The quantitative experiment: process and caveats
In recent years, the quantitative study of law, and of constitutional law in particular, has been burgeoning. The beauty of numbers mostly lies -when they are not built to fit their producers’ biases - in their capacity to ease comparison, and to highlight patterns that otherwise would go unnoticed or underappreciated. Following the bright side of this trend, I will test how the ItCC positions itself in the European space by reviewing, through a quantitative (and qualitative) approach, all the decisions published by the ItCC in 2016.
For this purpose, I classified the 292 decisions delivered by the ItCC in the year in question according to ten variables (the nature of the proceedings, referring body, subject matter of the case, outcome of the case, etc.). I then selected and analysed the decisions implying a textual reference to either the EU or the ECHR law. The quantitative results obtained are described first, while the qualitative review of the selected cases follows. The entire dataset (which was created manually) is available at units.it/ dircomp/infantino.htm.
It is well-known that, when applied to law, quantitative methodologies suffer from a number of intrinsic limitations. While the simplicity of the study carried out here partially shields it from some of the most acute problems affecting quantitative legal research, at least three caveats are in order.
A first warning derives from the scope of the analysis. The one-year focus on ItCC’s activity automatically excludes from consideration the role played by a variety of other actors (e.g., ordinary domestic courts) in influencing the way in which the ItCC has performed its functions in the European space. In a hybrid model of judicial review such as the current Italian one, the ItCC’s attitude cannot be properly understood without taking into account the constitutional postures of ordinary judges, who often contribute to setting the horizon for the ItCC’s intervention. The one-year limit further narrows the scope of the research, providing a sample that might be too little to be meaningful. Finally, the representativeness of the year chosen adds another challenge, even though it has been noted that the ItCC’s “European journey experienced some significant developments during 2016”.
Second, any numerical analysis of judicial activity requires determining the relevant variables and establishing their possible values. This implies making discretionary and overly simplistic choices regarding the variables and values to be considered. For instance, should one take into account the identity of the judge who wrote the opinion? What level of detail is appropriate for identifying the subject matter of the case? How should one categorise an ItCC proceeding where a direct recourse is merged with an incidental request? How can one classify the nuances of ItCC’s interpretative decisions, or the cases where a request is at the same time partially upheld and partially rejected? One may answer these questions in many different ways, and each answer inevitably affects the data gathered and results achieved.
Third, it goes without saying that a citation study of the references made by the ItCC’s decisions on EU and ECHR law provides only a partial and potentially misleading guide to the relationship between the ItCC and the European supra-national legal orders, since it does not capture the silent dialogues and unwritten dimensions underlying the ItCC’s adjudication process. The ItCC notoriously takes into account academic debates and foreign law, but rarely - if ever - mentions them in its decisions (in 2016 only two ItCC judgments, while examining ECtHR case law, briefly dealt with other states’ approaches to the concerned issues). A textual survey of the ItCC’s quotation of scholarly and foreign materials simply fails to give a reliable picture of the informal, implicit and indirect inputs entering into its decision-making. Yet, it is true that (tracking judges’ hidden references might prove a daunting task for anyone, and that) the textual references may tell us a lot about the styles, the patterns, the ideals, and the postures of the court expressing them. This is why, notwithstanding the above caveats, I believe that empirical research might still add something to the picture - with the additional benefit of being more transparent, or, in other words, more verifiable than a non-empirical study. Below is the data from 2016.
-  H Among the many, R. HlRSCHL, Comparative Matters. The Renaissance of Comparative Constitutional Law, supra fn. 12, 268-281; M. INFANTINO, Global Indicators, supra fn. 5213, 360-362. 2 V. BARSOTTI, P.G. CAROZZA, M. CaRTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, supra fn. 4, esp. 42-43; A. HARDING, P. LEYLAND, T. GROPPI, Constitutional Courts: Forms, Functions and Practice in Comparative Perspective, in A. HARDING, P. LEYLAND (eds.), Constitutional Courts: A Comparative Study, supra fn. 131,1,4. 3 P. FARAGUNA, M. MASSA, D. TEGA, M. CARTABIA, Developments in Italian Constitutional Law, in R. Albert, S. Drugda, P. Faraguna, D. Landau (eds.), 2016 Global Review of Constitutional Law, ICONnect, 2017, 108, 110.
-  V. BARSOTTI, P.G. CAROZZA, M. CARTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, supra in. 4, 80-81; T. GROPPI, M.-C. PONTHOREAU, Introduction, in T. GROPPI, M.-C. PONTHOREAU (eds.), The Use of Foreign Precedents by Constitutionaljudges, Oxford, Hart Publishing, 2013, 1,7, fn. 18. 2 ItCC judgments 52 (on religious associations’ rights) and 84/2016 (on in vitro fertilization). 3 G. FRANKENBERG, Comparing constitutions: Ideas, ideals, and ideology - toward a layered narrative, in 4 Int’lJ. Con. L. 439 (2006) (speaking about the text of constitutions).