Italy, for its part, has licensed a constitutional text imbued with the principles and rights typical of a regime of liberal democracy, by virtue of the imposition of this legal obligation by the peace treaty of 194748.
Moreover, it is undeniable that nowadays national constitutions are influenced by international law, in particular as regards human rights, which demonstrates how the concept of state sovereignty must be reviewed in the light of the current international context. On closer inspection, the fact that at the international level, after the Second World War, there was a tendency to deny war49, has meant that in the internal legal systems, including ours, insufficient care has been taken in the preparation of instruments regulations adapted to the case of a war emergency. This gives reason for the Italian constitutional structure on the subject, where we find few and empty directives aimed at regulating the “state of war”, while there are still no provisions useful for dealing with international crises that do not coincide with the war, even if armed forces abroad 50.
Again, there is a lack of discipline, with both an internal and an international value, which allows us to deal with armed aggressions on a par with terrorist ones. This entailed, on the one hand, that the conditions were not created for the activation of the formal procedures provided for by our Constitution, and on the other hand, that in order to overcome the constitutional void, in the face of the emergencies mentioned above, it was necessary to intervene with ad hoc regulatory instruments.
The resistance of the legislators, which is also found in other systems of the constitutional state, is due to the fear of formalizing situations that have arisen and should remain exceptional. The constitutional charters of contemporary legal systems should today prepare legislation that is useful in guaranteeing both a reaction to events and their prevention. The need recently mentioned, however, does not intend to diminish the difficulty of reconciling the constitutional discipline, by definition rational and orderly, with the tendential abnormality and relative predictability of circumstances that can break the balance.
Finally, it should be noted that the elected powers to deal with emergencies should be constituted powers51. In fact, while the constitutional provisions contain norms that expressly attribute competences to the constitutional bodies, regulating the procedures to be implemented and indicating whether and which rights can be limited, any legal vacuum would amount to questioning these fundamental guarantees of a legal system.
In the face of dangerous situations, two different ways of reacting can occur, either by resorting to ordinary bodies and procedures, or by establishing special regulations as a provisional derogation from the constitutional provisions.
In this second case, we speak of exceptional regulations, which due to the nature of the circumstances they are aimed at cannot be prepared in advance. Given, however, the criticality of the situation that justifies its establishment, these exceptional states are not formalized with official declarations, also because they are based on the expansion of the executive prerogatives, which brings with it a lesser guarantee of protection of rights.
However, after the terrorist attacks of September 2001, rights derogating regimes have become more common, hindering the democratization process of many systems52.
Looking at the Italian experience, it is observed how the involvement in international conflicts took place without the activation of the constitutional discipline envisaged for the case of war, thus favoring a predominance of the government decision, to the detriment of the constitutional regime of competences and rights . On the other hand, as regards the measures adopted against the terrorist phenomenon of an internal and international matrix, recourse was made to the sources of ordinary legislation provided for by the Constitution, or decree-law and law.
The adoption of regulatory instruments prepared by the Constitution, in hindsight, while acting as an alternative to the introduction of emergency conditions, has not prevented the new rules from limiting rights.