«Ciò che non fa la legge, lo fa il giudice, se capace »: l’impatto costituzionale della giurisprudenza della Corte di cassazione italiana

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The centralized judicial review of constitutionality granted to an ad hoc court, different from the one placed at the top of the ordinary judicial hierarchy, might suggest the idea that the solution of questions of constitutional law which affect citizens’ lives is now entrusted to the Constitutional Court, while the interpretation of the law is vested in the supreme court. This is only a first impression. Decisions of the Italian Court of cassation of the last ten years or so have called the attention again on the issue of the impact of the jurisprudence of the supreme court over the Italian constitutional system and over the international system. Piero Calamandrei had already spoken of a constitutional dimension of the work of the Court of cassation, which he saw in the guarantee of the principle of equality before the law inherent in the Court’s duty to ensure the uniform interpretation of the law. The current constitutional dimension of the role of the Court is qualitatively different from the one discussed by Calamandrei, as it consists in the creation of rules that integrate the legal system. In the present study, some examples in which this dimension has occurred are analyzed. The constitutional role of the Court of cassation has been broadened because of the lack of a direct recourse to the Constitutional court. A system based on a rigid constitution such as the Italian one is intrinsically bound to the adjustment of society to constitutional values. The lack of a direct access to the Constitutional Court determines a discontinuity with regard to the means to achieve such an adjustment, it creates a gap that will be inevitably filled by other bodies, especially those which, due to the discontinuity, have the final say on cases assigned to them and exercise this power with boldness and determination, like the Court of cassation. Nonetheless, a system characterized by a rigid constitution, which vested a Constitutional Court with the power of judicial review of legislation, should not be satisfied with a review which can be effected only in connection with judicial proceedings (review «incidenter») only. On the contrary, it should provide for an instrument capable of reconciling the expectations of the parties for a final decision, the desire of the judge to decide according to the law and the statutes in a reasonable time, and the power of the Constitutional court to have the final say on constitutional law matters. Such an instrument could be only the direct recourse to the Constitutional court against decisions issued by ordinary judges, even if final.

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