the constitutional court in italian politics

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The constitutional court inItalian politicsPaul Furlong aa Lecturer in Politics , University of Hull ,Published online: 03 Dec 2007.

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The Constitutional Court in Italian Politics

Paul Furlong

The Italian constitutional court was established as an extra-politicalguardian of the constitution, but it has assumed an important rolein policy-making which is far removed from its original, intendedfunctions. This article describes the political background to itsdevelopment and analyses the variety of ways in which the court hasto take decisions of considerable political sensitivity with increasingfrequency. The court is most in the public eye when it carries out itsfunctions in the referendum procedures, but its involvement is morecontinuous, more creative and more positive than this might suggest.The article concludes that the court has to take action in areas forwhich it lacks the proper instruments, and that us relationship withother institutions in the policy-making process is worthy of moreattention than such relationships often receive.

CONSTITUTIONAL COURTS IN COMPARATIVE ANALYSIS

In direct contrast with the origins of the discipline, and no doubt in tacitreaction against them, the relative neglect of the study of political institutionsin recent years has been particularly marked in the lack of attention paid tocourts and constitutions. It is scarcely surprising, therefore, that the Italianconstitutional court has been neglected even by specialists in Italian politics,its formal functions usually acknowledged in passing and left to future scholarsto pursue in depth. But the centrality of constitutional courts in the exerciseof sovereignty and of representation, to say nothing of their impact on policyoutcomes, provides good reason why political scientists ought to give the courtsand the judicial process more consideration, and why the Italian constitutionalcourt ought to be of interest not only to Italian jurists.

In so far as the subject is referred to at all by political scientists, theworkings of constitutional courts are usually characterised in one of twomodes. The most generally used is the conflict/consent mode. In this perspec-tive relations between the court and representative institutions are the maininterest, and are regarded as potentially or actually conflictual. The doctrineof the separation of powers on which constitutional courts are usuallybased encourages this assumption, and the example of the US SupremeCourt in the 1930s, perhaps the locus classicus for the playing out of thisconflict, has become a paradigm for other courts in different systems.As an extension of this argument, political scientists have tended to analysethe role of constitutional courts in terms of a continuum between conflictand consent, or, to put it in more practical terms, to identify their chosencase either as an obstacle to an activist executive or as a presumably prestigiousbut generally sympathetic legitimation of executive and legislative acts.

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8 WEST EUROPEAN POLITICS

But the complexity of a constitutional court's political role has been wellindicated by the US Supreme Court's advancement of civil rights in the 1950s,by the rapid development of the French constitutional council in the 1970sand 1980s, and by the emergence of the West German constitutional courtas a major rationalising force in the policy-making process. The other modeof analysis recognises this greater complexity by putting the court into a idealistframework, in which the law is formed by the concurrence of all the institutionsengaged in the legislative process. The constitutional court then represents thehistorical and permanent legitimacy of the state, and operates not in a conflictof sovereignty with other lawmakers but in concert with them to create themoral basis of the state in law.1

In general and comparative terms, how powerful a court may be, how itinteracts with formal and informal policy-makers, and the extent to whichit impedes, legitimises or supplants the executive, all depend on severaldiscrete factors. The political culture within which it works is of course formedpartly by the constitution itself, but more long-term historical traditionsrelating to sovereignty and representation may significantly alter the consti-tutional court's capacity to act autonomously. The French constitutionalcouncil gives its judgments within a political tradition which emphasisespopular sovereignty and executive authority, while the United States traditionof separation of powers, however obscured in practice, is clearly much morefavourable to the independent exercise of political power by non-electedjudges. The ways in which cases are referred to the court may crucially affectits interaction with the rest of the political system — in particular, whethercases come to it through the judiciary alone or through the legislature andexecutive as well, whether individual rights are specifically defined in theconstitution or are left to judicial interpretation, and whether the court canchoose freely the order in which to take cases. The formal powers of the courtmay give only an imprecise indication of its effective functions, but theyprovide evidence of the political logic within which the court is supposed tooperate, and of whether there are areas of administration reserved to executiveaction. Particularly significant in this context are the provisions for disclosureof official information and the procedures for individuals to appeal againstalleged abuse of their rights by the state. Finally, and perhaps most obviously,the nomination procedures by which judges are appointed may determine thepolitical characteristics of its operations and decisions, though this factor hasperhaps been exaggerated in importance since the court-packing efforts ofRoosevelt during the New Deal. Judges seem to have a tendency to forget theirpolitical sponsors once they achieve the guaranteed independence of thecourtroom. This is clearly associated with the political aspirations if any ofthe judges, but it is also a function of the difficulty professional politiciansmay have in correctly identifying the political orientations of career judges.Many of the factors that determine the operation of constitutional courts aretherefore not different in kind from those that apply to more overtly politicalinstitutions.

The Italian constitutional court provides an example of the complex politicalfunction of a powerful judicial institution. The court has at times operatedpredominantly in the conflict/consent mode, but it would be misleading to

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THE CONSTITUTIONAL COURT IN ITALIAN POLITICS 9

characterise its role in these terms alone, or even to suggest that this is itsnormal mode of behaviour. Occasionally the court is in serious conflict withParliament or with government, but for the most part its role is neitheropponent nor legitimiser but substitute, in the sense that it is often called onto make up for the technical and political inadequacies of legislative andexecutive acts. The Italian constitutional court is therefore more than theguardian of the constitution. Despite the seclusion and opacity of much ofits work, the court is integrated into the major decision-making processes withpositive and active functions, though they are not necessarily exercised in waysthat satisfy either politicians or judges or that fit any coherent fully-acceptednotions of sovereignty and law.

ORIGINS OF THE ITALIAN CONSTITUTIONAL COURT

Despite its present position of strength and the coherence with which it mightseem to fit into the prevailing political and legal format, the Italian consti-tutional court has no long tradition behind it, no store of prestige andexperience built up from previous conflict and exercise of authority. Beforethe end of the Second World War, the Italian legal system operated underthe Statuto Albertino, the document signed in 1848 by Carlo Alberto, Kingof Sardinia and ruler of Piedmont and Savoy. This was a flexible constitutionwhich could be overridden by ordinary law; there was therefore no need fora constitutional court to review subsequent legislation. Under the StatutoAlbertino, executive authority rested with the King alone, and legislativeauthority was to be exercised 'collectively by the King and the two Chambers'.This was understood to give each of the three a formal right of veto over legis-lation. In the Statuto there was no explicit reference to parliamentary votesof confidence, but this did not prevent the practice developing. After a periodunder Cavour in which the Prime Minister played King and Lower Chamberagainst one another to his own advantage, the system developed into one inwhich the Chamber of Deputies achieved predominance in legislation. Despitethe formal authority of the king and the restricted electoral suffrage for muchof the period, the Liberal state rested on the practice of the centrality ofParliament. The legislature progressively asserted the right to determine thestability of the executive, not so much aided by any popular mandate as abettedby serious internal divisions within the executive and by the absence of partydiscipline among the deputies. These were among the primary causes of thechronic governmental instability of the Liberal state and its incapacityeventually to withstand Fascism after 1918. In the early years of Mussolini'sregime, the King, the military élites and the parliamentary élites failed toprotect properly the constitutional forms in the face of Mussolini's claim tobe building an entirely new ethical base to the state. A constitutional courtwas first seriously proposed by the Liberals and Socialists in 1925, by whichtime Mussolini had demonstrated not only the potential usefulness of suchan institution but also the improbability of its introduction when it was mostneeded.

The post-war constitutional court is a logical consequence of the choiceof a rigid constitution, a constitution which is formalised in written law and

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which can only be amended by special majorities in extraordinary proceduresof the legislature. Amendments to the Italian constitution must be passed twiceby each House at an interval of not less than three months and an absolutemajority of each House is required at the second vote. This procedure hasbeen used relatively infrequently by the legislature and mainly to changemethods of election and periods of office rather than to alter the underlyingvalues of the constitution. The Constituent Assembly was determined to putthe post-war constitution outside political debate and to safeguard it fromauthoritarian change. The constitutional court had to prevent Parliament orthe government amending the constitution by ordinary law or by other meansnot specified in the constitution, but there is in any case a variety of ways inwhich this preventive function might be implemented. Once invented, theconstitutional court could be found other aspects of political organisation inneed of its guarantee function. Its origins, its specific mode of operation andthe accretion of functions have together led to the court's having closepersonnel and issue links with the other political institutions, even if the initiallogic of the court's establishment intended otherwise.2

The court itself was the subject of much controversy both in the debatesduring the Constituent Assembly and before its establishment. This affectedits final conformation profoundly and ensured that, although it might ifnecessary be able to exercise the basic safety-net function, it has other morecontinuous functions which are certainly not outside the political domain. Theconstitutional court originated in politics and lives by politics. Its primaryfunction, at least in terms of numbers of cases and the first referred to by theconstitution, is to decide on cases where the constitutional legitimacy of lawsis in dispute. Legal doctrine since 1948 has generally argued that the premissbehind all of its formal responsibilities is that the court should not only protectthe specific values written in or decipherable from the constitution, but shouldalso protect the general organisation of powers established by it. This functionalso seems to have been the intention of the legislators in the ConstituentAssembly. This wider responsibility, which the court actually shares with thePresident of the Republic, requires the court to maintain the boundariesbetween the other powers, and it does this in two ways referred to in Article134 of the constitution. The court decides on conflict between the state andthe regions, both of which of course have a direct popular mandate, and itdecides on conflicts about the particular jurisdictions of the other state powers.These functions are not particularly important in terms of the number of caseswhich they bring to the court, but in the highly-structured Italian legal systemthey give the court points of entry into the responsibilities of the Council ofMinisters, the Court of Accounts, the Council of State, and the governingcouncils of the judges and the military. The other formal function whichreflects directly the experience under fascism is the impeachment procedurefor the President of the Republic and for Ministers: this is the only criminaltrial function of the court, and has the purpose of ensuring that the respon-sibility for impeachment does not rest with the ordinary judges, who are heldto be more vulnerable to political pressure.

Its most determined proponents after the war were the small lay parties,the Republican Party and the Action Party, who lacked numerical weight in

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the Constituent Assembly but had considerable cultural prestige as represen-tatives of the progressive liberals who had opposed Fascism in the 'Justiceand Liberty' movement. The Christian Democrats initially favoured a SupremeCourt with constitutional functions on the American model, a position whichwas coherent with their federalist and decentralising inclinations at that time.The Communists also saw the analogy with the US Supreme Court and foundit unwelcome. They were particularly sceptical of the capacity of the courtto provide a genuine non-political guarantee and disliked the lack of formalaccountability in the new institution. The PCI Secretary Palmiro Togliattidismissed the court as 'una bizarría', but the PCI were reluctant to vote againstit for strategic reasons. They proposed that the judges should all be electedjointly by Parliament and the regional authorities, while the DC proposal,accepted by the preparatory commission, was that the judges should all beappointed by and from the highest Court of Appeal, the Corte di Cassazione.This dispute reflects the widely differing ideas of sovereignty and democracyheld by the Communists and Christian Democrats at this time. The PCI wanteda constitution unequivocally committed to radical egalitarian values and asingle-chamber legislature able and willing to implement it, and they did notwant Parliament in any case to be checked by non-elected powers. They werewilling to accept the continuance of pre-republican norms and legal structuresonly on the understanding that these were for the purpose of preserving orderduring the transition towards a progressive liberal democracy which was theirimmediate objective. In the face of a radical mass party with quite specificnotions of constitutional engineering, the DC quickly stood revealed as a partywith only vague schemes relying on traditional Catholic social teaching andwith little idea of how they should be implemented. But they knew what theydisliked, and were content on many issues to accept the compromise proposalsof their own jurists and those of the progressive liberals. The compromise overthe constitutional court which finally won the day in the plenary debates wasthat the court should have 15 members in all, five elected by Parliament, fivenominated by the judiciary, and five nominated by the President of theRepublic. Judges were to hold office for 12 years, a period of office whichreflected the intention to remove the judges from political pressure and futureambition as far as possible. It was anticipated that career judges would in factmake up the bulk of the membership, but their influence was to be leavenedby the inclusion of full professors of law and of lawyers with 20 years' practice.

The constitution which they were in office to protect was and remains apowerful symbol of the post-war unity of the anti-fascist forces, but the rapiddissolution of the tripartite alliance of Christian Democrats, Communists andSocialists left the founding document beached, as the high tide of radicalismreceded. The lack of specific content in its compromises had been scornfullycriticised by the old Liberals in the Constituent Assembly. In what was to behis last major intervention, the leading Italian liberal philosopher of the pre-war period, Benedetto Croce, described the constitutional compromises as a'wonderful concord in words and discord in deeds'.3 The younger generationof Liberals were happier to have their skills used in the drafting and negoti-ations, but many of them were also to be disappointed by the political glossthe constitution acquired after 1948. After May 1947, the ruling coalition

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excluded the Communists and Socialists, and for the new coalition theimplementation of the constitution was regarded as fraught with dangerspreviously unobserved. The constitution was held to reflect an unprecedentedand possibly unrepeatable period of agreement, and the rapid implementationof its more radical clauses could not be expected in the less conciliatory daysafter the first parliamentary elections in May 1948. On a wide range of issuesthe constitution handed over implementation to ordinary law and thereby tothe tender mercies of the government of the day. The DC now discovered thatthe separation and diffusion of power which had been envisaged meant notonly the diminution of their own control exercised through the centralministries but also the back-door inclusion of the Communists and Socialists.Regional reform, reform of the Prime Minister's Office, introduction of theReferendum, judicial reform, all languished in the executive ante-chamber.

In an article published in 1953 Piero Calamandrei, a respected jurist andsenior figure in the progressive liberals, referred to the obstructionism of themajority; by this he meant that the governmental majority in Parliament, withthe tacit consent of the government, was delaying the passage of governmentalbills which implemented parts of the constitution.4 He argued that the reasonbehind this obstructionism was that the constitution 'promised revolution'to the Communists in return for their initial compliance. This interpretation,which reflects the disillusion of the progressive liberals with the developmentof the political system and with their own marginalisation, has gained widecurrency and proved of more than passing value to the right wing of the DCin their 'obstructionism'. But the substance of the argument rests on a readingof key clauses such as Article 3, which arguably not even the PCI intendedmaking; if they indeed intended revolution (which is not clear), a documentof such vagueness based on such overt compromise could hardly be counteda firm commitment to it. In particular, its apparent support for the sovereigntyof Parliament is hedged about by the recognition of the guarantee functionof other powers and by the competition of Parliament with other forms ofrepresentation, such as the regions and the referendum procedure. Thevagueness of some of its clauses and its apparent internal contradictions, forexample on family law, lent support to the caution of the DC, now apparentlythe permanent party of government. But if its implementation has proveddifficult and controversial, it is partly because political interpretations of it,including those of Calamandrei, have encouraged such controversy. In effect,the Christian Democrats of the time felt that in the climate of confrontationbetween themselves and the Communists they could take no action whichwould mitigate their capacity to control events through their majority in Parlia-ment. This had the paradoxical consequence that the Communists' initial lowopinion of the constitution was soon changed to one of benevolence andencouragement, on the understandable logic that a set of norms so feared bythe DC could not be all bad. Thus the PCI has been able to use the debateto claim to be the 'party of the constitution' and the DC has used it to reinforceits position as the party of order and continuity, the bearer of the values ofcentral state authority.

The provisions of the constitution on the constitutional court are brief onmost matters except its membership. Later laws passed by the Constituent

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Assembly and Parliament filled in important details on the procedures forreference to the court, on judicial independence, on forms of election and onthe administrative resources available to the court. If the intention had beenonly to control the legislature and executive, to prevent politicians fromusurping powers to which they were not entitled by the constitution, it mighthave been logical to draw the constitutional judges from career judges alone.That this was not the only concern of the Constituent Assembly is clearlyindicated by its approval of the mixed nomination procedure. It would alsohave been logical to allow the court to review legislation immediately afterits ratification by Parliament and before promulgation by the President ofthe Republic, as in France. But another implied function of the court was alsoto ensure that there was effective judicial control over the activities of ordinaryjudges. No substantial purge of the judiciary was carried out after the fall ofFascism, and the conduct of judges during the Fascist regime cast doubt ontheir capacity to interpret and apply the new constitution; this was one goodreason for not giving the function of constitutional review to the highest Courtof Appeal of the ordinary judiciary (the Court of Cassation). The workingof the judiciary from 1948 to 1956, when the constitutional court began, gavefurther validity to this view in the eyes of the progressives, since the Courtof Cassation, with which the function of constitutional appeal rested until1956, proved extremely restrictive in their judgments on constitutional matters.Their attitude rested on the crucial distinction between preceptive and pro-grammatic norms in the constitution. Pursuing a narrow interpretation of Ar-ticle Seven of the Transitional Provisions, the Court of Cassation held thateven preceptive norms did not necessarily have immediate application sincefew of them gave positive and detailed indications of how the law ought tobe applied. Those that did, such as Article 21 on freedom of the press, wereheld to displace contrary norms in existing legislation immediately, butotherwise the ordinary judges abstained from decisions of unconstitutionality.This attitude on the part of the ordinary judges was scarcely surprising, butit reinforced their reputation for what might be termed 'extreme prudence'in politically sensitive cases.

The relatively low status of judges in the Italian political tradition thereforemilitated strongly in favour of giving a completely separate constitutional courtresponsibility not for reviewing laws before promulgation but rather forreviewing judicial application of laws. Administrative law had also to beincluded within the jurisdiction of constitutional review for the same generalreasons. However, despite recent political experience, within the ConstituentAssembly there was sufficient support for the idea of a strong executive powerto keep the role of the Council of State, and therefore of the ConstitutionalCourt which reviewed it, limited to the protection of legitimate interests andof subjective rights only in specific fields laid down by law.

A further reason for the formal superiority of the constitutional court overthe ordinary judicial system lies in the principles by which the legal systemoperates.5 The legal framework inherited almost intact by the new ItalianRepublic was that developed in the Liberal period. Though of course Italyhas a long and sophisticated legal tradition from before the nineteenth century,its development and formalisation from the Napoleonic period onwards

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owed much to the French influence, which was felt not only through thecodification applied under the Napoleonic regime but also later through theinfluence of the French Bourbon regime on the House of Savoy. The mostimportant fruits of this influence in practical terms were the Civil Code,promulgated in 1865, and the Code of Civil Procedure, promulgated in 1885;but French rationalism did not impress itself entirely on Italian legal forms,and largely for political reasons was soon overlaid by the idealist andsystematising approach of German jurisprudence. A particular politicalconsequence of this combination of influences was the ambiguous positionin which ordinary judges found themselves. One of the purposes of codifi-cation both in France and in Italy was to prevent judges or legal scholars'making law' by drawing general principles from individual cases. The Codesshould if properly drawn up cover all possible cases, leaving no room forjudicial discretion but making the judges act rather like legal techniciansobjectively applying a complex instrument of justice. They were also intendedto counter and, if possible, render redundant the use of learned opinions andcommentaries in the daily application of law in the courts. In Italy, becauseof the enduring strength of scholarly doctrine inherited through the Romantradition, because of the overlay of the German style of interpretation on theFrench codification, and not least because 'the government of judges' wasnot perceived as a threat to the same extent as in France, neither judicialinterpretation nor scholarly doctrine was extinguished.

In principle, then, the system was and still is conceived as a coherent unifiedand complete codification, described by one authority as 'a unique paradigmof the Civil Law system'.8 In this conception of Italian law, there is of courseno room for precedents; each case should be treated as unique, and thejudgments of higher courts are only binding on the lower courts for theparticular judgment applied to the particular case. Unless the court ofconstitutional review were given powers to repeal clauses or laws with absoluteeffect, its decision might run the risk of being ignored by the lower courts fordifferent cases, particularly since these courts were suspected of being inhabitedby judges not fully committed to the spirit of the new constitution. The draftersof the constitution foresaw conflict between the constitutional court and theordinary judiciary, and sought to give their creature unequivocal formaljurisdiction in its field. They did this by placing the court entirely outside thenormal functions of the ordinary judiciary. A further measure with the samerationale was the provision that when the court declares a norm unconsti-tutional, the norm in question simply ceases to have effect from the followingday and therefore cannot be used by the judicary. This provision might beexpected to deal with the formal problems of status of the court; the practicewas certain to be more difficult. The formal purity of the system demandedthat the only source of new law should be Parliament, and the only authori-tative statement of its intentions should be the Codes and successive amend-ments. But though case law and precedents cannot be recognised formally,some informal sources of law have arisen, and the systematic and theoreticalemphasis of the codes has favoured in particular the elaboration of doctrinewithin the academic community as well as in important judgments in the Courtof Cassation. The historical development of Italian law has therefore

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favoured the academic interpretation of law in the universities and the develop-ment of a substantial and influential body of jurisprudence by universityprofessors. Although the constitution could be made immune to formalpressures, it was less easy to provide protection against these more informalauthorities, and in fact the conformation of the constitutional court reflectsthe wish to integrate the academic element into its operations; this is hardlysurprising in view of the prestige of the academic lawyers and their directinfluence in the Constituent Assembly.

The Italian constitutional court emerged from the Constituent Assemblyas a powerful institution whose most important function is to confirm thatthe new Republic to a greater extent than the Liberal state is a Stato diDiritto,a state based on law not on executive power or on untrammelled popularsovereignty. But in its capacity to enforce the rule of law it is limited by theinstitutional pluralism of the new regime, and in particular by the broad ill-defined scope of the constitution, which makes the detail of the 'Italian model'a matter for the representative assembly. The constitution implicitly asks thecourt not to resolve in a positive manner conflict between the constitution andlaws already in existence, but rather to deal with flagrant contrasts betweenfuture legislation and the constitution. As a secondary function, moreimportant for its doctrinal implications than for its direct effects, the courtshould also resolve boundary disputes between the institutions of state. Therelationship of the court to Parliament is therefore ambiguous even in theprinciples of the constitution. The constitution which the court is to protectis obviously a rival source of law to the ordinary legislator, but very few normscan be derived directly from the document, and control of the court overParliament is negative and indirect. The court cannot make Parliamentlegislate but neither, granted the structure of Italian law, can it impose its owntemporary law on ordinary judges to fill the legislative void which its actionsthreaten to create. The way it works is therefore profoundly affected by thepolitical context, in particular by parliamentary compromises, or the lackof them.

JUDGES AND POLITICS IN THE COURT

The particular bill which occasioned Calamandrei's outburst in 1953 was infact the governmental proposal relating to the election procedures for judgesof the constitutional court. The proposal which emerged from the standingcommittee of the Chamber of Deputies which gave the bill its second readingwas that the judges emanating from Parliament should be elected by a two-thirds majority of all members. This, though consistent with similar proceduresin the constitution, would have compelled the governing parties to seek theagreement of the Communists and Socialists and would inevitably haveresulted in the election of judges friendly to the PCI. The bill was repudiatedby its reporter on the third reading, and then went into the legislative limbowhich awaits controversial bills in the Italian Parliament. After three fulldebates in the Chamber of Deputies and two in the Senate, the law waseventually passed in March 1953 with an election procedure which requireda three-fifths majority of all members on the first ballot and three fifths of

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those present thereafter. This would be sufficient to keep the PCI out of thenomination procedure only if the Socialist Party, at that time excluded fromgovernment, were willing to co-operate with the governing parties. In practice,the constitutional or Parliamentary coalition has generally been broader thanthe governing coalition, and after some initial difficulty the court has func-tioned with judges nominated by the Communists. For the first nominationsthe DC refused to accept one of the PCI nominees: after eight attempts intwo years, the Communists eventually proposed a candidate more acceptableto the DC, and the constitutional court was able to begin work in January 1956.

This conflict, stimulated or exacerbated by the international tension of thetime, was an important part of the effort by the centre—right coalition of the1950s to make the power of the executive predominant both over Parliamentand over other institutions. It was not only the Communists who were subjectto the exclusive claims of the governing coalition. Christian Democrat PrimeMinisters argued without success that the five constitutional court judges tobe nominated by the President of the Republic should in fact be the choiceof the Prime Minister. These early pretensions left their mark on the wayParliament operates, but in general they have been overtaken by a morepluralist reading of the political system in almost all its major institutionsexcept that of the Council of Ministers itself, from which the PCI is still ofcourse excluded.

In 1967 the period of office of judges was reduced to nine years. Theparliamentary election procedure for the court was also modified to requirea two-thirds majority of all members for the first three ballots and a three-fifths majority thereafter. Similar changes occurred in other election pro-cedures at about the same time, and they reflected not only the readiness withwhich agreement could be reached with the PCI in Parliament but also theincreasing problem of absenteeism on the benches of the governing parties.By the time of the 1986 elections for the court, the major difficulty was notgetting the governing parties to vote for the PCI candidate but persuadingthem to support an unpopular choice from their own ranks.

The tripartite nomination procedures and wide qualifications for member-ship are a typical Italian compromise, giving a little of something to all thecontending parties (except of course to the neo-fascists). In its electoral aspectsthis is a complex pluralist institution which is vulnerable, as in 1954-55, tostrategic vetoes or, as in 1986, to manipulation for short-term party-politicaladvantage. In the long-term, however, a clear membership pattern hasemerged, as Table 1 indicates.7

Of the 57 members from 1956 to 1986, eight were practising lawyers, 24were career judges, and 25 were university professors of law. The 'electoralcollege' of the career judges (the Court of Cassation, the Court of Accountsand the Council of State, acting separately) has elected only career judges,and only one of these, the second president elected, has been President of thecourt. Parliament has elected one career judge out of its 18 members, and he,like all the practising lawyers, was actually a Member of Parliament at thetime of election. The Presidents of the Republic have tended to nominateuniversity professors, and it is this group which dominates, not only becausethey are the largest single group of members but also because out of the twelve

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TABLE 1

CONSTITUTIONAL COURT JUDGES, BY ORIGIN AND ELECTION

Nominated by Parliament

By Judges

By President of Republic

Pr

2

0

1

3

P = President of courtVPr = Vice-president of courtM = Member

LawyerVPr

0

0

0

0

M

5

0

0

5

Original OccupationJudge

Pr VPr M

0

0

1

1

0

6

1

7

1

14

1

16

Pr

4

0

4

g

AcademicVPr

0

0

2

2

M

6

0

9

15

presidents of the court, eight have been academics. This is in a sense consonantwith the logic of the Constituent Assembly. Wishing to avoid both governmentby judges and trial by politicians, they left the way clear for the only othergroup with the requisites of status and expertise. It would be tempting tosuggest that the result is examination by academics, but this proposition wouldhave to be qualified considerably.

For many of the academics their membership of the court and particularlytheir holding of the presidency are consequences of a party-political affiliationand are often precursors to a political career. Among past presidents of thecourt, Aldo Sandulli (1968-69) became chairman of the state televisioncompany RAI-TV and then DC Senator in 1983, Giuseppe Branca (1969-72)after original affiliation to the PSI was elected Senator on the PCI list from1972 to 1983, Francesco Bonifacio (1973-75) was Minister of Justice from1976 to 1979 and DC Senator from 1976 on, and most controversiallyLeopoldo Elia (1981-85) was a candidate for the Presidency of the Republic.This politicisation is rendered possible by the relative youth of many of theseacademics on becoming judges, whereas career judges tend to be at the endof their careers when elected. Certainly the notion that members of the courtand a fortiori its Presidents can be kept immune from political ambition canno longer be sustained.

The style of the court's decisions might appear rather abstract and detached.Its judgments, which are presented as unanimous without a minority state-ment, never refer to the particular details of the case considered but are phrasedin general principles. This is a common practice in Italian courts, but in thecase of the constitutional court its purpose is to give the judgment as widean application as possible. It reflects the importance of doctrine in Italian lawand is obviously useful in masking serious disagreement among the judges.As a consequence, the court's judgments are often inaccessible to those withoutlegal training and often not entirely comprehensible even to lawyers. Thishighly technical style therefore is not merely an academic trait, and while itmight be necessary for the purpose of maintaining and extending the court'sauthority within the legal profession, a serious disadvantage is that the court

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is often unable to explain to public opinion the legal reasoning behind itscontroversial political judgments, which are inevitably frequent. The expansionof the court's work has rendered this problem more acute.

A clear example of the political salience of the court and of its vulnerabilitywas provided in 1985, when the court ruled that there were no constitutionalgrounds for not holding a referendum on the wage-indexation mechanism.The referendum was promoted by the PCI, and government spokesmancriticised vigorously Leopoldo Elia, the president of the court, makingparticular play with the proximity of elections for the Presidency of theRepublic and the likelihood of Elia's candidacy. Recent presidents of the courthave taken to giving an annual press conference to review and defend theirrecord, and articles signed by judges of the court explaining majority decisionsor arguing against them appear in the academic journals with increasingregularity. The President is now also expected to be available to explain allmajor decisions to the press. But in his capacity to justify what the court mayquite reasonably have done he is clearly hampered by the brevity and formalismof the motivations of the court's sentences as well as by the rule of unanimity.These efforts are thus unlikely to affect the court's public standing signifi-cantly, and it is difficult to see how the court can resolve the conflict betweenthe requirements of legal convention, the need to assert its authority over thelegal profession, and the political salience of much of its work. The conse-quences of this conflict for the court's consistency and authority as the highestexpression of the rule of law in Italy are considerable.

THE COURT AND PUBLIC POLICY

Presidents of the Republic and Parliament have tended to appoint membersof the court who have either a political past or a political future or both. Butas a political instrument the court is not merely a useful alternative to a careerthrough Parliament and through minor ministerial office for those seekinghigher outlets for their political talents. It is almost unique among the insti-tutions of state in Italy in that it regularly comes to categorical decisions ondifficult issues and, despite the difficulties referred to earlier, is widely believednot to be in need of major reform. There can scarcely be a major policy issueon which the court has not had to speak, and the volume of cases which cometo it clearly indicates the importance of its role in the detail of policy implemen-tation. In his annual press conference on 23 January 1986 the then presidentof the court Professor Livio Paladin called attention to the 'abnormally high'number of cases pending before the court at the end of 1985,2748 in all; 386judgments had been given in the year, while a total of 1013 cases had beenreferred to the court.8 The 'abnormality' is relative to the experience of othercountries not to past experience in Italy, and in fact these figures representan improvement on the previous year, in the sense that the number of casespending was 8 per cent lower than in 1984 and the number of judgments wasthe highest ever. They do, however, suggest that the judicial system is heavilyreliant on the constitutional court, and that the court is not able to meet thedemands on its resources. The questions raised by this problem are notprimarily those of administrative rationality, but are political, and concern

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the policy process in Italian politics, the balance of power between therepresentative and non-representative institutions, and the capacities of thesystem as a whole to develop coherent policy within the given constitutionalframework. This was confirmed by Paladin's detailed comments. Parliamentand government were criticised both for their slowness in applying the court'sjudgments and for the incoherence and fragmentation of the legislative out-put. Particularly sharp words were aimed at the large and increasing propor-tion of the court's work dealing not with grand constitutional principles butwith property law, tax law and pension and welfare rights.

It would be impossible in this initial survey to analyse in detail the specificeffects of the court's judgments in the major policy fields. Despite Paladin'slament, the court has had to make radical choices on referendums, civilliberties, the penal process, industrial relations, family law, mass communi-cations, and the powers of the regions, as well as on major issues in themultitude of tax and welfare cases of which Paladin complained. Analysis ofthe activities of the court in individual issues must await further study. Butthe causes of this volume of work and its impact on Italian policy-making canbe analysed in general terms at least with rather more brevity.9

The issue of unconstitutionality in ordinary law may be raised either bythe judge or by one of the parties in a case. More rarely a regional govern-ment, the Prime Minister, or Parliament may raise conflicts of competencefor the court to decide. Where the issue of unconstitutionality is raised, theordinary judge must decide that the claim on the grounds specified is 'notmanifestly unfounded' and is 'relevant to the case'; the judge then asks thecourt to establish the legitimacy of the claim. The constitutional court maychoose the order in which it takes cases, and where the volume of cases is sogreat, the capacity to order cases on the timetable may provide a major politicaldiscretion. It is in this power that one of the sources of the authority of thePresident lies. The President also nominates the judge who is to report on thecase to the court and sets the timetable of sittings. The pace and style adoptedby the court have tended to vary to some extent in accordance with the prioritiesof the President, though the content of the judgments probably reflects theexpertise and interests of the judges most involved at the preparatory stage.The court's coverage of the cases referred to it by the ordinary judiciary tendsto be unavoidably interrupted by more directly political demands, such as thereferendum procedure.

The court can also use the ordinary cases coming to it to enhance or weakenthe powers of Parliament and the executive. During the 1970s particularlyunder the presidencies of two former deputies Paolo Rossi (DC) and Leonet-to Amadei (PSI), the court had a high political profile and seemed to givepriority to the maintenance and enhancement of its political clout, in particularagainst the claims of the political parties in Parliament. In part this was thruston it by issues with which it had to deal. In particular, it was repeatedly calledon to decide the admissibility of referendums, which demanded not onlyprompt decision by it but also considerable political sensitivity. The court waspushed further into the harsh daylight of inter-party rivalry when in 1978 and1979 it had to deal with the first and so far only cases of impeachment ofministers. On this occasion the judges decided that other cases had to yield

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precedence to the trial of the two former ministers, and for almost 18 monthsa backlogof cases built up as the court felt its way through the unprecedentedand demanding procedures. After this not entirely welcome distraction fromits ordinary business, the presidents of the court have given priority to clearingthe backlog, most obviously, but also to reinforcing its links with and authorityover the judiciary. The experience of the 1970s seems to have led the consti-tutional judges to be wary of their political functions. The constant recourseto the referendum procedure by the Radical Party prevents the court fromever fully removing itself from the political skirmishes of party competition,but it does seem now to be emphasising its legal role and legal authority ratherits capacity to resolve otherwise intractable policy disputes for the represen-tative institutions.

Its ordinary cases also can have serious consequences for the functioningof the state and the status of the parties. The reasons for this situation lie inthe formal obstacles to the court's making of law and in the practicaldifficulties which the representative institutions notoriously face in thelegislative process. The constitutional court, as a matter of principle, cannotmake law, at least in the sense that it cannot say what the law ought to be.Parliament, as a matter of practice, finds extreme difficulty in doing so, atleast in making law that is other than minimal in scope. How to resolve thisconundrum is one of the most serious problems faced by the Italian state anda variety of procedures has been developed by the court in response.

If in an ordinary case the constitutional court's decision is that the normis not unconstitutional, the case may be put again to the court on differentgrounds at a later date. The effect of a positive decision is simple in principle:the norm or part of a norm is repealed. It may be that what remains after therepeal is sufficient for the law to operate normally, but the actions of thecourt may create a legislative void such as to require positive legislation byParliament. There is no doubt that one of the major causes of the range ofwork tackled by the court is the slowness with which Parliament, and implicitlythe government, has substituted Republican legislation for laws pre-datingthe Republic. Although Parliament is now beginning to achieve some resultsin removing direct conflicts and in passing programmatic laws called for bythe constitution, the court has felt obliged to adopt a variety of forms ofjudgment to make up for Parliament's tardiness, which often occurs in theface of repeated requests from the court to take action. A long-runningexample of this delay which would merit separate study is the issue of controlof television and radio broadcasting, in which the court has repeatedly since1974 tried to prompt the government to present a programmatic law. Thegovernment's failure to regulate the changes in broadcasting has highlightedthe limitations of the court's powers as well as the weakness of the executive.

These omissions by the legislature are the usual cause of the grand casesof principle with which the constitutional court has to deal. But Parliamenthas also made work for the court by the nature of the legislation which it doesproduce: in particular, the phenomenon of the 'little laws' on taxation,pensions, welfare subsidies and the organisation of the public sector leads toconflicts of competence, ambiguities and internal contradictions which imposean added burden on the judiciary. The court can hardly be said to have shirked

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the responsibility. When the issue of constitutionality draws the court intothe fray, it has on occasions shown itself willing to accept the argument thata benefit applied to one sector of public administration cannot be denied torelevantly similar sectors, using Article 3 of the constitution which relates toequality and social justice. The court has also found minimum levels ofpensions and welfare to be implicit in the constitutional model. Its willingnessto deduce such practical implications from highly generic principles hasinevitably encouraged interested parties to beat a path to its door instead of, oras well as, negotiating directly with the state or lobbying through Parliament.

Such creativity on the part of the court is hardly surprising in view of thesystematic Italian legal tradition and the close links between academics andjudges. A logical conclusion of the process is the development of a consti-tutional model to which the Italian state is expected to conform, and the court'swillingness to delineate this model consistently through its many judgmentsis part of the reason for its prestige and authority. In other ways short ofcomplete repeal, the court has attempted to prompt the judiciary and therepresentative institutions to take action within their competence in accordancewith the implied model. The simplest of these ways is the 'interpretation byacceptance', which occurs when a sentence of the court does not repeal a lawand forbids only particular interpretations which it holds unconstitutional.More severe than this course is the 'interpretation by rejection', in which thecourt subordinates the norm to a particular constitutional interpretation andexcludes all other interpretations. Finally, the court may make a 'creativejudgment of acceptance', in which it actually seems to add to a law or substitutea defective part of it in order to make the law conform to the constitution.Apart from their effect on the case under consideration, these judgments arenot directly binding on the ordinary judiciary. They are in practice a warningto the ordinary courts that application of the law not in the manner prescribedwill eventually be overruled by the constitutional court (unless it changes itsopinion in the meantime), and they are implicitly a recommendation toParliament to modify the law. The court has also on occasions used judgmentsto make direct suggestions to Parliament, usually accepting a norm temporarilywith the implied threat that unless legislative action is taken more severeinterpretations will be applied. The court has generally adopted this courseof action when the consequences of a repeal or of an amending interpretationwould be administratively unmanageable, but its efforts to twist the arms ofthe political parties in this way have not met with great success. In this senseits sanctions, however powerful they may appear on paper, are constrainedin particular by the absence of any power of the court to state transitionaldispositions, as well as by its limited capacity to appeal to public opinion overthe heads of the elected representatives.10

CONCLUSION

Despite the difficulties inherent in its role, the constitutional court appearsto be one of the few institutional successes in the development of the ItalianRepublic. Although politicians of all colours are willing to take a tilt atindividual decisions, in its general structure and mode of operation it attracts

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an almost unique degree of consent. There are very different reasons behindthis consent. Those on the Liberal right tend to describe the court as the soleobstacle to a spendthrift and irresponsible Parliament. They would like to seeit give greater priority to individual economic rights. Some have still notforgiven it for allowing too wide an interpretation of Article 81 on controlof state expenditure, but their quarrel is mainly with the constitution itselfrather than with the court. For the Communists the obverse is applicable.Though they still emphasise the principle of the sovereignty of popular willand the centrality of Parliament, the willingness of the court to promote theleft-right pact inherent in the constitution has ensured that PCI criticism isrelatively muted. It is not surprisingly the governing coalition that has thegreatest difficulty with the court on individual decisions, but within the Italianadministrative tradition the certainty and universality of law which the courtrepresents cannot be readily impugned by a group of parties whose grip onthe executive appears unassailable. If all major groups agree in accepting thecourt, that does not mean that either its scope or the substance of theconstitutional model are also matters of agreement.

The very success of the court in finding a role in the policy-making processhas brought out differing views of how it ought to develop. The ConstituentAssembly appeared to have in mind a court which would be available to protectthe grand principles of the constitution, but which would only be called intoplay intermittently and probably with declining frequency. The modern versionof this doctrine sees the court as a major institution of a pluralist state themost important function of which is to ensure the correct application of lawsby judges. In this perspective, the policy interventions of the court which havebeen described here are certainly justifiable, but are substitutions by the courtof functions which Parliament and government are failing to fulfil. Theytherefore represent a temporary role for the court, one presumably destinedto wither when eventually the other institutions begin to operate properly. Butthe court's most devoted admirers, and apparently the court itself, wish it toguarantee the system of law implicit in the constitution taken as a whole. Theywant it to stimulate the organs of state to a fuller activation of the consti-tutional model, even to supply the essential legal rationality and the legitimacyof the system as a whole. In this case the court is not a mere safety-net, nora temporary substitute, but occupies a special privileged position whichdemands continuous activity on is part."

Although this latter view makes more sense of the present role of the court,it appears unlikely that it can predominate in the long term. Despite theundoubted development of its effective scope beyond the narrow intentionsof the Constituent Assembly, the constitutional court lacks the instrumentsand sanctions to enable it to wield such authority. Some areas of state activityare closed to it. Parliamentary Standing Orders, for example, cannot bereferred to it and much administrative action still falls outside its reach. Itscapacity to redress individual claims against the state is limited by the vaguenessof the individual rights specified in the constitution. What we might term theJacobin elements of the constitution, those relating to popular sovereignty,are too strongly prescribed and too deeply rooted in practice for the un-equivocal victory of this champion of the rule of law. If this leaves the Court,

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Parliament, Council of Ministers and President in an unstable and not alwaysconstructive institutional competition, Italy is not alone in such rivalry.

NOTES

The author wishes to thank Professor Jack Hayward for his comments on an earlier draft ofthis article.

1. See J.T.S. Keeler and A. Stone, 'Judicial-political confrontation in Mitterrand's France:The Emergence of the Constitutional Council in the Policymaking Process' (paper presentedat the APSA annual meeting, 1985); J.E.S. Hayward, 'Separate and Rule: The EmergingJudicial Power in France', Government and Opposition (Winter 1985), pp. 104-111; A.Pizzorusso, 'I sistemi di giustizia constituzionale: dai modelli alla prassi', QuaderniCostituzionali (December 1982), pp.521-33.

2. On the political context of the debates in the Constituent Assembly, see E. Cheli, Costituzionee Sviluppo delle Istituzioni in Italia (Bologna: Muline editore, 1976), and C. Rodota', LaCorte Costituzionale (Rome, Editori Riuniti, 1986). The influence of Kelsen and the exampleof the pre-war Austrian Constitutional Tribunal, which we are not able to consider here,were powerful but indirect. The general doctrinal support of Kelsen's theories was probablymore important than the particular application they found in the Constitutional Tribunal.

3. Atti dell'Assemblea Costituente, Discussioni, Vol.3, 11 March 947, p.2006.4. P. Calamandrei, 'L'ostruzionismo di maggioranza', Il Ponte (April, May and June 1953),

pp. 129-36, 274-81, 433-50.5. For English-language surveys of the way Italian law operates, see M. Cappelletti, J.H.

Merryman, and J.M. Petrillo, The Italian Legal System, An Introduction (Stanford, CA:Stanford University Press, 1967); G.L. Certoma, The Italian Legal System (London,Butterworths, 1985). On the relationship of the constitutional court to the system, M.Cappelletti, 'Gli organi di contrallo della legittimita' costituzionale delle leggi' in Studi InMemoria Di Carlo Esposito (Padova: Cedam, 1968), Vol.1, pp.437-63.

6. Cappelletti et al., p.52.7. Aggregated from the membership lists in C. Rodota', pp. 150-55.8. Reports of the press conference can be found in La Repubblica, 24 January 1986, p. 6, and

L 'Unita', 24 Janaury 1987, p. 2.9. A critical review of the court's impact on major policy issues is provided in G. Bognetti,

'La Corte Costituzionale come garante della costituzione', in G. F. Miglio (ed.), Verso unanuova costituzione (Milano, Giuffre' Editore, 1983), Vol.2; from a radically differentperspective, C. Rodota', La Corte Costituzionale, is rather more optimistic about the court'sprospects.

10. These new instruments and the political problems entailed are described in V. Vigoriti, 'Italy:The Constitutionalm Court', American Journal of Comparative Law, Vol.20, 1972, pp. 404-14;S. Rodota', 'La Corte, la politica, l'organizzazione sociale', Politica del Diritto, Vol. 13,No.2 (June, 1982), pp. 171-93.

11. SeeF. Pizzetti, 'Riforme istituzionali e giustizia costituzionale', Vita e Pensiero, November1982, pp.26-35.

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the constitutional court in italian politics

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