Relationality and constitutional pluralism

When our first book was published at the beginning of 2016, the globalization process appeared still to be ascendant. It was (and to some extent still is) a commonplace to recognize that the world was in a dynamic age of transnational constitutional dialogue and exchange, with a rich and growing network of interactions among constitutional norms and systems around the world. Comparative constitutional studies had exploded in scope and grown in sophistication, and tribunals around the world were increasingly acquiring the habit of drawing on the practical experience and jurisprudence of their counterparts in other countries. Both scholars and judges widely read, borrowed, and cited the jurisprudence of the high courts of other legal systems. In that atmosphere a main purpose of our work was to fill an important gap

1

See V. BARSOTTI, External Relationality. New Colors for the European Model of Constitutional Justice, in Annuario di diritto comparato e studi legislativi, Part I, Naples, Edizioni Scientifiche Italiane, 2017.

in those global constitutional dialogues, adding the voice of the Italian Constitutional Court to the choir of the other courts. We began from the simple fact that constitutional adjudication in the twenty-first century' had acquired an undeniably transnational dimension. The transnational character of constitutional justice had become a structural component of globalization itself. Whatever the reader’s normative approach to globalization, it is an observable fact that the transnational dimension of our juridical and political environment in the early twenty-first century is undeniable.

Although these facts are in our view irreversible to some extent, the spirit of the time has quickly changed over the past few years. Today, walls replace bridges; exit overcomes voice; particularities overshadow commonalities; withdrawals are more frequent than new connections; divergences prevail over convergences. Nowadays, especially in Europe, society is shaken by opposing forces. The constant search for European cohesion clashes with the strong desire to protect constitutional identities. The ideal of an inclusive transnational community is often at odds with a rapidly evolving multiculturalism and the various social and political reactions to it. The tension between global and local is becoming dramatically more evident: “the very notion of the ‘public’ (and public space) has changed. We experience, as never before, being part of a local (at times non spatial) space, a national (still strong everywhere) space, and a transnational and global space”.[1] Even at the national level, the overall tonality of political relations are frequently dominated by conflict, anger, resentment, fear, distrust. For the first time in Europe, some systems of constitutional justice appear to be at risk, in terms of their independence and autonomy. Relationality in any form seems to be dimming if not eclipsed.

It has been said that in this context, judicial review is going through a new phase where a number of constitutional courts give voice to “identitar-ian” challenges and are questioning the legitimacy of a number of international and transnational norms. In a seminal article, Doreen Lustig and Joseph Weiler, borrowing from Mauro Cappelletti’s metaphor of the waves of judicial review around the world, argue that we are witnessing a third wave in the development of judicial review. The first wave was marked by the postwar horizontal spread of judicial review within national legal orders. [2] The second one was characterized by the emergence of transnational orders of higher law (like the ECHR and EU in Europe) that could be used by national courts as a basis for judicial review. Moreover, transnational courts were set up with the power to review national acts and actions directly. The third wave is a reaction to the first two, to some extent a course correction and a backlash against them, and is marked by a visible turn to identity and more local forms of belonging as a consequence of the cosmopolitan impact of international law on constitutional law. In their account, this wave cannot be confused with the old nationalistic or sovereigntist approaches. National courts are becoming an instance of control of transnational and international governance on identitarian grounds, and they introduce an identitarian (vs. sovereigntist) element to constitutional discourse.

Against this background, constitutional courts are called to face unprecedented challenges. More specifically, adjudicatory authorities must find new ways to tame the complexities of the world and to mediate between conflicting values, if not to make “tragic choices’’,55 in order to develop a common language for a plural society.

Within this scenario, channels of relationship between institutions, and between institutions and society, are gaining importance. Constitutional courts are often called to solve hard cases and to balance different values, bridging the national and the transnational. If the courts’ decisions are not perceived by all the political actors as the “last word” but as part of an ongoing dialogue, then perhaps the decisions, even the hard ones, will be more easily accepted.

In this context, the relational nature of constitutional court activity is becoming an increasingly important resource that we can all benefit from in a number of ways.

First, from a methodological point of view, courts enjoy a number of qualities that make them naturally more receptive to the dynamics of transnational interactions. They resolve issues case by case; therefore, judicial lawmaking is interstitial and smoothly percolates between gaps. Judicial lawmaking is also incremental, proceeding on a trial-and-error basis from one case to the next, and therefore leaves room for changes and adjustments. Courts generally adhere to similar procedural rules, commonly respected: for instance, they hear the parties and give reasoned explanations of their decisions. The relation between constitutional courts, when they communicate and borrow principles and practices, is more horizontal than hierarchical, and courts thus tend to form a sort of network and in fact participate in a number of judicial networks.[3] Courts can also recognize and establish general principles, standards, and doctrines - like proportionality, reasonableness, balancing - that are very broadly applicable and easily transferrable, but also flexible enough to be adjusted according to different contexts and thus adaptable to local realities. Judicial lawmaking can thereby link the local and the global dimensions of justice, the identitarian and the universal, by both appealing to common shared principles and giving plural and differentiated answers to varied situations and demands.

From the point of view of the substantive contents of constitutional adjudication, the globalization of courts’ activities is also driven by an increasing number of problems brought to the bench that can no longer be contained merely within the limited horizons of the nation-state. Some issues draw constitutional justice into a transnational space for what might be called "external” characteristics. That is, international or foreign law is implicated because the empirical reality of the problem before the courts necessarily crosses national borders: to name just a few examples, people’s mobility and migration, financial flows and foreign investments, or transnational standards in the fields of environmental protection. Other disputes deal with questions that tend toward the global dimension because of their internal characteristics - norms and principles that intrinsically claim a certain universality that transcends borders. Here, human rights claims are paradigmatic. The role of courts as human rights adjudicators has evolved rapidly, along with the amplification of “rights talk” generally, since the final decades of the twentieth century, and today the language of rights is often the primary mode for speaking about new challenging social and legal problems (e.g., non-discrimination issues, or questions arising out of the development of new technologies). This evolution greatly affects the role of judges, not only because it asks courts to become protagonists of social change but also because a rights culture inevitably fuels transnational judicial interactions. Human rights, by virtue of their appeal to a transcendent dignity of all persons, have a natural vocation to trespass beyond the border of any single country. Moreover, as subjective rights belong to individual persons, the rights claims move as their holders themselves move, bringing together the external and the internal factors impelling judicial globalization. It is no surprise, therefore, that human rights are one of the most fertile grounds for transnational judicial dialogue and exchange.

For these and other reasons, constitutional courts still maintain a certain advantage over parliaments in their capacity to adapt to the demands of keeping connections with their peers. In the volatile conditions of the present era “reactive” institutions, such as courts, appear better suited than “active” institutions such as parliaments (to use Mirjan Damaska’s well-known distinction[4]) to giving prompt answers to complex problems and to mediating between global and local interests, between unity and diversity. Courts are in a good position to take up these challenges and work as a transmission belt between the local and global, the particular and the universal, the national and the supranational, since they are still deeply entrenched in the domestic legal system, but they also belong to the global space, establishing links with other national, international, and supranational legal orders and with their respective courts. It is worth emphasizing that this observation is not to advocate for a new form of judicial supremacy or juristocracy. Indeed, a relational understanding of the role of constitutional courts necessarily recognizes that they are embedded in, and in some ways dependent on, a network of other actors and relationships in order to accomplish their goals. Their place is not to supplant the democratically accountable political institutions, but to work with them.

Some courts are more reluctant than others to adjust their traditional competences and methods to a wider and more complex legal order, and instead seem inclined to keep the use of transnational law to a minimum level in their own decisions, to decide cases on domestic grounds rather than on European ones, to avoid formal references to supranational law, and to resist engagement with other foreign or supranational courts. Occasionally certain courts have even challenged directly the applicability of a decision of a European or an international court, opening a phase of silent conflict. In most cases, however, national courts (at least in Europe) proaclively cooperate with other judges and willingly take part in the global judicial conversation, although with different voices and even more diverse tonalities. In recent years, an increasing number of national constitutional courts have contributed to the development of common legal principles, taking an active role on the European and global stage through their interpretation and enforcement of common transnational standards.

However different the attitudes of the various courts may be, a realistic approach to constitutional adjudication today has to come to terms with a transnational dimension of the role of courts along with their domestic mission. In an age of nationalism and populism, constitutional courts are in a strategic position that allows them to preserve both national self-awareness and transnational connections. The relational capacity of constitutional courts in this context becomes all the more important as a vital instrument to preserve and develop the essential value of constitutional pluralism, which implies that the different components are in a way simultaneously linked and separate: apparently a contradiction, but in fact a sort of paradox of this era of ours, that is not so much to be resolved as it is to be lived through.[5]

Dialogue I

  • [1] D. LUSTIG, J.H.H. Weiler, Judicial Review in the Contemporary World — Retrospective and Perspective, in 16 I-CON, No. 2, 315 (2018), 370. 2 One for all: W. SADURSKI, Poland’s Constitutional Breakdown, Oxford, Oxford University Press, 2019. 3 D. LUSTIG, J.H.H. WEILER, Judicial Review in the Contemporary World — Retrospective and Perspective, op. cit., 318-319,369-371. 4 M. CAPPELLETTI, Judicial review in the contemporary world, Indianapolis-Kansas City-New York, Bobbs Merrill Co.,1971.
  • [2] T. GINSBURG, M VERTEEG, Why do Countries Adopt Constitutional Review, in 30 journal of Law, Economics and Organization 587 (2014). 2 G. CALABRESI, P. Bobbit, Tragic Choices. The conflicts society confronts in the allo 3 cation of tragically scarce resources, New York, Norton, 1978.
  • [3] M. CLAES, M. De Visser, Are You Networked Yet? On Dialogues on European judicial Networks, in 8 Utrecht Law Review 100 (2012). 2 This is the thesis by S. BREYER, The Court and the World: American Law and the New Global Realities, New York, Vintage, 2016, showing the reasons why even the US Supreme Court, always tempted by the “American exceptionalism”, cannot ignore the global context. 3 M.A. GLENDON, Rights Talk. The Impoverishment of Political Discourse, New York, Free Press, 1991.
  • [4] M. ÜAMASKA, The Faces of Justice and State Authority, New Haven, Yale University Press, 1986. 2 R. HlRSCHL, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism, Cambridge, Ma., Harvard University Press, 2004. 3 T. GROPPl, M.C. PONTHOREAU (eds.), The Use of Foreign Precedents by Constitutional Judges, Oxford, Hart Publishing, 2013.
  • [5] N. MACCORMICK, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, Oxford, Oxford University Press, 1999; M. KUMM, Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the Relationship Between the German Federal Constitutional Court and the European Court of Justice, in 36 Common Market Law Review, Issue 2, 351 (1999), 351-386; M.P. MADURO, Contrapunctual Law: Europe’s Constitutional Pluralism in Action, in N. WALKER (eds.), Sovereignty in Transition, Oxford, Hart Publishing, 2003, 502-537; N. WALKER, The Idea of Constitutional Pluralism, in 65 Modern Law Review 317 (2002), 317-359; A. VON BOGDANDY, Pluralism, Direct Effect, and the Ultimate Say: on the Relationship Between International and Domestic Constitutional Law, in 6 I-CON 397 (2008), 397-413.
 
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