Rights-Based Constitutional Review
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Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

  • Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.
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Chapter 6: Italy

Paolo Passaglia

Abstract

In Chapter 6 on Italy (The Italian system of constitutional review: a Kelsenian model moving towards a decentralized model?’), Passaglia offers a critical account of the legal and political trends that have transformed the domestic system of constitutional review. Established as an adaptation of the Kelsenian type, the role of the Italian Constitutional Court has changed so dramatically over the past 20 years that, Passaglia argues, it might be necessary to look at the system from a different point of view. Not only the political and social context, but also the influence of European integration, are the main factors of this transformed practice. The Constitutional Court’s main function has changed from traditionally being the protector of individual rights to currently acting as the arbiter of an increasing number of disputes concerning not only the allocation of powers between the State and local authorities, but also concerning the very exercise of power in terms of conflicts between the political class and the judiciary. Also the increasing role of the Court of Justice of the European Union has put an end to the monopoly of the Constitutional Court in its interaction with ordinary courts. The court’s ensuing marginalization has arguably accentuated the hybridity of Italian constitutionalism in which the court has to share its constitutional responsibility with other (ordinary and European) courts, as well as weave its way through political constraints, hereby prompting the author to suggest that the Italian Constitutional Court should be given new competences.

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