Dialogue I: Constitutional Courts and Legal Scholarship

Chapter II



Je T’aime … Moi Non Plus: Some Considerations on (and Impressions of) the Relationships between Constitutional Justice and Legal Scholarship

Paolo Passaglia

SUMMARY: 2.1. The difficulties encountered during research. - 2.2. The semidirect sources. - 2.3. The indirect sources. - 2.4. Implied sources. - 2.5. Reasons (and prospects) for the absence of direct sources. - 2.6. An impression, not a conclusion.

The difficulties encountered during research

The relationship between constitutional case law and scholarship is always challenging to define, as the real impact of scholars’ work on courts is often difficult to ascertain, even when considering those courts that make explicit citations and references. The challenge is obviously greater when dealing with courts that avoid references to scholarship. Italian courts, including the Constitutional Court, belong to the latter category, such that with regard to the Italian legal system, more than others, analyzing the relationships between constitutional case law and scholarship is rather risky. Far from enjoying the benefit of objective findings,1 researchers are primarily required to select guidelines and indicators, on the basis of which they may then develop an examination that strives to be as defensible as possible from a scientific point of view. From the very outset, therefore, this research topic appears to be as stimulating as it is complex and, especially, fraught with the risk of ending without reaching significant results. [1]

In light of this need for caution, this article does not aspire to outline a complete picture of the subject. Rather the scope will be a much more modest, indicative contextualization of the impact that scholarship presumably has on the activity of the Constitutional Court.

Even with such a delimitation, the purpose of scholarship remains difficult to ascertain precisely because of the absence of sources of a direct nature. As may be known, the Constitutional Court generally does not make express references to scholarship in its judgments.

The foundations of this research are therefore far more elusive. In any case, they may be classified into three “subsidiary” categories: semi-direct, indirect, and implied. These categories will be described briefly by reference to the findings on the Italian system of comparative research based on papers presented at the XXXe Table Ronde Internationale sur la Justice Constitutionnelle. The topic of this conference was “Constitutional Judges and Scholarship”, and it was held in Aix-en-Provence on 5-6 September 2014.[2] This basic research was then developed through a more in-depth trilateral comparative effort, the main event of which consisted of the Gior-nate italo-franco-belghe di diritto comparato. Held in Pisa on 6-7 March 2015, the Giornate focused on “The relations between constitutional adjudication and legal scholarship”.

  • [1] The very notion of “scholarship” is far from clear, as it can be defined in several different (and diverging) ways. For the purposes of this article, it will be limited to legal scholarship of academic provenance exclusively. For a justification of such a restrictive approach, see P. PASSAGLIA, La presenza della dottrina all’interno della Corte costituzionale italiana, in P. PASSAGLIA (eds.), I rapport! tra la giurisdizione costituzionale e la dottrina / Les rapports entre la juridiction constitutionnelle et la doctrine, Atti dette Giornate italo-franco-belghe di diritto comparato — Pisa, 6 e7 marzo 2015, Naples, Editoriale Scientifica, 2015,29 ff.
  • [2] The proceedings of the Round Table were later published in the Annuaire international de Justice constitutionnelle, vol. XXX, 2014, 199 ff. 2 ’The proceedings of these Giornate, organized within the 2010-2011 PRIN on “Courts, scholarship and inclusive society: the impact of the scholarly legal element on superior courts”, were published in P. PaSSAGLIA (eds.), I rapporti tra la giurisdizione cos-tituzionale e la dottrina / Les rapports entre la juridiction constitutionnelle et la doctrine, Atti dette Giornate italo-franco-belghe di diritto comparato — Pisa, 6 e 7 marzo 2015, op. cit.
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