The Invisible Constitution in Comparative Perspective

Separation of Powers: A Theory for the Modern State (Oxford: Oxford University Press, 2009), 

ch 1.

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The Evolution of Natural Law in Ireland 

455

While the idea that there may be a political or social value in maintaining 

invisibility on certain issues shares some similarities with Sunstein’s work on 

incompletely theorised agreements, the Irish experience is quite different in 

that it reverses his preferred focus on outcomes instead of abstractions. While 

Sunstein acknowledges the possibility of ‘incompletely specified agreements’ 

in the constitutional sphere, his work is more interested in (and advocates 

strongly) a judicial approach that consciously avoids discussion of general 

principles in favour of low-level principles and particular outcomes.

56

 A pre-

sumption against high-level reasoning would, in his view, provide a prudential 

and minimalist means of promoting consensus by obtaining no more agree-

ment than is necessary.

The Irish experience, by contrast, suggests that these abstract high-level 

principles may have value as a unifying source of social stability. While citi-

zens will disagree on the appropriate outcome in particular cases, there may be 

scope for a reciprocal consensus on the system’s commitment to certain broad 

normative goals. As the discussion of the Preamble showed, this can be based 

in part on the constitution’s declaration of a normative identity which might 

be anticipated to be socially or politically attractive. There is also, however, 

a more actively long-term sense in which the use of abstract constitutional 

norms, the content of which are invisible, may foster stability. This follows 

from the participatory and reason-focused nature of constitutional adjudica-

tion. Where citizens differ on particular outcomes, high-level constitutional 

norms can offer a grammar of disagreement that encourages deliberation on 

these different views. The significance of this is that any disagreement remains 

internal to the constitutional order. Furthermore, the disagreement is dealt 

with in a way that promotes reciprocity and reason-giving. This affirms both 

the autonomy of the individual and legitimacy of the system by providing the 

loser with a public justification of the outcome. From the point of view of both 

the particular outcome and the general reputation of the system, there is an 

obvious incentive for that justification to be expressed in terms that are more 

likely to enjoy broad social acceptance. General normative principles provide 

one way that this can be achieved.

This offers support for a hypothesis that textual indeterminacy – the pos-

sibility of invisible values – may not necessarily be the problem sometimes 

suggested in Ireland; in fact, it may be that this incompleteness creates a space 

for pluralistic contestation within a framework that makes disagreement man-

ageable. This has some parallels with Rawls’ concept of public reason without 

56 

Cass R. Sunstein, ‘Incompletely Theorized Agreements’ (1995) 108 Harvard Law Review 1733, 

1739.

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456 

Eoin Carolan

necessarily imposing the same kind of substantive constraints on permissible 

reasons. Rather, the more basic point that – whether for moral,

57

 minimialist

58

 

or Machiavellian

59

 considerations – a process that explains its outcomes by 

reasons that invite a social consensus has the potential to support constitu-

tional stability. The lesson from Ireland might therefore be that recourse to 

invisible normative values is not only an inevitable response to textual ambi-

guity, but also a systemically valuable aspect of constitutional adjudication. 

However, the Irish experience also cautions that this invisibility presents an 

enduring challenge to the authority and status of the principles involved, so 

that they may prove more susceptible to political and social pressures than 

other more visible aspects of the constitutional order.

57 

John Rawls, Political Liberalism (New York, NY: Columbia University Press, 2010). See also 

John Rawls, ‘The Domain of the Political and Overlapping Consensus (1989) 64 New York 

University Law Review 233.

58 

Sunstein, Supra note 56; Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford: 

Oxford University Press, 1996).

59 

Maritn Loughlin, ‘Constitutional Law: The Third Order of the Political’ in Nicholas Bam-

forth and Peter  Leyland (eds.), Public Law in a Multi-Layered Constitution (Oxford:  Hart 

Publishing, 2003).

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457

16.1. Introduction

The Italian Constitutional Court was introduced by the Constitution of 1948. 

It was a year in which a constitutional democracy was established in Italy as a 

form of government in which sovereignty belongs to the people who exercise 

it within the limits established by a “rigid” written Constitution (Article 1 of 

the Constitution). The rigidity of the Constitution is entrenched by means of 

a more complex amendment procedure compared with the ordinary legisla-

tive one (Article 138 of the Constitution).

In addition to its rigidity, the 1948 Italian Constitution was conceived by 

its Constituent Fathers as a “supreme” norm, hierarchically superior to the 

laws approved by Parliament. The position the Constitution holds within the 

sources of law is protected by its more complex amendment procedure, as well 

as by the constitutional justice system which, in fact, envisages a Constitutional 

Court with the power, inter alia, to declare the illegitimacy of laws and legally 

binding acts produced by the State and the Regional organs.

1

Since the start of its activity as privileged interpreter of the Constitution 

in 1956, the Court has displayed a high level of interpretative creativity and 

activism in its interpretation of the text of the Constitution.

2

 This is possi-

ble also thanks to the formulation of constitutional norms conceived by the 

Constituent Fathers as provisions capable of adapting to the changing times. 

Thus, the Italian Constitution, like many other constitutional texts, has both a 

visible and an invisible content, and the Constituent Fathers were well aware 

1 

For the other competences of the Italian Constitutional Court see Section 

16.2

.

2 

Tania Groppi, Le grandi decisioni della Corte cosituzionale italiana (Naples: Editoriale Scien-

tifica, 2010) XII.

16

“Additive Judgments”

A Way to Make the Invisible Content of the  

Italian Constitution Visible

Irene Spigno

Inter-American Academy of Human Rights.

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458 

Irene Spigno

of this aspect of constitutional invisibility within the 1948 text. The invisibility 

of the Italian Constitution, to be considered as “extra-constitutional under-

standing,” as Rosalind Dixon and Adrienne Stone point out in Chapter 1 in 

this book, is mainly linked to two elements. On the one hand, it is a widely 

shared opinion that the Republican Constitution was clearly intended to be 

a “charter of principles,” since it was originally conceived as regulating the 

functioning of the State’s powers. On the other hand, its invisibility derives 

from the specific structure of the Constituent Assembly, whose composition 

was a mirror of the post-war political panorama.

3

 In that period, Italian society 

was divided into two main political blocs with hugely differing goals and rela-

tionships with the dominant social forces: on one side, there was the Catholic 

party (Democrazia Cristiana) and, on the other side, the left-wing parties 

(