O uso marginal dos precedentes estrangeiros e a hesitação italiana quanto ao ‘alieni juris’

Anna Silvia Bruno

doi:10.4013/rechtd.2015.71.02

Abstract

The article describes the characteristics of the Italian Constitution starting from the socio-historical background to the elaboration of the constitutional text as a compromise between three different points of view: those of the Christian Democrat, the Socialist and the Communist parties. Furthermore, the compromise achieved was supported by some of the most important leaders of Italian juridical culture and internationally famous economists; eminent politicians, together with a group of Catholic professors. The second part of the article develops the role of the Italian Constitutional Court and the choice to quote foreign law or foreign case law: from the empirical research arises the fact that the judge decides to refer to foreign case law when his own system fails to provide clear and satisfactory solutions. Thus, foreign case law is an instrument for the evolution of the judicial legal order, suitable for bridging gaps and antinomies. What undoubtedly emerges is a functional use of foreign decisions by the Constitutional Court: they can be useful to underline the unreasonableness of the contested rules, to put constitutional principles in a persuasive perspective, to reinforce the argument. But it is a kind of comparative silence, at least at a judicial level: the comparative analysis is actually (almost) absent from the style of the motivation of the Italian Constitutional Court’s decisions.Keywords: Italian Constitution, Italian Constitutional Court, foreign law, foreign case law.

Highlights

O artigo descreve as características da Constituição italiana a partir do contexto sócio-histórico de elaboração do texto constitucional como um compromisso entre três pontos de vista diferentes: o da democracia-cristã, o socialista e o dos partidos comunistas
Conformed on the liberal Belgian Constitution of 1831, the Statuto vested all legislative power in the elected representatives of the people.What is more, no Court could refuse to enforce a law or strike it down as unconstitutional because this would have been seen as a violation of the principle of separation of powers
The Italian Constitution of 1947 marks the transition from liberal state to democratic state, from Monarchy to Republic with the referendum of February 2nd, 1946. With this choice the Italian people appointed a constituent assembly to develop a Constitution which would give voice to all the cultural identities that were contributing to create a new constitutional charter.The final result was a compromise between three different points of view: those of the Christian Democrat, the Socialist and the Communist parties

Summary

Foreign influences on the Italian constitutional text

The French revolutionary and Napoleonic eras deeply influenced the development of both constitutionalism and institutions in Italy: the Statuto Albertino itself was strongly marked by the constitutional model of the French Restoration, together with the Italian debate and solutions promoted by scholars politically expert. 2 Const.), to redistribute wealth and offer equal opportunities to people suffering disadvantage From this point of view arises the character of “intervention” of the Italian State which follows the German historical experience of the Weimar Republic (in 1919) and Roosevelt’s New Deal (1933-1939). On this point, there was a common draft between some European Constitutional experiences: the French Constitution of 1947, the Fundamental Law of the German Federal Republic of 1949 and the Italian Constitution shared the ideal of a social democracy as a goal to pursue with the participation of public powers. It represents a parameter, a value on which the relationship between a decision and the actual exercising of jurisdiction is founded

The Italian judiciary system

An empirical research of recent years

Final considerations