Democracy and the state of exception: the Italian experience

The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution does not provide for any emergency section. Nevertheless, she provides for instruments to enact whenever a situation of necessity and urgency occurs, most notably the e law decree (Article 77). What is peculiar of the Italian experience is the misuse (or abuse) of the law decree, which has established a sort of governmental legislation. Moreover, other emergency powers are conferred on the government and local officials by ordinary legislation. Besides, other situations happened that required the resort to some sort of emergency power, in the 70s against the left-wing terrorism (Red Brigades) – strengthening the police powers and compressing suspect rights – and the establishing of the Civil Defence. Under the latter, the government can pass civil defence orders to handle emergencies. A more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle (the 2006 Winter Olympics, the 2015 Expo). In such circumstances the connection to the extraordinary character of the situation is lacking. This anomaly has been criticised by courts, thus leading the Parliament to amend the legislation. Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.