The guidelines for justice reform in the Government press release tell us little. They give us the justification for some reflections, necessarily of a first approximation, in the absence of a proposal that only the Government can articulate with full knowledge of the conditions of the intervention and the costs. For now let's reflect on civil justice, the dysfunction of which compromises any other reform that intends to be based on private law, that is, on the judicial defenses of the competence of private individuals. In commercial matters the void of private law is covered by the administrative action of the most varied authorities, which ends up bridling the system.
Important modifications have recently been introduced to the appeal and cassation procedures to adapt the process according to the concentrated and oral style, which should remain the main objective to make the jurisdiction functional, constantly pursued by the distant reform of the code, but equally constantly rejected by professionals. Procedure changes are not enough; it is on the organization of the jurisdiction that we must intervene, with material means and people. Information technology is not enough: certainly useful, but not decisive for the functionality of the jurisdiction.
The quality of the sentence is in the quality of the cause, which is first and foremost entrusted to the advocates: to their specific professionalism and the ethics of the category involved. It is by function that the legal profession specializes, increasingly today. The contentious jurist is required to master the juridical criterion. He must be able to grasp the common principles of mandate, sale, fraud, abuse of rights, etc. beyond the specific matter under discussion: companies, aeronautics, procurement, taxation, etc.; he must be able to draw from the facts, which are always different, the concrete case in function of the abstract case; his habit is to face the uncertain: he does not find the answer in the book, but he creates it from the system, made up of history, principles, disparate rules such as placement, culture (Calamandrei taught this).
Instead, the company lawyer, who explains how it must be done, must be highly specialized in the legislation of the sector to which he is dedicated; he must tell the pharmaceutical customer what the specific legislation and regulation is, even international; must say consolidated law; ascertain whether the uncertainties are such as to require a specialist tax opinion; he must know his company, his client well; while the principles, the history, the system, are a background that does not emerge in his daily profession, as instead for the judge and the lawyer who face the dispute, generated precisely by the unknown factor of the right.
Therefore the profession of the litigation jurist must be distinguished, demanding a completely different training. When the then minister Lombardi proposed the three plus two-year course for the degree in law, at Luiss he told us that the majority of students would stop at the basic three and then enter the world of work; no one would have stopped at the five, since these would have had to be followed by another two (or three) years in the specialization schools, entrusted to the university, compulsory for anyone wishing to tackle the profession of judge or litigation lawyer. Conservation and corporatism fought back, and now we have five wasted years and the proliferation of private and professional graduate schools. We are convinced that reducing the number of litigation lawyers raises the quality of the case, reduces their number, intensifies the ethical feeling of those who do not intend to face useless litigation.
The judge cannot exercise in isolation. He must be assisted by at least two assistants and the appropriate clerk's office ("Judge's office"). Before assuming duties, the auditor should be reconfirmed in the light of a suitable period of experience as an assistant (it was said: if it takes years for the surgeon to operate alone, the cause is certainly not a less delicate operation) . Not only would the quality of the process be improved, but efficiency would be intensified.
We think it is sufficient that the college of cassation is made up of three. So today the intervention of the prosecutor is anachronistic. Originally it was the voice of the government, on which it depended (it was useful to hear Napoleon's voice). This function expired with the independence of the prosecutor
It would probably be necessary to prescribe that in the event of an unsuccessful case in all stages of the judgment, the sentence to pay the costs necessarily follows (for all stages), so that there is certainty of a price to pay for those who propose hasty judgments and lower costs for those who are forced to suffer them. Additional administrative powers entrusted to the voluntary jurisdiction can (must) be transferred to the so-called independent authorities or to the notary profession, to be re-proposed according to current needs.
Even the elimination of the backlog, for a system that one wanted to restart, could be obtained by assigning certain categories of disputes to panels made up of retired professionals from various backgrounds (judges, lawyers, professors, notaries, accountants and bookkeepers for the taxpayer), eventually connected with the Judge's Offices.
Talents, personal qualities, the capacity for synthesis are so distinctly differentiated that in all professions it is now felt as a moral duty to subjectively differentiate even remuneration. This morality does not apply only to large private business organisations; it is a sentiment that explains the diversity in non-profit organizations and in public administrations themselves. It would be unfair not to introduce mechanisms that enhance the irrepressible subjective components also in the task of the judge.
It is a step already attempted in tax justice. Integrations in the fees could first be introduced in relation to all the components of the Judge's office. It is not a question of attributing an incentive tout court to efficiency, but of recognizing the right compensation to those who demonstrate greater dedication to the office through the achievement of objectives that the administration of justice has set for itself.
Thus perhaps even some changes to the rules of procedure could be introduced without remaining written only on paper. The corporate process model, with preventive exchanges of writings between the parties, could be reconsidered, limiting some extensions. A defined number of exchanges between the parties, with the duty to take a position on all the issues and evidence, and the obligation to deal with the case in its entirety at the next hearing, with the need to specifically identify in the minutes the issues that still remain to educate. It presupposes the will (and the possibility) of all subjects, judges above all, to avoid postponements. We therefore return to the premise: training and quality of lawyers, organization of the jurisdiction, establishment of the Judge's Office and enhancement of personal skills, including organizational skills, in terms of greater remuneration.
We all know that the quality of legislation is the first guarantee of legal certainty and therefore of the reduction of conflict and of jurisdiction to useful matters. But the theme would lead us to another discussion.
