Social Rights and the Economic and Financial Crisis. Problems and Perspectives

Abstract

This work regards the relationship between resources and rights that has become a central problem in the juridical studies of recent years, and it is part of a more general research project carried out by 11 universities and funded by the Ministry of the Education and Scientific Research. In the contributions of the different authors of this chapter, a similar approach, with not many differences, seems prevailing. This approach lies on the common interest of the scholars to run a type a research that, in addition to the formal profiles, shows its interest in the suitability of the constitutional legal positions to act as an effective guarantee for individuals in whose favor the legal order has been provided for. In this regard, it must be said that the primary guarantor of those rights and of the entire Welfare State, over the years, has been the Constitutional Court (since the time when the Court had to compete with the Court of Cassation in the early 1960s).

This jurisprudence must now make itself responsible for dealing with the problems posed by the European integration process and, in a global context, along with dialogues with international Courts. Some contributions even go beyond this goal, stressing the issues that underline the instrumentality of funding sources with respect to the actual enjoyment of the rights and even more towards the defining of the administrative apparatus.

Other contributions develop the same goal, underlining the primacy of the legal position compared to the financial funding, noting that the redistribution of resources constitutes the primary responsibility of the policy-making process, making resources available through more suitable withdrawal processes and, above all, through spending review processes and their requalification.

From a particular perspective, not shared by all the panel members, we report a positive dimension of legal uncertainty, as a tool for managing the change which interacts with the enhancement of the right through principles, within the role of jurisprudence (which proceeds with the “invention” of the law, just as in its Latin etymology of invenire, with the meaning of “finding”) and rethinking the legislative power as in order to consolidate the results of jurisprudential evolution.

The paper is the result of the common reflection of the authors, and yet, for the formal assignment of responsibility of the individual parts, it should be made clear that Silvio Gambino wrote paragraphs 1 and 8; Danilo Pappano is the author of paragraph 2; Giovanni Maria Caruso is the author of paragraph 3; Walter Nocito is the author of paragraph 4; Donatella Loprieno is the author of paragraph 5; Giampaolo Gerbasi is the author of paragraph 6; Daniele D’Alessandro is the author of paragraph 7.