Reasonableness, proportionality and rationality

The distinction between the principle of reasonableness and proportionality represents a controversial issue for the Italian scholarship and the constitutional case law does not provide clear

385 _{This debate has raised the controversial issue of the legitimacy of the Constitutional Court in the Italian legal} system, see, inter alia, Mezzanotte, 2014; Mezzetti 2010; Modugno 1982.

386 _{Cheli 2011, 33.}

387 _{Cheli 2011, 33-36. Also in favour of a formalized approach to the application of the principle of reasonableness} or proportionality see Luciani 1994 and Paladin 1992 who supports the introduction of a rigid proportionality test in order to give content and strength to the balancing reasoning of the Court. To the contrary, Modugno argues that it is the reasonableness criterion itself that traces an obligatory path for the constitutional judges: Modugno 2008, 255. Indeed, a number authoritative scholars argue for the appropriateness of a more structured use of this principle, or even for a strict application of the test, in order to strengthen the legal reasoning in terms of coherence, transparency and persuasiveness and to make sure that the Italian Constitutional Court is not excluded from a the international courts’ dialogue, see, inter alia, Cartabia 2013, 7, and Pino 2014.

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answers, either389_{. Indeed, differently from other supreme courts, the Italian Constitutional Court makes}

use of various terms that refer, more or less directly, to the concept of proportionality and reasonableness, e.g. razionalità, adeguatezza, non arbitrarietà, congruenza and many others. The terms are also often used as synonymous in the same judgment, or they seem to be overlapping390_.

Drawing on the Italian academic literature and on the grounds of authoritative theories, Piera Loi has summarized this plurality of views. On the one hand, a number of constitutional law scholars argue that the connection between reasonableness and proportionality is so strict to the point that the two either coincide completely or, at least, proportionality is a subcategory of reasonablness391. To the contrary, an assimilation of the two concepts is rejected by certain academic literature where it is argued that the feeble, not to say null, formalization of the legal reasoning founded upon the principle of reasonableness does not allow any connection between the two392.

As a matter of fact, in latest years the Constitutional Court has increasingly referred to the principle of proportionality especially when the infringement of social rights has been at stake, notwithstanding that it does not apply the principle by means of a structured method, as it is the case in, for instance, the German Constitutional Court393.

A close connection between the principle of reasonableness and proportionality has first appeared in Judgment 1130/1988, where clear reference is made to the principle of proportionality, understood as “suitability or relationship means-aims”394

. According to Penasa, in the judgment from 1988, the Court develops both the teleological nature and the substantial features of the principle of reasonableness. In particular, the Court maintains that the reasonableness scrutiny, does not entail the use of absolute and abstract criteria, but “it is developed through reflection related to the proportionality of the means chosen

389 _{This research does not investigate the principle of proportionality as enshrined in Art. 36 Italian Constitution} and related to the proportionality of remuneration. The principle of proportionality is here intended especially with regard to the legal technique used by the Court.

390 _{Cartabia 2013, 2.}

391 _{Anzon 1990; or Di Gregorio 2002, 237 ff., who concludes that the principle of reasonableness is an autonomous} principle in the Italian legal system and structurally corresponds to the Principle of proportionality applied in the German legal system.

392 _{See, inter alia, Morrone 2002, 285 ff., who argues for a complete difference in the nature of the two concepts:} See also the review by Piera Loi 2016, 81 ff.

393 _{According to Cartabia, the Constitutional Court regularly uses the so called "giudizio di ragionevolezza" and} “giudizio di proporzionalità", literally "reasonableness judgment" and "proportionality judgment", whether explicitly or implicitly: Cartabia 2013, 1. See also Loi 2016, 5.

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by the lawmaker in its unquestionable discretionality with regard to the objective needs to be covered or the aims pursued, taking account of the circumstances and the concrete limitations”395_.

Notwithstanding the reference to the proportionality, the Court did not seem to be looking at the principle of proportionality as applied in the German constitutional tradition, given that neither the necessity requirement nor the proportionality in the strict sense have been discussed. Indeed, in Judgment 1130/1988, the Court only addressed the proportionality as suitability to achieve the aim, therefore it has applied the suitability test, rather than the proportionality test396.

However, the Court itself has clearly reiterated the strict link between the principle of proportionality and that of reasonableness, in 1995: “the principle of proportionality represents a direct expression of the general principle of reasonableness" (Judgment 220/1995).

Constitutional judge Cartabia makes clear that the “the Italian Constitutional Court does not make any distinction, neither explicit nor implicit, between the principle of reasonableness and the principle of proportionality, which are often used in a completely fungible way, so that a disproportionate provision is unreasonable and viceversa”397

. Under this view, the proportionality has always been used as a guiding principle and requirement, which, according to Cartabia, also in the Constitutional Court is applied in a similar way as in other courts, at least in the merit (an), although it has not been formalized and systematized in a progressive fashion, yet (thus stressing a difference from the other judicial constitutional traditions, in terms of quomodo).

However, the relationship between the two principles appears way less fluent in the academic literature, or at least, not so uncontroversial. According to Pino, "the instrument to assess whether a limitation is reasonable is, indeed, the proportionality criterion". In particular, this criterion is applied in order to structure the reasonableness requirement, when fundamental rights are at stake, in order to measure whether the sacrifice imposed upon a constitutional right is legitimate398_.

395 _{See Penasa 2009, 818, my translation.}

396 _{Bindi 2014, 15-18; See also Rauti 2002, 378 ff.} 397 _{Cartabia 2013, my translation.}

398 _{Pino 2014, 6; Bindi 2014, instead, calls it “test”, rather than “principle” or “criterion” as more often done, in} relation to the reasonableness.

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Zagrebelsky subdivides reasonableness in three sub-criteria, namely rationality, equality and justice. And it is precisely in the latter case that the proportionality, as a tool for balancing, arises, inasmuch as the justice criterion is founded upon principles – not only rules – and the application of principle inevitably needs a form of balancing399_{. Zagrebelsky’s theory put emphasis on a further concept to be}

distinguished from that of reasonableness, that is rationality, which, in his understanding, is the logic coherence of the norm with regard to the whole legal system400. The assumption that the two concepts are different, but interconnected is way less controversial than in the previous case. However, the nature of this distinction is still debated.

Without going into much detail on this extensive debate, let us see some key theories.

Moscarini reflects over the possible legal meanings of reasonableness in the Italian legal system. First, reasonableness is understood as equality, where the norm is interpreted through the tertium

comparationis seen above. Second, reasonableness is applied as an autonomous parameter, based upon

the assessment of the rationale of the norm. Third, it can be understood as proper application of the law. Forth, reasonableness may reflect the rationality of a norm, understood as coherence and non-

inconsistency of the provision401. Hence, a similar approach to Zagrebelsky’s one.

Also in Scaccia’s opinion rationality is an aspect of reasonableness; the scholar argues that the reasonableness criterion can be divided in systematic rationality, that is coherence, and a prupose- oriented efficiency (that is pertinenza, congruenza, imperizia, proporzionalità) and, last, justice- equity402. Moreover, the Constitutional Court, in Judgment 172/1992, has made a distinction between the razionalità pratica (practical rationality), which is expressed by the principle of reasonableness, and the razionalità formale (formal rationality), understood as a logic principle of non-contradiction (a distinction recently reiterated in Judgment 113/2015)403_.

It has also been argued that, the principle of reasonableness expresses a "reinforced reason", more careful about the concrete context and aware of the legal system as a complete evolving system.

399 _{Zagrebelsky1994.} 400 _{Zagrebelsky 1994.} 401 _{Moscarini 1996, 88 ff.} 402 _{Scaccia 2000.}

403 _{Rivera 2016; Cartabia 2013, 16; on the role of reasonableness and proportionality in labour law and other} branches of law see Perulli 2005 and Loi 2016.

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