The judicialization of territorial politics in Italy

ABSTRACT

This article focuses on Italy as an example of the judicialization of territorial politics, with the Constitutional Court adopting a growing role in centre–region relationships. It addresses the questions of why and how the role of the Italian Constitutional Court in terms of territorial governance has changed over the past two decades. It shows how the dynamics of decentralization, as pushed forward by the reform of the Title V of the Constitution, favoured the consolidation of the Court as a fundamental actor in intergovernmental relationships. Drawing on an extensive dataset of judicial decisions, the article provides empirical data demonstrating how the Court has become increasingly preoccupied with questions related to territorial politics over the last years. The article explores how the Constitutional Court shaped territorial politics through judicial review with the reform of Title V of the Constitutional Charter by focusing on the Court’s most significant decisions on the topic. The article emphasizes the fact that the limits of the constitutional reform have tended to produce a judicial redefinition of the centre–periphery arena and pushed the Constitutional Court to play a significant role in the new centre–region relationships.

KEYWORDS:

• regions
• judicial review
• Italy
• territorial politics
• judicialization
• Constitutional Court

ACKNOWLEDGEMENTS

The research leading to these results has been realized within the Relevant Research Project of National Interest (PRIN) 2020-2023 ‘Monocratic Government. The Impact of Personalisation on Contemporary Political Regimes.’ Principal Investigator: Professor Fortunato Musella.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

Notes

1 Until the late 1980s, ‘the recruitment of many regional personnel from central government, and the effectiveness of national parties in setting up regional party organisations are two factors which go a long way towards explaining the substantial continuity between the centre and the periphery’ (King, 1987, p. 345).

2 A judgment may define multiple complaints that the Court merges by reformulating questions according to both univocity and homogeneity principles. The Court has adopted new decisional techniques to resolve the increasing of centre-region disputes by trying ‘to operate within a homogenous decisional context and rationalize its workload to avoid excessive slowdowns. Then, the established practice according to which each complaint corresponded to one decision has failed’ (Pesole, 2015, p. 266).

3 The far-reaching constitutional reform proposed by Prime Minister Matteo Renzi and rejected by referendum in fall 2016 concerned this point (Art. 37, Title VI). Moreover, it aimed at curtailing the legislative autonomy of the ordinary regions and abolishing the principle of the concurrent legislative powers.

4 Empirical evidence about the complaints before the Constitutional Court shows that from 2002 to 2018, the central government brought more cases to the Court than the regional ones (59.1% and 40.8%, respectively). Central government and regional governments mainly use complaints of constitutional legitimacy (57.6% and 33.1%, respectively) (author’s own elaboration from Emilia-Romagna Title V dataset).

5 Autonomous regions were created to protect linguistic minorities (Valle d’Aosta, Alto Adige/Südtirol, Friuli-Venezia Giulia) or to prevent forms of secession as advocated by separatist movements (Sicily, Sardinia). Asymmetry also characterizes Trentino-Alto Adige, where the provinces of Trento and Bolzano are entitled to legislative powers (article 116.2 of the Constitution; the respective basic law).

6 It is useful to underline that legislators can anticipate the risk of judicial review and refrain from inserting certain clauses in a legislative text. Stone Sweet (2000, p. 75) defines this phenomenon as ‘autolimitation’.

7 The national interest clause has allowed the national government to legislate on subject matter supposed to be assigned to regions. It prevailed over regional ones when a conflict arose to preserve the pre-eminent interest of the entire country (Volcansek, 1999, pp. 61–65). Although references to national interest disappeared from the text of the Constitution with 2001 constitutional reform, some authors have pointed out how this concept remains in the ‘unwritten’ Constitution and still characterizes the centre-periphery relationship (Manganiello, 2012).