Fantasmi della dogmatica. Sul decreto legge e sulla legge di conversione

Abstract

The constitutional case law of 2007-08 admitted once and for all the thesis according to which the lack of the constitutional requirements of necessity and urgency of a law decree comes at the expense of the relating Parliamentary Act of conversion, causing the unconstitutionality thereof. It was further established that such lack might be deduced by means of an assessment of the coherence (and therefore also of the homogeneity) of the provisions of the decree, namely with an audit of reasonableness. In addition to (and in fact at odds with) this formulation and for the purpose of also striking heterogeneous provisions included by the law of conversion, the constitutional case law of 2012-14 admits and adheres to the doctrinal tenet whereby there would exist a functional nexus between a law decree and the successive act of conversion in a staturory law, and the latter therefore ought to be considered specialized law provided with the sole competence of conversion. The essay sets out to contest the foundation of this doctrinal proposition and to shed light on the contradictions thereof, instead valorising appreciation of the homogeneity of the provisions between the law decree and the law of conversion within the framework of a review of reasonableness. Likewise explored are the more profound reasons and the misunderstandings that have led first doctrine and then constitutional case law to admit such theses.