"sustainable differentiation": The twenty-first century challenge to decentralization (a comparative study of Italy and Spain, with special attention to constitutional case law)

Abstract

Decentralization is one of the fields where the diffusion of models occurs often with profitable results in statutory law, in case law, and usually in legal doctrine; this makes it interesting for comparative research. This study is based on a methodological premise: the current situation represents the result of a previous evolution of the model of the decentralized form of State. Federal and regional States are unstable and this is due to the existence of different representative institutions all over the country, which tend to ask for more autonomy. The cases studied in detail are Spain and Italy, from a comparative perspective, because the Author argues that they are now in a similar phase. Dividing the evolution into three steps, the first was the creation of territorial autonomies and the second consisted in their consolidation. Later, once the institutions had been completely established, the third phase began: the challenge of differentiation, especially as regards fundamental rights. And the issue is not only cultural or political, but also has a purely legal and constitutional dimension. In fact, it affects the point of stress of a major constitutional principle: equality. To what extent are we part of a single State despite the differences? That is the question. Politicians can avoid answering (or at least delay their decision), but it is not the same for a Court, which is supposed to resolve cases. Through an analysis of the issues and the case law, the Author describes the present situation of both systems and emphasizes similarities and discrepancies between the Italian and the Spanish preliminary answer to differentiation. Finally, she focuses on the circulation of models from a comparative point of view, in order to prove the presence of cross references and imitations.