An impression, not a conclusion

At this point, one may notice that the results of this research can hardly be said to be satisfactory, if only because they do not present a sufficient degree of ‘scientificity’.

Essentially, it only appears possible to confirm a foregone outcome - the absence of definite findings on the impact of scholarship on constitutional adjudication - without being able to adduce elements with at least an acceptable degree of objective reliability, and that are capable of shedding light on the relationship between the academic world and constitutional judges.

The inconclusive nature of the findings emerged in full once it was confirmed that there was no evidence of the real reasons for opposing references to scholarship.

The substantive stalemate resulting from this research might justify the inclusion of some brief observations in a sort of “appendix”, which - it must be emphasized - does not claim at all to obey the canons of empirical

1

Cf. P. PASSAGLIA, S. RAGONE, 17« attore lontano dalle lucí della ribalta: la dottrina nella giurisprudenza costituzionale di Belgio, Francia e Spagna, in Annuario di diritto compáralo e di studi legislativi, vol. VI, Naples, Edizioni Scientifiche Italiane, 2015,63 ff.

verifiability applied to the initial findings and the operational stage. Thus, in closing this article, it is not a conclusion that will be proposed, but rather an impression.

When seeking to define the relationships between scholarship and constitutional adjudication, it became increasingly clear that the examination could be conducted on two levels: the “official” level and the “informal” level. In the latter, particular importance is held by that which is not expressed but is, rather, only implied (and perhaps merely suggested).

Thus far, this examination has striven to consider the “official” level. However, there was no real alternative, if not at the cost of ah initio foregoing the chance to obtain results that could at least aspire to be demonstrable. Nevertheless, it was precisely this choice that led to the difficulty of combining, on one hand, care to maintain the communication between constitutional courts and the scientific community, on the premise that the latter is important for the development of the Court’s case law; and, on the other, the complete refusal to account for such importance by expressing it in explicit terms. This refusal is so absolute that it can explain not only the present, but also predict future developments with some reliability.

Juridical scholarship certainly plays more than a secondary role in constitutional adjudication. In this regard, consider also the search for direct channels of communication between the Court and scholars, an effort that gave rise to several workshops organized by the Court itself (especially in the early 1990s, and that it still organizes today, although maybe less frequently) to enable judges and scholars to debate on crucial subjects coming before the Court. Theoretical bases - which of course are provided by scholarship - are indispensable when conducting research for the cases and outlining the structure of the decisions. This role is commonly acknowledged, even by the constitutional courts themselves.[1] After the decisions have been issued, the commentary made thereupon is equally important, as it is increasingly considered an essential element in the formation of juridical opinion on the individual issues coming before the courts.

These confirmations of the important role of scholarship should not

The Relationships between Constitutional Justice and Legal Scholarship 43 overshadow the marked distinction between theory and jurisdictio, a distinction that takes the form of the constitutional judges’ consistent denial of the plausibility of applying conceptual schemes without any adaptations. When faced with real-life circumstances (in concrete review) or, in any case, with the impossibility to avoid considering the impact of their decisions, judges must make choices that cannot always correspond to coherent materializations of abstract formulations. Within this gap lies a certain “wariness” of scholarship, especially with regard to the responses that may be elicited by the decisions. Such wariness encompasses a certain degree of “fear” (of being misunderstood) and of “discomfort” (because of the failure to perceive any actual effort to understand on the part of legal commentators).

These barriers to communication between constitutional courts and the academic world tend to remain unexpressed or, at most, are merely hinted at; however, this certainly does not mean that their impact can be ignored. The absence of recent manifest examples to the contrary[2] cannot be taken as proof that the distance between the two fields has closed, because the distance is structural. The tendency to emphasize the dialogue between them may foster mutual understanding, but it cannot nullify a gap that consists in a different approach to issues, in a perception of the dramatic consequences ensuing from certain options, in the unavoidability of certain compromises. In other words, communication between the constitutional jurisdiction and scholarship is certainly sought, as it is felt to be necessary; however, at the same time, it remains elusive because of the necessarily different viewpoints and perspectives from which issues are examined.

Therefore, an ambiguous relationship develops, in which evident manifestations of proximity constantly alternate with reservations and vindications of “otherness” on the part of constitutional courts. From this situation, fluctuations and perhaps even misunderstandings arise, which may beexplained essentially by the different levels on which the two fields operate and by the misconstructions necessarily engendered by the barriers to communication. Therefore, although the importance of scholarship for the work of constitutional judges is confirmed, the impression is that an underlying ambivalence subsists. An ambivalence that, to adopt a hyperbolic synaesthesia, evokes the title of one of Serge Gainsbourg’s most famous songs: Je t’aime... moi non plus.

  • [1] In this regard, see M. NlSTICÔ, I rapporti tra la giurisdizione costituzionale e la dot-trina giuridica in Italia. Il ruolo dei giudici-professori, op. cit., 157 ff. and the interviews given by current and past constitutional judges at the end of the chapter (179 ff.). 2 In this connection, the publication on the website of the French Constitutional Council of documentation on the “ [references doctrinales” relating to each decision (or rather, the decisions for which commentary is available) is emblematic. See also the website of the Italian Constitutional Court, which has recently added a page on “SCHOLARLY commentary”. This is a database of scholarly articles that specifically discuss the Court’s decisions; it is also possible to search this database by number and year of the decision, by author, by title and by journal name: see www.cortecostituzionale.it/actioniSoteSentenza.do.
  • [2] 50 Most paradigmatic in this respect is perhaps the criticism made by the then-President of the Constitutional Court Giuseppe Branca regarding scholarship: cf. G. BRANCA, Quis adnotabit adnotatores?, in Foro Italiano, 1970, V, c. 17 ff., and Id., Chiosa a chiusa, ibidem, V, c. 145 ff. 2 51A partially different evaluation is made by D. TEGA, La dottrina come arnica curiae. L’esperienza della Corte costituzionale italiana, 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. rit., 105, who notes that “the mental attitude of the Constitutional Court [...] is one of openness to scholarship, which it is well aware of needing: indeed, long past are the times of President Branca’s piqued replies to the criticisms levelled by some scholars” (author’s translation); this author agrees with the first part of the quote, but harbours some reservations on the second part, as will be seen below in the text.
 
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