. Human dignity often serves as a strike-down argument allowing courts to affirm that the social project of the State prevails over some needs of the individual. Thus, in European jurisprudence dignity ends up supporting governmental policies that infringe rights, rather than protection of rights. European courts seem to have thus cut the philosophical roots of human dignity, abandoning the Kantian view of the autonomy of the individual. Many commentators have criticized this trend, observing that States and courts render human beings an object of the State by making them objects of the judicial assessment of human dignity. Most lawyers acknowledge that human dignity remains a different concept with different applications in America than it does in Europe. American constitutionalism is considered to be strongly centred on the protection of liberty and rights of the individual, and one may wonder if there is an alternative American conception of human dignity suffused with different values than it is in Europe. Anyway – in America as well as in Europe – there is still a generally shared idea. It seems to be common opinion that there is a struggle between two competing conceptions of human dignity. Most essays on this subject actually ‘ask’ the reader to ‘take a side’: should human dignity be intertwined with self-determination and the right to be left alone (human dignity like a source of rights) or should it be considered as a communitarian value which embeds the individual within a network of social solidarity (human dignity like a source of duties)? To my mind, this quarrel is largely the result of a misunderstanding on the role of human dignity. I propose to focus on legal justification: I analyze some case-law in order to show that both conceptions of human dignity deserve consideration, and that they have to be weighed, in the light of proportionality. In the last part of the work, attention is paid the role of Italian local authorities in implementing constitutional rights. In 2001 the Constitution has been reformed in order to provide local authorities with broader powers, especially in the field of public services regulation. Anyway, Italian Constitutional Court continued to be very attentive about the requirements of the principle of non discriminations and it sometimes stopped interesting legislative ‘experiments’ that local authorities had just introduced, exploiting their new competencies. I argue that such a ‘suffocating’ conception of non-discrimination is not actually required by the Constitution, and that a different balance should be performed between the reasons of centralization and those of differentiation. I assume that some elements of ‘competitory’ regulation should be admitted because this might lead to an improvement in the implementation of constitutional rights.

    Tipologia del documento:Tesi di Dottorato (Tesi di Dottorato)
    Data:16 Marzo 2009
    Relatore:Bin, Roberto
    Coordinatore ciclo:Bin, Roberto
    Istituzione:Università degli studi di Ferrara
    Dottorato:XX Anno 2005 > DIRITTO COSTITUZIONALE
    Struttura:Dipartimento > Scienze giuridiche
    Soggetti:Area 12 - Scienze giuridiche > IUS/09 Istituzioni di diritto pubblico
    Parole chiave:bilanciamento, proporzionalità, dignità
    Depositato il:30 Lug 2009 17:21


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