Power Is Perfected in Weakness: On the Authority of the Italian Constitutional Court
Armin von Bogdandy and Davide Paris *
SUMMARY: 14.1. The idea of “strength in weakness”. - 14.2. Limited access. -14.3. Low profile. - 14.4. Adverse environment. - 14.5. Playing poker.
The idea of "strength in weakness"
“That is not how we expected it to turn out” - so the first Federal Chancellor of Western Germany, Konrad Adenauer, reportedly said when observing the very first years of the German Constitutional Court’s operation.1 These words succinctly express a peculiar feature of the German Constitutional Court. A direct confrontation with the political power was the foundational moment of the Court’s authority - a confrontation in which the Court achieved a shining victory that let it emerge as a counterbalance to the ruling majority. In 1952 and 1953, two events marked this confrontation in a particular way. First, in the battle over Germany’s rearmament, the Court was thrust into center stage with regards to the highly political question of whether ratification of the European Defence Community Treaty required a previous constitutional amendment. The Court was able to resist political pressure from the ruling majority and the opposition, which both had to accept at great costs that the Constitutional Court could not be used for political purposes. Second, the Constitutional Court was able to break the administrative dependence on and supervision by the Ministry of Justice in the “status-battle”: it became acknowledged as a constitutional organ alongside the Federal President, the Bundestag, the Federal Government, and the Bundesrat.
Things went differently in Italy. The foundational judgment 1/1956 - the “Italian Marbury v. Madison"4 - was not a direct challenge to the political power: the time for direct confrontation with the political power would come about 40 years later. After all, judgment 1/1956 struck down a fascist statute limiting the freedom of expression. The ruling majority at the time was probably happy to continue to silently take advantage of this and similar pieces of repressive legislation, but it certainly would not have openly defended an illiberal fascist provision. Instead of challenging the political power, judgment 1/1956 was a straightforward challenge to the authority of the Supreme Court. On the one hand, the Constitutional Court held as unconstitutional a statute that the Supreme Court had previously upheld under the Constitution, thereby validating the lower “rebelling” courts right. On the other hand, it swept away the two core doctrines of constitutional review that the Supreme Court had developed in previous years. First, the Constitutional Court rejected the doctrine that pre-constitutional legislation escapes the jurisdiction of the Constitutional Court, stating that all statutes are subject to its review no matter whether enacted before or after the Constitution. Second, it rebutted the distinction between prescriptive and programmatic norms, stressing that both can serve as a yardstick for constitutional review.
The authority-building paths of the German and the Italian Constitutional Court, however, do not only differ with regard to their respective main contender - the highest political or judicial powers2 - but also with regard to the outcome. There is no doubt that by issuing judgment 1/1956, the Italian Constitutional Court scored in the confrontation with the Supreme Court. But less than ten years later, in the so-called ‘first war of the courts’, the Constitutional Court failed to achieve another victory' over the Supreme Court. At stake was the Constitutional Court’s attempt to make its own interpretation of the law accepted by the Supreme Court. In the end, this attempt was unsuccessful, and the Constitutional Court was forced to back down. The Court justified this result with the new doctrine of the “living law”. Essentially, this means that the Constitutional Court must review laws as interpreted by the Supreme Court and cannot replace that interpretation with its own.
On that occasion, the Italian Constitutional Court experienced its own weakness in the clearest manifestation: unlike other constitutional courts, the Italian Constitutional Court has to share and bargain its authority with the ordinary courts, on which both its activity and its effectiveness are conditional. Indeed, the Court’s most important power - the concrete review of legislation - depends on the willingness of the ordinary courts to refer questions of constitutionality to it. Similarly, the success of many decisions of the Constitutional Court is contingent on their acceptance by the ordinary (including the administrative) courts.
However, what appears to be the Italian Constitutional Court’s main weakness if compared to its German counterpart, is perhaps the Court’s most remarkable feature. Its institutional weakness led the Italian Constitutional Court to establish a well-functioning cooperation with the ordinary courts. This “interjudicial relationality” can be considered the most defining strength of the Italian system of constitutional adjudication, as the book by Vittoria Bar-sotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini illustrates.
The phrase “power is perfected in weakness” captures this essential feature of the Italian Constitutional Court. The logic of ‘power in weakness,’ however, goes beyond the Constitutional Court’s relationship with the ordinary' courts. In the following sections, we try to provide a reading of the Italian Constitutional Court according to the fil-rouge of weakness that turns into strength, which binds together the topics that have been discussed in this book by Italian scholars and external observers.
With regard to access to the Court, the Court was able to overcome some limits of its constitutional regulation in a way that now raises the question of whether a constitutional amendment would still be desirable. The Court’s rather minimalist style of reasoning and its overall low-profile standing in public opinion seems, at first sight, to be a weakness, but in reality it may not be, for these features present some advantages, too. The weakness of the political context in which the Court operates, and notably the unresponsiveness of the legislature, could have been an obstacle to the Court’s power. But in the end, it pushed the Court to become more activist and to surpass the role of a “negative legislator”. Finally, the dynamic of “strength in weakness” can be applied to interaction with the European courts as well: despite several limitations, the Court was able to gain a significant role in the European legal space.
Throughout this contribution, the German Constitutional Court will frequently serve as the main comparative reference, as it already did in this introduction. Even though the Italian and German Constitutional Courts share the status of being among the oldest constitutional courts in Europe, as well as having a similar historical background (both courts were established as post-authoritarian institutions), the German Constitutional Court seems to represent a very different - if not opposite - model. Both in the way they built their authority and in their relationships with other authorities, at the domestic as well as at the European level, the two models strongly differentiate themselves. Thus, comparison with a contrasting approach will help to better grasp the essence of the Italian way.
This chapter shows the remarkable way that the Italian Constitutional Court built its authority on a weak legal basis, which is particularly visible when compared with its German counterpart. However, this is not meant to be an acritical defense of the Italian Court: our purpose is to stress some characteristics. Furthermore, one should not forget that the path from weakness to strength can be reversed. This is a realistic scenario in Europe, as the Hungarian Constitutional Court has demonstrated.
-  * We had the opportunity to discuss some of the ideas expressed in this paper in the research meeting “Relationality and Hierarchy in Constitutional Justice: Bundesverfassungsgericht and Corte costituzionale as Two Models of Constitutional Courts?” at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, 9 July 2018. We would like to thank all participants, and in particular Justices Marta Cartabia and Peter M. Huber, for their valuable insights. Many thanks to Desiree Schmitt and Lucas Humbel for language editing. The usual disclaimers apply. The research leading to this paper was supported by the German Research Foundation (DFG) in the context of the Gottfried Wilhelm Leibniz Prize. 2 Original: “Dat ham wir uns so nich vorjestellt”, see C. SCHÖNBERGER, Anmerkungen zu Karlsruhe, in C. SCHÖNBERGER, M. JESTAEDT, O. LEPSIUS, C. MÖLLERS, Das entgrenzte Gericht, Berlin, Suhrkamp, 2011,26. 3 C. SCHÖNBERGER, Anmerkungen zu Karlsruhe, supra note 1,21 ff.
-  ’For a historical account of these two foundational confrontations see U. WESEL, Der Gang nach Karlsruhe. Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik, München, Karl Blessing, 2004, 54-82. In English: J. COLLINGS, Democracy’s Guardians. A History of the German Federal Constitutional Court 1951-2001, Oxford, Oxford University Press, 2015, 9-28. ■'V. BARSOTTI, P.G. CaROZZA, M. CaRTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, Oxford, Oxford University Press, 2016, 30 (but see also 236). 2 To be sure, the German Constitutional Court too had to face a strong confrontation with the Supreme Court in the first years of its existence, in particular in the battle on the Stellungnahmeverfahren (see A. FaRAHAT, Das Bundesverfassungsgericht, in A. VON Bogdandy, C. GRABENWARTER, P.M. Huber (eds.), Handbuch lus Publicum Eu-ropaeum. Band VI. Verfassungsgerichtsbarkeit in Europa: Institutionen, Heidelberg, Müller, 2016, 92). However, this does not seem to have had the same foundational meaning for the Court’s identity as the confrontation with the political power.
-  See judgments 11/1965 and 52/1965 as well as judgments 127/1966 and 49/1970. 2 ’V. Barsotti, P.G. Carozza, M. Cartabia, A. Simoncini, Italian Constitutional Justice in Global Context, supra note 4,236. 3 2 Corinthians 12:9. Readers familiar with the Pauline epistles are likely to object our use of Saint Paul’s words in this chapter because the meaning of these words in the original context clearly diverges from the one that we attribute them here. However, we decided to pick up this formula for its ability to convey like no other a clear concept on the relationship between weakness and power in a very succinct way. But the analogy does not go any further than this and any other comparison with the original text exceeds the authors’ will.
-  In this way, this paper responds to Marta Cartabia’s suggestion to move towards “a new taxonomy of constitutional courts [...] elaborated on the basis of their general attitude towards other actors”: see M. CARTABIA, Of Bridges and Walls: The “Italian Style” of Constitutional Adjudication, in 8 Italian Journal of Public Caw, Issue 1, 37 (2016), 43. 2 See L. SÔLYOM, The Rise and Decline of Constitutional Culture in Hungary, in A. VON BOGDANDY, P. SoNNEVEND (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, Munich-Oxford-Baden-Baden, Beck-Hart-Nomos, 2015, 5 ff.