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THE

MODERN L A W R E V I E W
Volume 43
January 1980

No. 1

POLITICS AND THE JUDGES-THE PERSPECTIVE *

EUROPEAN

I IN order to enrich this lecture with references that would make it more palatable to my audience, I thought it wise to get somewhat acquainted with the politics of the English judiciary. Actually, the material Professor Lord Wedderburn sent me (Professor Gdiith's book, the reviews it was given, Lord Devlin's essay on " Judges and Lawmakers " etc.) proved to be fascinating, but of limited use for my purpose. The theoretical problems confronting legal scholarship on both sides of the Channel are obviously the same and so are, to a great extent, the attitudes of its spokesman in dealing with them. After all, whether judges can or should be neutral is a question as old as the legal process itself; and Western culture is homogeneous enough to provide British and Continental students with similar arguments when they try to answer it or when they demonstrate that framing it in terms of neutrality rather than objectivity is a fallacy. In England. however, these problems are raised and these attitudes are prompted within a vastly different context: the difference being made above all by the judges. I am not referring here to their number, which is extremely low by European standards, their higher social origin, their unusual recruitment procedure or the looser bureaucratic setting of which they are part. These factors are important; but they are not decisive factors in making studies of the English judiciary seem scarcely helpful as reference material for a paper centred upon the Latin countries. The decisive factor is the susceptibility of English judges to be analysed as a politically cohesive group. I am obviously aware that there is no judicial unanimity in England; not even among the Law Lords or the remaining judges whose views are of importance. But, for that matter, unanimity is a myth in the Soviet Union as well. What I mean is (a) that English judges seldom make decisions of a

-~ The Eighth Chorley Lecture, delivered on June 13, 1979, at the London School of Economics and Political Science. J. A. 0.Griffith, The Politics of the Judiciary (Fontana/ColIins, London, 1977); Lord Devlin, Judges and Lawmakers (1976) 39 M.L.R. 1; Judges, Government and Politics, fbid.. September 1978; K. Minogue; "The Biases of the Bench," Times Literary Supplement, January 6, 1978.

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nature to challenge a universally received notion of public interest; and (b) that, when they happen to do it, their decisions are a result of strictly individual options. Some sociologists would probably describe this situation as characterised by a feeble ideological polarity. f most Thus, Professor Griffiths contention that the political outlook o English judges is right of centre may be too indiscriminate, as some of his reviewers seem to think. But had he chosen to be less straightforward-had he written, for example, that the bulk of the judiciary stretches from slightly right of centre to mildly left of centre-nobody, I assume, would have taken issue with his opinion. Of course, I am not in a position to establish whether Professor Grifiiths view is actually indiscriminate. Quite frankly, I do not think i m it is. At any rate, while reading his book. I often felt sorry for h owing to the dubious data from which he had to draw meaningful inferences; and this was a second reason for deciding to leave England altogether outside the scope of my lecture. Like anywhere else, English judicial decisions may be politically motivated; but their authors, I take it, would never dream of publicly acknowledging this fact or acting in such a way as to make it explicit in the eyes of even lay observers. In other words, all the researcher is left with is cogent or loose, but definitely cool legal reasoning and obiter dicta: not much, let us face it, to warrant the formulation of sharp political conclusions in a system where the words of the law are not empty vessels for the judge to 6ll. I am not overly sympathetic to the philosophy r . Minogue displays in reviewing Professor Grifiiths book which M for the Times Literary Supplement; but his suggestion that it would be improper to put a conservative label on a given court because of a string of anti-union decisions, seems to me entirely correct. Much f its length is depends, of course, on just how long the string is. I reasonable, the stance taken by the court may well result from the fact that union claims were faulty in law. My English colleagues have pointed out to me that this particular piece of string is about 200 years long; and I leave it to them to decide its reasonableness. When Professor Griffith writes, as he often does at the end of his inquiries into a case or a set of cases, the suspicion must arise that, this expression is not only an example of the good manners characterising the British intellectual debate. It is an honest way of representing a state of affairs which does not allow for much more than inklings and hints. I1 Let us then cross the Channel. As I have pointed out, I shall direct my attention to the Latin countries, shunning not only the socialist family, as Professor RenC David calls it, but also Germany, the Benelux and the Scandinavian systems. There are equally two reasons for this further cutting down of my subject. In his Lettres Persanes, Montesquieu described that ugly human specimen, the d4cisionnaire (. . .) who read everything. saw everything (. . .) and would

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sooner lie than be silent or give the impression of not knowing d." 1 am determined not to imitate h i m .Besides, I a m convinced that as far as judicial politics is concerned the most challenging developments are occurring in the South and the West of the Continent. To put it less bluntly: the trend towards a more politicised and politically polarised judiciary is detectable all over Europe, including the Federal Republic a; but in Italy, France and Spain this trend has acquired, or is in the process of acquiring, traits so neat and forcible as to rise to the dignity of a major national issue. These words-which, applied to Britain by Professor Griffith, sound " extravagant " to Lord Devlin -seemed a few months ago perfectly sensible to a distinguished member of a former French cabinet and are currently used by a number of prominent Italian politicians. Italy is indeed in the forefront of this movement. Beginning with its name, the French Syndicat de la magistrature is a clearly indigenous creature, but it has been influenced by the left-wing current of the Italian judges (Magistratura demucrutica) and, while eschewing its excesses with regard both to the political ties and the life-style of its members, it tends at the moment to follow in its footsteps. Moreover. whereas the ideological polarisation of Italian judges has a corollary in the existence of three bitterly feuding groups, competition between the Syndicat and its moderate rival, the Union syndicate des magistruts. is on the whole quite mellow. As to Spain, the rise of a leftoriented group, while the Franc0 Agime was breathing its last, has not yet spurred the conservative judges into coalescing. At present. this movement, called Justicia demucrutica, is just beginning to make itself felt; but many expect it to boom shortly and I would not be surprised if its entrance on to a hitherto slumberous stage awakened f the company. Actually. most factors that assisted in the the rest o fragmentation of the Italian judiciary along political lines are at work f bringing about similar consequences is in Spain; and their chance o fortilied by the enormous influence Italian legal thinking exerts on the Spanish lawyers. Why is it that a country accustomed more to a backwater than a mainstream role in politics and law has become the standard bearer of judicial militancy in Europe? The story is somewhat long and complex, but it deserves to be told.8 On the eve o f Fascism, the
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In some German ciliw (Hamburg, Frankfurt, etc.), the left wing judges tend to join the Civil Service, Transport and Commerce Workers Union (OTVG: Uflentlicher Dienst. Transport und Verkehr Goverkschafr); but they are few and isolated. The standard works on the history and the politics of the Italian judiciary are: E. R. Papa, Magistratum e poliricu (Marsilio, Padova, 1973) (covering the 1861-1913 period); R. Canosa and P. Federiw, La magistratura in lrdia dal 1945 ad oggi (I1 Mulino. Bologna, 1974). See also E. Moriondo, L'ideologia della magistratura itdiana (Latern, Ban, 1967); G. Freddi, Tensford e conflitto &la magisrratura (Latern, Bari, 1977) (a revised and enlarged edition of Legitimacy and O p p s i f f o nin the Italian Judiciary: a Study of OrgunfzationaI Conflict, Ph.D. Dissertation, AM Arbor, University Microfilms, 1970); E. Resta, Conflird sodali e giusrizfa (De Donato, Bari, 1977); D. Pulitanb, Gfudice negli and '70 @e Donato, Bari, 1977); R. Canosa, Storia di un pretore (Einaudi, Turin, 1978).

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Italian judiciary was a strongly hierarchical body of approximately 5.OOO men. Mostly of middle or upper middle class origin, they were recruited-and still are, by the way-in their early twenties, normally two years after graduating from a law faculty, through tough comf top-level judges. petitive examinations administered by a board o The Italian judge has never been a practitioner. At each step of their career they had to take similar tests. Obviously, this system afforded the higher echelons a considerable degree of control on both the jurisdictional function and the political leanings of the lower-ranking judges. Knowing that their " merit " in the next promotion procedure would be assessed with a great latitude of discretionary judgment by Cassation Court members, few newcomers ventured to set forth doctrines conflicting with the opinions rendered by the Court of Cassation; and, as to the old-timers, loyalty to the powers that be had been so deeply engrafted on their souls as to make it impossible or them even to dream of undertaking modernising crusades. Ideologically, the powers that be shared the prejudices of their class and age (between 60 and 70): a steadfast conservatism on economic and social matters, a harsh intolerance of crime against property and the public administration, a Victorian view of sex, but also a basic respect for genteel political dissent. With such a background, they were bound to salute the advent of Fascism with relief if not with enthusiasm. Actually, some ogled the new bosses and most supported them mildly. Those who allowed their concern for civil liberties to slip into their judgments were just a handful: enough, however, for Mussolini to establish in 1926 a special court designed to curb anti-fascist activities. At any rate, as time went by the integration of the judiciary made great strides. In the area o f labour law, for example, the judges fully embraced the philosophy o f the corporative state and, much l i e the Fascist trade unions, played a valuable role as a transmission belt of the dgime in its effort to rally the working class around its institutions. Thus, they tried with some success to restrain the most oppressive aspects of shopfloor life, while sanctioning the authoritarian pattern of labour-management relations and the prohibition of self-defence that were the guidelines o f the system.' f democratic values It was then with a judiciary deeply mistrustful o that Italy was ushered into democracy; and the outcome of this contradiction, which the first post-war governments were too weak or too busy to remove, soon became tangible. In 1946 the government granted an amnesty to Fascist criminals with the exception of those who had been guilty of " unusually cruel acts." Admittedly, this expression afforded the courts a measure of discretion; but their discretion went so far as to extend the amnesty to men who, after twisting a guerrilla's genitals, had applied around his head an iron

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4

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See G. C. Jocteau, La masistrafura e i conflitti di lavoro durante IY fascistno (19261934) (Feltrinelli, Milan, 1978).

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hoop and gradually tightened it; or to a captain who had delivered a woman guerrilla, blindfold and handcuffed, to his blackshirts. Far from being unusually cruel -the Court ruled- this act only amounts to an offence against decency, very serious in itself, but f conduct the extenuated under the circumstances by the freedom o woman enjoyed as a dispatch-rider for the Resistance movement. Many more examples o f the same gruesome vein could be given. The die-hard role of the judiciary in those years, however, is more significantly shown by the position it took in construing the new f January 1, 1948. Constitution o Like most contemporary constitutions, the Italian one is of the Weimar type; but, since in the meantime the navel of political economy had moved to Bloomsbury, the limits it sets to freg enterprise and managerial prerogatives are more powerful than those of Weimar. If possible, however, they are even hazier: that is, too vaguely worded to be enforceable without enabling legislation. In a number of decisions, the Court o f Cassation stated that the respective articles were mere plans or schemes o f action, binding the future lawmakers, but for the time being in abeyance. Politically, this ruling amounted to a savage thwarting of the Constituent Assemblys intent and, as some said at the time, to storing in the fridge a good half o f the Constitution. Legally, it was untenable. Granted that many social provisions of the Constitution were not o f a nature to vest their beneficiaries with actual rights, denying their immediate effectiveness for more limited purposes was simply preposterous. Thus, they certainly had the power tacitly to abrogate those pre-constitutional statutory provisions that were in blatant contrast with them; or they could be used in the interpretation of other statutes, with a view to making them more accordant with the new standards. One case in point. Article 4 promises to every Italian citizen the I right to work which in Europe, as Lord Wedderburn has put it, is primarily concerned with the maintenance o f full employment, the availability of suitable work for which the worker is trained and job security by way of protection from arbitrary dismissal^."^ O f course, in default of any implementing machinery, the bare declaration of such a right was not enough to establish a fully-fledged system of workers property in jobs. But it was surely able to influence the interpretation of the civil code clause that sanctioned the employers right to fire his employees, making the latter dependent upon grounds such as misconduct or redundancy and awarding compensation to the unfairly dismissed worker. This influence, however, was denied by the Court of Cassation and the ensuing lack of protection, coupled with the weakness o f the labour movement, had momentous consequences. During the 1950s and the early 1960s. as a famous liberal journalist wrote, the truncheon was sovereign in
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K. W. Wedderbum, The Worker and the Low (Penguin Books, London, 2nd ed.,

1971), p. 451.

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the Italian factories 6; in the less colourful words of a sociologist, the working class was exposed to an extremely high measure of social control, in coercive and manipulative form. The working class put up with it. But the grudge it developed was one o f the f a c t o r s d not the least-that brought about the great upheaval of 1969 and the often nasty character of industrial conflict in the following decade.
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The year 1969 and the preceding months, which witnessed the outburst o f a militant student movement, were indeed a turning point in post-war Italian history. Like other institutions, the judiciary was strongly affected by the turmoil that was then rending our society: so much so that most of its present tensions should be traced back to those events. Restlessness among Italian judges, hawever, was discernible as early as the late 1950s and some long-overdue reforms had already altered the structure of a body which had been left untouched by a century full of vicissitudes. In 1956 judicial review of legislation-which the Constitution entrusts to a special Court of 15 top-level judges, law professors and experienced lawyers-was finally set up. Three years later a further agency, also provided for by the Constitution, came into being. Called the Higher Council on the Judiciary, it consisted of 14 (later 20) judges elected by all their colleagues in the nation and seven (later 10) laymen chosen by Parliament. Its main function was to make all decisions concerning judicial personnel (ie. judges and members of the prosecuting o f f i c e s ) in such areas as recruitment, training, promotions, transfer from one office to another, discipline and so on6 In more than two decades these bodies have taken root. They would probably survive a constitutional change and the establishment of a Second Republic. At the outset, however, they stirred heated controversies and were a vehicle of conflict in the judiciary. The Constitutional Court acts by request of the Courts below when, in adjudicating a case, they must enforce a statute of dubious validity. While the Court of Cassation did its best to keep the 15 justices idle, the lower judges crowded their tables with hundreds of statutes or clauses thereof, mostly of Fascist origin. The justices responded favourably to this vicarious activism and even spurred it on by ruling out the doctrine which had virtually frozen the social provisions of the Constitution. The psychological foundations of the authority wielded by the senior judges were thus shaken. The
6 E. Scalfari, Lautunno della Republieu. La mappa del potere in Italia (Etas Kompass, Milan, 1969). p. 69. L. Cavalli, Sociologia della stoda i t d h (1861-1974) (11 Mulino, Bologna, 1974). D . 185. * Sea G . Di Federico, The l t a l h Judidal Profession and its Bureaucratic Setting (a Wilson Memorial Lecture delivered at the University of Edinburgh on March 11, 1975) (1976) 21 J.R. 4 0 et seq.

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rebellious spirits, who had been champing at the bit for some time, started to lift their heads; and they derived further encouragement from the actual operation o f the Higher Council. The elective nature of this agency had been a blow to the hierarchidy-minded judicial 6lite. But still more shocking to its members was the fact that, under its rules, a lower judge was now entitled to participate in the assessment of his superiors fitness to hold strategically important offices. A l l this, o f course, was not happening in a political vacuum. The very fact that the judiciary had been attracting rebellious spirits was a symptom of change. The cold war years had been marked by a stifling atmosphere and many ideological straitjackets; now, while a political thaw was in the ofhg, both began to wither away making room for an intellectual debate that became livelier as time went by. For a judge to express liberal or even radical views was no longer a stigma provided he steered clear of judicial problems. If he did not, he would be frowned upon and would be liable to run into difficulties. This was the case of Dante Troisi, a moderately leftist Catholic who wrote an engrossing book about his frustrations as a judge eager to do justice, but prevented from doing it by the deficiencies of the system in a poverty-stricken Southern town. Judge Troisi, please lie to us! cried a conservative newspaperman implying that certain truths should be hidden if faith in the administration of justice was to be safeguarded. Troisis judges obviously shared this theory because they disciplined him for impairing the judiciarys dignity. But the uproar raised by this decision was itself a proof that the traditional values were beginning to crack at the edges.l0 Their crisis was also a product of social and economic factors. At the end of the war the judges were on a pedestal. The times had gone by when the Piedmontese aristocrats destined their older sons for the judiciary and only the second for the army; yet the prestige of the body was still very high. During the 1950s this situation changed. First of all, the judges salaries, like those of all civil servants, decreased. In 1961 a senior judge received 8 per cent. less than his predecessor a century before, when the Kingdom of Italy was founded. In the meantime, the national per capita income and private consumption had more than doubled. Secondly, while judicial salaries were shrinking in terms of purchasing power, earnings in comparable professions were on the increase. Though entitled to the same pensions and a similar security of tenure, the employees of the autonomous public-law authorities and nationalised industries were paid on average twice as much. Even less tolerable, the position of government officials (and hence of the judges) in the Italian status scale fell headlong to the advantage of occupations related to business. Free enterprise had never been a predominant value in our society and
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G. Di Federico, o p . cir.. p. 53. The whole story has been recounted in (1978) 38-39 Qualegiustizh (the hiphbrow journal of Magisrralura democratica), (Un caso esemplare: Dante Troisi. La condanna dd Diario di un giudice ).

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working for industry in a managerial capacity, though financially rewarding, was not ennobling. But the boom that ranked Italy among the seven greatest industrial powers put an end to this state of affairs. The public image of business improved immensely and that of the civil service underwent a corresponding setback. It was mainly the young judges in the big Northern cities who suffered from this decay. There life was particularly expensive. There too, more than in any other place, business was celebrating its fresh triumph. There, however, the working class was at its strongest and, after the long years of the truncheon, it was beginning to act on the offensive. Under such circumstances, it is not striking that they moved in flocks to the left. In those days, this did not necessarily entail an ideological conversion to Marxism. The young judges were rather motivated by an unconscious need of social legitimation. Ithe upper layers of society had no room for them, they would seek the support of the emerging layers using the implements of their profession to endorse the latters struggle for welfare and power. And, bit by bit, they did. In 1970 a workers statute reminiscent of the American Wagner Act came into force. Research carried out four years later proved that, while in the South, the islands and the backward hinterf Venice, claims laid by the unions under the new law were land o accepted as valid in 55 per cent. of the cases, in the areas of Milan. Turin and Genoa the corresponding figure amounted to 77 per cent. Further reasons account for this extraordinary difference; but the one 1 have mentioned is by far the most important.

Iv
I am not going to dwell upon the process that, moving from these premises, led to the development o f factionalism within the National Association of Magistrates, a sort of glorified trade union founded in 1909 and revived after the downfall of Fascism. The one episode worth recounting occurred in December 1969. The Association was then already split into three currents: a right clinging to the image of the judge as la bouche de la l o i totally aloof from the sociopolitical context and to most of the old values including sexophobia la; a scantily politicised centre whose chief concern was to afford a l l judges a standard expectation of career, making advancement primarily
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11

See T .Treu (ed.),Luso politico dell0

stufuro dei luvorutori

(Il Mulino, Bologna,

1979, pp. 186 et seq.


12 Many Italians have learnt the names of Praetor Salmed who convicted a Danish tourist for wearing i n Palenno, on a hot summer day, a pair of shorts which exposed part of her butfpcks; 4; of Prosecutor General Bantolomei who specialises i n the seizure of obscene films and books, including l k r of Flying by E r i c a Jong. Possibly, however, the juiciest example of this syndrome (and of a further trait of the Italian legal world, the daring use of analogy) was offere$ by Prosecutor General Felici in a speech on the state of justice in his district: The demonic symbols of our age, he said, are the atom bomb and the overbearing pride of homosexuals. I am not suggesting, he added with the obvious intention of reassuring us, that they are connected by a relation of cause and eifect. What assimilates them is their being both symptoms of sterility and death.

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dependent on seniority; a left (Magistratura democratica : from here on, MD), consisting of Marxists. liberals and progressive Catholics who also demanded a seniority-centred career development, but were above all intent on remodelling the role of the judges in the light of the new Constitution. Their point of departure was one of its fundamental principles. the second section of article 3: the Republic-it says-undertakes to remove those economic and social obstacles which, limiting in fact the citizens freedom and equality, hinder the full development of human personality and the actual participation of all workers in the political, economic and social organisation of the country. Albeit an assault on the English language, this literal translation is clear enough : what the Republic really undertakes is achieving neither more nor less than socialism, The article was indeed drafted by a socialist and the moderate half of the Constituent Assembly ratified it in the unruffled conviction that it would remain on paper, a lofty example of constitutional rhetoric, not unlike the American right to the pursuit of happiness. On the contrary, the democratic judges took it seriously. As a power of the Republic-they contended-the judiciary was under a formal obligation to work towards the development of a society based on the real freedom and the real equality of its members. Hence a series of more and more adventurous corollaries: all laws should be interpreted with this yardstick; partisanship is a virtue and neutrality a misconception or a fraud; so is independence; a judiciary cloaking itself with these sham values is a servant of power and ought to be told as much; judges must defend the oppressed and the downtrodden, co-operate with the labour movement, act as a countervailing force vis-bvis the political and the industrial government. In many respects, this was an understandable reaction against the myth of the purely technical role of the judge which in our legal world had reached unreasonable extremes. But it was also both an ex-post rationalisation of the quest for status I mentioned above and a direct response to the stepping up of class struggle and the rise of all sorts of radical movements which Italy was experiencing at that time. While arousing some, however, such developments scared or worried others-the genteel populists, as the American author Simon Lazarus would call them,19 who were quite willing to admit that article 3 reads more like a legal rule than a manifesto, but recoiled from the notion that judges as such should be involved in a social revolution. In other words, MD had two souls which were bound to come to grips with each other. As already pointed out, the crisis took place at the end of 1969 and was triggered by the so-called Tolin case. The editor of an extremist weekly, Signor Tolin was charged with incitement to commit felonies, an offence punishable under the 1930 criminal code, but regarded by some legal
18 S . L ~ L Z ~ N The S , GenteeI PopulLsts (Rinehart et al., New York, 1974). See the perceptive review this book was given in (1974) 84 Yale L.J.102

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scholars as conflicting with the constitutional guarantee of free speech. MD issued a document which criticised the prosecuting attorney for unearthing that old Fascist tool of political control and the more f f in an outburst of indignatemperate members of the group split o tion at this attempt to interfere with a pending judicial proceeding. Thus left by itself, the radical soul blossomed for a few years. I a m not trying to be ironical. The left-wingers theory was highly questionable and so was a l l too often their conduct outside the courtroom. Writing in a book or even in a newspaper that ones colleagues are trucklers to the bourgeoisie may be acceptable; proclaiming it during an outdoor meeting with a well-known extremist leader at ones side is, by a l l standards, worse than just exhibiting bad manners. Nor is it indispensable to harbour an all-red view of judicial dignity to recognise that crying (again in a public meeting) Valpreda is innocent, while Valpreda, an anarchist dancer, was charged with setting a bomb in a Milan bank, is a serious transgression. Yet, for all their excesses, the democratic judges made a tremendous and, on the whole, well-deserving effort to modernise the law o f the land. Some will haul them over the coals for this too. Not, however, the consumers of adulterated food, the victims of pollution or the secretly investigated Fiat workers, since the little protection they were given stemmed for a long time from the judgments handed down by MD men. Actually, MD did more than any comparable group in our society to foster the development of an ecological consciousness and a powerful civil rights movement. A further area in which the activism of MD has sowed the seeds o f reform is procedure, both civil and criminal. Italian procedural rules are still based on a narrow individualistic philosophy : more so, I am afraid, t h a n in any other Roman-law country. W i t h the exception (itself limited) of trade unions, collective interests have no access to courts, notions like class actions, amicus curiae and ideological plaintiff being familiar only to students of American law. A citizen is only entitled to seek judicial relief whose own, personal right has been infringed; or, as a well-known administrative lawyer put it with a touch of sarcasm, interests shared by many are really nobodys interests. The MD judges set to and tried to rectify this situation conferring plaintiff status on feminist leagues in abortion cases, committees o f telephone subscribers, informal citizens groups that contested the actions of urban development authorities and so forth. In most cases, the courts above-where the right-wingers are preponderant-have annulled these judgments. But we owe it to the latter that justiciability of class or group interests has become the subject of a hot debate among Italian lawyers and that many view
I4

For a most stimulating analysis of the Ita!iin legal system and its actors (judges, legal scholars etc.), see J. H. Merryman, The Italian Style: the Doctrine, the Law, the Interpretation, Stanford L.Rev., November 1%5, pp. 39-96; January 1966, pp. 396-437; February 1966, PP. 58-11.

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it as a civilised way o f reducing conflict-proneness and the ensuing violence in our larger urban communities.

V
A disquieting revolutionary platform and-labour law possibly excepted-a sound reformist practice: clearly. MD survived or rather thrived and gained all the prestige it had looked for in the eyes of the Italian progressives on this contradictory, but not uncommon formula. In July 1976, when the last election for the Higher Council was held, 752 judges, that is about 13 per cent. of the whole body, cast their votes for its candidates. It was the groups last success. Politically, its members were partly Communist, partly inspired by new left ideals. Two souls again, in other words. That seemingly inescapable destiny of the radical splinter factions, mutual cannibalisation, was just around the corner and it took shape as soon as the Communist party gave up opposition forming a coalition with the Christian Democrats, the Socialists and two minor centre parties. Hostilities were opened by a Communist M.P., Senator Edoardo Perna. The time has c o m e h e said-for the left-wing judges to go back to normality. All-out confrontation, unorthodox judgments, attempts at making up for the lawmakers deafness in social matters were justifiable so long as political power was monopolised by the moderates. Now, however, the working class and its allies are worming their way into the machinery of decision-making. Parliament appears to be more active and the judges duty is again loyally to enforce its laws in the spirit of the Constitution. The Communists paramount problem. of course, was to dispel the shadows that a long history of anti-system utterances had cast on their credibility as would-be partners in the nations government. But l l the Jacobinical there was more than that in their attitude. First of a or, if you wish, Rousseauian syndrome they had inherited via Mam and Lenin. Didnt Robespierre write that le mot jurisprudence (i.e. judicial construction of laws, judicial mediation) doit &re eflucc! de notre language? Didnt Palmiro Togliatti, as a member of the Constituent Assembly, bitterly fight the introduction of judicial review? Indeed, the general will, as embodied by Parliament, does not tolerate on principle the existence of separate powers and autonomous institutions, be they local government, a Head of State or a judiciary empowered to pass on the validity of legislation or to explore the lawmakers minds; and if in time this principle had been diluted the old mistrust for a system based on checks and balances was still very much alive. On a more practical level, the Communists felt that social and economic change such as they expected to bring about demands more than a modicum of centralised power. Once fully accomplished-they surmised-the historical compromise between the Marxist and the Catholic world will prove to be far from a painless proposition. Both on the right and on the extreme left it will stir vehement reactions. Hence the necessity of a judiciary willing to keep

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public peace or, to say the least, not given to the instigation of tensions. Briefly, it was as if the judges had been told: Leave movement to us and ensure as much stability as we need to keep moving. Behind its captivating reasonableness, Pernas call to order was clearly meant to use the judiciarys reform-oriented energies for the f the party. The new leftists did not like it at all; nor did purposes o they like the Communists hard line on civil liberties as terrorism stepped up its activity and violence mounted in our cities. Laws were passed in those months that undid most of the progress made during the preceding 15 years in conforming our criminal procedure and penitentiary practice to the constitutional standards. In such cases, a countrys sky is bound to swarm with hawks and doves. Italy w a s no exception to the rule and, for obvious reasons, that customary conflict found in MD a small, but exceedingly vociferous battlefield. While most of the Comniunist judges seconded their party, denying, sometimes shockingly, their former pronouncements on the issues at stake, the gauchistes strongly supported those liberal values, and above all judicial independence, which in the past they had so often proved to be false or narrow, How sincere were they? To be sure, transition from tactical to intrinsic commitment is a familiar pattern in the evolution of individuals and norms. Religious freedom was a necessity in England before it became a right. A similar process may well be occurring with respect to the institutions of liberal democracy in the Italian new left and its bridge-head in the judiciary. Yet, however real and farreaching, this process does not include a sizeable group of judges whom the dispute with the Communist party has pushed farther to the left, into a region of intellectual and political hooliganism where the terrorists are called but erring comrades. On March 16, 1978, a Red Brigades commando kidnapped A d o Moro, the President of Christian Democracy, after killing the five policemen who escorted him-d of them former day labourers to whom enlistment had meant slightly better wages and job security. While the nation shuddered with dismay, some of those judges drafted a communiqd which started with the following words: The Via Fani action evinces that class struggle in Italy has now acquired a military dimension. Self-control and a quiet language are said to become the judicial profession; this language, sober and neutral as it is. only proves the derangement into which a part of the Italian judiciary has sunk.

Such a derangement would be unthinkable in France; and so would most examples of intemperate behaviour studding the history of Magistratura democratica. There are many reasons behind the more subdued character of French judicial politics. Two, in my opinion, deserve to be singled out : a less turbulent society and a far better

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civil service. Since most interest groups feel represented and/or protected in the political system, their claims are usually negotiable, social tensions seldom reach the point of no return and the repressive tendency of conservative opinion is generally weaker than in Italy. France, let us not forget it, is the one Western country where the Trilateral Commissions view on the desirability of a zero growth for political democracy was not taken seriously.1bThis being the case, French judges are spared a number of problems liable to strain their consciences and to lay bare their political beliefs. On the other hand, these very judges are government officials and, as such, members of one of the worlds finest bureaucracies. Highly hierarchical. but not burdensome and having at the top a class of technocrats screened by excellent schools, this body has evolved a common spirit which dilutes political discrepancies or provides for informal machinery designed to keep them at bay. The judiciary has a special history and its own traditions; it shares, however, most of these features including an Ecole Nutionale patterned on the famous ENA (National School of Administration). The Syndicat de la magistrature was founded in June 1968, an early child of the psychodrama which seemed for a moment to subvert the framework of the nation. Hence its basic difference from the Italian judicial left as regards the discovery of politics. In Italy, as I have tried to show, politics came relatively late, the result of a legitimation crisis and of a long battle fought by the lower-ranking judges against their senior colleagues to minimise and eventually abolish the latters control. In France (where, incidentally, the same control had been wielded with far greater restraint and elegance), this stage was bypassed. The French May was an entirely political affair and to the judges who organised in its wake politics was bound to come first. It was, too, a different kind of politics, the chief reason lying in the nature of the May movement. Despite Marxist jargon and its own self-image, the movement had little in common w i t h socialism. First, in the obvious sense that its militants, being university students, were mostly of bourgeois extraction. But also in the more important sense that its traits fell into a familiar bourgeois pattern. This is not to deny the radical character of its protest. Indeed, must all revolutionary f the capitalist system be Marxist-inspired? critiques o The pattern was essentially libertarian and populist. Thus libertarianism and populism formed the substance of the ideological stock the Syndicat was endowed with from the very outset : both, of course, sifted and polished by the informal devices through which the French judiciary deters inordinate militancy within its ranks. In concrete terms, this meant directing the judges attention to social problems they had previously neglected or, the Syndicat felt, dealt with from a
1 5 The Crisis of Democracy. Report on the Governability of Democrades to the Trilateral Commission (New York University P r e s s , 1975). For a brilliaM French review of this report (and especially of Professor Huntingtons essay), see [March 19761 Le Monde Diplomatique 14.

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narrow-minded angle : environment, consumers versus manufacturers, industrial conflict, white collar crime etc. Magistraturu democrulicu had tackled much the same issues, but with greater vehemence and a more partisan disposition. Just two examples. As far as consumer protection is concerned, the French confined judicial control to the sale of goods whereas the Italians stressed their production in the Naderist belief that most illicit practices (use of second-rate material and obsolete machinery, breach of safety rules) take place at this stage. In labour law, the Syndicat expressed the view that when the right to strike and the right of ownership come into collision, as happens with sit-ins, the former prevails on principle. l6 No MD judge would make such a concession. The right to strike has toppriority, the employees only obligation being to ensure the safety of the plant and the equipment. The two movements, however, were at their farthest when they defined the judges function in the political and economic system of the respective countries. After 1969 MD chose what it called the other side of the barricade. Class analysis of the cases submitted to its members often played a decisive role in their judgments; in other words, they strove after a counter-interpretation of the law. Not the Syndicat. Strange organisation -wrote Marcelle Padovani in 1972 only four years old and already blessed by the Gods. . .. Thanks to its campaigns, some judges inspect police stations to make sure that those detained in them are properly questioned; thanks to its existence, other judges resist the lures of radicalism. . . . Strange organisation, indeed, undermining the foundations of property and never uttering the word socialism ; taking political stands and refusing political labels. l7 A beautiful passage. Yet, Mme. Padovani laid too much emphasis on the ambiguity of the Syndicat and so did Louis Joinet, one of its leaders, when he confessed he was not quite sure whether his group worked towards the overthrow or the strengthening of the liberal society.18 Actually, in those days a fair Western-style democracy was regarded by the bulk of left-wing judges as the one system suited to a country like France. After all, caring about the rights of people in detention is part of the liberal game; and proclaiming the lawfulness of sit-down strikes is hardly an assault on the foundations of property. Today the situation looks somewhat different. Within the Syndicat a small anti-capitalist current has always been active. In recent times the rise of a Socialist party with many a friend in the top management of the civil service has improved its image opening new avenues to its influence. A further factor accounting for the radicalisation of the Syndicat has been the ascendancy of Magistratura democratica which
l6 Final motion on the subject Le juge el Ientreprise, voted at the Congress of 1972. after a remnt bv E.Bloch. 17.(1972) 419 Le Nbuvel Obsmateur 42-43. 18 Ibid.. p. 42.

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is intellectually more sophisticated, has a strong missionary spirit and may boast of an all-important advantage: the freedom enjoyed by its members as a consequence of the guarantees the Italian judges won between 1958, when the Higher Council was established, and 1973, when promotion to the first class was based on mere seniority. For a number of reasons, some of which I have mentioned, the Syndicat was never too keen on challenging the authority of the senior judges and the Minister of Justice. But last year, when Etienne Bloch, a respected spokesman o f the group, was removed from his office as supervisor of the enforcement of penalties for showing tenderness to the prisoners, its nonchalant attitude on matters of career and judges rights came to an end. I am very doubtful, however, that this fit of militancy has a future. The French judges have begun to speculate on the possibility of producing an alternative law ; but their Constitution-unlike the Italian and, in its wake, the Spanish onwontains no promise of socialism providing an excuse, faint as it may be, to proceed along this line. In France counter-interpretation would be tantamount to wilful misinterpretation, that is rebellion: and I fail to visualise a French court taking such a risk. The same holds true with regard to judicial guarantees. To win some ground in this area the Syndicat is determined to show its teeth: but the non-existence of a Higher Council, such as the Italians have and the Spaniards are about to be given, will set an insuperable limit to its action. The French system of government is too seasoned and too closely-knit for its officials to embark on flamboyant enterprises.

VII If I were asked to draw a conclusion from the foregoing analysis, I would say that a conflict-prone society and the lack of a common constellation of values among its members are the two single factors most likely to bring about a highly politicised judiciary. Both, however, ought to be qualified. Social conflicts must be of a nature and scope to involve not only the conscience of the judges (in which case their response will not, as a rule, exceed some form of paternalism), but their interest as well. I n other words, the judges must feel they are in the van or in the middle of a movement aiming at righting wrongs of which they too are victims. As to the absence of shared values, it must result from a clash of Weltanschauungenone of which, f the law and of its at least, belittles and/or disparages the role o ministers. Many a radical philosophy would do. Marxism-that regards the law as a function of class domination and defines judicial independence as a hindrance to thoroughgoing change and the product of a false consciousness-is the best case in point. As a matter of fact, Italian (far more than French) culture has been exposed to Marxism for over 70 years: so much so that some of the latters basic notions have, as it were, become part of the national common sense.

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A third important factor is the structure of the judiciary and the quality of its dlite. Too rigid a set-up and too cogent an influence of the few whose opinions matter will eventually stir up the majority to action; and, if external conditions are favourable, this action may in due course turn political. Gyorgy LukBcs, the Marxist philosopher, wrote that lawyers' and judges' groups, being by nature reactionary, seldom cross the frontier separating bread-and-butter unionism from politics: Italy and France have proved him wrong. On the contrary, I would not give much weight to factors related to the nature of the legal system. To be sure, a contradictory system like the Italian one, with its democratic Constitution laid on a bulk of Fascist-inspired statutory law, makes for disarray and disputes with political overtones. So does the Constitution itself when it is prefaced by the statement of principles as all-encompassing as incapable o f direct legal enforcement. But these are hardly decisive elements. Clauses like our article 3, though more cautiously worded, can be found in the preambles of almost all present-day Constitutions. Yet they have not always been utilised. R e s o r t to them, therefore, is often a special case of what the founder of German sociological jurisprudence, Philip Heck, called a Begriflsmaskerade: that is a wrapping of political options in time-honoured concepts or norms endowed with a " superior " binding force. What can a democratic society do in the presence o f extreme judicial militancy? In blunter terms, what can Italy do? The answer, I fear, is very little if anything at all. In 1972 the Federal Republic of Germany issued to all public bodies a set of guidelines (which came to be known as Berufsverbot or Radikalenerlass) prescribing restrictions against the recruitment of members o f political organisations assumed to be disloyal to the democratic principles of the State.'* Such restrictions would be unthinkable in Italy-and am I allowed to add that I am reasonably proud of this unthinkability? Except for them, however, nearly any measure designed to curb partisanship would end by imperiling a value more precious than fairness, balance or legal certainty: judicial independence. A judge may be disciplined for unruly behaviour outside the courtroom (but in defining unruly " the disciplinarians should keep in mind Immanuel Kant's maxim: " Public servants, military men and priests must be granted unlimited freedom to use their reason and make proposals for the reforming of the State and the Church '').20 He may not be disciplined for his judgments. Under the Constitution-and this is definitely not a hazy principlejudges are " subject only to the law." If the Higher Council tried one of them for reading his political preferences into a legal provision, he would be subject not to the law, but to the Council's interpretation thereof. The rules
$'

1 9 More on the Berufsverbot in FoUce Schmidt (ed.), Dismhinurion in Employment (Almqvist and Wiksell International, Stockholm, 1978), pp. 210 et seq. The subject has been dealt with by Professor Gino Giugni (Political. Religious and PrIvute Life Dlscrfminurbn). 2 0 I. Kant, What is Enlightenment.

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of the game are that a wrong decision can only be quashed by the court above and that the executive (of which the Council is part) cannot tell the bench how the law should be declared. All I can think of is a policy pragmatically directed to preclude the courts from being filled up by judges of die same colout. Lord Devlin maintains that for a known and widely shared bias allowance can be made, a gun wrongly sighted being less risky than one liable to go off in any direction.21I agree with Lord Devlin so long as the gun is managed by level-headed artillerymen. If they are guided by zeal or intolerance homogeneity is no longer a virtue. Take the division of the Milan Tribunal handling labour disputes. For years it has been a fief of Magistratura democratica. Its liege lords were perfectly decent and hard-working people under whose sway the length of cases from complaint to decision was kept down-a miracle in Italy-to a period of three to six months. For an employer, however, to emerge from their hands as winner was harder than for a camel to go through the eye of a needle. Employers, indeed, are likely to be rich men; but in a Western country and in the twentieth century the law is a means of social, not moral control. With the policy I have outlined, balance would be restored: but it would result from a plurality rather than from the absence (or, realistically, a moderate amount) of biases. It would not be much. Much could only be achieved if consensus on fundamentals became a permanent feature of Italian society; and, happily, this is not a problem for legal writers to solve.

GIUSEPPE FEDERICO MANCINI *


21

Lord Devlin, Judges, Government and Poliiics, p. 51 I . Professor of Law, University of Bologna.