Giustizia costituzionale e comparazione. Nuove tendenze e dinamiche negli ordinamenti di democrazia stabilizzata

Constitutional justice and comparison. New trends and dynamics in constitutional systems of stable democracy

Abstract

Constitutional justice and comparison. New trends and dynamics in constitutional systems of stable democracy - The use of comparative argument and the citation of foreign judicial precedents by the Courts are widespread elements in contemporary constitutional jurisdictions, albeit with varying degrees of intensity with respect to the effective practice in place by different Courts. This phenomenon of cooperative confrontation between the Courts seems now to characterize more intensely also the experience of the Italian Constitutional court, which in the past has been reluctant to use the comparative argument in its rulings, to the point that the citation (even explicit) of judicial precedents of other Courts has been employed to resolve hard cases, also from the ethical and institutional point of view. The recourse to comparative and foreign law by the Italian Court has also recently been employed to promote a more intense form of dialogue with Parliament, along the lines of what happened in common law systems, which are more inclined to use comparative arguments than the rest of the world. Comparative constitutional law is revealed thus, also from this point of view, to be an essential instrument for solving complex institutional issues.

Keywords: Common law constitutionalism; Comparative constitutional justice; Constitutional courts and comparative law; Italian constitutional court.