Relationality revisited

The first volume - Italian Constitutional Justice in Global Context - and its core idea of relationality were presented and discussed in universities such as Notre Dame, Bocconi in Milan, Harvard, the Central European University in Budapest, Berlin, Bologna, and King’s College in London. As always happens, we learned much from the debates, which helped us to think afresh about the relational nature of the Italian Constitutional Court. These first discussions made it clear that the idea of relationality as a framework to understand the effective role of a Constitutional Court is

1

See V. BARSOTTI, P. CAROZZA, M. CARTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, op. cit., 46-49.

promising, helping to capture the overall stance of the institution and to distinguish its position from comparable bodies. Yet, the debates with academics of these different milieus have also emphasized that the idea of rela-tionality requires further clarification and nuance.

Relationality vs. weakness: perception and reality

This relational approach of the Italian Constitutional Court is easily misinterpreted, as it can be perceived as a sign of weakness. In fact, the Italian Court has been often compared to its German sister and a common remark is that the Italian “twin” came to be overshadowed by the Bundesverfassungsgericht because it did not speak with the same “assertive” voice.29 Moreover, the “war” that occasionally broke out between the Italian Supreme Court of Cassation and the Constitutional Court[1] has been misrepresented as a sign of the constitutional tribunal’s inferiority or subordination to the older, well established apex judge of the ordinary system. In the same vein, it has been said that “the main source for the difficult relationship between the Italian Constitutional Court and regular courts is the process of submitting legal questions”.31 Similarly, the fact that the Court neither is polarized nor publishes dissenting opinions is considered a sign of its insecurity.32

In our view, accounts like this do not reflect the real experience of the Italian Constitutional Court. The fact that there is neither a stable, predictable majority, nor a strong polarization between a majority and a minority in the Court does not imply that it has a weak or undecided stance in the constitutional system. On the contrary, the fact that the majority that governs the court is variable and unpredictable is a strong feature of the composition of the Court. It encourages consensual decisions and deliberative processes based more on the logic of persuasion than on the law of numbers, and that privileges seeking consensus rather than simply casting votes.

Similarly, occasional divergences with other courts - both national and European - do not indicate that the Italian Court entertains a conflictual or confrontational relation with other judges. In its recent case law the Italian Constitutional Court has engaged in a number of dialogues with the Court of Justice of the European Union,[2] has accepted with some distinctions the jurisprudence of the European Court of Human Rights, and has entertained a relation of mutual respect with the Supreme Court of Cassation, even in a delicate phase in which the Constitutional Court has slightly adjusted its jurisprudence related to the implementation of European law. Like any relationship, even the judicial relationships of the Constitutional Court require understanding, comprehension, mutual respect, and the resolution of conflicts.

Even less true is the statement that the Constitutional Court’s incidental procedure undermines its authority vis-à-vis ordinary judges. In fact, as Elisabetta Lamarque demonstrates in her contribution to this volume, it facilitates a cooperative and constructive relationship among the different branches of the judiciary and is less imposing than other forms of direct complaint where the constitutional court plays the role of a judge of final appeal over the decisions of all other judicial bodies.

As Armin von Bogdandy and Davide Paris show in the final essay of this book, there is a paradoxical strength of the Italian Court that becomes evident under the guise of an accommodating attitude. However, in order for the reader to go beyond appearances and to be persuaded that relationality is not equal to weakness, it is necessary to delve deeper into the jurisprudence of the Constitutional Court.

  • [1] 29T.G. DALY, The Alchemists, Cambridge, Cambridge University Press, 2017, 68 ff., 81 ff. 2 J. FEREJOHN, P. PASQUINO, Constitutional adjudication, Italian Style, in T. GINSBURG (eds.), Comparative Constitutional Design, Cambridge, Cambridge University Press, 2012, 294. To be true, they are not representative of the ordinary relations between the Constitutional Court and the Supreme Court of Cassation in Italy. » Id. 561-562. i2T. GINSBURG (eds.), Comparative Constitutional Design, op. cit., 543: “Constitutional Courts that are weak vis-à-vis their supreme courts, such as those in France and Italy, take a long time to become polarized; even now France and Italy preserve the façade of unanimous decisions and do not publish dissents”. On the story and practice of separate opinions in Europe, see respectively A. Di MARTINO, Le opinion dissenzienti dei giudici costituzionali. Uno studio comparative, Naples, Jovene Editore, 2016 and K. KELEMEN, Judicial Dissent in European Constitutional Courts, Abingdon, Routledge, 2018.
  • [2] »The apex of this dialogue is the famous Taricco case, Judgment n. 24 of 2017 described supra at 18 ff. 2 For example Judgment n. 49 of 2015. 3 See Judgment n. 117 of 2019 that summarizes an evolution started with Judgment n. 269 of 2017 and continued with Judgments n. 20 and 63 of 2019. 4 On the conditions for a veritable judicial dialogue see G. LATTANZI, M. CARTABIA, Dialogue Between Courts and the Taricco Case, https://www.cortecostituzionale.it/docu menti/news/CC_NW_20190404.PDF.
 
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