Law-Making Power of the Constitutional Court of Italy

Abstract

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