The Italian Constitutional Court’s Judgment 238 of 2014 Is Not AnotherKadiCase

Abstract

This article provides a critical view of Judgment No. 238 of 2014 handed down by the Italian Constitutional Court. By and large the comments presented below pertain to the single issue of the relationship between different legal orders — between the legal orders of two states, or between the legal order of one state and the legal order of international law. The following comments are based on a postulate that law is pluralist in its structure. Law is about officially enforced normativity between human beings. As there are multiple sources of law and multiple enforcers, there are also multiple legal systems. These legal systems may choose to yield to each other, they may seek to coordinate between themselves, but they may also conflict and collide. As a matter of principle, a legal order can proclaim the primacy of another legal order in respect of its own norms, including within the proclaiming legal order itself. However, a legal order cannot proclaim the primacy of its own norms within another legal order. This is why Judgment No. 238 represents what this author terms a ‘category error’ when the ruling seeks to determine the content of international law through a methodology that leans heavily upon the primacy of the Constitution of Italy.