Precedents and case-based reasoning in the adjudications of the Italian Constitutional Court

Abstract

The Italian Constitutional Court (CC) is a ‘pure’ guarantee body, and, as such, it is not part of any of the three traditional ‘powers’ of the European constitutional tradition (legislative, executive, judiciary), but rather it is a new and independent ‘power’, tasked with enforcing the Constitution as the fundamental law of the Republic. Moreover, Italy is a civil law system, and therefore judicial precedents are not a source of law, and the judiciary is not bound by an obligation of stare decisis. Nevertheless, in Italy, as in every other civil law system, judges normally refer to (non-legally binding) precedents in their decisions in order to reinforce and explain their legal reasoning. This is also true for the CC, which, despite not being part of the judiciary strictu sensu, uses a method of adjudication that is fundamentally jurisprudential in nature. Consequently, precedents are heavily featured in the jurisprudence of the Italian CC, and the constitutional jurisprudence constante (a series of concordant decisions on the same matter), despite lacking binding legal value, is still regarded as extremely persuasive for subsequent adjudications. The doctrine of jurisprudence constante applies to both self-references and references to the decisions of other national courts. In this framework, the chapter analyses the horizontal bindingness of the CC’s decisions (and those cases in which the Court can overrule its own precedents) and the interaction between the CC and the Court of Cassation. The chapter also analyses the recent trend in the CC’s jurisprudence towards referring to the decisions of foreign and European courts, which brought about, in the last couple of decades, a new era of ‘cross-fertilisation’ in Italian constitutional jurisprudence.