Interconstitutionalism in Italy: Spotting the Cheetah

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Francesco Biagi

University of Bologna

Those who are familiar with safaris in Africa know that spotting a cheetah is extremely hard. It requires plenty of time and patience, as well as a good dose of luck. Indeed, cheetahs are significantly rarer than other savannah predators, including lions. And when cheetahs do show up, it is often only for a few seconds as they run at a pace faster than 100 km/h, hunting their prey. Finding references to the 1848 Statuto Albertino – i.e., Italy’s first constitutional text, which preceded the current 1948 Constitution – in the case law of the Italian Constitutional Court is as difficult as spotting a cheetah: these references can be found in an extremely limited number of judgments, and in most cases the Court merely makes a very brief allusion to the article(s) of the Statuto that are relevant to the specific case being decided. Thus, interconstitutionalism, which according to Jason Mazzone and Cem Tecimer,  involves “the use of a polity’s antecedent constitution(s) to generate meaning for that same polity’s current constitution” (p. 330), is a very rare practice in the Italian constitutional context.

A very rare practice does not mean nonexistent. Since its establishment in 1956, the Constitutional Court has made reference to the Statuto Albertino in 38 decisions: seven rulings were issued during the 1950s, eight during the 1960s, three during the 1970s, ten during the 1980s, six during the 1990s, and four in the new millennium. The most recent judgment that includes a reference to the Statuto Albertino was delivered in 2006 (Judgment 200/2006). It should be noted, however, that in fifteen rulings the Court mentioned the Statuto only in the part of the judgment devoted to the analysis of the “Facts of the case” (“Ritenuto in fatto”). This means that the provisions of the Statuto have been invoked by the Court in its legal reasoning stricto sensu – that is, in the part of the judgment devoted to the “Conclusions on points of law” (“Considerato in diritto”) – in only 23 cases to date. 

Interconstitutionalism has mainly been used by the Italian Constitutional Court to strengthen its arguments. More precisely, it has been used as an argumentum ad adiuvandum, to further confirm already-reached conclusions by the Court. Thus, interconstitutionalism has never been used as the sole and essential basis to resolve a case. Interestingly, the constitutional justices have invoked the provisions of the Statuto Albertino not only to stress the analogies to and the continuity with the current 1948 Constitution, but also to highlight the differences and the discontinuity between the two texts. Thus, for example, in Judgment 90/1966 the Court underscored that Article 42(3) of the 1948 Constitution, which stipulates that private property may only be expropriated for reasons of general interest – “does not differ substantially in this respect from the corresponding precept in Article 29 of the Statuto Albertino.” On the other hand, the Court has noted that while Article 35(3) of the 1948 Constitution recognizes the freedom to emigrate, such freedom “was not expressly mentioned” in the Statuto Albertino (Judgment 269/1986). In a similar vein, the constitutional justices have stressed that while Article 1 of the 1848 Charter stated that “The Catholic, Apostolic and Roman Religion is the sole Religion of the State,” the new constitutional system is based on a radically different principle, i.e., the principle of secularism (laicità) (Judgments 203/1989, 440/1995 and 508/2000).

One of the very few cases in which interconstitutionalism has been an important (but still not the sole) element of the Constitutional Court’s reasoning is Judgment 200/2006. In this ruling, the constitutional justices argued that the power to grant pardons was vested exclusively in the President of the Republic, and as a consequence, the Minister of Justice could not veto a pardon decision made by the Head of State. In reaching its conclusion, the Court presented quite a detailed history of the power to grant pardons in Italy, with a special focus on the Statuto Albertino. In its historical overview, the Court emphasized, inter alia, that the pardon power (which was granted to the King by Article 8 of the Statuto) was intimately connected with the prerogatives and features of the Sovereign, and therefore it was “unfit to be handled by the judiciary whose job is to ‘do justice’ by applying the law.”

Several reasons explain why interconstitutionalism is so rare in the Italian context:

  1. Time. Mazzone and Tecimer point out that “Constitutions adopted close in time to each other […] might be more easily compared than constitutions many decades apart” (p. 347). This observation perfectly applies to the case of Italy. The Statuto Albertino was enacted in 1848, whereas the current Constitution was adopted by the Constituent Assembly 100 years later, in December 1947, and entered into force on January 1, 1948.

  2. Political context. As Mazzone and Tecimer further observe, the “political context” in which constitutional texts are adopted “likewise matters” (p. 347). Indeed, Italy’s two constitutions were adopted in completely different political circumstances; the processes that led to their adoption also differed radically. The 1948 Constitution is a post-war and post-authoritarian constitutional text. It was enacted after World War II, following the military defeat of the 20-year autocratic regime of Benito Mussolini. It was drafted by a democratically elected Constituent Assembly and represented a noble compromise among the main political forces at the time. The Statuto Albertino, on the other hand, is an octroyée constitution: it was granted on March 4, 1848, by King Charles Albert of Savoy to the subjects of the Kingdom of Sardinia and Piedmont. The Statuto became the Constitution of the Kingdom of Italy only in 1861, following the unification process led by the then King of Savoy, Victor Emmanuel II (son of Charles Albert), and his Prime Minister Camillo Benso, Count of Cavour.

  3. Political regime. The very limited references to the Statuto Albertino by the Constitutional Court can also be explained by the fact that the 1848 Charter operated under a different political regime. The Statuto contributed to the establishment of the liberal state (“stato liberale”), characterized, inter alia, by formal equality (i.e., equal opportunities for all), a rather short Bill of Rights, a limited intervention of the state in the economy (hence the expression “minimum state”), and representative government (in which, however, large sectors of the population (including women) did not have voting rights, as suffrage was determined by census or wealth). Furthermore, one should not overlook that the Statuto Albertino remained in force during Mussolini’s reign, albeit as only “an empty shell.” The 1948 Constitution, unlike the Statuto, is a rigid constitution, as it can only be amended through a special procedure, and it marked a clean break not only with Fascist rule, but also with the liberal state. Indeed, the 1948 Constitution contributed to the emergence of a democratic pluralist state, i.e., a regime based on substantive equality (requiring state institutions to remove those obstacles of an economic or social nature constraining the equality of citizens, as proclaimed in Article 3 of the Constitution), the strengthening of the principle of separation of powers, the expansion of the Bill of Rights (including the recognition of socio-economic rights), the introduction of universal suffrage, and the establishment of the welfare state.

  4. Interpretive methods. The very limited recourse to interconstitutionalism comes as no surprise if one considers the forms and methods of interpretation followed by the Italian Constitutional Court. In its case law, as scholars have observed, “historical analysis alone has never been used as a conclusive argument to resolve a constitutional issue.” Even original intent mainly has an auxiliary function, as it is typically used together with other hermeneutic criteria. Thus, constitutional history is just one of the elements the Court makes reference to, and it is often not even the most relevant or important consideration. The case law of the Court has clearly shown that the constitutional justices rely on what some have called a “concurrent plurality of methods of interpretation,” which includes, in addition to historical analysis, textual interpretation, teleological interpretation, and evolving interpretation (i.e., the idea that the constitution has to be interpreted in a progressive manner so as to adapt to changing times). Furthermore, the Court’s reasoning is often based on reasonableness and proportionality, and sometimes foreign and comparative law is also taken into account in constitutional interpretation.

In light of the abovementioned factors, it is unlikely that the Italian Constitutional Court will change its approach to interconstitutionalism, at least in the short term: spotting the cheetah will probably continue to be very hard.

Francesco Biagi is Associate Professor of Comparative Public Law at the University of Bologna, Department of Legal Studies.

Suggested Citation: Francesco Biagi, ‘Interconstitutionalism in Italy: Spotting the Cheetah’ IACL-AIDC Blog (11 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/11/interconstitutionalism-in-italy-spotting-the-cheetah.