The Wasp and the Orchid: Constitutional Justice and Legal Scholarship Need Each Other




Marc Verdussen

SUMMARY: 3.1. The influence of legal scholarship on constitutional justice. -3.1.1. Semi-direct sources. - 3.1.2. Indirect sources. - 3.1.3. Implied sources. -3.2. The perception of constitutional justice by legal scholarship. - 3.2.1. The perception of the constitutional court itself. - 3.2.2. The perception of constitutional case law. - 3.3. The destinies of constitutional justice and legal scholarship are more intertwined than ever before.

The influence of legal scholarship on constitutional justice

In his text, Paolo Passaglia shares some considerations and gives some impressions on the influence that Italian scholarship has, or has not, had on constitutional justice. He envisages three types of potential sources of influence, which he describes as “semi-direct”, “indirect”, and “implied”. In so doing, he makes three ‘assumptions’, even if he does not use that particular word. The considerations advanced concerning these three assumptions are very cautious because they are scientifically unverifiable.

Clearly, these assumptions are transferable to other states employing the European model of constitutional review of legislation, where they remain just as unverifiable by scientific means. Even though no scientific statement can be established based on these hypotheses, each of them lends itself to empirical attempts at confirmation or refutation. While these attempts may not establish a definitive truth value (true or false), they make it possible to assess the degree of credibility of the hypotheses. Note that here we are

' This text is is based on the same definition that Paolo Passaglia gives, in the companion chapter to this one, to the notion of “doctrine” for the purposes of his chapter: “legal scholarship of academic provenance exclusively”. This definition certainly can be debated, but that is not the objective of the two contributions. On this question, see, for example, M. Fatin-Rouge STEFANINI, Juges constitutionnels et doctrine. France, in XXX Annuaire international de justice constitutionnelle 345 (2014), 345-347; A. Ras-SON-ROLAND, M. VERDUSSEN, Juges constitutionnels et doctrine. Belgique, in XXX Annuaire international de justice constitutionnelle 229 (2014), 229-230.

speaking mainly of states based on the European Kelsenian model of constitutional justice, which was designed by a law professor.

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