noon, 11 August 2021 – 08:57
from Marco Demarco
CIn addition to the extended time of summer, I try to pose a theme that lies between the quirks of law and the puzzles of the «enigmistic week». The theme is this. Can a state stand on the liar paradox? Denying and affirming at the same time? Substantiating oneself in doubt, in misunderstanding, in legislating, that is, in delimiting, and at the same time in saying instead “smarginate as well”, “do as you please”? Judging by the facts, yes. In Italy, it can happen that if the law prohibits something, that something can also be done. I am referring to the conflict between the State and the regions of which, in addition to the pandemic events, there is now much talk about the latest De Luca case. Specifically, as the readers of this newspaper well know, the national legislator establishes that the regional president cannot be elected more than twice (law number 165 of 2004). He can not. Point. However, precisely for this reason, indeed, by reiterating this prohibition, the president himself, although already elected and re-elected, can be “trieletto” and perhaps even “quadruple”. The impossible becomes possible simply because a regional law transpires which, acknowledging the limit of the double mandate, calculates it from the moment of its last introduction.
Basically, once the law is made, you start counting all over again. The mandates should be calculated in progression: one, two, three. And instead, on the basis of the general principle according to which a new law can regulate only the after and not the first, they can be counted as follows: one, two, zero, one, two … This is exactly what is happening in Veneto, where Zaia is at his third term; and that has already happened in Emilia Romagna, where Errani, elected for the first time in 1999, left the scene in 2014. In both cases, the governors got the better of everything and everyone: Errani, because the opponents of the time ( the radicals and the cinquestelle) saw the objections presented in the name of national law rejected by the Bologna Court of Appeal, which decides on the eligibility of candidates; Zaia, because the first Conte government never raised the objection of unconstitutionality against the Venetian law that allowed the recalculation. The Bologna judges considered it legitimate that the prohibition envisaged by the national law was transposed “on an equal footing” to the regional one. And that was enough. In turn, as well as for reasons of political expediency, even the government with Northern League members like Zaia in it thought that there was nothing unconstitutional in the fact that, apart from recalculation, a Region “photocopied” a national law. It is here, in this reiteration of a denial that in fact affirms, that the paradox of the liar is perfected; that if you confess that you are not telling the truth, no one will ever know if you are really a liar or not. Or, to put it in Wikipedia, the one for which «given a self-negating proposition no one will ever be able to prove whether this statement is true or false». In our case, the state says it doesn’t want a third term. Yet, the third term is now a consolidated practice. It is part of our institutional reality. This means many things. But one in particular. It is suggested by a book of absolute topicality and in many ways precious, ideal for balancing with “long” thoughts the summer lightness of the “Puzzle week”. It is entitled “The perennial conflict between the lords of law” (Scientific Editorial) and it was written by a historian of the subject, the former minister Ortensio Zecchino, having as a fixed point the always necessary balance between rules and government. The key passage is when the author quotes Croce. Who, at the beginning of the last century, just thinking about the effects and the administration of the laws, trusted in three dimensions of reality; on the fact that “in the practical field there is no faculty that is not both an obligation, there is no right that is not a duty at the same time, and there is no law that is not prohibited”. It did not add – as it should be today – a fourth dimension, as disturbing as it is surreal, that of the prohibition which, precisely because it is such, is also lawful.
August 11, 2021 | 08:57