Article 41 Revisited? A Constitutional Italian Debate

In the unhealthy climate of the current Italian politics, aware of the "anthropological disaster" denounced by Cardinal Bagnasco, many people have considered unreal the words pronounced by the President of the Government about the reform of Article 41 of the Constitution proposed by the Minister of Economy, Mr. Giulio Tremonti. This article is a cornerstone of the so-called "economic constitution" of our country and consists of three paragraphs.

"Private-sector economic initiative is freely exercised.

It cannot be conducted in conflict with social usefulness or in such a manner that could damage safety, liberty and human dignity.

The law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes."

We need to comprehend the full significance of this article, including its limits, and I believe it is necessary to emphasize the cultural background. Articles 41, 42 and 43 of the Italian Constitution are affected by an economic culture skeptical of the free market system.

The process of European unification shook this culture. The "ordoliberal" concept of the German social market economy influenced significantly the basic philosophy of the Treaties establishing the European Economic Community. Therefore, the principle of competition, expressing that the job market is not so much a lack that can be contained, but a value to grow and mature, entered in Italy, by the EU way. In Articles 81, 82 and 86 of the Treaty establishing the European Community in 1992, the principle of competition is announced as a principle of interpretation that expresses the economic identity of Europe.

Agreements between the companies are prohibited, including associations, and all those practices that undermine the market and restrict or distort free competition are banned. It states also the irreducible incompatibility between the presence of firms from abusing their possible dominance and the principle of competition. On the basis of what is written, it is possible to envisage a reform of Article 41, preserving everything that deserves to be preserved, essentially the first paragraph that stipulates the freedom of economic initiative, and second, establishing the limits within which each private is required to operate. The second paragraph, in particular, is a sort of statement of overriding principle, which for Christians consists in recognizing the basic conditions of "common good". It is no coincidence that in this article, and particularly in this paragraph, we can see the influence exerted by the drafters of the Code of Camaldoli, some of whom later became founding fathers.

Some problems are posed by the third paragraph: "The law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes". The Christian Democratic Party has been confronted two souls: on one hand, the Dossetti's soul, who saw in the Constitution not as a tool to limit the power, but as a plan of social engineering, and, on the other hand, Alcide De Gasperi' soul (and indeed the Don Luigi Sturzo's soul), for which no guiding principle in politics is better known aphorism of Lord Acton: "Power tends to corrupt and absolute power corrupts absolutely".

With the Treaty of Rome of 1957 and the Maastricht of 1992, Italy has adopted the perspective of social market economy, under which assumes the functional nature of the State to build the social and nonfunctional order, in the name of so meritorious as indefinable concept of "social utility". In harmony with the principles of subsidiarity and polyarchy, in the economic sphere, the State task would be-not exclusive-to establish rules that enable the autonomous and creative capacity of individuals and communities to contribute to the common good. A common good, which consists of a variety of conditions (goods), for which a plurality of institutions is very important: this is also a way to realize the invitation of the Pope to look at the policy as "the institutional path of Charity", taking care of the principles of subsidiarity and polyarchy.

For this reason, at the Tocqueville-Acton Studies Centre, we thought of making a contribution to the debate by proposing a revision of Article 41, which leaves intact the first two paragraphs and replace the third with two other paragraphs. These literally take over parts of the articles 81 and 82 of the Treaty of Maastricht. The article would now read:

"Private-sector economic initiative is freely exercised.

It cannot be conducted in conflict with social usefulness or in such a manner that could damage safety, liberty and human dignity.

The law provides consumer protection and the provision of services of general interest in free competition, punishing anyone who works to prevent, restrict or distort competition.

It is incompatible with the market in the open market abuse by one or more undertakings of a dominant position in the domestic market or a substantial part of it."

This writer over the years has considered changing Article 41, acknowledging the above articles of the Treaty of Maastricht, but he also warns against those who have such a reform as the "whip" which will cause the economic recovery. You must be joking! This is a clear "manifesto article", the son of a respectable era and political culture, along with the esteem of men who heroically gave us freedom and democracy. Showing off a constitutional reform at this stage of the surreal Italian politics, is likely to hide the real reasons for a desirable reform, obfuscating the reasons that pushed people like Luigi Sturzo to struggle a lifetime for a regulated market-and therefore more free and open-against the "three evil beasts of democracy": "partitocracy, statism, abuse of public money".

Flavio Felice is an adjunct fellow at AEI.

Photo Credit: Flickr user limaoscarjuliet/Creative Commons

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