Tuesday, November 30, 2010

Del Duca on Introduction of Judicial Review in Italy, 1948-1956

Introduction of Judicial Review in Italy - Transition from Decentralized to Centralized Review (1948-1956) - A Successful Transplant Case Study has been posted on SSRN by Louis F. Del Duca,The Pennsylvania State University.  It appears in the Penn State International Law Review (2010).  Here's the abstract:
Along with other European countries following the end of World War II, Italy adopted a new constitution. Its drafters intended that it safeguard against the abuses of power and the horrors that had occurred. One of the innovations of the new constitution was the introduction of the concept of judicial review of the constitutionality of laws into the Italian legal system. The Italian Constitutional Court contemplated by the 1948 Constitution was established in 1956. This work lays out the politically challenging cases that arose during the 1948-1956 transition period from efforts to use the justice system to resolve charges of misconduct and collaboration with the fascist regime during the period of the war. As the Italian courts experimented with their approach to the constitutionally-granted new power of judicial review, they demonstrated sensitivity to either upholding or countermanding acts of the non-elected transitional government on constitutional grounds, preferring in key instances to rely on other tools of statutory interpretation to resolve the cases presented to them. The launch of the Constitutional Court in 1956 overcame any diffidence of Italian courts to judicial review of the constitutionality of laws and was the moment in which the innovative principles established by the 1948 constitution received full endorsement and application. From its very first decision in 1956, the Italian Constitutional Court, as a freshly established institution directly legitimated by the constitution, determined the “peremptory” status of the civil rights’ provisions of the constitution and their direct applicability without further implementation, rejecting the view that they had a merely “programmatic” nature. It thereby began its continuing and flourishing role as a voice, without ambiguity, of the central position of constitutional review of laws in the Italian legal system.

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