Implied sources

The inconclusiveness of the findings achievable from indirect and semidirect sources, coupled with the impossibility to glean information (or even mere trends) concerning individual aspects of constitutional case law, compel reference to additional sources, implied sources, that act on a more specific level; however, this does not make them easier to verify than the others. These further sources are the implicit references made in judgments to scholarship. In an abstract sense, if supported by empirical findings, these elements could significantly corroborate discussions on the relationships between scholarship and constitutional case law. However, for this last observation, the conditional tense must be used, because the quest for implicit references requires such a thorough knowledge of constitutional case law, such a detailed reading of the judgments, and such a mastery of academic production, that finding scholars capable of such a task appears somewhat arduous. At best, this may be possible for limited fragments of the legal system. Indeed, the examples that may be given are nothing more than that, examples - and as such are unsuitable to be considered as indicators of general trends.

The research conducted, including in recent years, has provided some remarkable findings. However, the objective can only be to sketch an outline that - beyond certain features evoking general trends and some details on individual fragments of the legal system - essentially resists thorough empirical analysis.[1] For that matter, these examinations incontestably demonstrate that in Italy, as in other legal systems where judgments do not contain express references to scholarship, scholarship is certainly a non-negligible component of the cultural background supporting all constitutional adjudication. Thus, one may conclude that its significance is most likely directly proportional to the complexity of the decision at hand and to the number of possible outcomes.

Beyond these broad observations, a recent examination of implicit references has provided some further general indications. Although conclusive results could not be obtained, a threefold classification for implicit reference was suggested.

The first category includes those implicit references to scholarship used in “judgments in which the interpretative process follows itineraries and reaches conclusions that have already been developed or opposed in scholarship and expressed within individual scientific hypotheses". In this case, scholarship is seen as an interlocutor of the Court - one that assumes particular significance as this type of reference is usually found in judgments relating to issues that have been analysed and debated at length within scholarship, to the extent that it is possible to identify various positions, each of which enjoys adequate supporting arguments. The Court wades into the debate by expressing support for one position or another, or even by setting forth yet another hypothesis - which of course will prevail.

An example is judgment no. 274/2003, in which the Court implicitly referred to constitutional scholarship that supported the need to maintain a difference between the State and the Regions with regard to the grounds for invalidity of laws that could be contested in direct appeals before the Court. Despite the changes resulting from the constitutional reform of 2001, the Court confirmed that the State could challenge regional laws for unconstitutionality on any grounds, whereas Regions could challenge the legislative acts of the State only for alleged breaches of their attributions.

The second category of implicit references to scholarship includes “all those cases in which the positions expressed in scholarship are taken into consideration, not so much as proposed interpretations of the individual constitutional or legal provisions that the Court applies within the judgment [...], but rather as implicit theoretical premises that are common to several judgments, which are particularly significant because of the statements of principle that they make”.[2] In other words, “scientific reflection is taken into consideration as a logically coherent and generally abstract formulation of a set of definitions and general principles that make it possible to describe, interpret and classify, with varying levels of generalization, various aspects of the law”.

Among the examples of this type of use, one could mention the distinction between “provisions” (disposizioni, corresponding to the normative text) and “norms” (norme, that is, the result of the interpretation of the text). This distinction was first established by constitutional scholars, then the Court began to make widespread use of it.

The third category comprises the implicit references to scholarship made in cases “in which the decisions of constitutional judges appear to be affected by an unexpressed choice (which could barely be defined as ‘methodological’) that, establishing the perspective from which the decision looks upon the subject matter of the judgment, precedes and guides the adhesion to theoretical premises and individual interpretative solutions that may have already emerged in scholarship, or the elaboration of theories and interpretative arguments that may be used for the purposes of making decisions”. Therefore, scholarship is a vehicle “of a ‘way of seeing things’, of a ‘mentality’ [...] that are typically representative of the modus procedendi of a specific juridical school of thought [...] or capable of crossing the boundaries between scientific sectors”. That is, “of a pre-comprehension of the issue addressed that may be considered not only legitimate but also necessary, to clarify the interThe Relationships between Constitutional Justice and Legal Scholarship 37 pretative context in which a specific statement can be considered true and a given truth can be considered as having been comprehended”.[3]

A comparison between judgment no. 348 and judgment no. 349 of 2007 can help to explain the meaning of this third category. The two judgments dealt with the same issues and provided the same solution; however, there were some differences in the legal reasoning adduced in each. These differences could probably be explained precisely by the different legal backgrounds of the judges who wrote them: judgment no. 348 was drafted by a constitutionalist, and judgment no. 349 by an internationalist. The different backgrounds of the two judges resulted in the slight differences in terms of content between the two judgments and in the varying significance each accorded to different elements and aspects of the issues.

While this classification, although extremely interesting from a theoretical point of view, may hint at how scholarship is taken into account, the actual practice does not give rise to a rule capable of effectively describing the impact of scholarship on the Constitutional Court’s activity'. Rather, the studies conducted show that the relationship between constitutional adjudication and scholarship - especially with regard to implicit references - is entrusted to the individual persons within the institution, and to the dynamics arising between them and within the relationships with outside parties. For external observers, all of these elements mean that the “unsaid” remains largely inscrutable, and therefore impossible to analyse in any genuinely “scientific” way.

This is not the appropriate venue to focus on one aspect or another of the case law issued by the bodies under examination. Therefore, it is perhaps expedient to draw inspiration precisely from the need to resort to an element as elusive as implicit references: to explore the reasons behind (and the justification for) the absence of direct sources - that is, of express references to scholarship in constitutional case law.

  • [1] On implicit references to scholarship, see A. CARDONE, I riferimenti implicit! alia dottrina nelle decisioni della Corte costituzionale italiana: una proposta di metodo e alcuni esempi di merito, in P. PASSAGLIA (eds.), I rapporti tra la giurisdizione costituzionale e la dottrina / Les rapports entre la juridiction constitutionnelle et la doctrine, Atti delle Gior-nate italo-franco-belghe di diritto comparato — Pisa, 6 e 7 marzo 2015, op. cit., 313 ff. 2 Such as Belgium or France, on which see, respectively, P. NlHOUL, Les références implicites à la doctrine dans les décisions constitutionnelles: l’expérience belge, in P. PASSAGLIA (eds.), I rapporti tra la giurisdizione costituzionale e la dottrina / Les rapports entre la juridiction constitutionnelle et la doctrine, Atti delle Giornate italo-franco-belghe di diritto comparato - Pisa, 6 e 7 marzo 2015, op. cit., 277 ff., and C. SEVERINO, L’influence de la doctrine sur la jurisprudence du Conseil constitutionnel, ibidem, 289 ff. 3 Cf. T. GROPPI, I. SPIGNO, Constitutional Reasoning in the Italian Constitutional Court, in Rivista AIC, No. 4, 1 (2014), 9: “We can assume that scholarship strongly contributes to the evolution of jurisprudence, although explicit quotations of authors are not permitted in judgments”. 4 Cf. A. CARDONE, I riferimenti impliciti alia dottrina nelle decisioni della Corte costituzionale italiana: una proposta di metodo e alcuni esempi di merito, op. cit., 320 ff. 5 Ibid, 320 (author’s translation).
  • [2] 2aIbid, 332 (author’s translation). 2 Ibidem (author’s translation). 3 Ivi, 349.
  • [3] ’ Ivi, 350.
 
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