The demand for a differentiated, largely unknown justice

July 5, 2017
FacebookFacebook MessengerTwitterLinkedInWhatsAppEmail

The following extract is taken from Daniela Piana’s book Governare la giustizia. Professionalità al servizio del giusto processo, published by LUISS University Press.

« If we were to reason in simple terms, none of them detracting from the solemnity and the sacredness of the judicial function, we might think that the system relating to the court and prosecutors, the Court of Appeals from the Attorney General’s office and the Supreme Court of Appeal is the recipient of a complex demand borne out of – first and foremost – social and economic forces.

Out of the many labor disputes that are being tried before the Italian courts, the vast majority find their justification in the labor market, and hence are largely independent of the decision-making rationality of the Italian judges. We should say “to a great extent” because as a matter of fact this statement should also be completed with caution, that is, with the assertion that a part of the proceedings at first instance are the result of a review in appeal, ie. before the Supreme Court of Appeal. However, if we were to explain the demand for justice that is requested t Labour Division of the Italian Courts, we should consider labor market trends, the mechanisms for regulating the so-called “working relationships”, the type of existing contracts, the consequences of revisions to regulations (such as those arising from the adoption of the so-called Jobs Act), the tradition in negotiation and bargaining – that are still, to this day, a feature for some of the major Italian companies – managing the human resources for small and medium-sized enterprises, historical trade union representation in industrial districts, and so on. To summarize, explaining the demand for justice means we should look at something other than justice. We should look at the real country. At its economy. Its society. At the lives of its citizens.

The same can be said of the dispute concerning bankruptcy law and bankruptcy proceedings. It will be the businesses’ lifespans, the stability of the banking system, the credit-providing capacity, the structuring of the ties between suppliers and creditors, which need to be understood and known in order to explain the substance and quality of the claims for solving cases regarding the bankruptcy of entrepreneurial activities.

Even controversies on ordinary cognisance find their roots in the functioning of Italian society. Taking up a recent research done on the basis of DG Stat data, it is noted that the distribution of the litigation rate in Italy is quite uneven. Figure 1 shows clear areas – those with a low level of litigation – are predominantly concentrated in the North and in the center of the country, but not without exception. Sicily features areas – corresponding to the territorial extension of the its provinces – where the litigation rate is low, whereas we can observe that the North and the center show areas where disputes are much more prevalent than the national average. The litigation rate detected by the number of proceedings at first instance is explained by the combination of several simultaneous factors, including economic and social conditions and the robustness of social regulation.

Knowledge of Italian society and economy is not only necessary to explain what is “pending” on the judges’ table. This knowledge is also necessary to understand what capabilities and resources are available to the citizen to ask for justice. It is not just about knowing the per capita income distribution – a variable that you certainly take into account. It is also about knowing the level of education, the existence of a network of relatives and friends, the co-existence of other difficult or unpleasant conditions that may have to do with personal health conditions or those of a family members, with disability states, with the concentration of any judicial experience within one’s life journey, even pertaining to one’s family. Figure 2 gives us sufficient empirical evidence to support that the ability to “make a collective action” or to think and act in a way that takes into account the social and civic context in which we live (Tocqueville’s self-interest rightly understood could be recalled here as heuristic) are distributed differently in the country. Scholars have dubbed this the social capital. This is measured by summarizing the rate of participation in civic and social associations, the rate of participation in an intrinsically-oriented asset of another anonymous member – such as donating blood, the rate of distribution of newspapers and social participation in general.

Note that the argument that is going to be accept is not the one linking social capital with effective justice. This analysis has already been done. There is a different point, which is to identify those framework conditions – territorial ones, in the sociological meaning of the term – increasing or hindering the ability of a citizen to see his or her equality protected before the law. This is not to say that this protection must necessarily arise from the activation of the judicial instrument, nor can it be neglected that, in order to direct the citizen’s demand, some considerably facilitating factors are considered to be the fabric of the intermediate bodies and the existence of organized civil society. Resuming the setting up of a vast research and training program recently launched in Canada, the theme of access to justice is also the topic of access to law, understanding it and accessing it. The law in action, which is to say the law being operated in courts, as well as with mediation, negotiation and extra-judicial resolution instruments, is the law against which to assess the capacity of fruition, distributed over a territory. It would be an illusion to imagine that equality in access capabilities is a natural fact».