March 20, 2016

Pietro Faraguna reviews Barsotti et al. on "Italian Constitutional Justice in a Global Context" (Oxford 2015)

In this post, network member Pietro Faraguna (Ferrara) reviews an important new work on the history and jurisprudence of the Italian Constitutional Court from Oxford University Press.

Further information about this volume can be found here.

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Review of Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context (Oxford 2015) 

Italian Constitutional Justice in Global Context fills a major gap in the international legal literature that has long isolated the Italian constitutional system from global debates amongst scholars of public law. Remarkably, the last comprehensive work written in English on the Italian system of constitutional justice dates from the 1970s: Mauro Cappelletti’s 1971 volume Judicial Review in the Contemporary World. This prolonged lack of accessible scholarship in English struck an odd note, particularly when compared with the vibrant debate amongst public lawyers about the role of constitutional courts in legal orders throughout Europe and worldwide. A lack of English-language literature on the Italian Constitutional Court has muted a potentially influential voice with much to contribute to the global judicial dialogue.

The absence of the Italian perspective from these global debates was absurd: the Italian Constitutional Court has one of the longest histories of any constitutional court worldwide. Moreover, it is widely appreciated that the Italian Constitutional Court made a great contribution to the stabilization of Italy’s constitutional system during its early years. As such, the significance of the work and experience of the Italian Constitutional Court transcends Italy—and transcends Europe—and offers an extremely valuable example for any country experiencing a constitutional transition.

In short, this newly published book was urgently needed.

In less than 250 pages, the authors have accomplished a great deal. First, they give an overview of the history of the Italian Constitutional Court, starting from its first formation and its first decision—the case that the authors name “the Italian Marbury v. Madison” (p. 30)—to its insertion into the so-called European constitutional dialogue (pp. 206–26). Second, the book introduces a detailed description of rules regulating constitutional adjudication in Italy (pp. 43–63). Third, the authors delve into forms and methods of judicial reasoning of the Italian Constitutional Court (pp. 67–82). Interpretative theories are illustrated in detail, and much attention is devoted to the concepts of reasonableness, proportionality, and balancing of values. A paragraph is dedicated to the use of transnational law in the judicial reasoning of the Court, a topic that is taking center stage in comparative studies (pp. 78–82).

The second part of the book focuses on the most important areas of the Court’s substantive case law. Offering a concise but detailed overview of the main challenges that the Constitutional Court faces, the book provides a sharp summary of the main developments in Italian constitutional jurisprudence after the establishment of the Republic. This section describes the Court’s extensive case law on rights and freedoms (pp. 95–154); the less numerous, but highly significant, cases dealing with inter-institutional conflicts (pp. 155-182); and an ever-growing regionalism jurisprudence that has developed since Italy’s federalizing 2001 constitutional reform (pp. 183–204).

A particular strength of this book is a homogeneous style of illustration and writing that makes Italian Constitutional Justice in a Global Context not only linguistically but also conceptually accessible to the international readership. This was not a foregone conclusion, considering that the official translations of the Court’s main decisions are often cumbersome and hard to parse. (Official translations, accessible here, are increasingly frequent and timely: more good news for the global community of public lawyers).

All this being said, the book makes little effort to offer a critical analysis of the Court’s work, or its role in the Italian system. The point of view adopted is mainly an internal one, and the authors offer little critical evaluation of the Court’s adjudicative methodologies or the outcomes of its cases. This must be regarded as a sadly missed opportunity: while the Court’s positive impact upon the constitutional system is undisputed, its 60-year history consists of both light and shadow. This book focuses on the light and neglects the shadows. As a result, ironically enough, it illuminates rather less than it might have done.

1 comment:

  1. Excellent review! I have assisted a couple of weeks ago in Bocconi, Milan, to the presentation and discussion of the 2015 volume on 'Italian Constitutional Justice in Global Context'; in both the presentation and the discussion I have missed a critical external approach not only to the court's work, but to the court itself. The real or most important problem is not the constitutional court or its sentences, but as the book's title suggests, constitutional justice. And maybe constitutional justice would be better served without a specialized court rather than with one. A constitional court can be seen, first of all, as an institutional limitation to constitutional justice. And if the future of constitutional justice were exactly the opposite, i.e. constitutional compliance through ordinary courts? Henri Schmit