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Irene Spigno
creative power of the Court “a genuine constitutional revolution”
69
driven by
a horror vacui,
70
or by the search for a “less intrusive solution,”
71
or as a means
of political mediation.
72
There can be no doubt that the Court’s creative power was – and still is–
needed to fill both historical and contemporary legislative omissions that, as
we have already seen, do not represent the absence of a legislative product
(a circumstance that would not even allow the constitutional proceeding to
come before the Court, since according to Article 134 of the Constitution, the
Court considers only the legitimacy of laws and enactments having the force
of law), but rather incomplete legislative activity that leaves regulatory gaps or
lacunae to change and/or update the legislation.
In doing so, the Court has been cautious, making explicit that:
an additive decision is permitted, being ius receptum, only when adjusting
a solution is not the consequence of a discretionary assessment, but must
necessarily follow the judgment of legitimacy, so the Court actually carries
out an extension that is a logical necessity and is often implicit in the inter-
pretative potential within the legal order in which the contested provision is
inserted. However, faced with a plurality of solutions arising from different
possible assessments, it is not lawful for the Court to intervene, and the rele-
vant choice pertains exclusively to Parliament.
73
Or, in simpler terms, “additive judgments ... are permitted only when the
issue is presented in rime obbligate, i.e., when the solution is logically neces-
sitated and implicit in the legislative context”
74
; as we have already seen, the
expression rime obbligate has been used by the Court to underline presence,
75
as well as its absence,
76
and consequently to affirm or deny the possibility of
pronouncing an additive decision. Consequently, given a plurality of possible
solutions, the Court declares the inadmissibility of the question.
Actually, the theory of rime obbligate has been widely criticized: according
to some authors, if it is true that the solution proposed by the Constitutional
Court is already present in the legal order and it only needs to be developed
69
Gaetano Silvestri, “Le sentenze normative della Corte costituzionale” in AA.VV., Scritti su la
giustizia costituzionale in onore di V. Crisafulli (Padova: Cedam, 1985) 755 ss.
70
Franco Modugno, “Ancora sui controversi rapporti tra Corte costituzionale e potere legislati-
vo” (1988) Giurisprudenza Costituzionale 16.
71
Gustavo Zagrebelsky, La giustizia costituzionale (Bologna: Il Mulino, 1988).
72
Silvestri, Supra note 69.
73
See Judgments 109 of 1986 and 125 of 1988.
74
See Order 380 of 2006.
75
Judgments 218 of 1995.
76
Judgments 298 of 1993, 70 of 1994, 258 and 308 of 1994, Order 432 of 2006.
“Additive Judgments”
481
and translated into law, then why should ordinary judges not reach the same
solution through interpretation? From this point of view, the intervention of
the Constitutional judge is not considered necessary.
77
An answer to this is that in the centralized Italian system of constitutional
justice, the Constitutional Court alone has the power to derive a somehow
“forced” solution with erga omnes effects.
Despite criticisms in this regard, I would not say that the Court has its own
“political direction.” Indeed, I believe that additive judgments are decisions
that do not lose their judicial nature, so I wholly subscribe to the position of
those who underline that a normative addition introduced by the Court is not
a pure creation. It is rather something taken from what already exists within
the legal system, in the constitutional system itself: something that was waiting
to be developed and translated into an express rule.
78
It is the rime obbligate
theory that involves the development through additive judgments of “constitu-
tionally obliged case law,” that prevents the Constitutional Court from taking
any discretionary action.
I consider additive judgments to be an instrument the Constitutional Court
can use to reveal the invisible meaning of the Constitution. It has a latent
meaning that is invisible to the legislator but is evident in the part of the sen-
tence that declares a law unconstitutional “for what it does not provide.”
77
Zagrebelsky, Supra note 71.
78
A view shared by Crisafulli, “Questioni in tema di interpretazione della Corte Costituzionale
nei confronti con l’interpretazione giudiziaria”, for example.
482
17.1. Introduction
Not long ago I visited the German Federal Constitutional Court
(Bundesverfassungsgericht) with a group of my American law students. When
our tour of the Court reached the luminous, wood-and-glass hearing chamber
our guide triumphantly declared: “Welcome to the only common law court
in Germany!”
It would have pleased the legendary comparative law scholar H. Patrick
Glenn to hear it.
1
In his seminal work Legal Traditions of the World he argued
that legal systems such as Germany’s cannot be categorically classified as
emblematic of a single legal tradition.
2
Glenn contended that state legal sys-
tems are the sites of encounters between the world’s complex, commensurable
and interdependent legal traditions.
3
He used words such as “bridging” and
“dialogue” and “interchange” to describe this unavoidable dynamic, which
he imagined to be something similar to Russian nesting dolls, with lateral-
traditions and sub-traditions supporting and complementing a system’s leading
or primary tradition.
4
The tour guide at the Constitutional Court seemed to
1
Sadly, McGill University Law Professor H. Patrick Glenn passed away in 2014. A memorial
essay in the American Journal of Comparative Law, a publication produced by the American
Society of Comparative Law (over which he presided as President at the time of his death)
described him as “one of the most respected comparatists of our time:” David J. Gerber, “In
Memoriam, H. Patrick Glenn (1940–2014)” (2015) 63 American Journal of Comparative Law 1.
See also Daniel Jutras, “Saying Goodbye to Professor H. Patrick Glenn (1940–2014),” McGill
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