The recent eightieth anniversary of the founding of the Italian Republic provides an opportunity to reflect once more on a number of important issues that still resonate widely within our country’s constitutional framework today. These include the role of the constitutional state, which, to borrow Häberle’s words, constitutes “the legal expression of pluralism”, upon which the 1948 Constitution is founded. Added to this is the issue of universal suffrage, which was achieved in Italy in that fateful year of 1946. Furthermore, this eightieth institutional anniversary provides an opportunity to retrace – albeit only along its most well-known lines – the historical and legal path that led to the republican form of government. 

The Republic did not, in fact, come into being simply as a result of the victory of the republican option during the referendum held on 2 June 1946, nor can the 1948 Constitution be reduced to the product of a particularly fruitful political period. Both these events constitute the outcome of a more complex process of re-establishing the constitutional order, which unfolded between the collapse of the Fascist regime in July 1943 and the entry into force of the new Constitution on 1 January 1948.

During that brief but intensely eventful period, a transformation took place that simultaneously affected the foundations of political legitimacy, the structure of the institutions and the very conception of the relationship between the individual, society and the State – a relationship which, until then, had been centred on the latter. The problem Italy faced after the fall of fascism – as a consequence of the late-night vote on the ‘Grandi’ motion of 25 July – did not simply consist of replacing a ruling class or rebuilding public institutions compromised by the war and irreparably eroded by authoritarianism. The very foundation of political authority was at stake. It was necessary to establish who held constituent power, what form the new state would take, and what principles should guide its organisation.

The fall of Mussolini on 25 July 1943 ushered in a period of extraordinary uncertainty. The Fascist regime, which had dominated Italian political life for over twenty years, collapsed under the weight of military defeats and a growing crisis of support. Yet the demise of fascism did not automatically lead to the emergence of a new democratic order. The Badoglio government, appointed by the King immediately after Mussolini’s dismissal, initially acted with a view to restoring state authority whilst leaving the institutional foundations of the previous system essentially intact. The slogan ‘the war continues’ precisely expressed the attempt to prevent the collapse of fascism from turning into a more general crisis of the state.

However, the armistice of 8 September 1943 made any prospect of a simple restoration impossible.

The collapse of the military apparatus, the German occupation of much of the national territory, the flight of the monarchy and the government to the south, and the establishment of the Italian Social Republic resulted in an institutional rupture of unprecedented proportions. The crisis did not merely concern the state’s ability to exercise its authority over the territory; the very legitimacy of the institutions that had governed the country during the twenty years of Fascist rule was now compromised.

The position of the monarchy appeared particularly precarious. The Albertine Statute of 1848 formally remained the fundamental law of the State. From a strictly legal point of view, there had been no interruption in the continuity of the legal system. However, on a political and constitutional level, the Crown appeared to have been profoundly delegitimised. The monarchy had played a decisive role in the rise and consolidation of fascism; it had not prevented the destruction of the parliamentary system; on the contrary, through its more or less tacit acquiescence, it had allowed the gradual elimination of political freedoms and had shared responsibility for the regime’s key decisions. The crisis of the fascist state thus ended up becoming a crisis of the monarchy as well.

In this context, the role of the anti-fascist forces united within the National Liberation Committee (CLN) took on decisive significance. Their importance did not stem solely from their participation in the struggle for liberation. They now represented the only entity capable of providing a new basis of legitimacy for political power. It was precisely through the experience of the Resistance that a new concept of democratic citizenship was taking shape, founded on political participation, the recognition of rights and the rejection of all forms of totalitarian power.

Constitutional historiography has often identified the Salerno Pact of April 1944 as one of the decisive milestones in this transformation. The agreement, promoted above all by Palmiro Togliatti following his return to Italy, made it possible to overcome the conflict between monarchists and republicans within the anti-fascist front. The political forces agreed to postpone the resolution of the institutional question until the end of the war, making it subject to the decision of a Constituent Assembly elected by the people.

The significance of the Salerno Pact extends far beyond its immediate political implications. It marked, in fact, the transition from a conception of sovereignty based on dynastic continuity to one founded on the constituent power of the people. The monarchy implicitly accepted that its fate would be left to the decision of the citizens. For the first time in Italian history, the source of future constitutional legitimacy was identified not in the Crown but in the people.

In his reflections, Costantino Mortati would later identify this very phase as the moment when the new organising principle of the constitutional order took shape. Indeed, according to Mortati, a Constitution cannot be understood merely as a set of legal norms; it expresses, first and foremost, the complex interplay of political and social forces that concretely underpin the structure of the State. From this perspective, the Italian constitutional process did not begin with the convening of the Constituent Assembly in June 1946, but with the gradual formation of a new political consensus centred on the values of anti-fascism and democracy.

The transition was governed by a series of measures which legal scholarship has termed ‘provisional constitutions’. This term, widely used by Mortati and Crisafulli, effectively captures the nature of a phase in which the old legal order had not yet formally ceased to exist, but the new legal order had not yet come into force. In the absence of a fully-fledged democratic Constitution, it was these acts that regulated the exercise of power and laid the groundwork for the constitutional process to begin.

The Lieutenant-Governor’s Legislative Decree No. 151 of 25 June 1944 was the first and most important of these acts. Article 1 of the decree stipulated that ‘following the liberation of the national territory, the institutional framework shall be chosen by the Italian people, who, to this end, shall elect, by universal, direct and secret suffrage, a Constituent Assembly to deliberate on the new constitution of the State’. This was a decision destined to take on historic significance. For the first time, the future constitutional framework was not conceived as the product of a sovereign concession, but as the result of a democratic decision.

The subsequent regulations governing the institutional referendum and the election of the Constituent Assembly, contained in Lieutenant Governor’s Legislative Decree No. 98 of 1946, completed this evolution. Thus, the question of the form of the state was removed from the discretion of the political elites within the Constituent Assembly itself and entrusted directly to the electorate. However, this rethinking was not without its critics, as it left the decision on the country’s institutional future in the hands of the popular base—which was predominantly monarchist, particularly in the south, as the referendum results would later confirm. Consequently, this decision by the executive placed the parties of the CLN at a disadvantage; although they had declared themselves republicans, they were unaware of their actual presence and political strength across the country. In this way, the referendum of 2 June took on a significance that went beyond a simple choice between monarchy and republic; rather, it marked the moment when the Italian people asserted themselves as the holders of constituent power.

On the same day, a transformation took place that was destined to have a profound impact on the nature of Italian democracy. For the first time, men and women took part on a fully equal footing in a national political vote. Women’s suffrage had been introduced in 1945 and had already been applied in the local elections of spring 1946. However, it was only on 2 June that it acquired its full constitutional significance.

The history of modern constitutionalism is also the history of the gradual expansion of the group entitled to political rights. From this perspective, the institutional referendum and the election of the Constituent Assembly marked the definitive overcoming of a conception of citizenship still deeply marked by the exclusion of women from the public sphere. The sovereign people no longer coincided solely with the male component of the political community. Popular sovereignty finally took on a universal dimension.

The presence of twenty-one women amongst the 556 members elected to the Constituent Assembly represented a development of enormous significance. Although limited in number, this contributed to a significant shift in the constitutional debate. Figures such as Nilde Iotti, Teresa Mattei, Lina Merlin, Maria Federici and Angela Gotelli brought to the Assembly issues that had until then been largely marginal in the Italian legal tradition; matters such as family law, the principle of equality between spouses, maternity protection, the protection of women’s employment and access to public office were profoundly influenced by their contribution.

The Constituent Assembly began its work on 25 June 1946 against an extremely complex political backdrop. The profound ideological differences between the main political forces could have jeopardised the success of the constitutional project. The Christian Democrats, the Socialist Party and the Communist Party represented different and sometimes conflicting worldviews. Alongside them were the liberal, republican and Actionist factions, which brought further cultural and political perspectives to the table.

The success of the constitutional process depended to a large extent on the ability to transform this pluralism into an asset rather than an obstacle. The Constitutional Commission, comprising seventy-five members and chaired by Meuccio Ruini, played a fundamental role in facilitating dialogue between the various political traditions. The three sub-committees to which the work was allocated enabled an in-depth examination of rights, institutional organisation and economic and social relations.

Among the leading figures in the debate were individuals destined to exert a lasting influence on Italian constitutional culture. Giuseppe Dossetti made a decisive contribution to the affirmation of personalism and the principle of solidarity. Giorgio La Pira emphasised the primacy of the individual and the social function of institutions. Aldo Moro developed a pluralistic conception of democracy that would leave a profound mark on the formulation of the fundamental principles. Lelio Basso strongly advocated the need to recognise social rights and to assign the Constitution a transformative role in economic reality. Palmiro Togliatti identified the Constitution as the ground on which to make coexistence between ideologically different political forces possible.

Of particular interest was the comparison between the conceptions of the Constitution put forward by jurists and politicians from different backgrounds. Whilst Calamandrei emphasised above all the Constitution’s role as a guarantor of rights and its function in defending individual freedoms, Mortati insisted on the need to construct a legal system capable of giving expression to the major social processes that had emerged in the twentieth century. Although starting from different premises, both perspectives contributed to the definition of a Constitution that would successfully combine guarantees and transformation, individual freedom and social justice.

One of the most original outcomes of the constitutional debate was the definitive abandonment of the traditional, purely state-centred conception of the legal system. The Republican Constitution does not place the State at its centre, but rather the individual. This choice is particularly evident in Article 2, a provision that probably represents one of the most profound innovations introduced by the 1948 Constitution. By recognising and guaranteeing the inviolable rights of the human person, both as an individual and within the social groups in which their personality is expressed, the Constitution affirms that the individual does not derive their rights from the State but holds them independently of it.

The centrality of Article 2 has been repeatedly emphasised by subsequent legal scholarship. To name but a few of the scholars whose contributions have enriched this debate, we might mention Carlo Esposito, according to whom Article 2 represents the meeting point between individual freedom and social solidarity. For Crisafulli, moreover, this article constitutes the provision that enables the legal system to adapt to the evolution of society through the recognition of new fundamental rights. Finally, for Pietro Ridola, it expresses the pluralistic choice that runs through the entire Republican Constitution.

Indeed, pluralism is one of the most characteristic features of the new legal system. The Fascist regime had attempted to eliminate all forms of social autonomy, subordinating individuals, associations and institutions to the will of the party-state. The 1948 Constitution brings about a radical reversal of perspective. It embraces pluralism as a positive value and as the organising principle of the entire democratic way of life.

The pluralistic choice made by the Constituent Assembly is rooted in Article 2, a provision which recognises the person not as an isolated individual, but as a subject embedded within a multiplicity of social, cultural, political and religious relationships. The reference to the social structures within which the human personality develops marks a clear break with the monistic conception characteristic of the Fascist era and constitutes the theoretical basis for a legal system that does not seek to absorb society into the State, but recognises its natural structure and complexity.

This approach gives rise to a framework of guarantees that runs throughout the entire Constitution and makes pluralism one of its most distinctive features. Freedom of association, the recognition of political parties, the autonomy of trade unions and the protection of different religious denominations are not, in fact, separate provisions, but different expressions of the same principle. Through these provisions, the Constitution ensures that citizens’ participation in public life can take place through a variety of forums that are independent of the public authorities, thereby preventing the re-establishment of those forms of subordination of society to the State that had characterised the fascist regime.

The same logic underlies the fields of culture and education. Freedom of expression, freedom of the arts and scientific research, the autonomy of teaching and the right to education do not merely safeguard individual spheres of freedom, but contribute to building the public sphere of constitutional democracy. From this perspective, cultural pluralism does not appear merely as a corollary of civil liberties, but rather as an essential condition of democratic life, since only the free exchange of different ideas, beliefs and worldviews allows society to develop without being reduced to a single official conception of truth. Precisely for this reason, as Gustavo Zagrebelsky has aptly observed, a genuinely pluralist Constitution does not impose a rigidly predetermined system of values, but creates the legal framework within which different positions can coexist, engage with one another and compete whilst respecting the common rules of democratic coexistence.

The same principle underpins the territorial organisation of the Republic. Article 5, by recognising and promoting local autonomy, breaks with the centralist tradition that had characterised the liberal state first, and the fascist state subsequently. This approach was to find its full expression in the system of autonomy outlined by the Constitution and subsequently strengthened by the constitutional reforms of the early 2000s.

The regulation of the economy also reflects a pluralistic approach. Articles 41, 42 and 43 outline a system in which private economic initiative, public ownership and state intervention coexist. The Constitution rejects both the purely liberal and the collectivist models, seeking instead a balance based on the social function of economic activity and the protection of human dignity.

From this perspective, Article 3 takes on particular significance, especially its second paragraph. Equality is not conceived merely as a prohibition on discrimination; it becomes an objective that guides the Republic’s actions. The removal of economic and social obstacles that limit citizens’ freedom and equality assigns public authorities an active responsibility in creating the conditions necessary for the effective exercise of rights.

The novelty of this approach was grasped with particular clarity by Vezio Crisafulli, who identified the Italian Constitution as one of the most important examples of a programmatic constitution in contemporary constitutionalism. The Constitution does not merely record existing structures, but sets out objectives that must guide the future activities of the institutions. It contains a blueprint for the democratic transformation of society.

To summarise succinctly, we may borrow some concepts developed by Enzo Cheli regarding the Italian Constitution and state that it is distinguished, first and foremost, by its rigidity, which tends to confer upon it elements of stability capable of ‘committing the life and development of a community, even with regard to future generations’. Secondly, the 1948 Constitution established the principle of ‘constitutional legality’, whereby any law that conflicts with the Constitution is bound to be annulled; this gave rise to a major innovation in the Italian legal system: the Constitutional Court, tasked with reviewing the constitutional legitimacy of primary sources of law. Added to these concepts is a complete conceptual redefinition of sovereignty, which is no longer at the sole disposal of the State but is, on the contrary, defined as ‘polycentric’ and ‘polyarchic’, in that it is shared amongst multiple entities, all of which exercise it at different levels, always ‘within the limits and in the forms prescribed by the Constitution’. Finally, in accordance with the finest principles of modern constitutionalism, fundamental rights find their ‘home’ within the Constitution, as the cornerstone of this constitutional system.

Eighty years after the birth of the Republic, the historical and legal significance of that period still appears extraordinarily relevant today. The Italian constitutional process succeeded in transforming a society emerging from war, dictatorship and civil war into a political community founded on democratic consensus. The 1948 Constitution was neither the product of the hegemony of a single political culture nor the result of a mere compromise between conflicting interests. It represented the construction of common ground on which diverse cultures recognised the possibility of democratic coexistence.

Its most profound legacy probably lies precisely in this ability to treat pluralism not as a problem to be contained but as a resource to be nurtured. In a legal system born out of the experience of totalitarianism, the freedom of individuals, associations, political parties, religious denominations, regional authorities and social organisations is not regarded as a threat to the unity of the State; on the contrary, it constitutes its essential foundation. It is in this choice – which took shape between 1943 and 1948 and was enshrined in the Republican Constitution – that one of the most original contributions made by the Italian experience to the history of European democratic constitutionalism continues to lie.

 

(Focus by Edin Skrebo)

 

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