01_Fontanelli_y_Martinico

INTRODUCTION TO THE SPECIAL SYMPOSIUM “EXPLORING INTER-ORDER TERRITORIES:AN APPLICATION OF CARROZZA’S TEACHING TO NEW TOPICS”[*]

Introducción al Simposio especial «Explorando territorios entre-sistemas: una aplicación de las enseñanzas de Carrozza a nuevos temas»

Filippo Fontanelli

Senior Lecturer
University of Edinburgh

Giuseppe Martinico

Associate Professor of Comparative Public Law
Scuola Superiore Sant’Anna, Pisa[1]

http://dx.doi.org/10.18543/ed-67(1)-2019pp15-21

Recibido: 11.05.2019

Aceptado: 21.06.2019

Abstract

Professor Carrozza’s thinking is dense and covers comparative constitutional law, public international law and European Union law. The variety of our backgrounds bears testimony to the extraordinary curiosity, intelligence, leadership and eclectic nature of Carrozza.

Keywords

Carrozza; Comparative Constitutional Law; Public International Law; European Union.

Resumen

El pensamiento del profesor Carrozza es denso y abarca aspectos de Derecho constitucional comparado, Derecho internacional público y Derecho de la Unión Europea. Esta variedad es una confirmación de la extraordinaria curiosidad, inteligencia, liderazgo y naturaleza ecléctica de Carrozza.

Palabras clave

Carrozza; Derecho constitucional comparativo; Derecho internacional público; Unión Europea.

To curate this symposium on a recent piece of Professor Paolo Carrozza is a pleasure and a challenge. Professor Carrozza’s thinking is dense with suggestions: it is not a coincidence that it took us more than 100 pages to comment his 20-page article. Like holy texts and badly drafted law, his writing elicits endless commentary.

Besides being an exquisite thinker and an academic titan, Professor Carrozza is an amiable friend and a loyal mentor to us all. The colleagues and friends who joined this symposium have worked with Professor Carrozza, and we owe him a great deal of learning. This is a motley crew: the authors include comparative constitutional lawyers, public international lawyers, European Union lawyers, and several other subdivisions not worth listing. This is not a coincidence: the variety of our backgrounds (foregrounds?) is a confirmation of the extraordinary curiosity, intelligence, leadership and eclectic nature of our mentor, who guided us especially in the early years of our education, encouraging us to explore areas going beyond his vast comfort zone (not to mention ours).

* * *

We have also shared the formative experience of working on the Sant’Anna Legal Studies project (www.stals.sssup.it), born more than a decade ago from an intuition of Professor Carrozza.

STALS launched in 2008, as an online research paper archive; it has since grown significantly. Under the STALS flag, we have organized almost ninety international events, covering a broad range of topics. Over the last few years, the Scuola Sant’Anna has invested greatly to achieve a constant growth in internationalising its action, a process that caught up speed under the Presidency of Prof. Yves Mény. When Paolo Carrozza decided to launch STALS, the editors of this special symposium were first involved as senior assistant editors and later joined him as editors of the research papers series (with Giacomo Delledonne).

Ideally, STALS used the template of the Italian Studies in Law, a yearbook series edited between 1992 and 1994 by Professor Alessandro Pizzorusso[2] (the former supervisor of Paolo Carrozza and a true giant in the field of comparative constitutional law) and published by Martinus Nijhoff. STALS was born and grew into a modern evolution of the Italian Studies in Law project, only digital.

Eleven years later, we are glad to note that STALS has attracted national and European funds and has become a brand in comparative and European legal studies. It has published countless articles and papers, contributing to the education of many young scholars interested in a variety of legal disciplines. Nothing of this could have happened without the enthusiasm and commitment of Professor Carrozza.

* * *

The symposium consists of six articles. It opens up with Carrozza’s essay Kelsen and Contemporary Constitutionalism: The Continued Presence of Kelsenian Themes, a paper originally published in 2017, and reproduced here with the permission of the publisher.[3] This article stresses the enduring importance of Kelsen’s theory in contemporary constitutionalism and argues that constitutionalists are considerably more Kelsenian than is generally supposed. Unsurprisingly, this article speaks to the author’s evident curiosity about the relations between legal orders and legal actors. The other contributions all build on this piece of writing, each radiating from it into a different legal subject.

Carrozza’s teachings on inter-order connectivity range from the tiniest occurrence of inter-legal tinkering to the most universal observations about global legal orders. One single example will suffice to exemplify the fil rouge of Professor Carrozza’s laborious intuition, and defuse at once the stigma of practical irrelevance that affects much of post-modern constitutional debate.

In 2006, the Italian Region of Sardinia adopted a Regional Law imposing luxury taxes on real estate properties used for tourism or as second houses, and on certain tourism-related services. The Council of Ministers challenged the legality of one of these measures against three different standards of review: the Regional Charter, the Italian Constitution and EU law.[4] Professor Carrozza, who acted as counsel for the Region Sardinia, was therefore at the center of a perfect inter-order storm. It is not a coincidence that, in that precise dispute, the Italian Constitutional Court lodged for the first time a preliminary question to the Court of Justice of the EU. It sought clarification regarding the compatibility of the local law with the law of the EU Treaties.

The preliminary question sought to piece together the various overlapping or mutually referring rules of the various normative level: the regional law might breach the Constitution’s “openness” clause, by dint of a further breach of EU law.

Professor Carrozza has trained his students to navigate deftly across normative plans, to recognize dialogic patterns and collision courses. He is equally likely to muse on theoretical reflections and to plunge into the nuts and bolts of specific measures passed by a municipality. It is just apt that this short homage to his work, revolving around his reflections on Kelsen, starts with a reference to the Sardinian tax on seasonal leisure boat services. Freewheeling discussions on global constitutionalism and legal micro-management cannot impart any valuable lesson. They mistake fragmentation and multi-level regulation for the law, they confuse the epiphenomenon for the real thing: law’s unwieldy complexity.

Professor Carrozza could see the forest for the trees, and has always taught us all the real thing.

* * *

Carlo Cantore produced a topical and insightful piece, commenting on the restless attempts of the Court of Justice of the EU to find its place in the global legal stage. In the wake of the Court’s stern decisions in Opinion 2/13 and Achmea, Opinion 1/17 on the investor-State dispute jurisdiction established in the CETA agreement between EU and Canada comes as an offer of reconciliation for the international legal order. This time around, the Court of Justice decided to engage in some form of dialogue, and Cantore probes the genuine motives of the Court, as well as the convincingness of its reasons. The tendency of the EU legal system to conduct itself as a unique brand of international law has caused its isolation, and caused some concerns about its continuing external relevance.[5] Openness, whether genuine or strategic, is the right way to avoid self-defeat.

The interaction between national values and EU integration in criminal matters is explored in Leandro Mancano’s article. He paints an uneasy picture of constant struggle between the States and the Union. There seems to be a constant attempt to find the satisfactory balance between the primacy of EU law, the States’ reluctance to forfeit their exclusive competence on these matters, the creeping expansion of the EU’s regulatory power and the domestic courts’ mission to preserve their constitutional core values from external interferences. Unsurprisingly, a perfect balance simply does not exist, and the law proceeds by instances of revolution and reaction, conflict and composition. At the center of this legal laboratory work the Court of Justice and the national constitutional courts, whose interaction – once again – is testimony to the difficulty of running “open” legal systems.

The subject-matter of Giuseppe Martinico’s article is constitutional texts. Through a careful comparative analysis, the author points out the devices used by the constitutional drafters of a specific European vogue to open-up their constitutional order to external influences. The article surveys a chronology of equipping constitutions with safety-valves, open hatchets and connection links to supranational and international legal materials. Through legal engineering, constitutions can anticipate, regulate and perform interactions between legal orders.

Giuseppe Bianco’s article focuses on the Stufenbau, the pyramidal structure for the ordering of the sources of law, in Hans Kelsen’s work, as reassessed by Paolo Carrozza. It attempts to answer the following questions: How relevant is this theory to today’s international financial law? What insights does it offer? What conceptual challenges does it have to overcome?

The formal, hierarchical theory of the sources of law is presented in Section One. Section Two examines the practical relevance of this theory with regard to hybrid, or private, sources in the field of sovereign debt restructuring law. Section Three casts the Kelsenian concept against the emergence of soft law stemming from public authorities, in the area of financial regulation. Finally, some concluding remarks are proposed.

Giacomo Delledonne’s essay builds on Paolo Carrozza’s analysis of Kelsen’s contribution to the constitutional theory of federations. His goal is to make some points on its relevance for a proper understanding of the most recent developments in federal systems, including the aftermath of secession crises in Europe. The internal balance of power of federal orders is a major theme in Kelsen’s constitutional thought. His theory of federal conflicts is indebted both to the achievements of his inquiries into legal theory and to his direct involvement in constitutional policy debates in the 1920s and 1930s. In so doing, he took a strong stance at the time of the Prussian coup, a major constitutional crisis in whose handling Carl Schmitt also played a significant role.

* * *

One century after the publication of Santi Romano’s L’Ordinamento Giuridico, it is tempting to borrow his cynical view on inter-order interactions, and conclude that nothing is preordained, nothing makes principled sense.[6] To accept the absence of taxonomy above the legal order of the State, in a sense, is liberating. No dialogue, no multi-level governance, no balancing, no plan: there is no law of inter-law management.

Unfortunately, the lack of a reliable model of inter-order arrangements does not mean that they do not happen – quite the opposite. Lawyers must disentangle, interpret, challenge and monitor how different laws and different institutions interact, even if there is no script to their interactions. If there is no map, let there be at least a compass.

Professor Carrozza’s thinking on inter-order relations is not a map, but it is a compass. We were happy to gather in this symposium and meet in the middle. Each with his Carrozza-branded compass, we took our separate ways to explore some parcel of uncharted legal land.


[*] Cómo citar / Citation ‘Chicago-Deusto’ (Autor-fecha / Author-date / Lista de referencias / Reference list entries): Fontanelli, Filippo and Martinico, Giuseppe. 2019. “Introduction to the Special symposium ‘Exploring Inter-Order Territories: An Application of Carrozza’s Teaching to New Topics’”. Estudios de Deusto 67, n.º 1: 15-21. http://dx.doi.org/10.18543/ed-67(1)-2019pp15-21.

[1] Filippo Fontanelli is Senior Lecturer at the University of Edinburgh. Giuseppe Martinico is Associate Professor of Comparative Public Law at the Scuola Superiore Sant’Anna, Pisa. This symposium is part of the Project Jean Monnet Module “Eur.Publ.IUS” (European Public Law-IUS), https://www.santannapisa.it/it/ricerca/progetti/jean-monnet-module-european-public-law-ius-eurpublius.

[2] Alessandro Pizzorusso (ed.), Italian Studies in Law: A Review of Legal Problems. Volume I, Martinus Nijhoff, 1992 and Alessandro Pizzorusso (ed.), Italian Studies in Law: A Review of Legal Problems. Volume II, Martinus Nijhoff, 1994.

[3] Paolo Carrozza, Kelsen and Contemporary Constitutionalism: The Continued Presence of Kelsenian Themes, in Peter Langford, Ian Bryan, John McGarry, (Eds.) Kelsenian Legal Science and the Nature of Law, Springer, 2017, pp. 75-98.

[4] The details of this story are more fully accounted in Filippo Fontanelli and Giuseppe Martinico, «Between procedural impermeability and constitutional openness: The Italian constitutional court and preliminary references to the European Court of Justice» (2010) 16(3) European Law Journal 345-364.

[5] Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, Decision on Termination Request and Intra-EU Objection of 7 May 2019.

[6] Filippo Fontanelli, «Let’s Disagree to Disagree. Relevance as the Rule of Inter-Order Recognition» (2018) 4(2) Italian Law Journal 315 et seq.

 

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