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Passaglia, Paolo --- "Italy" [2016] ELECD 659; in Bell, John; Paris, Marie-Luce (eds), "Rights-Based Constitutional Review" (Edward Elgar Publishing, 2016) 247

Book Title: Rights-Based Constitutional Review

Editor(s): Bell, John; Paris, Marie-Luce

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784717605

Section: Chapter 6

Section Title: Italy

Author(s): Passaglia, Paolo

Number of pages: 29

Abstract/Description:

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.