Reasonableness and Balancing in Recent Interpretation by the Italian Constitutional Court
The constitutional case-law of the last few years confirms the unbreakable bond
between interpretation and balance, and the impossibility, for the purposes of application, of
interpreting without balancing and balancing without interpreting. The paper criticizes both
those who advocate for an abstract distinction between the ‘legislative’ balance and the
‘judicial’ balance, and those who confine reasonableness to equality or equal treatment, or
social consensus, or praxis, or living law. The impossibility of separating a ‘law with rules’
and a ‘law with principles’, in their historical and relative significance, makes it possible to
address – with better predictability and controllability –delicate issues which recent decisions
of the Constitutional Court have dealt with, such as those concerning diachronic law, unfair
deposit, correct remedy, cryopreservation of supernumerary embryos, automatic expulsion of
a foreigner in consequence of a crime, acknowledgement of a foreigner’s rights, public order.