Dialogues on Italian Constitutional Justice

A Comparative Perspective

Vittoria Barsotti, Paolo Carozza, Marta Cartabia, Andrea Simoncini, Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, Andrea Simoncini, Paolo Carozza, Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, Andrea Simoncini

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367617721
• eBook ISBN: 9781000217476
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho comparado

This collection adopts a distinctive method and structure to introduce the work of Italian constitutional law scholars into the Anglophone dialogue while also bringing a number of prominent non-Italian constitutional law scholars to study and write about constitutional justice in a global context.

The work presents six distinct areas of particular interest from a comparative constitutional perspective: first, the role of legal scholarship in the work of constitutional courts; second, structures and processes that contribute to more "open" or "closed" styles of constitutional adjudication; third, pros and cons of collegiality in the work of constitutional courts; fourth, forms of access by individuals to constitutional justice; fifth, methods of constitutional interpretation; and sixth, the relationship between national constitutional adjudication and the transnational context. In each of these six areas, the volume sets up a new and genuine constitutional dialogue between an Italian scholar presenting a discussion and critical assessment of the specific topic, and a non-Italian scholar who responds elaborating the issue as seen from constitutional law beyond the Italian system. The resulting six such dialogues thus provide a dynamic, in-depth, multidimensional, national and transnational/comparative examination of these areas in which the `Italian style' of constitutional adjudication has a distinctive contribution to make to comparative constitutional law in general.

Fostering a deeper knowledge of the Italian Constitutional Court within the comparative global space and advancing a creative and fruitful methodological approach, the book will be fascinating reading for academics and researchers in comparative constitutional law.

Chapter I
INTRODUCTION.
DIALOGUE AS A METHOD

Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, Andrea Simoncini

SUMMARY: 1.1. Relationality as the hallmark of the Italian Style of constitutional adjudication. – 1.2. Relationality revisited. – 1.2.1. Relationality vs. weakness: perception and reality. – 1.2.2. Relationality “unpacked”. – 1.2.3. Official vs. Unofficial relationality. – 1.3. Dialogue as a method. – 1.4. Relationality and constitutional pluralism.

The Italian Constitutional Court represents one of the earliest, strongest, and most successful examples of constitutional judicial review established in the last century. Following its delayed implementation in 1956, eight years after the Constitution of the Italian Republic entered into force, the Court immediately took up a strong position among the other Italian political institutions ¹ and ever since then it has always been well respected at the domestic level. Beyond national borders, together with the Constitutional Court of Germany it has served as an important forerunner of the “postwar paradigm” ² and one of the principal prototypes for later constitutional tribunals in other parts of Europe, from Spain and Portugal in the 1970s and 1980s, to Central and Eastern Europe after the collapse of the communist regimes in the 1990s, to the more recent reform of the French Conseil Constitutionnel in 2008 ³. Its value transcends Europe, moreover: it has a fascinating and instructive history for any country seeking to create and consolidate a new constitutional regime including a system of judicial review in its institutional architecture. ⁴ It belongs to the Continental European tradition of Kelsensian-style constitutional courts, but it is distinctive in its structural, procedural, and institutional dimensions. It produces a sophisticated jurisprudence, with a unique voice distinguishing it among global constitutional actors, on a broad range of topics from fundamental rights and liberties to the allocations of governmental powers and regionalism.

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¹B. ACKERMAN, Revolutionary Constitutionalism, Cambridge, Ma., Belknap Press, 2019, 174 (numbers refer to pages of the electronic version of Bruce Ackerman, The Rise of World Constitutionalism. Volume one: Revolutionary Constitutions).

²L.E. WEINRIB, The Post-War Paradigm and American Exceptionalism, in S. CHOUDHRY (eds.), The Migration of Constitutional Ideas, Cambridge, Cambridge University Press, 2006, 89–90.

³See generally T. GINSBURG, The Global Spread of Constitutional Review, in D. KELEMAN, K. WITTINGTON (eds.), The Oxford Handbook of Law and Politics, Oxford, Oxford University Press, 2008, 81–95.

Yet, the Italian experience of constitutional review has been either neglected or misinterpreted in a number of comparative constitutional law studies, especially those which rely primarily on secondary literature available in English. The aim of this book is to offer a deeper understanding of the experience and work of the Italian Constitutional Court, based on primary sources and on examination of certain key features of the Italian system in a comparative perspective.

This book qualifies as a “sequel”. In a previous volume, ⁵ we meant to offer a concise but comprehensive introduction to constitutional adjudication in Italy. Our aim was to make the Italian Constitutional Court and its jurisprudence more accessible and familiar to scholars and judges engaged in comparative constitutional dialogue. We sought to do so by providing a broad introduction to the development of the Court, from its formation and early history to its growing insertion into the regional European constitutional space. The book offered an overview of the Court’s structure – a dynamic hybrid of centralized and diffuse judicial review – as well as its judicial processes and its principal patterns of reasoning and methods of interpretation. We also delved into several of the most important substantive areas of the Court’s case law: key rights and freedoms; the allocation and interrelationship of powers among the branches of government; and the distribution of authority between the central State and more local entities. In short, the book presented some of the most salient themes that make the Italian Constitutional Court an interestingly distinctive and important contributor to our understanding of constitutional law and politics in the global context in which we find ourselves today. The aim of that book was not in the first instance to be a critical evaluation of Italian constitutional law. Instead, we addressed an audience of readers who were likely to encounter the Italian Constitutional Court for the first time in any detail and we wanted the Court’s own voice to emerge. For this reason, the book includes a larger number of longer excerpts from the Court’s judgments so that the reader could become acquainted with the Court’s own judicial style.

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⁴As Bruce Ackerman suggests in his analysis of the rise and consolidation of Revolutionary Constitutional regimes around the world: he describes a pattern common to a number of States where, after some phases in which the Constitution is in the hands of the political actors that lead the fundamental change, the judiciary emerges on the stage.

⁵V. BARSOTTI, P. CAROZZA, M. CARTABIA, A. SIMONCINI, Italian Constitutional Justice in Global Context, Oxford, Oxford University Press, 2016.

Fifty years after John Henry Merryman introduced the idea of an “Italian style” to comparative law in general, ⁶ we can see in the Italian Constitutional Court today an “Italian style” of constitutional justice. The core idea that emerges from the previous book is that the “Italian Style” of constitutional adjudication is most centrally characterized by the relational approach of the Court both internally in its own structure and methods, and externally in its interactions with other judicial and political actors. The key word, relationality, merits some further elaboration.

1.1 Relationality as the hallmark of the Italian Style of constitutional adjudication

In a way, the idea of relationality addresses questions of judicial activity and style that have animated many other studies of the behavior of courts in the past: judicial activism vs. self-restraint or deference; ⁷ passive and active virtues of courts; ⁸ strong and weak models of judicial review; ⁹ classic and romantic judges; ¹⁰ heroes, mutes, soldiers, and minimalist judges; ¹¹ and more. The originality of the relational approach to constitutional justice lies in the fact that the focus is both on the types of interactions that the individual justices have inside the Court and also on the interactions that the Court as an institution cultivates with other actors external to it.

Like any judge in well-functioning systems of justice generally, the Constitutional Court is indeed independent from other branches of government. As a body called to exercise a judicial review of legislation, however, the Constitutional Court also has to come to terms with other judicial and political bodies. They are therefore endowed with a composite character. ¹² More than other institutional actors such as legislatures, chief executives, and ordinary courts, specialized constitutional courts are always required to find and preserve their place in the constitutional map in a location equidistant from both the judicial and political branches, so that they are effectively in a position to relate to both audiences.

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⁶J.H. MERRYMAN, The Italian Style: Doctrine, in 18 Stanford Law Review 39 (1965); J.H. MERRYMAN, The Italian Style: Law, in 18 Stanford Law Review 396 (1966); J.H. MERRYMAN, The Italian Style: Interpretation, in 18 Stanford Law Review 639 (1966).

⁷R.A. POSNER, The Rise and Fall of Judicial Self-Restraint, in 100 California Law Review 519 (2012).

⁸A. BICKEL, The Least Dangerous Branch. The Supreme Court at the Bar of Politics, New Haven and London, Yale University Press, 1962.

⁹S. GARDBAUM, Are Strong Constitutional Courts Always a Good Thing for New Democracies?, in 53 Columbia Journal of Transnational Law 285 (2015); R. DIXON, The Core Case for Weak-Form Judicial Review, in 38 Cardozo Law Review 2193 (2017).

¹⁰M.A. GLENDON, A Nation Under Lawyers. How the Crisis in the Legal Profession is Transforming American Society, Cambridge, Harvard University Press, 1996.

¹¹C.R. SUNSTEIN, One case at A Time. Judicial Minimalism on the Supreme Court, Cambridge, Harvard University Press, 2001 and Id., Constitutional Personae, Oxford, Oxford University Press, 2015.

One of the major challenges for a constitutional court taking its first steps, therefore, is to be both self-assertive and yet cooperative with the legislative branch. Although any court required to review acts of legislation is in a certain sense necessarily in opposition to the legislature, after its inauguration in 1956 the Italian Constitutional Court was not seen to be a true antagonist of the more democratically representative bodies. This was mainly because it spent its initial energy, beginning with its very first decision, on eliminating all the Fascist vestiges from the new constitutional order. In the beginning, the natural target of judicial review was the old Fas-cist legislation still contained, for example, in the civil code and in the criminal code and patently incompatible with the new Constitution. The activity of the new legislature only came under the Court’s scrutiny years later. This made for a vital and constructive initial alliance between the new Parliament and the Constitutional Court against the Fascist legacy, which politically strengthened the legitimacy of the Constitutional Court vis-à-vis the political institutions and in Italian society as a whole. Instead of taking sides in current political disputes, therefore, the Court emerged originally as a defender of the shared values entrenched in the anti-Fascist Constitution and was able to disseminate the new constitutional principles in a legal system that was very much in need of renewal. ¹³

If there is an assertive tone in the first expressions of the Constitutional Court’s jurisprudence, it was in its clear pronouncements on the binding character of all constitutional provisions as higher law, strengthening the normative force of the Constitution in the context of what had otherwise been a strong Italian tradition of “legislative constitutionalism” – that is, constitutional texts amendable by a simple piece of legislation approved by the Parliament. ¹⁴

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¹²H. KELSEN, Judicial Review of Legislation: a Comparative Study of the Austrian and American Constitution, in 4 The Journal of Politics 183 (1942), 187; A. STONE SWEET, Governing with Judges: Constitutional Politics in Europe, Oxford, Oxford University Press, 2000, 135–137.

¹³See V. BARSOTTI, P. CAROZZA, M. CARTABIA, A. SIMONCINI, Italian Constitutional Justice in Global Context, op. cit., 5–39.

Over time, the doctrines elaborated by the Court have helped to maintain smooth relations with Parli...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures and tables
• Contributors
• 1. Introduction. Introduction. Dialogue as a Method
• Dialogue I Constitutional Courts and Legal Scholarship
• Dialogue II Open and Closed Forms of Constitutional Adjudication
• Dialogue III The Principle of Collegiauty
• Dialogue IV Access to Constitutional Adjudication
• Dialogue V Judicial Reasoning and Interpretation
• Dialogue VI National Constitutional Adjudication in a Transnational Context
• Conclusion
• Index