Author Interview: European Constitutional Courts and Transitions to Democracy

Francesco Biagi

Francesco Biagi tells us about his new book European Constitutional Courts and Transitions to Democracy . To obtain a 20% discount, visit this website and use the code BIAGI2020

European Constitutional Courts and Transitions to Democracy (Cambridge University Press 2020) brings together research on democratization processes and constitutional justice by examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century. Using a comparative perspective, the book examines how the constitutional courts during that period managed to ensure an initial full implementation of the constitutional provisions, thus contributing - together with other actors and factors - to the positive outcome of the democratization processes. The volume aims at providing a better understanding of the relationship between transitions to democracy and constitutionalism from the perspective of constitutional courts.

Q1: What inspired you to take up this project?

I have been studying the role of European constitutional courts in transitions from authoritarian rule for more than a decade, since I started my PhD program. The decision to write a book based on my PhD thesis was just the natural continuation of that work. Fortunately, I had the opportunity to present earlier versions of various chapters of the book to a variety of audiences in Europe, the United States, and Latin America, and during each event I received insightful comments that helped me tremendously in shaping the final version of the book.

Furthermore, working as a research fellow at the Center for Constitutional Studies and Democratic Development (a partnership between the Johns Hopkins University SAIS Europe and the University of Bologna), and at the Max Planck Foundation for International Peace and the Rule of Law (Heidelberg) has undoubtedly exerted a strong influence on my research interests, particularly with regard to constitutional justice and transition processes.

Q2: Whose work was influential on you throughout the course of the project?

The list is very long. I would say that the plethora of studies carried out by Guillermo O’Donnell, Philippe C. Schmitter and Laurence Whitehead on transition processes represented an essential anchor throughout the entire course of the project. Another work that was extremely influential for me was the seminal book by Eduardo García de Enterría “La Constitución como norma y el Tribunal Constitucional”. I should add that the ground-breaking works of Wojciech Sadurski and Tom Ginsburg on judicial review in transitional countries were also an extremely important source of inspiration. Finally, when it comes to Italy, I must mention Piero Calamandrei’s study, “La Costituzione e le leggi per attuarla”.

Last but certainly not least, I benefited enormously from the teachings of Giuseppe de Vergottini and Susanna Mancini on comparative methodology.

Q3: What challenges did you face in writing the book?

As I mentioned before, this book is based on my PhD thesis, therefore the first challenge that I had to face was to transform my thesis into a book. I had to rethink the structure, reduce its length, strengthen the conclusions, and better clarify certain parts. This proved to be very challenging. The outcome was the publication of a book in Italian (Corti costituzionali e transizioni democratiche. Tre generazioni a confronto, Il Mulino, Bologna, 2016).

The second challenge was to work on an English version of the book. This not only meant translating the original Italian version, but also updating its content, adding English-language sources, providing new material of interest to an international readership, and explaining any foreign terms I employed. In all honesty, I really have to thank my mother: if she had not pushed me constantly, I am not sure whether I would have ever embarked on such a long and complicated project.

Q4: What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

When I wrote this book, my main aim was to contribute to filling a gap in the literature. Indeed, the studies on the role of constitutional courts in transition processes in Europe focus on specific countries, or just one generation of constitutional courts (for example, the courts of Central and Eastern Europe). In my book I expand this analysis by looking at three generations of European constitutional courts that were set up after a period of authoritarian rule: the period after the Second World War, the late 1970s – early 1980s, and the period after the fall of the Berlin Wall. In other words, by carrying out this diachronic comparison, I wanted to provide a broader picture.

Furthermore, although my book focuses on past transitions, I hope that it will not remain an historical inquiry, but might be considered an example of what comparative scholars such as H.C. Gutteridge define as “Applied Comparative Law”. Indeed, I believe that the European experience can provide some useful and practical insights for constitutional courts in countries that are currently experiencing (or likely to experience in the future) a transition from authoritarian rule, especially in the light of the fact that transitional countries increasingly tend to set up constitutional courts or take measures aimed at strengthening the ones that exist already (as it was the case in post-Arab Spring countries).

I hope that my book will contribute to a better understanding of the dynamics of what Samuel Issacharoff has called “the era of constitutional courts.”

Q5: What’s next?

I am currently working on two main projects. First, I am co-editing a book on “Comparative Constitutional History. Volume 1: Principles, Developments, Challenges” (Brill, forthcoming 2020) with my colleagues Justin O. Frosini and Jason Mazzone. The volume will contain a set of essays that were presented at the conference on “Constitutional History: Comparative Perspectives” held in Bologna in November 2017.

Second, I am writing a monograph on the processes of constitutional transformation that have taken place in North Africa and the Middle East following the Arab Spring. I will look, from a comparative perspective, at constitution-making, separation of powers, fundamental rights, place and role of religion, and constitutional adjudication. This book will be the outcome of my years-long experience as a legal consultant in the Arab World.

Francesco Biagi is a Senior Assistant Professor of Comparative Public Law at the Department of Legal Studies of the University of Bologna