Pros and cons: the debate among scholars

At the level of doctrine, Italian commentators have discussed both the desirability of introducing separate opinions and the appropriate regulatory instrument for introducing them. It has almost never been debated that the Constitution did not and does not preclude this option.

Seminal considerations have been presented by the following books: Le opinioni dei giudici costituzionali e internazionali, edited by Costantino Mortati in 1964 (to which we have already referred); L’opinione dissenziente, edited by Adele Anzon in 1995 (collecting the most influential scholarly positions expressed during the seminar held at Palazzo della Consulta in 1993); L’introduzione dell’opinione dissenziente nel sistema di giustizia costitu-zionale, by Saulle Panizza, published in 1998; Le opinioni dissenzienti dei giudici costituzionali: uno studio comparativo, by Alessandra Di Martino, published in 2016. Within the literature in English, it is worth mentioning the recent works by Katalin Kelemen, Judicial Dissent in European Constitutional Courts. A Comparative and Legal Perspective, published in 2018; by Nicolo Zanon59 and Giada Ragone (edited by), The dissenting opinion. Selected essays, published in 2019. Their books also discuss the Italian experience.

The 1993 seminar attempted to examine whether any principle or disposition barred this innovation and, consequently, to establish which would be the most appropriate legal instrument for introducing separate opinions. The seminar proceedings, together with the two books by Panizza and Di Martino, singled out the various points for and against dissent, showing that the doctrinal debate leaned in favor of the prospective introduction of dissenting opinions. This conclusion relied on two theories: the so-called discursive theory (law develops in the dialogue between the parties, and between the parties and the judge), and the-so called deliberative theory40 (since law is a discussion enlightened by arguments, a richer discussion leads to better law).

These sources listed the following advantages of separate opinions: the enhancement of the independence and autonomy[1] of judges; a deeper analysis and study of the case; a more transparent reasoning, because a separate opinion would allow its authors to disclose the logical process followed and the dialectical2 foundation of the decision, ultimately bolstering both the authority of the decision itself and the public debate; a clearer and more coherent decision, because there would be no need to consider minority objections, leading to better understanding of the decision both by Parliament and by ordinary judges; an increase in the case law’s dynamism and capacity to evolve and to adapt to the concrete needs and requests coming from society; the chance for a minority opinion to later become the foundation of a future overruling;[2] a suggestion and incentive to ordinary judges to raise new questions and participate in the evolution of the case law.

On the contrary, two fears lie at the heart of Italian skepticism toward separate opinions. On one hand is the fear that social commitment to the values enshrined in Constitution is not yet strong enough, while fractures in public opinion are still highly problematic. On the other hand, some fear an undermining both decisions’ moral value and the authority of the ItCC because dissenting opinions would foster uncertainty, conflict, and controversies that could threaten the leading role of the ItCC for iuris dictio in general.

It has been argued that the existence of dissenting opinions would make each judge more vulnerable to political pressures, thus making it more difficult for the judges to decide to follow their own consciences. Dissenting opinions would also unduly increase the personalization of the decisions and even some polemical excesses - pushing the judicial body itself away from the principle of collegiality. Dissent would also increase the amount of work for the judges, entailing a general slowing of the Court’s pace. Finally, since a dissenting judge would not renounce any potential influence on the majority decision, the decision would not really gain clarity.

Regarding the best suited instrument to introduce that novelty, the options on the table continue to be five: auto-regulation by Court, either by z) introducing a specific provision (an Art. 18-Azv) in the Additional rules for the proceedings before the ItCC (revised in 2008), or it) through an entirely new internal regulation; an amendment to Hi) ordinary or iv) constitutional legislation, enacted by Parliament; v) introduction directly through the case law of the ItCC. The first solution received support (in the seminar of 1993 and also later on) from, among others, Mortati, Pizzorusso, Romboli, and

Panizza. Cassese[3] is for the second option. On the contrary, Zagrebelsky, Anzon, Bartole, and Ruggeri (whose opinions are collected in the book by A. Anzon) support the instrument of constitutional legislation. Stefano Rodota, as member of Parliament, proposed an ordinary law, and Gaetano Silvestri supports modifying the ordinary law no. 87/1953 (or an internal regulation, as an alternative). The last option was considered to be feasible in the seminar held in 1993 by Romboli, although it was not recommended.

  • [1] ” Nicolo Zanon was appointed constitutional judge by the President of the Republic in 2014. ‘’“Dissenting interpreted as a sort of «marketplace of competing ideas», cited in R. POST, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decision making in the Taft Court, in 85 Minn. L. Rev. 1267 (2001). 2 For the unforgettable, renowned intellectual, civil lawyer, professor, and writer Piero Calamandrei, the secrecy of the Camera di Consiglio was «the institutional consecration of conformism; a typical example of State unanimity, able to save appearances to the detriment of consciences», P. CALAMANDREI, Elogio del giudice, III ed., 1955,274 if. 3 A. BALDASSARRE, L’«opinione dissenziente» e I’intervista di Amidei, in Democrazia e diritto 238 (1981). 4 4iA. ANZON, L’opinione dissenziente, cit., 434, and before M. CAPPELLETTI, Qüestioni nuove (e vecchie) sulla giustizia costituzionale, in Giudizio a quo e promovimento del processo costituzionale: atti del Seminario svoltosi a Roma, Palazzo della Consulta, nei giorni 13 e 14 novembre 1989, Milano, Giuffrè Editore, 1990, 39 ff.
  • [2] C. MORTATI, Considerazioni sul problema dell’introduzione del “dissent” nelle pronuncie delle Corte costituzionale italiana, in G. MARANINI (eds.), La giustizia costituzio-nale, cit., 163; V. ONIDA, Intérnenlo, in P. PASQUINO, B. RANDAZZO (eds.), Come deci-dono le Corti Costituzionali (e altre Corti), cit., 151. 2 A. ANZON, L’opinione dissenziente, cit., 434; A. SANDULLI, Intervento, cit., 365. 3 R. Romboli recommended adopting detailed regulation of separate opinions to prevent delays: R. ROMBOLI, L’introduzione dell’opinione dissenziente nei giudizi costituzionali: strumento normativo, aspetti procedural: e ragioni di opportunity in A. ANZON, L’opinione dissenziente, cit., 83.
  • [3] S. CASSESE, Dentro la Corte, cit., 134. 2 G. ZAGREBELSKY, La Corte costituzionale italiana, cit., 77. 3 G. Zagrebelsky, V. Marcenó, Giustizia costituzionale., cit., 156.
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