Law-Making Power of the Constitutional Court of Italy
N. Palazzo, Law-making power of the Constitutional Court of Italy, in M. Florczak-Wątor (ed.), Judicial Law-Making in European Constitutional Courts (Routledge, 2020) 46-70
29 Pages Posted: 7 Jan 2021
Date Written: December 2, 2020
Where the Italian Constitutional Court stands on the metric of power is not fixed. However, the attitude of the Court has been marked, overall, by a readiness to intervene in the face of persisting legislative inertia. This chapter intends to demonstrate the various forms in which the Court exercises a law-making function.
Starting from the distinction amongst non-legislative, legislative, and co-legislative functions, the chapter first analyses how each category played out at the sub-constitutional level, and then at the constitutional level. It then moves to explore the shifting balance between activism and self-restraint the Court tried to reach in the sixty-five years of its functioning. The principal findings could be summarized as follows: there is a linear progression of the Court towards an expansion of its powers; the 70s mark the beginning of a phase of “politicization” of constitutional justice, especially driven by the creation of a sophisticated set of manipulative decisions whereby the Court amends the text of the law.
Keywords: comparative constitutional law, comparative constitutional justice, European constitutional courts, law-making power, legisprudence
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