Looking to Italy for new a fresh take on the Constitution

A new book shows how great is the potential for collaborative studies of constitutions

Mon, Apr 14, 2014, 01:05

Valuable insights often flow from experts from outside Ireland turning their attention to social, political or cultural life here and interpreting it in the light of their own country’s experience and the latest international thinking.

This is particularly so when many people in Ireland are questioning existing institutions and practices. The value of views from outside was borne out by a seminar in November 2011, held at the initiative of the then Italian ambassador in Ireland, Dr Valerio Augusto Astraldi, Prof Giuseppe Franco Ferrari of Bocconi University, Milan and Prof Colin Scott, dean of UCD Sutherland School of Law.

The seminar brought several leading Italian scholars of constitutional and administrative law to Dublin, to discuss with Irish counterparts a number of the major topics arising from the 75th anniversary of the Constitution of Ireland , celebrated in 2012. The papers delivered at that seminar have now been published in book form*.

A wide range of issues are reflected in the book – the protection of individual rights, how the courts review the constitutionality of laws and interact with other branches of government in doing so, the interpretation of constitutions more generally, the impact of constitutional law on administrative law, constitutional preambles, the European Union’s place in Irish constitutional law, the nature of the office of the president of Ireland and the work of the Convention on the Constitution.

Of the many common themes, developed in different ways by Irish and Italian contributors, two in particular reveal the value of external perspectives and the connections between apparently disparate aspects of the Constitution. Prof Angelo Rinella closely analysed the Preamble to the Constitution of Ireland , in the context both of other constitutional Preambles and of scholars’ classifications of the systems of church-state relations which Preambles often symbolise.

As he points out, the references to “the Most Holy Trinity” and “our Divine Lord, Jesus Christ” are not only out of keeping with the liberal and secular character of most of the rest of the Constitution, they also now do not reflect the much-altered relationship between the Roman Catholic Church and the State. Although the Preamble to a constitution can often be a relatively idiosyncratic expression of national identity, with few concrete implications for church-state relations in the country in question, Prof Rinella does highlight some of the basic reasons why the Preamble is on the agenda for future reform of the Constitution.

Indeed, the final report of the Convention on the Constitution recently recommended separation of church and state (including a review of the Preamble) as a further aspect of constitutional change to be examined by the Government, the Oireachtas or a new convention.

In carrying out such a review, two of Prof Rinella’s points may be particularly relevant: firstly, that it is inappropriate to refer to God in the Preamble to a contemporary democratic constitution because that reference risks compromising the interpretation of the Constitution itself, rather than being seen just as a symbolic element; and, secondly, that – seen as “a symbol of historical identity”– such references may have some useful function – “a sort of warning about the limitations of human thought and action … the claim that human laws, human authority, and human rights are not without limitations and conditions. The human being cannot be the measure of all things.”

If – as many still think – that is a claim that the Constitution should make, in some form, it will be challenging to devise an appropriate form of words to replace reference to God. The current Polish formulation is a possible candidate: “We, the Polish Nation – all citizens of the Republic, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources.”

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