The referral mechanism and the role of ordinary judges: Cappelletti and beyond

Abstract

This short article outlines Mauro Cappelletti’s thinking about constitutional justice and the judicial protection of fundamental rights and liberties in the European context, discussing the article by Marta Cartabia in this symposium, “Mauro Cappelletti: one of the ‘precious few’ of our generation.” In particular, the article describes the incidental method of judicial review and how Cappelletti frames in the context of the protection of fundamental freedoms. The article touches briefly on two points, in order to understand their development after Cappelletti. First, it analyzes the incidental method of judicial review in Cappelletti’s classic criteria of classification. Second, it takes into account the role of ordinary judges, and how it has been influenced by the referral mechanism, whereby, in the course of a judicial proceeding, the judge has the power, and to some extent the duty, to raise issues of constitutionality before the Constitutional Court. Lastly, in light of the various kinds of preliminary rulings, the article discusses the place of constitutional courts in the European multilevel system of protection of fundamental rights and liberties.