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Fascination for supreme constitutional principles and constitutional identity is a persistent feature of European (continental) constitutional scholarship. In the interwar period, interest for this topic reflected the highly theoretical and conceptual disposition of authors like Carl Schmitt and Costantino Mortati, trying to come to terms with the structural transformations taking place in European constitutional orders. Interest in supreme constitutional principles was later motivated by theoretical concerns regarding the limits to constitutional change or, starting from the 1970s, the domestic implications of the supremacy doctrine in the context of European integration. More recently, the topic has inspired an abundant body of literature revolving around the terms of engagement between national constitutional law and international or transnational law. Notably, a major boost to the field has been given by the insertion in the Lisbon Treaty of a “constitutional identity” clause,1 a provision allowing the qualification of supranational normative claims in light of national constitutional principles. Supposedly, also, Pietro Faraguna’s interest in supreme constitutional principles and constitutional identity was originally triggered by these most recent EU developments. Yet, his book Ai confini della Costituzione. Principi supremi e identità costituzionale [At the Boundaries of the Constitution. Supreme Principles and Constitutional Identity] is not the umpteenth contribution speculating on the meaning, implications, and operationalization of the constitutional identity clause. Faraguna resists this temptation quite well and develops instead an original itinerary exploring the doctrinal and theoretical dimensions of constitutional identity in the Italian constitutional context. His book can be read as an account of the intellectual journey of a young, yet already accomplished scholar trying to make sense of one of the most arduous areas of his native constitutional system. Besides offering an exhaustive analysis of the manifestations of supreme principles in both constitutional practice and scholarship, Faraguna does not shy away from testing a broad range of hypotheses and arguments formulated in the attempt to shed some light on the elusive nature of supreme principles, discovering, at the end of his journey, that elusiveness is probably their defining trait. The account of supreme constitutional principles developed in the book refers almost entirely to the Italian constitutional experience. This domestic focus should appeal to rather than discourage readers from other jurisdictions since the Italian experience with supreme constitutional principles is in many ways emblematic. It is widely known that the Italian Constitutional Court was at the forefront in identifying supreme constitutional principles as potential limits to the supremacy of supranational law.2 The Constitutional Court pointed also to supreme constitutional principles as implicit constraints on the exercise of the power to amend the constitution.3 More recently, supreme constitutional prin ciples have inspired rather assertive judgments at the interface of domestic Italian with international and EU law. In 2014, the protection of supreme constitutional principles led the Constitutional Court to depart from a judgment by the International Court of Justice4 denying the existence of derogations to state immunity from domestic civil jurisdiction in the case of crimes against humanity.5 In 2017, the Constitutional Court engaged constructively6 on the basis of supreme constitutional principles with the Taricco judgment7 by the European Court of Justice, ultimately provoking a significant overruling.8 Apart from the Taricco saga (the judgment had not been issued at the time of publication), the book provides an extensive discussion of all these cases and many more, and contributes to their understanding with much needed contextual details and theoretical background. The book opens with an excursus on the Italian scholarship on supreme constitutional principles (Chapter 1). At the outset Faraguna notes that, originally, theoretical contributions on supreme constitutional principles emerged from two distinct areas (at 27). A first set of writings explored the internal dimension of constitutional identity and, notably, the meaning of article 139 of the Italian Constitution, the provision setting out the republican form of state as a limit to constitutional change.9 Other contributions investigated the external dimension of constitutional identity, namely, the limits posed by the Italian Constitution on the process of European integration. In relation to article 139, the book examines a variety of positions ranging from reductionist interpretations that read article 139 as merely excluding a return to monarchy to broader interpretations, expanding its remit to include all prerequisites of a republican constitutional order, or identifying limits to constitutional change even beyond the text of article 139 (at 30–45). Rightly, Faraguna argues that such a divarication is not the consequence of vague constitutional drafting but is inbuilt in the very nature of supreme constitutional principles (at 45–53). But when the argument seems to lead toward a promising theoretical terrain, the author surprisingly abandons theory. Indeed, Faraguna does not seem comfortable navigating a troubled sea of conflicting theories and contradictory claims (at 57). Puzzled by plurality, he prefers to search more stable coordinates outside theory and, therefore, undertakes to explore actual constitutional experience. The most obvious field to conduct such investigation is constitutional adjudication (Chapter 2). In this regard, the case law of the Italian constitutional court on supreme constitutional principles is subject to an articulate and convincing rationalization. Faraguna classifies judgments by considering three variables, such as the object of judgments (constitutional statutes; legislation enabling the incorporation of EU law, international treaties, or the treaties between the Italian State and the Catholic Church; ordinary legislation), the constitutional yardsticks actually employed by the Court and the type of judgments at 66–69). A similar examination leads the author to formulate three important claims. First, the case law on supreme constitutional principles is fragmentary essentially because the Constitutional Court does not follow an overarching coherent constitutional theory (at 101). This emerges by looking at the substantive dimension of supreme constitutional principles: very few principles are constantly referred to as supreme (secularism, equality, judicial protection). Other principles, such as the right to life, pluralism, the protection of linguistic minorities, are occasionally elevated to such a status, but comprehensively these judgments do not appear as manifestations of a coherent substantive theory of constitutional identity (at 102–110). Second, supreme constitutional principles are not conceived of as absolute entities, but they lend themselves to balancing, including with less weighty competing principles (at 110). Third, despite its fragmentary nature, the case law reveals an incremental character. Interpretations originally situated in distinct fields (constitutional change, European integration, relationships with the Catholic Church) seem to converge toward a unified notion of constitutional identity (at 113), whose substantive contents remain however uncertain. The focus on constitutional practice is not confined to constitutional adjudication. To provide an exhaustive account of the role of supreme constitutional principles, Faraguna also investigates their use by the president of the Republic (Chapter 3). Here, the analysis centers on the practice of suspensive vetoes on legislative deliberations10 by all presidents since 1993, the year in which, following important changes in the election system, the parliamentary form of government turned from consociational to majoritarian. Having regard to this empirical apparatus, Faraguna tests whether a division of labor might exist between the role of the president and that of the Constitutional Court in the protection of supreme constitutional principles (at 125). The results of his investigation are negative: no coherent approach seems to inspire presidential practice, and, ultimately, the contribution of the head of state to their protection appears episodic and negligible (at 141). After a thorough examination of constitutional practice, the book concludes by returning to theory (Chapter 4). This is probably the part of the book in which the intellectual profile of the author emerges most clearly. He highlights the paradox inherent in the notion of supreme constitutional prin ciples: on the one hand, they aspire to a higher status compared with ordinary constitutional principles; on the other, they are principles (and not rules) and, therefore, remain exposed to balancing and limitations (at 180–181). By relying on his previous empirical investigation, Faraguna defends the idea that supreme principles in no way differ from constitutional ones: in both constitutional adjudication and legislation they do not enjoy a privileged status, they are routinely balanced, and they often yield on behalf of other less dignified but contingently more important principles (at 156–162). Faced with this reality, the author does not formulate a critical position; on the contrary, he embraces the status quo as entirely coherent with the pluralist nature of the Italian Constitution. By adopting pluralism as a theoretical framework, Faraguna accepts the impossibility of defining abstract hierarchies between competing principles (at 181). Following Sunstein,11 he subscribes to an understanding of constitutional norms as “incompletely theorized agreements” (at 183) and suggests minimalism as the most adequate judicial strategy to resolve clashes between competing constitutional values (at 184–188). Faraguna’s book offers an important contribution to the debate on a key topic of constitutional law. It is well researched and it is certainly worth a good read. There are, however, four aspects of the book inviting critical discussion. First, from a methodological perspective, the choice of the author to abandon the theoretical terrain in the face of a Babel of conflicting positions seems scarcely persuasive. The existence of a plurality of voices could be viewed as a symptom of a vibrant constitutional debate on the foundations of the constitutional order. Why not engage with some of the main theories to highlight their value or expose their weaknesses? Or, why not develop an alternative position if all other theories are inadequate? In addition, the author’s next move to turn to constitutional practice to reach a more stable mooring seems perplexing. The problem with this approach is not that he did not find what he was looking for. The limit of that strategy is the belief that constitutional adjudication could provide more stable and compelling answers than theory. Admittedly, constitutional adjudication is a formidable instrument to test hypotheses and, at times, to demystify the inevitable rhetoric associated with topics such as constitutional identity. Yet, looking at constitutional adjudication as a way to overcome interpretative or theoretical disagreements is a disputable idea.12 In scholarly debates, constitutional adjudication does not deserve the higher status Faraguna seems ready to concede, for constitutional judgments could be (and, occasionally, are) misconceived, just as constitutional theories are. Second, arguments drawing mainly on constitutional practice may foreclose more interesting discussions taking place at the border or outside the remit of judicial review of legislation or the activity of the head of state. For instance, by remaining anchored in constitutional adjudication, the argument of the book bypasses important discussions on constitutional identity related to issues as diverse as the neoliberal transformation of the structures of the welfare state or the impact of European defense cooperation on distinctive principles of the Italian Constitution such as article 11 (“Italy rejects war as an instrument of aggression against the freedoms of other peoples and as a means of settling international disputes . . .”). To avert these shortcomings, the book could have tried to explore the substantive contents of Italian constitutional identity by relying, for instance, on foundational contributions on the meaning of work as a key opening principle of the Constitution or the concept of person as the reference point of constitutional rights. Moreover, the embrace of pluralism and, as a reflection of, minimalism seems questionable. This is not to contest that pluralism is the official philosophy of the Italian Constitution13 or that, in a number of cases, ad hoc balancing may be the wisest course of action. In the version offered by Faraguna, pluralism comes in a rather unqualified form and appears, most importantly, rather disconnected from the actors and the struggles animating national constitutionalism. On the whole, pluralism may be analytically accurate, but it is scarcely useful in coping with more difficult normative questions. For instance, is it desirable that supreme constitutional values are inevitably exposed to balancing? In line with the case law of the Italian Constitutional Court, Faraguna seems convinced that supreme constitutional values ought to be exposed to balancing. But is this “pluralism-all-the-way” approach normatively compelling? Would Faraguna be ready to extend his claim that supreme constitutional principles are not absolute to the prohibition of the death penalty?14 Would he equally treat this as a norm subject to balancing with other competing principles? Again, answers to these questions require perhaps a more articulate theoretical apparatus. The limits of pluralism as a theoretic al framework are reflected in the choice of privileging minimalism as a style of constitutional adjudication more adequate to cope with supreme constitutional principles. Again, a lot can be said in favor of minimalism and, notably, of the skepticism of its supporters toward courts advancing grand theories of constitutional adjudication. At the same time, preference for minimalism leaves important questions unanswered. How should a minimalist court decide? Besides saying they should prefer ad hoc over definitional balancing, minimalism offers very little guidance and, ultimately, leaves the door open to uncontrolled judicial discretion. Finally, the book concludes by arguing that supreme constitutional principles are coherent with the commitment of constitutionalism to constraining government, even in its most salient manifestations (at 192). This is certainly a correct claim but, arguably, also a partial one. The lesson of the most perceptive accounts of constitutionalism is that constraining government is not only a way to protect (negative) constitutional rights. In the evolution of constitutionalism, constraining government has turned out to be also a strategy to enable legitimate government and, therefore, to expand its remit.15 Is this the case also when it comes to supreme constitutional principles? We may suspect so, but the book says very little in this regard. Only the glimpse of an answer emerges from the last pages of the book (at 191–192) where, perceptively, the author observes that the role of supreme constitutional principles is to allow the transformation of the legal and political order without compromising its fundamental structure. The book succeeds in identifying (some of) the defining elements of this structure, but it fails to account positively for the actual transformations enabled by the respect for constitutional identity. It would be exciting in the future to see Faraguna engaging with such a demanding research question. Footnotes 1 Treaty on the European Union art. 4(2). 2 See judgments n. 183/1973 and n. 170/1984. 3 See judgment n. 1146/1988. 4 See Jurisdictional Immunities of the State (Germany v. Italy), 2012 I.C.J. 99. 5 See Judgment n. 238/2014 (English version available athttps://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf. 6 See Order n. 24/2017 (English version available at https://www.cortecostituzionale.it/docu menti/download/doc/recent_judgments/O_24_ 2017.pdf). 7 Case C-105/14, Taricco and Others, 2015 (not yet reported). 8 Case C-42/17, M.A.S., M. B., 2017 (not yet reported). 9 Article 139 reads as follows: “The form of Republic shall not be a matter for constitutional amendment.” 10 According to article 74 of the Italian Constitution: “The President of the Republic may send Parliament a reasoned opinion to request that a law scheduled for promulgation be considered anew. If such law is passed again, it shall be promulgated.” 11 Cass R. Sunstein, Legal Reasoning and Political Conflict (1996). 12 Faraguna himself would probably contest that claim given that, in the last part of the book (at 183) he excludes that courts should have the last word in completing incompletely theorized agreements. 13 Roberto Bin, Che cos’è la Costituzione? [What Is the Constitution?] XXVII Quaderni Costituzionali 11, 30 (2007). 14 Italian Const. Art 27. 15 Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (1995). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
International Journal of Constitutional Law – Oxford University Press
Published: May 12, 2018
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