The text below is an adaptation from the speech that Daniele Scalea, president of Centro Studi Machiavelli, delivered in Budapest on May 28, 2024, as part of the international conference "Rule of Law as Warfare" organized by Danube Institute, Center for Fundamental Rights and "The European Conservative."
How the Italian legal system ensures the rule of law
In Italy, there is a rigid constitution that requires a quadruple parliamentary vote to amend it. If, in the last vote, the amendment does not receive a two-thirds majority in both branches of parliament, it can be subject to a referendum. So far, the constitution has been modified several times, but always in relation to marginal aspects. Major constitutional reforms have failed. Giorgia Meloni intends to try again, proposing the direct election of the prime minister and granting greater powers to the government.
The Constitutional Court in Italy is established to safeguard the respect for the Constitution. It consists of 15 members: 5 appointed by the President of the Republic, 5 by Parliament, and 5 by magistrates. Access to the Court’s jurisdiction is limited to regions and ordinary judges during legal proceedings; there is no direct access for individual citizens or groups of citizens. Essentially, it is the judges’ responsibility to open the doors to constitutional review.
The constitutional conforming interpretation
About 20 years ago, the Constitutional Court, then presided over by Valerio Onida (who would have later become a leftist MP), introduced a new principle: a provision should not be deemed unconstitutional merely because it can be interpreted in a way that contradicts the Constitution; instead, a provision is unconstitutional if it cannot be interpreted in a manner consistent with the Constitution. This doctrine of “conforming interpretation” essentially delegated the interpretation of the law to lower-level judges. Whenever they apply it, they must interpret the law in a manner that in their view aligns with the Constitution. If this is possible, they need not refer to the Constitutional Court. However, since only judges can appeal to the Constitutional Court, this has created a somewhat flawed system. For the past two decades, non-constitutional judges have become the true interpreters of the constitutionality of laws. When they find a law unconstitutional, they simply reinterpret it at their discretion.
Clearly, this new principle has had an impact where there is tension: the tension between Italy’s relatively conservative legislation and the significant component of the judiciary that is progressive.
(Photo: Danube Institute via X)
Examples
Let’s consider a few examples.
The first one relates to self-defense. Italian law used to recognize the right to self-defense only if the response was proportionate to the threat. While this principle seemed reasonable, it allowed many left-leaning judges to convict honest citizens who had defended themselves against burglars and attackers in their own homes, deeming their defense disproportionate. Consequently, some years ago, the law was amended, removing the requirement for proportionality when a person confronted at home, with a legally owned weapon, against an intruder. But what did those aforementioned judges do? They began ruling that this law could be interpreted as constitutional only if people defending themselves … did so proportionately. Essentially, the new law was nullified.
There are many examples pertaining to immigration: I'll mention only a recent one. Last year, the Meloni government enacted a new decree. Among its provisions is one stating that asylum seekers without sufficient financial resources to support themselves must remain guests in state-funded reception centers rather than wandering throughout Italy and resorting to often criminal means of survival. However, an ordinary judge disregarded this law, deeming it unconstitutional. Interestingly, this judge had previously participated in radical left-wing demonstrations supporting illegal migrants.
Finally, we can mention gender issues. Recently, in the magazine of the main leftist association of magistrates, referring to the recognition of parenthood for children acquired by same-sex couples through surrogacy abroad ( the practice is banned in Italy) a clear warning appeared: "Where this balancing is not achieved by the legislature it will have to be the jurisdiction, not just constitutional, to take into account the multiple indicators of protection identified by the Constitutional Court and to try to make homogeneous the condition of minors whose generative process may have been based on practices not allowed in our system." As if to say: if Parliament doesn't take care of it, the civil courts will.
The "external intervention" of the judiciary
I’d like to add something about this organization, called ‘Magistratura Democratica.’ In Italy, we have true internal factions within the judiciary because there are elections for the Supreme Council of Magistrates, which is the self-governing body for judges. Magistratura Democratica started as a communist wing and is still radical left-leaning, gaining popularity among judges. By its own admission, it was founded to challenge the technical and neutral role of judges, advocating for their ‘external intervention’ alongside political and social forces to promote "change".
It seems evident that there is a problem with this situation. Legislative power belongs to democratically elected representatives of the people. Constitutional oversight falls to the constitutional judges, who are mostly appointed by Parliament or by the President elected by that same Parliament. Ordinary judges are public servants who have earned their positions through competitive exams, not through democratic nomination. Their role is to apply the laws, not to reinterpret or selectively disregard them.
Defending the rule of law in Italy
The rule of law means the supremacy of the law. This supremacy extends to judges as well. When judges replace the Parliament—essentially the sovereign people—in making laws, they undermine the democratic system and violate the fundamental principle of the separation of powers, which is a cornerstone of the rule of law.
Therefore, the rule of law in Italy is currently under attack, but not from the government. Instead, it faces challenges from a minority but determined faction of activist judges.
Founder and President of Centro Studi Machiavelli. A graduate in History (University of Milan) and Ph.D. in Political Studies (Sapienza University), he teaches “History and Doctrine of Jihadism” at Marconi University and “Geopolitics of the Middle East” at Cusano University, where he has also taught on Islamic extremism in the past.
From 2018 to 2019, he served as Special Advisor on Immigration and Terrorism to Undersecretary for Foreign Affairs Guglielmo Picchi; he later served as head of the technical secretariat of the President of the Parliamentary Delegation to the Central European Initiative (CEI).
Author of several books, including Immigration: the reasons of populists, which has also been translated into Hungarian.
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