Articoli, saggi, Opinioni, ricerche -  Redazione P&D - 2014-07-23

JUDGES AS AN ELITE - Pier Giuseppe MONATERI

In the last decades, several factors have transformed the morphology of Italian legal system, so to create a perceptible different assess of the equilibrium among powers and formants and to mould, in a renovated way, the overall relationship between Law, Politics and Justice.

Following the most recent tendencies spread out in the European landscape, Italian policy-making has been judicialized: a refreshed constitutionalism has submitted the work of Parliament and Government to an increasing bundle of binding constraints. Constitutional judges actually represent a powerful elite, able to orient the evolutionary directions of our system. Having consolidated their proper role as authoritative interpreters of the Constitution, they contribute to shape law-making behaviour and litigation strategies. The irreversible process of constitutionalizing Italian Law have attracted set of rules, once perceived as relatively autonomous, under the control and the wise custody of this judicial elite. As a consequence, both the technical act of drafting has been marked and the consciousness of legal scholarship – or the so called mentalité, used as a functional systemological device - has been modified.

Moreover, as a matter of fact, the amplification of judicial power in Italy has concerned even ordinary courts and magistrates, and it has been expressed by a growing intervention in political process since the "70"s. Moving from the active resistance to terrorism and organized crime, the climax of this movement was raised in 1992 and it was stigmatized by the campaign known with the name "Clean Hands" promoted by public prosecutors against political corruption. The final effects of the investigation amounted to a substantial revolution: the judicial activism not only was directed to moralize public domain, but also came to cause the final destruction of the "First Republic", opening the way to the instauration of a "Second Republic". In this way, a rising and governing Judiciary traced the boundary between two blocks of the history of Italian Republicanism, now perceived as separate and distinct in a renovated collective memory. On this ground it has been possible to support and legitimate a judicial direct action in every sector of public policy, much beyond the restricted domain of criminal law.

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Titolo originale

JUDGES AS AN "ELITE" OF THE LEGAL PROFESSION JUDGES AND PROSECUTORS IN ITALY

: A SEPARATE DEPARTMENT OF THE LEGAL PROFESSION

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