Official vs. Unofficial relationality

In the same vein, the relational behavior of the Court can be more fully grasped if the observer takes into account not only its explicit words and activities, but also the implicit signs that appear on the surface and whose meaning needs to be more deeply investigated, decoded, and uncovered. In fact, the relations of the Court can be official - such as those taking place institutionally between the Constitutional Court and the ordinary judiciary - and unofficial. The latter exists when contacts are through informal and less visible channels.

For example, dialogue between the Italian Constitutional Court and legal scholars seems at first glance to be completely absent in the Italian system. The Court refrains from explicitly quoting any piece of scholarship in its decisions. Nevertheless, it is no mystery that the Court maintains close relations with academics: first, a significant number of justices are university professors (today, 10 out of 15); second, in the files of the Court one can find significant references to scholarly sources; third, when the Court wants to reform some aspects of its practice it often organizes seminars and debates with scholars and experts in the field. These and other forms of relations are dealt with in Paolo Passaglia’s chapter where he illustrates these and many other informal avenues through which scholarship filters into the Court’s work and opinions. Perhaps, in this case, an informal way of communication is more efficient than a formal one because it allows Justices to take into account scholars’ thoughts without showing explicitly their preferences and because it allows Justices not to reveal the theoretical sources of their ideas, thereby avoiding academic jealousies.

Parallel observations can be made regarding the use of comparative law by the Italian Constitutional Court. It is only in the most recent developments of the case law of the Court that some particular references to the jurisprudence of other sister courts have been made explicitly, as happened in Order 207 of 2018 on assisted suicide and in decision n. 141 of 2019 on prostitution.[1] However, the practice of taking into account other constitutional experiences in a comparative perspective dates back to some decades ago. For example, Sabino Cassese’ has testified that at the time of the first decision on abortion, n. 27 of 1975, the Court was aware of other court decisions including that of the US Supreme Court in Roe v. Wade, thanks to the contribution of the Research Office of the Court, the staff of which includes comparative law experts.

In some cases, however, informal relations can have also some costs. If we think about how “closed” the Italian constitutional procedure used to be until the Rule’s reform of January 2020, the Court’s position presented some problems. The traditionally closed and formal character of the Italian constitutional process seemed to be inconsistent with the richness of the reasoning of the Court. For example, the Court was not inclined to make use of its official investigative powers. Nevertheless, its decisions were generally well documented even in terms of technical knowledge outside of the law (see decision n. 5 of 2018 on vaccinations, for example). Some informal channels of information were probably used by the Research Office, other members of the staff, clerks, and the Justices themselves to develop the necessary fact-finding activity, especially in economic, financial, medical, scientific, and statistical matters. This implies that there was some discrepancy between the Court’s closed attitude to official relationality in the procedural sphere even when in fact there was some unofficial reliance on other sources in its rich and comprehensive investigative activity. Such discrepancy will eventually disappear with the adoption of the 2020 reform.

A slightly different example that recalls the idea of unofficial relationality is the way through which the Court “compensates” for the lack of a direct complaint mechanism. The Court compensates for not having an official way for litigants to gain direct access to it by amplifying its ordinary jurisdiction. In any case, there still are some “blind spots” and “dark sides” which remain out of reach, both official and unofficial, of the Italian Court, as Ferreres Cornelia shows.

For all these reasons we felt the need to test the idea of relationality as the hallmark of the Italian Constitutional Court’s attitude toward its powers of constitutional judicial review, and to submit it for a broader discussion among a number of Italian and foreign colleagues capable of seeing it in a comparative perspective.

  • [1] See supra text and notes 18-21. 2 45 S. CASSESE, Dentro la Corte: diario di un giudice costituzionale, op. cit. 3 See T. GROPPI, A.M. LECIS Cocco OrTU in this volume especially the post scripturn. 4 See the conversation between Lamarque and Ferreres Cornelia in this volume. 5 See, for example, Judgment n. 1 of 2014 and Judgment n. 18 of 2019.
 
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