Politics and the Judges

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THE

MODERN L A W REV I EW

Volume 43 January 1980 No. 1

POLITICSA ND THE JUDGES-THE EUROPEANPERSPECTIVE*

I

I N order to enrich this lecture with references that would make itmore palatable to my audience, I thought it wise to get somewhatacquainted with the politics of the English judiciary. Actually, thematerial Professor Lord Wedderburn sent me (Professor Gdiith'sbook, the reviews it was given, Lord Devlin's essay on" udges andLawmakers" etc.) proved to be fascinating, but of limited use formy purpose. The theoretical problems confronting legal scholarshipon both sides of the Channel are obviously the same andsoare, to agreat extent, the attitudesof its spokesman in dealing with them.After all, whether judges can or should be neutral is a question asold as the legal process itself; and Western culture is homogeneousenough to provide British and Continental students with similar argu-ments when they try to answer it or when they demonstrate thatframing it in terms of neutrality rather than objectivity is a fallacy.I n England. however, these problems are raised and these attitudesare prompted within a vastly different context: the difference beingmade aboveal l by the judges.

I am not referring here to their number, which is extremely lowby European standards, their higher social origin, their unusualrecruitment procedure or the looser bureaucratic setting of which theyare part. These factors are important; but they are not decisive

factors in making studies of the English judiciary seemscarcely help-ful as reference material for a paper centred upon the Latin countries.The decisive factor is the susceptibility of English judges to beanalysed as a politically cohesive group. I amobviously aware thatthere is no judicial unanimity in England; not even among the L awLords 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 J une 13, 1979, at the L ondon Schoolof Economics and Political Science.

J . A . 0. Griffith, The Politics of the J udiciary (Fontana/ColI ins, L ondon, 1977);Lord Devlin, J udges and Lawmakers (1976) 39 M.L.R. 1; J udges, Government andPolitics, fbid.. September 1978; K . Minogue; " T he B ases of the Bench," TimesL iterary Supplement, J anuary 6, 1978.

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VOL. 43 (1) I



2 THE MODERN LAW REVIEW [Vol. 43

nature to challenge a universally received notion of public interest;and (b) that, when they happen to do it, their decisions area resultof strictly individual options. Some sociologists would probably des-

cribe th i s situation as characterised by a feeble ideological polarity.Thus, Professor Griffith’s contention that the political outl ook of mostEnglish judges is right of centre may be too indiscriminate,as someof his reviewersseem to think. Buthadhe chosen to be less straight-forward-had he written, for example, that the bulk of the judiciarystretches from slightly right of centre to mildly left of centre-nobody,I assume, would have taken issue withhi s opinion.

Of course, I am not in a position to establish whether ProfessorGrifiith’s view is actually indiscriminate. Quite frankly, I do not thinkit is. At any rate, while reading hi s book. I often felt sorry for himowing to the dubious data from which he had to draw meaningfulinferences; and t h i s was a second reason for deciding to leave Englandaltogether outside the scope of my lecture. Like anywhere else, Englishjudicial decisions may be politically motivated; but their authors, Itake it, would never dream of publicly acknowledging this fact oracting in such a way as to make it explicit in the eyes of even layobservers. In other words, all the researcher is left with is cogent orloose, but definitely cool legal reasoning andobiter dicta: not much,let us face it, to warrant the formulation of sharp political conclu-

sions in a system where the words of the law arenot empty vesselsfor the judge to 6ll. I amnot overly sympathetic to the philosophywhich M. Minogue displays in reviewing Professor Grifiith’s bookfor the Times L iterary Supplement; but hi s suggestion that it wouldbe improper to put a conservative label on agiven court becauseofa string of anti-union decisions, seems to me entirely correct. Muchdepends, of course, on just how long the string is. If its length isreasonable, the stance taken by the court may well result from thefact that union claims were faulty in law. My English colleagues havepointed out to me that t h i s particular piece of stringisabout200years

long; and I leave it to them to decide its reasonableness.When Professor Griffith writes, as he often does at the end of hisinquiries into a case or a set of cases, “the suspicion must arisethat,” this expression is not only an example of the good mannerscharacterising the British intellectual debate. It is an honest way ofrepresenting a state of affairs which does not allow for much morethan inklings and hints.

I1Let us then cross the Channel. As I have pointed out, I shall direct

my attention to the Latin countries, shunning not only the“

socialistfamily,” as Professor RenC David calls it, but also Germany, theBenelux and the Scandinavian systems. There are equallytwo reasonsfor this further cutting down of my subject. In his Lettres Persanes,Montesquieu described that ugly human specimen, the “d4cision-naire (. . .) who read everything. saw everything (. . .) and would



Jan. 19801 POLITICS AND JUDGES-EUROPEAN PERSPECTIVE 3

sooner lie than be silent or give the impressionof not knowingd. "1am determined not to imitatehimBesides, I amconvinced that asfar as judicial politics is concerned the most challenging developmentsare occurring in the South and the West of the Continent. To put itless bluntly: the trend towards a more politicised and politicallypolarised judiciary isdetectableall over Europe, including the FederalRepublica; but in Italy, France and Spain thi s trend has acquired, oris in the process of acquiring, traits so neat and forcibleas to riseto the dignity of amajor national issue. These words-which, appliedto Britain by Professor Griffith, sound"extravagant"to Lord Devlin-seemed a few months ago perfectly sensible to a distinguishedmember 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 withits name, the French Syndicat de lamagistratureisaclearly indigen-ous creature, but it has been influenced by the left-wing current of theItalian judges (Magistratura demucrutica) and, while eschewing itsexcesses with regard both to the political ties and the life-style of itsmembers, it tends at themoment to follow in its footsteps. Moreover.whereas the ideological polarisationof Italian judges has a corollaryin the existence of three bitterly feuding groups, competition betweentheSyndicat and its moderate rival, the Union syndicatedes magis-

truts. is on the whole quite mellow. As to Spain, the rise of a left-oriented group, while the Franc0 Agime was breathing its last, hasnot yet spurred the conservative judges into coalescing. At present.this movement, cal l ed J usticia demucrutica,is just beginning to makeitself felt; but many expect it to boom shortly and I would not besurprised if its entrance on to a hitherto slumberous stage awakenedthe rest of the company. Actually. most factors that assisted in thefragmentation of the Italian judiciary along political lines are at workin Spain; and their chanceof bringing about similar consequences isfortilied by the enormous influence Italian legal thinking exerts on

the Spanish lawyers.Why is it that a country accustomed more to abackwater than amainstream role in politics and law has become the standard bearerof judicial militancy in Europe? The story is somewhat long andcomplex, but it deserves to be told.8 On the eve of Fascism, the

~~~

In some German ciliw ( Hambur g, Frankfurt, etc.),the left wing judges tend tojoin the Civil Service, Transport and Commerce Workers Union (OTVG: UflentlicherDienst. Transport und Verkehr Goverkschafr); but they are f ew 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 1861-1913period); R. Canosa and P. Federiw, La magistratura in lrdia dal 1945 ad oggi

(I1 Mulino. Bol ogna, 1974).See also E. Moriondo, L'ideologia della magistratura itdiana (Latern, Ban,1967); G. Freddi, Tensforde conflitto &la magisrratura (Latern, Bari, 1977) (arevised and enlarged edition of Legitimacyand Oppsiffon n the Italian J udiciary:a Study of OrgunfzationaI Conflict, Ph.D. Dissertation, AM Arbor, UniversityMicrofilms, 1970); E. Resta, Conflird sodali e giusrizfa (De Donato, Bari, 1977);D. Pulitanb, Gfudice negli and '70 @e Donato, Bari, 1977); R. Canosa, Storia diun pretore(Einaudi, Turin, 1978).



4 THE MODERN LAW REVI EW [Vol. 43

Italian judiciary was a strongly hierarchical body of approximately5.OOO men. Mostly of middle or upper middle class origin, they wererecruited-and still are, by the way-in their early twenties, normally

two years after graduating from a law faculty, through tough com-petitive examinations administered by a board of top-level judges.The Italian judge has never been a practitioner. At each step of theircareer they had to take similar tests. Obviously,thissystem affordedthe higher echelons a considerable degree of control on both thejurisdictional function and the political leaningsof the lower-rankingjudges. Knowing that their"merit" n the next promotion procedurewould be assessed with a great latitude of discretionary judgment byCassation Court members, few newcomers ventured to set forthdoctrines conflicting with the opinions rendered by the Court ofCassation; and, as to the old-timers, loyalty to the powers that be hadbeen so deeply engrafted on their souls as to make it impossible €orthem even to dream of undertaking modernising crusades.

Ideologically, the powers that be shared the prejudices of theirclass and age (between 60 and 70): a steadfast conservatism oneconomic and social matters, a harsh intolerance of crime againstproperty and the public administration, a Victorian view of sex, butalso a basic respect for genteel political dissent. With such a back-ground, they were bound to salutetheadvent of Fascism with relief

if not with enthusiasm. Actually, some ogled the new bosses and mostsupported them mildly. Those who allowed their concern for civilliberties to slip into their judgments were just a handful: enough,however, for Mussolini to establish in 1926 a special court designedto curb anti-fascist activities. At any rate, as time went by the integra-tion of the judiciary made great strides. In the area of labour law,for example, the judges fully embraced the philosophyof the corpora-tive state and, much l i e the Fascist trade unions, played a valuablerole as a transmission belt of the dgime in its effort to rally theworking 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-managementrelations and the prohibition of self-defence that were the guidelinesof the system'

It was then with a judiciary deeply mistrustful of democratic valuesthat Italy was ushered into democracy; and the outcome of thiscontradiction, which the first post-war governments were too weakor too busy to remove, soon became tangible. In 1946 the govern-ment granted an amnesty to Fascist criminals with the exception ofthose who had been guilty of "unusually cruel acts." Admittedly,

this expression afforded the courts a measure of discretion; but theirdiscretion went so far as to extend the amnesty to men who, aftertwisting a guerrilla's genitals, had applied around his head an iron-_ -- -- _ _

4 See G. C. J octeau, La masistrafura e i conflitti di lavoro durante IY fascistno

(19261934) (Feltrinelli,M ilan, 1978).




hoop and gradually tightened it; or to acaptain who had delivered awoman guerrilla, blindfold and handcuffed, to his blackshirts. ‘‘Farfrom being unusually cruel ”-the Court ruled-‘‘ this act onlyamounts to an offence against decency,” very serious in itself, butextenuated under the circumstances by the“ reedomof conduct thewoman enjoyed as a dispatch-rider for the Resistance movement.”Many more examples of the same gruesome vein could be given.The die-hard role of the judiciary in those years, however, is moresignificantly shown by the position it took in construing the newConstitutionof January 1, 1948.

Like most contemporary constitutions, the I tal i an one is of theWeimar type; but, since in the meantime the navel of politicaleconomy had moved to Bloomsbury, the limits it sets to freg enter-prise and managerial prerogatives are more powerful than thoseofWeimar. If possible, however, they are even hazier: that is, toovaguely worded to be enforceable without enabling legislation. In anumber of decisions, the Court of Cassation stated that the respectivearticles were mere“plans”or schemesof action, binding the futurelawmakers, but for the time being in abeyance. Politically, this rulingamounted to a savage thwarting of the Constituent Assembly’s intentand, as some said at the time, to “storing in the fridge a good halfof the Constitution.” Legally, it was untenable. Granted that many

social provisions of the Constitution were not of a nature to vesttheir beneficiaries with actual rights, denying their immediate effective-ness for more limited purposeswas simply preposterous. Thus, theycertainly had the power tacitly to abrogate those pre-constitutionalstatutory provisions that were in blatant contrast with them; or theycould 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 maintenanceof full employment,

the availability of suitable work for which the worker is trained andjob security by way of protection from arbitrary dismissal^"^Ocourse, in default of any implementing machinery, the bare declara-tion of such a right was not enough to establish a fully-fledgedsystem of workers’ property in jobs. But it was surely able to influencethe interpretation of the civil code clause that sanctioned theemployer’s right to fire his employees, making the latter dependentupon grounds such as misconduct or redundancy and awarding com-pensation to the unfairly dismissed worker. This influence, however,was denied by the Court of Cassation and the ensuing lack of pro-

tection, coupled with the weakness o the labour movement, hadmomentous consequences. During the 1950s and the early 1960s. as

a famous liberal journalist wrote, the “runcheon was sovereign in

6 K . W. Wedderbum, The Worker and the Low (Penguin Books, L ondon, 2nd ed.,1971), p. 451.




the Italian factories” ; in the less colourful words of a sociologist,the working class was exposed to an “extremely high measure ofsocial control, in coercive and manipulative form.”‘ The workingclass put up with it. But the grudge it developed was one of thef actor sd not the least-that brought about the great upheavalof 1969 and the often nasty character of industrial conflict in thefollowing decade.

111

The year 1969 and the preceding months, which witnessed the out-burst o a militant student movement, were indeed a turning pointin 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 backto those events. Restlessness among Italian judges, hawever, was dis-cernible as early as the late 1950s and some long-overdue reformshad already altered the structure of a body which had been leftuntouched by a century full of vicissitudes. In 1956 judicial review oflegislation-which the Constitution entrusts to a special Court of 15top-level judges, law professors and experienced lawyers-was finallyset up. Threeyears later a further agency, also provided for by theConstitution, came into being. Called the Higher Council on the

Judiciary, it consisted of 14 (later 20) judges elected by all theircolleagues in the nation and seven (later 10) laymen chosen by Par-liament. Its main function was to make al l decisions concerningjudicial personnel ( i e . judges and members of the prosecutingoffices)in such areasas recruitment, training, promotions, transfer from oneoffice to another, discipline and so on6

In more than two decades these bodies have taken root. Theywould probably survive a constitutional change and the establishmentof a Second Republic. At the outset, however, they stirred heatedcontroversies and were a vehicle of conflict in the judiciary. TheConstitutional Court acts by request of the Courts below when, inadjudicating a case, they must enforcea statute of dubious validity.While the Court of Cassation did its best to keep the15 justices idle,the lower judges crowded their tables with hundreds of statutes orclauses thereof, mostly of Fascist origin. The justices respondedfavourably to this vicarious activism and even spurred it on byruling out the doctrine which had virtually frozen the soc ia l pro-visions of the Constitution. The psychological foundations of theauthority wielded by the senior judges were thus shaken. The

6 E. Scalfari, L’autunno della Republieu. La mappa del potere in Italia (Etas

L . Cavalli, Sociologia della stoda i t d h (1861-1974) (11 M ulino, Bologna,

* Sea G. Di Federico, The l tal h J udidal Profession an d its Bureaucratic Setting(aWl son M emorial Lecture delivered at the Universityof Edi nburgh on March 11,1975) (1976)21 J .R . 40et seq.

K ompass, Milan, 1969). p. 69.

1974). D 185.



Jan. 19801 POL IT IC S AND J UDGES-EUROPEAN PER SPEC TI VE 7

rebellious spirits, who had been champing at the bit for some time,started to lift their heads; and they derived further encouragementfrom the actual operation o the Higher Council. The elective nature

of this agency had been a blow to the hierarchidy-minded judicial6lite. But still more shocking to its members was the fact that, underits rules, a lower judge was now entitled to participate in the assess-ment of his superiors’ fitnessto hold strategically important offices.’

Al this, o course, was not happening in a political vacuum. Thevery fact that the judiciary had been attracting rebellious spirits wasa symptom of change. The cold war years had been marked by astifling atmosphere and many ideological straitjackets; now, while a

political thaw was in the ofhg, both began to wither away makingroom for an intellectual debate that became livelier as time went by.For a judge to express liberal or even radical views was no longerastigma provided he steered clear of judicial problems. If he did not,he would be frowned upon and would be liable to run into difficulties.Thiswas the case of Dante Troisi, a moderately leftist Catholic whowrote an engrossing book about his frustrations as a judge eager todo justice, but prevented from doing it by the deficiencies of thesystem in a poverty-stricken Southern town. “Judge Troisi, pleaselie to us!” cried a conservative newspaperman implying that certaintruths should be hidden if faith in the administration of justice wasto be safeguarded. Troisi’s judges obviously shared this theorybecause they disciplined him for impairing the judiciary’s dignity.But the uproar raised by this decision was itself a proof that thetraditional values were beginning to crack at the edges.l0

Their crisis was alsoa product of social and economic factors. Atthe end of the war the judges were on a pedestal. The times had goneby when the Piedmontese aristocrats destined their older sonsfor thejudiciary and only the second for the army; yet the prestige of thebody was still very high. During the 1950s this situation changed.First of all, the judges’ salaries, like those of all civil servants,

decreased. In 1961a senior judge received 8 per cent. less than hispredecessor a century before, when the Kingdomof Italy was founded.I n the meantime, the national per capita income and private con-sumption had more than doubled. Secondly, while judicial salarieswere shrinking in terms of purchasing power, earnings in comparableprofessions were on the increase. Though entitledto the same pensionsand a similar security of tenure, the employees of the autonomouspublic-law authorities and nationalised industries were paid on aver-age twice as much. Even less tolerable, the position of governmentofficials (and hence of the judges) in the Italian status scale fell

headlong to the advantage of occupations related to business. Freeenterprise had never been a predominant value in our society and-_____

G. Di Federico,op. cir.. p. 53.lo The whole story has been recounted in (1978) 38-39 Qualegiustizh (the hiph-

brow journal of Magisrralura democratica), (U n caso esemplare: Dante Troisi. Lacondanna dd “Diario di un giudice”).



8 THE MODERN LAWREVI EW [Vol. 43

working for industry in a managerial capacity, though financiallyrewarding, was not ennobling. But the boom that ranked Italy amongthe seven greatest industrial powers put anend to t h i s state of affairs.

The public image of business improved immensely and that of thecivil service underwent a corresponding setback.

It was mainly the young judges in the big Northern cities whosuffered from this decay. There life was particularly expensive. Theretoo, more than in any other place, business was celebrating its freshtriumph. There, however, the working class was at its strongest and,after the long years of the truncheon, it was beginning to act on theoffensive. Under such circumstances, it is not striking that they movedin f l ocks to the left. In those days, ths did not necessarily entail anideological conversion to Marxism. The young judges were rathermotivated by an unconscious need of social legitimation. I €the upperlayersof society had no room for them, they would seek the supportof the emerging layers using the implements of their profession toendorse the latter’s struggle for welfare and power. And, bit by bit,they did. In 1970 a workers’ statute reminiscent of the AmericanWagner Act came into force. Research carried out four years laterproved that, while in the South, the islands and the backward hinter-land o Venice, claims laid by the unions under the new law wereaccepted 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 one1have mentionedis by far the most important.”

I vI am not going to dwell upon the process that, moving from these

premises, led to the developmentof factionalism within the NationalAssociation of Magistrates,asort of glorified trade union founded in1909 and revived after the downfall of Fascism. The one episodeworth recounting occurred in December 1969. The Association was

then already split into three currents: a right clinging to the imageof the judge as la bouche de la lo totally aloof from the socio-political context and to mostof the old values including sexophobia a;

a scantily politicised centre whose chief concern was to afford aljudgesastandard expectation of career, making advancement primarily

11 See T. Treu (ed. ),L’ usopolitico dell0 stufuro dei luvorutori (I l M ulino, Bologna,1979, pp. 186 et seq.

12 M any I talians have learnt the names of Praetor Salmed who convicted a

Danish tourist for wearing in Palenno, on a hot summer day, a pair of shorts whichexposed part of her butfpcks”; 4 of Prosecutor General Bantolomei who

specialises in the seizure of f i l ms and books, including l k r of Flyingby Erica J ong. Possibly, however, the juiciest example of thi s syndrome (and of afurther trait of the Italian legal world, the daring use of analogy) was offere$ byProsecutor General Felici in a speech on the state of j usti ce in h s district: Thedemonic symbols of our age,” he said, “ar e the atom bomb and the overbearingpride of homosexuals. I am not suggesting,” he added with the obvious intentionof reassuring us, “that they are connected by a relation of cause and eifect. Whatassimilates them is their being both symptoms of sterility and death.”

_ _

obscene




dependent on seniority; a left (Magistraturademocratica: from hereon, MD), consisting of Marxists. liberals and progressive Catholicswho also demanded a seniority-centred career development, but wereabove all intent on remodelling the role of the judges in the light ofthe new Constitution.

Their point of departure was one of its“undamental principles.”the second section of article 3: the Republic-it says-undertakesto “remove those economic and social obstacles which, limiting infact the citizens’ freedom and equality, hinder the full developmentof human personality and the actual participation of all workers inthe political, economic and social organisation of the country.”Albeit an assault on the English language, this literal translation isclear enough:what the Republic really undertakes is achieving neithermore nor less than socialism, The article was indeed drafted by asocialist and the moderate half of the Constituent Assembly ratifiedit in the unruffled conviction that it would remain on paper, a loftyexample of constitutional rhetoric, not unlike the American right tothe “pursuit of happiness.” On the contrary, the “democratic”judges took it seriously. As a power of the Republic-they con-tended-the judiciary was under a formal obligation to work towardsthe development of a society based on the real freedom and thereal equality of its members. Hence a series of more and more

adventurous corollaries: all laws should be interpreted with thisyardstick; partisanship is a virtue and neutrality a misconception ora fraud; so is independence; a judiciary cloaking itself with thesesham values is a servant of power and ought to be told as much;judges must defend the oppressed and the downtrodden, co-operatewith the labour movement, act as a countervailing force vis-bvisthe political and the industrial government.

In many respects, this was an understandable reaction against themyth of the purely technical role of the judge which in our legalworld had reached unreasonable extremes. But it was also both an

ex-post rationalisation of the quest for statusI mentioned above anda direct response to the stepping up of class struggle and the riseof all sorts of radical movements which Italy was experiencing atthat time. While arousing some, however, such developments scaredor worried others-the “genteel populists,” as the American authorSimon Lazarus would call them,19 who were quite willing to admitthat article 3 reads more like a legal rule than a manifesto, butrecoiled from the notion that judges as such shouldbe involved in asocial revolution. In other words, MD had two souls which werebound to come to grips with each other. As already pointed out,

the crisis took place at the end of 1969 and was triggered by theso-called Tolin case. The editor of an extremist weekly, Signor Tolinwas charged with incitement to commit felonies, an offence punish-able under the 1930 criminal code, but regarded by some legal

18 S . L ~L Z~N S,he GenteeI PopulLsts (Rinehart et al., New York, 1974). See theperceptive review this book was given in (1974) 84YaleL.J. 102




scholarsasconflicting with the constitutional guaranteeof free speech.M D issued a document which criticised the prosecuting attorney forunearthing that old Fascist tool of political control and the moretemperate members of the group split off in an outburst of indigna-tion at this attempt to interfere with a pending judicial proceeding.

Thus left by itself, the radical soul blossomed for a few years.I amnot trying to be ironical. The left-wingers’ theory was highlyquestionable and so was al too often their conduct outside thecourtroom. Writing in a book or even in a newspaper that one’scolleagues are trucklers to the bourgeoisiemay be acceptable; pro-claiming it during an outdoor meeting with a well-known extremistleader at one’s side is, by all standards, worse than just exhibitingbad manners. Nor is it indispensableto harbour an all-red view ofjudicial dignity to recognise that crying (again in a public meeting)“Valpreda is innocent,” while Valpreda, an anarchist dancer, wascharged with setting a bomb in a Ml an bank, is a serious trans-gression. Yet, for all their excesses, the“democratic” udges madea tremendous and, on the whole, well-deserving effort to modernisethe lawo the land.”

Somewill haul them over the coals for this too. Not, however, theconsumers of adulterated f ood, the victims of pollution or thesecretly investigated Fiat workers, since the little protection they were

given stemmed for a long time from the judgments handed downby M D men. Actually, M D did more than any comparable groupin our society to foster the development of an ecological consciousnessandapowerful civil rights movement.

A further area in which the activism of M D has sowed the s e ed s

of reform is procedure, both civil and criminal. Italian proceduralrules are still based onanarrow individualistic philosophy: moreso,I amafraid, than in any other Roman-law country.Wth the exception(itself limited) of trade unions, collective interests have no access tocourts, notions like class actions, amicus curiae and ideological

plaintiff being familiar only to students of Ameri can law. A citizenis only entitled to seek judicial relief whoseown, personal right hasbeen infringed; or, as a well-known administrative lawyer put itwith a touch of sarcasm, “interests shared by many are really no-body’s interests.” The M D judges set to and tri ed to rectify thissituation conferring plaintiff status on feminist leagues in abortioncases, committeeso telephone subscribers, informal citizens’ groupsthat contested the actions of urban development authorities and soforth. In most cases, the courts above-where the right-wingers arepreponderant-have annulled these judgments. But we owe it to the

latter that justiciability of class or group interests has become thesubject of a hot debate among Italian lawyers and that many view-4 For a most stimulating analysis of the I ta!iin legal system and i ts actors(judges, legal scholars etc.), see J . H. M erryman, The I tal i an Style: the Doctrine,the Law, the Interpretation,” Stanford L .Rev., November 1%5, pp. 39-96; J anuary1966, pp. 396-437; February 1966, PP. 58-11.



Jan. 19801 POL ITI CS AND J UDGES-EUROPEAN PER SPEC TI VE 11

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

VA disquieting revolutionary platform and-labour law possiblyexcepted-a sound reformist practice: clearly. MD survived orrather thrived and gained all the prestige it had looked for in theeyes of the Italian progressives on this contradictory, but not uncom-mon formula. In July 1976, when the last election for the HigherCouncil was held, 752 judges, that is about 13 per cent. of the wholebody, cast their votes for its candidates. It was the group’s lastsuccess. Politically, its members were partly Communist, partly

inspired by new left ideals. Two souls again, in other words. Thatseemingly inescapable destiny of the radical splinter factions, mutualcannibalisation,was just around the corner and it took shape as soonas the Communist party gave up opposition forming a coalition withthe Christian Democrats, the Socialists and two minor centre parties.Hostilities were opened by a Communist M.P., Senator Edoardo Perna.The time has comehe said-for the left-wing judges to go back tonormality. All-out confrontation, unorthodox judgments, attempts atmaking up for the lawmakers’ deafness in social matters were justi-fiable so long as political power was monopolised by the moderates.

Now, however, the working class and its allies are worming their wayinto the machinery of decision-making. Parliament appears to be moreactive and the judges’ duty is again loyally to enforce its laws in thespirit of the Constitution.

The Communists’ paramount problem. of course, was to dispel theshadows that a long history of anti-system utterances had cast ontheir credibility as would-be partners in the nation’s government. Butthere was more than that in their attitude. First of al the Jacobinicalor, if you wish, Rousseauian syndrome they had inherited via Mamand Lenin. Didn’t Robespierre write that le mot jurisprudence (i.e.

judicial construction of laws, judicial mediation) doit &re eflucc! denotre language? Didn’t Palmiro Togliatti, as a member of the Con-stituent Assembly, bitterly fight the introduction of judicial review?Indeed, the general will, as embodied by Parliament, does not tolerateon principle the existence of separate powers and autonomous insti-tutions, be they local government, a Head of State or a judiciaryempowered to pass on the validity of legislation or to explore thelawmakers’ minds; and if in time this principle had been dilutedthe old mistrust for a system based on checks and balances was stillvery much alive. On a more practical level, the Communists felt that

social and economic change such as they expected to bring aboutdemands more than a modicum of centralised power. Once fullyaccomplished-they surmised-the “historical compromise”betweenthe Marxist and the Catholic world will prove to be far from a pain-less proposition. Both on the right and on the extremeleft it will stirvehement reactions. Hence the necessity of a judiciary willing to keep




public peace or, to say the least, not given to the instigation oftensions.

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, Perna’s call to order wasclearly meant to use the judiciary’s reform-oriented energies for thepurposesof th e party. The new leftists did not like it at all; nor didthey like the Communists’ hard line on civil liberties as terrorismstepped up its activity and violence mounted in our cities. Laws werepassed in those months that undid most of the progress made duringthe preceding 15 years in conforming our criminal procedure andpenitentiary practice to the constitutional standards. In such cases,a country’s sky is bound to swarm with hawks and doves. Italy wasno exception to the rule and, for obvious reasons, that customaryconflict 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 issuesat

stake, thegauchistesstrongly supported those liberal values, and aboveall judicial independence, which in the past they had so often provedto be false or narrow,

How sincere were they? To be sure, transition from tactical tointrinsic commitment is a familiar pattern in the evolution of indivi-

duals and norms. Religious freedom wasanecessity inEngland beforeit became a right. A similar process may well be occurring withrespect to the institutions of liberal democracy in the Italian new leftand its bridge-head in the judiciary. Yet, however real and far-reaching, this process does not includea sizeable group of judgeswhom the dispute with the Communist party has pushed farther to theleft, into a region of intellectual and political hooliganism where theterrorists are called but “erring comrades.” On March 16, 1978, aRed Brigades commando kidnapped A do Moro, the President ofChristian Democracy, after killing the five policemen who escorted

him-d of them former day labourers to whom enlistment had meantslightly better wages and job security. While the nation shudderedwith dismay, some of those judges drafted a communiqd whichstarted with the following words: “The Via Fani action evincesthat class struggle in Italy has now acquired a military dimension.”Self-control and a quiet language are said to become the judicialprofession; this language, sober and neutral as it is. only proves thederangement into which a part of the Italian judiciary has sunk.

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




civil service. Since most interest groups feel represented and/or pro-tected in the political system, their claims are usually negotiable, socialtensions seldom reach the point of no return and the repressivetendency of conservative opinion is generally weaker than in Italy.France, let us not forget it, is the one Western country where theTrilateral Commission’s view on the desirability of a“zerogrowth”for political democracy was not taken seriously.1bThis being the case,French judges are spared anumber of problems liable to strain theirconsciences and to lay bare their political beliefs. On the other hand,these very judges are government officials and, as such, members ofone of the world‘s finest bureaucracies. Highly hierarchical. but notburdensome and having at the top aclass of technocrats screened byexcellent schools,thisbody has evolvedacommon spirit which dilutespolitical discrepancies or provides for informal machinery designed tokeep them at bay. The judiciary has a special history and its owntraditions; it shares, however, most of these features including anEcole Nutionale patterned on the famous ENA (National School ofAdministration).

The Syndicat de la magistrature was founded in June 1968, anearly child of the psychodrama which seemed for amoment to subvertthe framework of the nation. Hence its basic difference from theItalian judicial left as regards the discovery of politics. In Italy, as I

have tried to show, politics came relatively late, the result of a legiti-mation crisis and of a long battle fought by the lower-ranking judgesagainst their senior colleagues tominimiseand eventually abolish thelatters’ control. In France (where, incidentally, the same control hadbeen wielded with far greater restraint and elegance), this stage wasbypassed. The French May was an entirely political affair and to thejudges who organised in its wake politics was bound to come first.It was, too, a different kind of politics, the chief reason lying in thenature of the May movement. Despite Marxist jargon and its ownself-image, the movement had little in commonwth socialism. First,

in the obvious sense that its militants, being university students, weremostly of bourgeois extraction. But also in the more important sensethat its traits fell intoafamiliar bourgeois pattern. Thisisnot to denythe radical character of its protest. Indeed, must all revolutionarycritiquesof the capitalist systembe Marxist-inspired?

The pattern was essentially libertarian and populist. Thus liber-tarianism and populism formed the substance of the ideological stocktheSyndicat was endowed with from the very outset:both, of course,sifted and polished by the informal devices through which the Frenchjudiciary deters inordinate militancy within its ranks. In concrete

terms, this meant directing the judges’ attention to social problemsthey had previously neglected or, the Syndicat felt, dealt with from a

1 5 The Crisis of Democracy. Report on the Governability of Democrades to theTrilateral Commission (New Y ork University Press, 1975). For a brilliaM Frenchreview of this report (and especially of Professor Hunti ngton’ s essay), see [March19761 L e Monde Diplomatique 14.




narrow-minded angle: environment, consumersversusmanufacturers,industrial conflict, white collar crime etc. Magistraturu democrulicuhad tackled much the same issues, but with greater vehemence and a

more partisan disposition. Just two examples. As far as consumerprotection is concerned, the French confined judicial control to thesale of goods whereas the Italians stressed their production in theNaderist belief that most illicit practices (use of second-rate materialand obsolete machinery, breach of safety rules) take place at thisstage. In labour law, theSyndicat expressed the view that when theright to strike and the right of ownership come into collision, ashappens with sit-ins, the former prevails“on principle.” l6 No MDjudge would make such a concession. The right to strike has top-priority, the employees’ only obligation being to ensure the safety ofthe plant and the equipment.

The two movements, however, were at their farthest when theydefined the judges’ function in the political and economic systemofthe respective countries. After 1969 MD chose what it called “theother side of the barricade.” “Class analysis”of the cases submittedto its members often played a decisive role in their judgments; inother words, they strove aftera“counter-interpretation”of the law.Not theSyndicat.

“Strange organisation ”-wrote Marcelle Padovani in 1972-

‘‘only four years old and already blessed by the Gods... Thanksto its campaigns, some judges inspect police stations to make

sure that those detained in themareproperly questioned; thanksto its existence, other judges resist the lures of radicalism. . . .Strange organisation, indeed, undermining the foundations ofproperty and never uttering the word ‘ ocialism’; taking politicalstands and refusing political labels.’’ l 7

A beautiful passage. Yet, Mme. Padovani laid too much emphasis onthe ambiguity of the Syndicat and so did Louis Joinet, one of itsleaders, when he confessed he was not quite sure whether hi s group

worked towards the overthrow or the strengthening of the liberalsociety.18 Actually, in those days a fair Western-style democracy wasregarded by the bulk of left-wing judges as the one system suited toa country like France. After all, caring about the rights of people indetention is part of the liberal game; and proclaiming the lawfulnessof sit-down strikesishardly an assault on the foundationsof property.

Today the situation looks somewhat different. Within theSyndicata small anti-capitalist current has always been active. In recent timesthe rise of a Socialist party with many a friend in the top managementof the civil service has improved its image opening new avenues to its

influence. A further factor accounting for the radicalisation of theSyndicat has been the ascendancy of Magistratura democratica which

l 6 Final motion on the subject L e juge el I ’entreprise, voted at the Congress of1972. after a remnt bv E. Bloch.

17. ( 1972) 419Le Nbuvel Obsmateur 42-43.18 Ibid.. p. 42.



J an. 19801 POLI TI CS AND J UDGES-EUROPEAN PERSPECTI VE 15

is intellectually more sophisticated, has a strong missionary spirit andmay boast of an all-important advantage: the freedom enjoyed by itsmembers as a consequence of theguarantees the Italian judges wonbetween 1958, when the Higher Council was established, and 1973,when promotion to the first class was based on mere seniority. Fora number of reasons, some of which I have mentioned, theSyndicatwas never too keen on challenging the authority of the senior judgesand the Minister of Justice. But last year, when Etienne Bloch, arespected spokesmanof the group, was removed from his office assupervisor of the enforcement of penalties for showing“enderness”to the prisoners, its nonchalant attitude on matters of career andjudges’ rights came toanend.

I amvery doubtful, however, thatthis

fit of militancy has a future.The French judges have begun to speculate on the possibility of pro-ducing an “alternative law”; but their Constitution-unlike theItalian and, in its wake, the Spanish onwontains no promise ofsocialism providing an excuse, faint as it may be, to proceed alongthis line. In France counter-interpretation would be tantamount towilful misinterpretation, that is rebellion: and I fail to visualise aFrench court taking such a risk. The same holds true with regard tojudicial guarantees. To win some ground in this area theSyndicat isdetermined to show its teeth: but the non-existence of a Higher

Council, such as the Italians have and the Spaniards are about tobe given,will set an insuperable limit to its action. The French systemof government is too seasoned and too closely-knit for its officials toembark on flamboyant enterprises.

VII

If I were asked to draw a conclusion from the foregoing analysis, Iwould say that a conflict-prone society and the lack of a commonconstellation of values among its members are the two single factorsmost likely to bring about a highly politicised judiciary. Both, how-

ever, ought to be qualified. Social conflicts must beof a nature andscope to involve not only the conscience of the judges (in which casetheir response will not, as a rule, exceed some form of paternalism),but their interest as well. I n other words, the judges must feel theyare in the van or in the middle of a movement aiming at rightingwrongs of which they too are victims. As to the absence of sharedvalues, it must result from a clash of Weltanschauungenone of which,at least, belittles and/or disparages the role of the law and of itsministers. Many a radical philosophy would do. Marxism-thatregards the law as a function of class domination and defines judicial

independence as a hindrance to thoroughgoing change and the pro-duct of a false consciousness-is the best case in point. As a matterof fact, Italian (far more than French) culture has been exposed toMarxism for over 70 years: so much so that some of the latter’sbasic notions have, as it were, become part of the“national commonsense.”



16 THE MODERN LAW REVI EW [Vol. 43

A third important factor is the structure of the judiciary and thequality of its dlite. Too rigid aset-up and too cogent an influence ofthe few whose opinions matter will eventually stir up the majority toaction; and, if external conditionsarefavourable, this action may indue 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 frompolitics: Italy and France have proved him wrong. On the contrary,I would not give much weight to factors related to the nature of thelegal system. To be sure, a contradictory system like the Italian one,with its democratic Constitution laid on a bulk of Fascist-inspiredstatutory law, makes for disarray and disputes with political over-tones. So does the Constitution itself when it is prefaced by the state-ment of principles as all-encompassingas incapableo direct legalenforcement. But these are hardly decisive elements. Clauses like ourarticle 3, though more cautiously worded, can be found in the pre-ambles of almost all present-day Constitutions. Yet they have notalways been utilised.Resort to them, therefore, is oftenaspecial caseof what the founder of German sociological jurisprudence, PhilipHeck, called a Begriflsmaskerade: that is a wrapping of politicaloptions in time-honoured concepts or norms endowed with a"superior"binding force.

What can a democratic society do in the presence of extremejudicial militancy? In blunter terms, what can Italy do? The answer,I fear, is very little if anything at all. In 1972 theFederal Republicof Germany issued to all public bodies a set of guidelines (whichcame to be known as Berufsverbot or Radikalenerlass) prescribingrestrictions against the recruitment of members of political organisa-tions assumed to be disloyal to the democratic principles of theState.'* Such restrictions would be unthinkable in Italy-and am Iallowed to add that I am reasonably proud of this unthinkability?Except for them, however, nearly any measure designed to curbpartisanship would end by imperiling a value more precious thanfairness, balance or legal certainty: judicial independence.

A judge may be disciplined for unruly behaviour outside the court-room (but in defining $ unruly" the disciplinarians should keep inmind Immanuel Kant's maxim: "Public servants, military men andpriests must be granted unlimited freedom to use their reason andmake proposals for the reforming of the State and the Church ').20

He may not be disciplined for his judgments. Under the Constitu-tion-and this is definitely not a hazy principlejudges are"subjectonly to the law." If the Higher Council tried one of them for reading

his political preferences into a legal provision, he would be subjectnot to the law, but to the Council's interpretation thereof. The rules

19 Mor e on the Berufsverbot i n FoUce Schmidt (ed.), Dismhinurion in Empl oy-ment (Almqvist and Wiksell International, Stockholm, 1978), pp. 210 et seq. Thesubject has been dealt with by Professor Gino Giugni (Political. Religious andPrIvute Li fe Dlsc r fm inu rbn ) .

20 I . Kant, What is E nlightenment.



Jan. 19801 POLITICS AND J UDGES-EUROPEAN PERSPECTI VE 17

of the game are that a wrong decision can only be quashed by thecourt 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 precludethe courts from being filled up by judges of die same colout. LordDevlin maintains that for a known and widely shared bias allowancecan be made, a gun wrongly sighted being less risky than one liable togo off in any direction.21 agree with Lord Devlinso long as the gunis managed by level-headed artillerymen. If they are guided by zealor intolerance homogeneity is no longer a virtue. Take the divisionof the Milan Tribunal handling labour disputes. For years it has beena fief of Magistratura democratica. Its liege lords were perfectly

decent and hard-working people under whose sway the length of casesfrom complaint to decision was kept down-a miracle in Italy-toaperiod of threeto six months. For an employer, however, to emergefrom their hands as winner was harder than for acamel to go throughthe 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 ameans of social, not moral control.

With the policy I have outlined, balance would be restored: butit would result from a plurality rather than from the absence (or,realistically, a moderate amount) of biases. I t would not be much.

Much could only be achieved if consensus on fundamentals became apermanent feature of Italian society; and, happily, this i s not aproblem for legal writers to solve.

GIUSEPPEEDERICOANCINI

2 1 Lord Devlin, J udges, Gove rnmen t and Poliiics, p. 51I .

Professor of Law, Universityof Bologna.

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Politics and the Judges