Reviewed by Georg Vanberg, Department of Political Science,
Florida State University.
Recent years have witnessed a renewed interest in the
politics surrounding high courts in countries other than the United
States. Mary Volcansek's CONSTITUTIONAL
POLITICS IN ITALY marks an important addition to this development. The book provides a rich and fascinating
analysis of the jurisprudence of the Italian Constitutional Court and the
court's interactions with other branches of government. The central conclusion is that the Italian
court cannot be understood as a purely legal institution. Rather, one must
understand the court as a political actor that constantly responds to other
players in a dynamic environment. This
book is indispensable reading for scholars in comparative judicial
politics. At the same time, scholars of
American courts who wish to get a feel for judicial politics in another context
can also benefit greatly by considering
Volcansek's arguments.
Chapter 1 opens the book with a sketch of the theoretical
lens through which Volcansek examines the Italian court. The dependent variable for the analysis is
"judicial policy," that is, the way in which courts "make policies
through the process of rule adjudication" (p. 4). The fundamental assumption underlying the
argument is that judicial decisions are a function of judicial preferences and
of perceived constraints on judicial behavior.
Making use of the literature on the U. S. Supreme Court,
Volcansek considers two primary motivational assumptions. The first, derived from the
"legal" model, proposes that legal considerations are primary in
determining judicial policy. In
Volcansek's terminology, judges may pursue "good law." The second possibility,
derived from the "attitudinal" model, focuses on judges' policy preferences. In Volcansek's terminology, judges may be
motivated by "good policy." Volcansek does not view these two
motivations as mutually exclusive. As she puts it, "the two are not
discrete categories, and both motivations are likely intertwined in any given
decision" (p. 5).
The second dimension of judicial decision-making concerns
perceived constraints on judicial behavior.
Volcansek focuses on a number of institutional and non-institutional
variables that determine what judges believe they can accomplish, including
judicial independence, authority, and accountability. Perhaps the most interesting and important consideration that
Volcansek raises as a potential constraint on judicial behavior derives
from the political
environment in which a court must act.
As she concludes, "the context or environment in which a decision
is made imposes a related structural determinant" (p. 9). A prominent example of such an environmental
influence (to which I return below) is the possibility that the court will be incapable
of enforcing a decision. As a
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result, anticipation of non-compliance may shape judicial
decisions.
The remaining chapters of the book provide detailed case
studies of five issue areas: decree laws, national-regional conflicts,
impeachment, referenda, and media policy.
Each chapter consists of three parts.
An introduction reviews the relevant deliberations of the constitutional
convention. A main section analyzes the
development of the court's
jurisprudence in the particular issue area. A final section evaluates the implications
of the case study for the theoretical concerns: Can the court's jurisprudence
more plausibly be explained as an instance of the pursuit of good policy or of
good law? Can changes in perceived constraints account for changes in the
court's jurisprudence?
The main conclusion that emerges from these studies is that
the Italian Constitutional Court is an eminently political actor, guided by
legal and policy preferences, and sensitive to the interests of other political
institutions and to the public. An
example can illustrate this. In reviewing
the court's jurisprudence on executive decree legislation,
Volcansek shows that until 1996, the court largely deferred
to the executive branch. Rather than
making use of several available constitutional provisions in reviewing decrees,
the court preferred to dismiss challenges on technical grounds. In 1996, the court suddenly reversed course,
applying a rigorous constitutional test to decrees by declaring the practice of
reissuing decrees unconstitutional. In
explaining the court's approach, Volcansek moves strategic considerations to
the fore. Specifically, she
notes that judicial attempts to constrain governmental use
of the decree might well have gone unheeded in the earlier period. As a result, she concludes, "the court
could have rightly calculated that until 1996 that its best strategy was to
avoid making what might well have been no more than a useless gesture" (p.
48). The post-1996 environment
presented a very different set of incentives for the court. Most importantly, the revolutionary
transformation of the Italian political system and party system in the mid-1990's
created "a type of enhanced independence, for [the judges'] appointers and
their potential patrons for future political careers were largely
irrelevant" (p. 49).
In trying to disentangle the relative importance of various
judicial motivations and of constraints on judicial behavior for judicial
policy- making, Volcansek confronts a formidable empirical challenge. Most critically, the analysis must overcome
significant data limitations. European high courts, including the Italian
Constitutional Court, typically do not provide the voting record of individual
justices. All justices involved in a
decision are required to sign a single, collegial opinion. In most cases, not even the numerical vote
split is revealed. Some courts do allow
dissenting opinions, but these tend to be rare and reveal the vote split in
only a handful of cases. As a result,
attempts to conduct individual-level studies of judicial behavior are
confronted with serious
difficulties. Specifically, it is generally impossible to "export" the familiar statistical models that have been developed in the US context and which focus on the voting records of individual justices to European courts.
As a result of this data limitation (which she confronts
explicitly), the case Volcansek builds in trying to tease out the relative
impact of different judicial motivations and of constraints on judicial
behavior is largely "circumstantial." For each issue area, she provides a detailed, dynamic account of
the court's
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jurisprudence over time.
She then assesses how plausible legal and policy preferences are as
motivations that explain the court's decisions. Similarly, she asks whether
changes in the court's environment, that is, in the constraints confronting the
court, can account for the court's jurisprudence. Sudden changes in the court's jurisprudence constitute the
proverbial "smoking gun" that can indicate that
judicial motivations or constraints may have shifted (p. 143). This strategy of accumulating "circumstantial
evidence" is a natural "second-best" alternative in responding
to the data-limitations Volcansek has to contend with. It is also largely successful. Volcansek's analysis is nuanced and careful,
and the case she builds is compelling.
Despite Volcansek's efforts, the case-study method imposes
some limitations on the analysis. Most
importantly, the approach does not explicitly eliminate plausible rival
hypotheses. A prominent example from the
book can serve as an illustration.
Generally, even "legal" -- as opposed to "policy" --
considerations will not provide a unique solution to a dispute. As a result, (as long as genuine
disagreements about the implications of legal criteria can exist), a court's
jurisprudence may change over time as the composition of the court changes,
even if all judges are purely motivated by legal considerations and the court's
environment remains constant. Given the
data limitations outlined above, this alternative hypothesis is difficult to
assess because we cannot follow the voting patterns of individual
justices. Nevertheless, given the
prominence attached to changes in the court's jurisprudence as an indication
that legal considerations cannot account for the court's jurisprudence (e.g.,
p. 143), Volcansek's argument would be even more convincing if some evidence
could be presented to suggest that compositional changes can not account for
the patterns she documents. A rough
aggregate measure of the court's ideological composition, measured, for
example, in terms of the partisan affiliations of judges might be a useful
first cut. (However, for some courts
even such a rough measure is uninformative because the ideological composition
of the court does not change perceptibly.
In Germany, for example, the major parties have allocated "property
rights" over seats on the court which assures that a partisan balance is
preserved.)
One useful standard for judging the significance of a work
are its contributions to a larger scholarly dialogue. In my view, CONSTITUTIONAL POLITICS IN ITALY makes at least three
such contributions. At the most basic level,
the book provides a rich and detailed account of the institutional structure of
the Italian court and its jurisprudence.
As efforts to construct more general, overarching approaches to judicial
politics get
underway, such basic data is a key ingredient. Volcansek has filled an important gap by
making this information more widely available to scholars. The second
contribution of the book is methodological.
Although research method does not constitute a focus of the book,
Volcansek demonstrates that important insights about judicial behavior can be
obtained despite limitations on the kind of data that are available in the
European context.
Finally, and I think most importantly, the book raises a
number of important and fascinating theoretical questions that invite
additional research. What would a more
general, explicit theory about the reciprocal influences between the political
environment and judicial behavior look like?
Which factors in a court's environment will be influential for judicial
decision-making, and under what circumstances?
How do different
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institutional arrangements impact judicial
decision-making? Such questions, which emerge
directly from Volcansek's provocative work, provide an open invitation to
follow her lead in addressing the vital issues to which she has called
attention.
Copyright 2000 by the
author, Georg Vanberg.