Lord Acton said that “power corrupts, that absolute power absolutely corrupts.” The thought of the Anglo-Neapolitan philosopher is still present and it underlies the cultural option, rather than political, of our founding fathers, who wanted judiciary to be independent from any other public or private institution.
There was someone in recent years who talked of an alleged substitution of the judiciary. Some have overshadowed a government of judges capable of putting in the popular representation. I firmly believe that that sovereignty must be exercised primarily through prudent and work in Parliament by representatives of the people, true modern sovereign.
This however cannot and does not have to let us be amazed or worse make us shout the scandal when the criminal justice exercises control of legality remitted to it. Or when the civil court responds to social demands filling a legal vacuum. So there was no government of the judges but, what there was, was and exercise, for other sometimes late, of judicial powers that the Constitution assigns to the judiciary.
Now the Constitution requires that judges are subject only to the law. On the other hand the classic iconography wants that justice is blindfolded. Certainly the model that our Constitution draws is neither that of a dry bureaucrat nor that of a protagonist’s exclusive dynamic case as recently President Mattarella said.
The magistrate, today, is not the one who has to pursue social phenomena according to a sensitivity that claims to be able to understand the sensitivity of the community, but in fact has serious and dangerous risks of self such that delegitimize the entire function, but must subject be increasingly called upon to apply the law. To this end it certainly cannot be deaf to the social dynamics and related problems, but it cannot, must not – and this is his professionalism I would say even more so in the magistrate himself of being – being influenced by political contingencies, interpreting a substantial vision of its role in the search for a consensus that staff can make to the veil at its sole exclusive subjection to the law.
Open to the judge to social conditioning, bear the consequences of their decisions – is only a few days ago a discussion on the expression of the Vice President of the CSM Legnini magistrate “in tune with the expectations of Italy” – puts at risk a superore well; that of legal certainty.
The real risk is that of a personal reading of reality also released from legislative data, to create a magistrate who reads according to its own vision of the will of a community that, however, is expressed only through the work of the Legislature speaking through rules which, of course, have to be sure always interpreted by those who fell in a historical and social reality.
Overcoming this clear structure of our institutional system does not in any way make the different political, that the task of reading the sensitivity and guiding the community is called, by the magistrate that derives its legitimacy not by popular support, but by its technical and professional .
Not understanding this is likely to turn the system into a confusion of roles, into a messy mechanism where duplication of responsibilities and representativeness would delegitimize the entire institution.