Dialogue V: Judicial Reasoning and Interpretation
FORMS AND METHODS OF
Forms and Methods of Constitutional Interpretation – Italian Style
SUMMARY: 10.1. Constitutional interpretation in contemporary Italian legal culture. - 10.2. The nature of constitutional norms. - 10.2.1. Constitutional norms vs. constitutional programs. - 10.2.2. Constitutional rules, principles, and values. - 10.3. Constitutional interpretation and conceptions of the constitution. -
- 10.3.1. The defensive constitution. - 10.3.2. The foundational constitution. -
- 10.3.2.1. The principle-based model. - 10.3.2.2. The values-based model. - 10.4. Taking stock.
Constitutional interpretation in contemporary Italian legal culture
Constitutional interpretation has received an extensive and extremely sophisticated treatment by Italian scholars. To be sure, legal interpretation in general has always been a point of thorough and intense scholarly debate in contemporary Italian legal culture.1 But constitutional interpretation has attracted additional interest in its own right, in virtue of the fact that it is widely perceived as a sui generis kind of legal interpretation, different in character from ‘ordinary’ (i.e. statutory) interpretation. Moreover, constitutional interpretation has gradually become an extremely pervasive issue. Indeed, at least in the last three decades the Italian legal culture has firmly embraced the idea that constitutional principles may be relevant for any kind of legal question, and may exert their normative force on any branch of the law. The Constitution, as a consequence, steadily appears in the legal reasoning of Italian jurists - constitutional interpretation is business as usual for Italian jurists, judges and academics alike. Moreover the ItCC, while originally designed by the Constitution to play the role of just a “negative legislator,” has gradually evolved also, and prominently, into an “interpretive agency”. In other words the ItCC, in addition to issuing declarations of unconstitutionality, pure and simple, consistently produces also “interpretive decisions”, which avoid a declaration of unconstitutionality insofar as it is possible to interpret the “suspect” statute in a “constitutionally compatible way”.
This essay will highlight some issues that feature prominently in the Italian debate on constitutional interpretation. To be sure, “constitutional interpretation” is not just a single issue, but rather a cluster of different and tightly interwoven issues, such as: the choice of interpretive canons that best fit the Constitution, the nature of constitutional norms, the relation between constitutional interpretation and statutory interpretation - just to mention a few. I will try to untangle at least some of these issues, and to relate them to the underlying conceptions of the Constitution at work in contemporary Italian legal culture, as well as to similar debates in other countries.
-  To name just two Italian classics, E. BETTI, Interpretazione della legge e degli atti giuridici (teoría generale e dogmática), Milan, Giuffrè, 1949 (a torch-bearer of the hermeneutic approach to legal interpretation); G. TARELLO, L’interpretazione della legge, Milan, Giuffrè, 1980 (an outstanding example of analytical and legal realistic jurisprudence). More recent, and comprehensive, primers to legal interpretation are P. CHIAS-SONI, Técnica dell’interpretazione giuridica, Bologna, Il Mulino, 2007, and R. GUASTINI, Interpretare e argomentare, Milan, Giuffrè, 2011. 2 See L. PALADIN, Le fonti del diritto italiano, Bologna, Il Mulino, 1996, 110 (the 3 Constitution "paves the way for a new theory of interpretation”).
-  2 5 Hereinafter, I will use “Constitution” (with a capital C) in order to refer to a particular constitution (such as, and most frequently, the Italian one), and “constitution” (with a lowercase c) in order to refer to the constitution as an abstract object. ‘’According to a long-standing doctrine of the ItCC, ordinary judges should not even refer a question of constitutionality, if the suspect statute can be interpreted in a way that is compatible with the Constitution (see e.g. Judgment 356/1996). See V. BAR-SOTTI, P.G. CAROZZA, M. CarTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, Oxford, Oxford University Press, 2016, 82-91. 3 1 use “policy” here in roughly the sense stipulated by R. DWORKIN, Taking Rights Seriously, London, Duckworth, 1978, 22 (“/ call a "policy” that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”)-, see also M. ATIENZA, J. RUIZ MANERO, A Theory of Legal Sentences, Dordrecht, Springer, 1998, 5, 11. For a more general view on this topic, see L. WEIS, Constitutional Directive Principles, in 37 Oxford Journal of Legal Studies 916 (2017).