The Invisible Constitution in Comparative Perspective

Partito Comunista and Partito Socialista). They had different and competing 

claims, and the only way to have them recognized in the Constitution was 

to accept a constitutional compromise.

4

 The Constitution thus acknowledges 

their claims in the form of – sometimes contrasting – principles to be bal-

anced at the moment of application and/or interpretation.

In this sense, the “formal Constitution” is quite different from the “material 

Constitution”: the former is the constitutional act adopted according to the 

modalities and forms required by the law.

5

 The latter could be characterized 

as a “fundamental Constitution” that transposes the original meaning of the 

Constitution itself. Thus, in the words of Costantino Mortati, the “material 

Constitution” could be understood as a “costitution that could be called a 

second power running alongside the formal one, derived from it, never fully 

absorbed into it, but sharing its same nature.”

6

The Court accepted the mandate entrusted to it by the Constituent Fathers 

with great enthusiasm and sense of responsibility: extending beyond the con-

stitutional text, the Constitutional Court has become one of the actors in its 

“silent transformation and accommodation” through informal constitutional 

changes.

7

3 

The Constituent Assembly was elected on June 2, 1946 with the task of writing the new Repub-

lican Constitution.

4 

See Piero Calamandrei, La Costituzione e le leggi per attuarla (Torino: Einaudi, 1955) 209 

ff., according to whom many parts of the Constitution represent the transactive and probably 

temporary effect of contrasting forces and conceptions.

5 

The Italian Constitution was approved on December 22, 1947 and entered into force on  

January 1, 1948.

6 

Costantino Mortati, La Costituzione materiale (Milano: Giuffré, 1939).

7 

Enzo Cheli, Il Giudice delle leggi (Bolonga: Il Mulino, 1996); Tania Groppi, “The Consti-

tutional Court of Italy: Towards a Multilevel System of Constitutional Review?” (2008)  3 

Journal of Comparative Law 2, 10. See Sergio Bartole, Interpretazioni e trasformazioni della  

---

 

“Additive Judgments” 

459

This has been possible in part because a rich variety of judgments have 

been handed down since the very early years of its activity, thanks to the need 

recognized by the Constitutional Court itself to consider the impact that its 

decisions have on the legal system as a whole, and on the other branches of 

government. Among them, those most affected are the judiciary, through the 

application of the technique known as interpretazione conforme (consistent 

interpretation), which evolved in accordance with the diritto vivente (doctrine 

of the living law) paradigm, and Parliament.

In particular, in its dialogue with Parliament, the Court has created a spe-

cific type of decision. The so-called “additive judgments” (sentenze additive), 

are rulings whereby the Court declares a statute unconstitutional, not because 

of what it provides for, but rather what it does not provide for. In this way, 

the Court manages to insert new norms into the legal system that cannot be 

found in any statutory text and transforms itself – or so it would appear – into a 

creator of legal rules, thereby playing a role that in the Italian system belongs 

almost exclusively to Parliament (with some exceptions related to regional 

competences

8

 and to the Government).

9

In such a context, this chapter aims to analyze the functioning of “additive 

judgments” in order to see how the Italian Constitutional Court uses this type 

of judgment to make visible the sense of constitutionality to which legisla-

tive power can be blind. A number of criticisms have been leveled against 

“additive judgments” in legal scholarship, the first being that they contradict 

the classical Kelsenian idea of constitutional justice whereby constitutional 

courts must be confined to being “negative legislators.” Through “additive 

judgments,” however, the Constitutional Court seems to become a “creator” 

of legal norms by taking over competences that the Constitution entrusts only 

to Parliament (and exceptionally the government). Other criticisms, however, 

focus on the effects such rulings may have, since they are decisions that ought 

not to be able to produce real legal effects, but merely represent a warning to 

the legislator.

10

The following chapter, therefore, aims to provide a brief description of 

the Italian constitutional model. Later on, I will describe the conditions that 

the Constitutional Court itself identifies to justify the adoption of additive 

judgments as the only possible constitutionally compulsory solution, and the