The nature of constitutional norms

A preliminary issue that needs to be addressed concerns the very the nature of constitutional norms. Are constitutional norms properly legal norms, or should they be considered more akin to policy directives or political programs?

Constitutional norms vs. constitutional programs

This issue has been heatedly debated in the Italian legal culture especially during the hiatus between the entry into force of the Republican Constitution (1948), and the first ruling of the ItCC (1956). Back then some scholars, as well as the Supreme Court (Corte di Cassazioné), maintained that substantial parts of the Constitution should be understood as “programs” or “policies” rather than as full-blown, mandatory legal norms. These would include the “Bill of Rights” part of the Constitution (articles 1 to 54) almost in its entirety, and possibly also some articles of the “Frame of Government” part. Under this view, arguably shared even by the Framers themselves, the Constitution is to be regarded more as a political document, rather than a properly legal one. It does not really qualify as law, but rather as a sort of political statement. As such, it is not apt for judicial application - its function, instead, is to serve as a point of reference in the political debate and the legislative process.[1]

Now, the idea that the Constitution (or ample portions thereof: hereafter I will leave this qualification aside) is better conceived just in terms of a set of policy directives has clear implications on constitutional interpretation. For one thing, under this view the legislature becomes the sole “master of the constitution:” implementing the Constitution is up only to the legislature. It is only through legislation that constitutional policies become legal norms (interpositio legislatoris). Courts, on the other hand, in their ordinary adjudicative functions, will not be able to resort directly to the Constitution - the Constitution, as such, is not justiciable.

Interestingly, the merely programmatic character of the constitution, and particularly of the provisions on fundamental rights and liberties - an idea somewhat anticipated by Hans Kelsen[2] - is now vindicated by “political constitutionalists”, whose fundamental claim is that rights are better left to political debate and to the determinations of a democratically elected legislator rather than to courts. And, to this effect, they recommend also that the constitution be stripped of its properly legal character and confined only to the “political” realm.

The opposite view is that the constitution is not just a political manifesto but a properly legal document - a proper source of law. As such, the constitution is directly amenable to legal interpretation (as opposed to being confined to political debate), and constitutional norms are to be considered legal norms on all counts. The implementation, or application, of the constitution is not only a matter of sheer political choices to be adopted by the legislature, but also a matter of legal interpretation and legal reasoning performed by courts, with only rare exceptions.11

To be sure, in Italian legal culture the policy/manda tory norms alternative has now lost most of its appeal. As soon as the ItCC became fully operative, it claimed the power of enforcing - or at least of using in its legal reasoning -any kind of constitutional provision; as a consequence, Italian scholars became suddenly aware that the Constitution could and should be regarded as a proper source of law. Put differently, in Italian legal culture, the paradigm shift from a political-constitutionalist stance to a legal-constitutionalist one has been virtually complete and, as much as one may foresee, irreversible.

Even those who insist that the courts should play a more limited role in the administration of rights - and conversely that the legislature should play a more central role therein - do not question the full-blown legal character of the Constitution and the importance of judicial review of legislation.

  • [1] C. MEZZANOTTE, La Corte costituzionale: esperienze e prospettive, in AA.VV. Attua-lità e attuazione della Costituzione, Bari, Laterza, 1979. For a discussion of the theory of the “programmatic” character of the Constitution, see L. PALADIN, Le fonti del diritto italiano, n. 2, 135; M. LUCIANI, Dottrina del moto delle costituzioni e vicende della Costi-tuzione repubblicana, in G. BRUNELLI, G. CAZZETTA (eds.), Dalia Costituzione “inattua-ta” alia Costituzione “inattuale”? Potere costituente e riforme costituzionali nell’Italia repubblicana, Milan, Giuffrè, 2013, 40-49. 2 ’Some scholars distinguish between “implementation” and “application” of the constitution - the former understood as a matter of legislation and administrative regulations, the latter as a judicial task (M. LUCIANI, Dottrina del moto delle costituzioni e vicende della Costituzione repubblicana, n. 6). The intended practical import of this distinction is that some constitutional norms are apt to (judicial) application, whereas other such norms are subject only to (legislative) implementation. In the interest of space, I will not expand on this point here, but I do think that this distinction is precarious at best. In the following, then, I will use “implementation” and “application” as synonymous.
  • [2] H. KELSEN, The Nature and Development of Constitutional Adjudication ( 1929), in L. VlNX (eds. ), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, Cambridge, Cambridge University Press, 2015, 60. For a recent restatement of this very idea, G. WEBBER, Legal Reasoning and Bills of Rights, in LSE Law, Society and Economy Working Papers, No. 1, 1 (2011), 10: “Legislation [...] gives the various rights and freedoms affirmed in a bill of rights legal life. [...] Legislation does no more and no less than take the abstracted and reified affirmations of rights in a bill of rights and render them apt and cognisable in law by specifying their scope and content”. 2 ’See J. WALDRON, A Right-Based Critique of Constitutional Rights, in 13 Oxford Journal of Legal Studies 18 (1993); J. WALDRON, Law and Disagreement, Oxford, Oxford University Press, ch. 12; R. BELLAMY, Political Constitutionalism, Cambridge, Cambridge University Press, 2007; G. WEBBER, The Negotiable Constitution, Cambridge, Cambridge University Press, 2009, ch. 5. 3 See S. GARDBAUM, The Place of Constitutional Law in the Legal System, in M. ROSENFELD, A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford, Oxford University Press, 2012 (contrasting “political”, “legal”, and “total” constitutionalism). 4 "The usual example is art. 4: “The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective". 5 Among the very few dissenting voices, A. PlNTORE, I diritti della democrazia, Bari, Laterza, 2003.
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