Tuesday, August 7, 2012

At the crossroads of politics and law

Run across Justin Frosini on a given day and you can see him wearing any of a number of hats.

At SAIS Bologna Frosini is an adjunct professor of constitutional law. He teaches at Bocconi University, Italy's best-known business school, and also heads the Center for Constitutional Studies and Democratic Development (CCSDD), a think tank co-founded by SAIS Bologna and the University of Bologna.

It's not so much that Frosini stands at an intersection connecting SAIS Bologna and two other prominent institutions. He is the intersection.

Frosini has just written a book, "Constitutional Preambles At a Crossroads between Politics and Law", published by Maggioli Editore. Next spring he will teach an international law course at SAIS Bologna called "Constitutional Development and Democratization".

As our readers may know, International Law is one of the concentrations within the International Relations field at SAIS. What is the connection between his new book and SAIS?

Frosini answered our questions, including this last one, before heading to the Caribbean for a conference.

Q: What is your book about?
Frosini: It is about the introductory statements, known as preambles, that you find at the beginning of many constitutions including the American Constitution of 1787. The majority of legal scholars believe that these preambles are not truly operative, and what I have tried to do is verify whether that is really the case by conducting a comparative study examining constitutional preambles across the globe.

Q: How did you get the idea for the book?
Frosini: I first started studying this topic while I was doing my Ph.D in constitutional law. This may sound rather banal but when you are doing research on constitutional systems of the world, inevitably you begin by reading a country's constitution and the first thing you come across is the preamble.

What tickled my curiosity was the fact that the preamble is often the best known part of the constitution -- I'm sure you can recite the American preamble off by heart, Nelson -- and yet it is generally considered to lack legal value. I was not completely convinced that this was always the case, and given the fact that there is very little specialised literature on this topic I was prompted to carry out this study.

Q: Once you started writing it, were you surprised by any of your findings?
Frosini: Yes and no. With regard to the United States and France, which I focus on in the second section of the book, my findings confirmed that the two countries stand at opposite ends of the spectrum. In the States the preamble is not considered to be a source of substantive law, while in France the preamble is on an equal footing with the articled provisions of the 1958 Constitution.

But I was surprised by the number of other countries that consider the preamble to be truly operative. Furthermore, the textual analysis, contained in the first section of the book, provided some unexpected results.

Q: Who should read it?
Frosini: Well, as a preamble (sorry I couldn't resist that) let me say that I don't think this book is going to become a blockbuster (!), but I do believe it will be of interest to anyone studying or doing research in the field of comparative constitutional law and especially those focusing on the case law of Constitutional and Supreme Courts. In fact, as my findings demonstrate, the courts play the role of the protagonist in determining whether the preamble is truly operative or not.

Q: You're an expert in constitutional studies. Is your book relevant to work that is done at SAIS Bologna? If so, how?
Frosini: Yes, it is specifically relevant to the research carried out at the CCSDD and to the course I will be teaching in the second semester (Constitutional Development and Democratisation). But it is also relevant in more general terms with regard to the trends in global constitutionalism which is of the utmost importance for anyone doing advanced international studies.

I firmly believe that the preambles of more recent constitutions can be used as a litmus test to verify what principles and values are actually emerging in different parts of the world today -- the preamble to the new and rather controversial Constitution of Hungary being a good example.

Q: What next?
Frosini: First I have to finish a book I am writing on the 1948 Italian Constitution for Hart Publishing's book series "Constitutional Systems of the World".

Then the idea is to return to my research on constitutional preambles and move from the wide comparative study that I have just completed to more narrowly-focused research on some of the countries where I have found that the preamble to the constitution has a prominent role.

Finally, I will also be closely monitoring the progress of the constitution-drafting process in the countries of North Africa as part of a research project on the Arab Spring currently being conducted by a team of researchers here at the CCSDD.

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