What is the relationship between the individual and the state? The Concept of the Ethical State
The principle of the “unity of careers”—enshrined in the 1941 judicial code—did not arise by chance. It is based on a particular relationship between the individual and the state: the former is an integral part of the latter, an organic component of it. “The state is the realization of the ethical idea.” “The State is objective spirit; the individual himself possesses objectivity, truth, and ethicality only insofar as he is a member of the State.” None of its powers can ever be arbitrary. In other words, the State, through its actions and the law, realizes itself and the individual, giving the latter a meaning that transcends his otherwise isolated, meaningless existence: the State projects the individual into History. From this perspective, the State is law, which, as universal will, enacts its will as the will of the individual.
This complete integration of the individual into the State is specifically reflected in the organization of the judiciary. If the law, as an expression of the State’s ethical nature, realizes the individual and his or her personality, then the trial and the judgment, as modes of the State’s action, will be of no different nature: both are destined to realize the law and the values expressed therein within specific concrete cases.
This means that, in a context of total integration of the individual with the State, the trial itself takes on a particular connotation. It becomes the place where the individual’s conduct is subjected to the judgment of the community—of the Nation—embodied in the State and, therefore, of the individual himself. The latter assumes a particular position in the trial (especially in criminal trials, but not exclusively). He is, in a certain sense, “split”: he is part of the trial, for example as the defendant, yet retains his original status as a specific embodiment of the State. In other words, the “whole,” the Hegelian “universal,” the State, and the community act in the trial as the “whole” in relation to the part. From this perspective, the State (the “whole,” the “universal”) prosecutes, judges, convicts, and acquits: the distinction between judge and prosecutor no longer makes sense with respect to the “whole,” the “universal,” which encompasses within itself the judge, the inquisitor, and the accused. In the universalizing and organic context described thus far, a distinction between Prosecutor and Judge does not arise even theoretically: both give voice and form to the action of the State, which also encompasses the defendant or, in any case, the parties involved in the trial in whatever capacity.
The Liberal State
The conception of the relationship between the individual and the State is different from the perspective of the “separation of powers.” The State is not, as in the previous hypothesis, the bearer of its own ends and values, organically shared by individual citizens; it is no longer the entity that realizes the citizens’ ends within itself. In this second perspective, the ultimate end of the State is the defense of individual freedom.
The State is the supreme guarantor of the citizen’s freedom (and, according to the French and English Enlightenment thinkers, also of their property). At this point, the natural-law and liberal roots (of classical English liberalism) of the separation of careers come to the fore. All of this becomes evident when one considers the implications of this second conception of the State for the organization of the judiciary.
A state whose purpose is the freedom of the citizen—so as to allow him to pursue his own ends, and thus to realize himself according to his “personality”—sets as the judge’s purpose the “preservation” of the citizen’s freedom. In a certain sense, the judge is constituted as the citizen’s “first defender” and the inquisitor’s “first adversary.”
On closer inspection, this is the ultimate meaning of the so-called presumption of innocence (Art. 27, para. 2, Constitution). Likewise, this is the meaning of the judge’s “impartiality” provided for in Art. 111 of the Constitution as an essential constituent element of that “fair” trial required by this same article.
A further observation regarding positive constitutional law helps to highlight the gap between the liberal foundation of the republican state and the judicial system as configured by the 1941 Law on the Judicial System: the framers of the Constitution, in Transitional Provision VII, stipulated that “until the new law on the judicial system enters into force in accordance with the Constitution, the provisions of the current system shall continue to be observed.” This provision complements Transitional Provision VI, which instead concerns the pre-existing “special judicial bodies” (Court of Auditors, administrative judiciary, military criminal judiciary). These two transitional provisions clearly demonstrate that the framers did not consider the 1941 judicial system (which is still in force today), which provides for a unified career path, to be consistent with the aforementioned liberal-personalist framework of the new Constitution.
Balancing the Individual and the Community
This framework, however, inevitably raises problems regarding the adaptation of abstract philosophical concepts to the concrete realities of communal life. A State, which, according to John Locke, is the primary guarantor of the citizen’s freedom, should in theory be embodied exclusively by the judge. The office of the prosecution should be completely separate from the state apparatus. At this point, however, an aspect emerges that undermines the liberal-personalist theory: the community. The individual is not an abstract monad detached from the universe. He lives in a community that, in fact, acts simultaneously as both an instrument and a limit to the individual and his self-realization: “no one saves himself alone.”
Everyone can agree on a primary, what might be called a basic, need of the community: the preservation of individuals entails the necessity of safeguarding its members from the potentially harmful conduct of others. Hence the need for an office to ensure the prosecution of such conduct.
And here lies a delicate and problematic step consisting of the “categorization”—so to speak—of such an office within the community’s organizational structure. The transition from a theoretical framework to the reality of a historically determined legal system inevitably imposes constraints due to the tenacity of its institutional traditions, which in Italy have been influenced by France, not only with regard to jurisdiction.
Historically, in Italy, magistrates are public officials. As a historical fact, this status has been enshrined in the Constitution. Within the framework outlined thus far, the separation of careers is the necessary theoretical-ideological—even before legal—corollary of what has been said so far. On the one hand, it serves to achieve that “equality” between prosecution and defense necessary for the judge to effectively guarantee the citizen’s freedom; on the other hand, it is an expression of the community’s guarantee against those accused of having broken its rules.
There can be no guarantee of the judge’s “impartiality” if he shares with the prosecution the selection processes, career paths, union bodies, constitutional safeguards, professional training institutions, workplaces, legal classification, remuneration, and related pay increments. Beyond the concrete repercussions—which have indeed been denounced—this commingling of judges and prosecutors cannot be accepted on the level of the principles referred to earlier.
I would add that the separation of functions—that is, the impossibility, or the strict limitation, of a single magistrate moving from the adjudicative role to the investigative role, or from the position of “judge” to that of “prosecutor”—does not satisfy the institutional requirement in question. Indeed, it completely contradicts it, because it not only denies a radical “impartiality” between prosecution and defense, but even admits that the same individual may perform both roles, albeit at different times.
The CSM and Random Selection: The Role of the Judiciary in the 1948 Constitutional Order.
A preliminary point must be made: the duplication of the CSMs, provided for by the ongoing constitutional amendment, is strictly functional to the separation of careers mentioned above. This amendment proposes selecting the members of the new CSMs through a random draw rather than by election, as has been the case until now.
A number of objections have been raised against this proposal. Opponents of the amendment assert that the lottery is based on “a strongly negative attitude toward the cultural and ideological pluralism of the judiciary,” which, through elections, has been “transferred to the autonomous governing body.” From this perspective, it is further argued that “breaking the democratic link between administrators and those they administer means creating a massive cultural and institutional rupture with the historical experience of the judiciary’s autonomous governance and with the balance of powers established by the Constitution.” It is further noted that there is an attempt to promote a “revival of the bureaucratic dimension of the judiciary, historically superseded by the historic ANM congress of 1965.”
These words raise a series of issues with significant theoretical and institutional implications. Particularly evocative are the references to the “cultural and political pluralism of the judiciary,” which, on the one hand, would give meaning to the “democratic link between administrators and the governed” and, on the other hand, would disrupt “the balance of powers established by the Constitution.”
Just as we saw regarding the “separation of careers,” issues of great depth intersect here. However, in this context, we can only provide a summary. From this perspective, it seems useful to start with the historical fact: the aforementioned 1965 ANM congress. That congress—dominated by the “faction” known as “Magistratura democratica”—concluded with a motion theorizing the judge’s role, through his or her rulings, in determining the country’s “political direction”.
It is not our concern here to emphasize how this view was rejected by constitutional doctrine. A careful look at the reality of the legal system reveals that every judicial decision is “political,” because it contributes to defining the rules of the community. This acknowledgment, however, cannot obscure an equally sober consideration regarding the actual configurability, under the current constitution, of the judiciary as a “branch of government.” In this regard, it has been said that a distinction must be made between philosophical propositions and the reconstruction of a historically determined institutional framework: this second operation “cannot disregard the structures of political power in the various phases that preceded and accompanied the birth and development of the modern state” (G. Silvestri). It follows that, if one intends to remain truly faithful to the “constitutional design,” one must acknowledge that “among the contexts denoted by the noun ‘power,’ that referring to the Judiciary is among the most anomalous and, even semantically, uncertain.” With these words, Piero Gaeta, current Prosecutor General of the Court of Cassation, of “Magistratura democratica” like the authors of the pamphlet under consideration, introduces the analysis of the opening words of Art. 104 of the Constitution (“ The Judiciary constitutes an order that is autonomous and independent of every other power”), which, through its semantic ambiguity, underscores the framers’ hesitation to define the “Judiciary” as a “power,” clearly preferring the use of the less binding term “order.”
This highlighted hesitation is not accidental. In the current system, no “power” can, by its very nature, escape its necessary grounding in an investiture derived from the People, to whom Article 1 of the Constitution assigns “sovereignty,” to be exercised in the “forms provided for by the Constitution.”
Hence the unconstitutionality of any claim by the Judiciary to play an institutionally recognized political role, since it lacks any democratic mandate, even an indirect one.
This conclusion is confirmed by Article 105 of the Constitution, which fundamentally precludes the Superior Council of the Judiciary from claiming to exercise any political function, however vague. Article 105 of the Constitution, in fact, establishes that “The Superior Council of the Judiciary is responsible, in accordance with the rules of the judicial system, for the recruitment, assignment, and transfer of magistrates, as well as for their promotions and disciplinary measures.” As can be seen, in the constitutional framework outlined in the aforementioned “NO” campaign pamphlet, the CSM is assigned exclusively administrative tasks related to the management of magistrates’ careers.
And there is more: the Constitution limits the concept of the judiciary’s “independence” to this administrative management. In this sense, what is stated in the aforementioned pamphlet regarding an alleged “democratic link between administrators and those administered” is misleading, inappropriate, and certainly deceptive. In fact, a managerial relationship such as that existing “between administrators and the administered” presupposes that the “administrators”—that is, the members of the CSM—conduct their activities with a view to serving the interests of the “administered,” namely the magistrates. However, applying such a perspective to the activities of the CSM constitutes a serious violation of the law, since—like any body of the public administration—the CSM is also constitutionally required to “ensure the proper functioning and impartiality of the administration” (Art. 107, para. 2, Constitution), something that has not always been the case to date.
Photo: Gustavo La Pizza, CC 2.0 sa by
