NCJ Number
64469
Journal
Questione Criminale Volume: 3 Issue: 1 Dated: (JANUARY-APRIL 1977) Pages: 51-91
Date Published
1977
Length
41 pages
Annotation
THE NEED FOR RE-EXAMINING THE NORMATIVE BASIS OF THE JUDICIAL PROCESS AND THE ROLE OF JUDGES BY UTILIZING THE METHODOLOGIES AND FINDINGS OF THE SOCIAL SCIENCES IS EMPHASIZED BY AN ITALIAN JURIST.
Abstract
AN OLD, BUT STILL ONGOING, POLEMIC AMONG ITALIAN JURIDICAL SCHOLARS DECRIES THE POSSIBLE LINGERING EFFECTS OF THE STAGNATION OF LAW STUDIES DURING THE FORMER FASCIST REGIME IN THE 'PROVINCIAL' AND TRADITION-BOUND CURRICULA OF TODAY'S ITALIAN LAW SCHOOLS. INDEED, IT IS HIGHLY REGRETTABLE THAT THE DEEPLY-FELT NEED FOR EXPANSION OF THESE CURRICULA THROUGH THE ADDITION OF NEW ACADEMIC DISCIPLINES IS THWARTED BY THE LOWERING OF STANDARDS IMPOSED BY THE OPEN ADMISSION POLICIES PRESCRIBED FOR THE STATE-CONTROLLED ITALIAN UNIVERSITIES. THE ENTIRE JUDICIAL PROCESS AND THE ROLE OF JUDGES SHOULD BE STUDIED AS HISTORICAL AND SOCIOLOGICAL PHENOMENA, AND CRIMINAL LAWS AND PENAL CODES SHOULD BE CAREFULLY SCRUTINIZED IN ALL THEIR SOCIAL IMPLICATIONS, INSTEAD OF BEING REGARDED AS A COLLECTION OF RIGID AND TIME-HALLOWED NORMS. THERE IS AN INSEPARABLE CONNECTION AMONG THE HISTORICAL, SOCIAL, AND NORMATIVE PHENOMENA IN THE JUDICIAL FIELD. THE BACKGROUND OF JUDICIAL PROCEEDINGS AND THE ROLE OF JUDGES CAN BE SEEN IN ANCIENT ROME, WHEN THE ROMAN LAW DIGEST ALLOWED JUDGES A SUPRISING FLEXIBILITY IN INTERPRETING THE LAW TO REFLECT THE SOCIAL REALITIES (E.G., THE LARGE INFLUX OF FOREIGNERS INTO ROME) OF THE TIME. THE ROLE OF JUDGES IN SUBSEQUENT CENTURIES AND IN THE SERVICE OF DIFFERENT IDEOLOGIES HAS BEEN CHIEFLY PASSIVE AND AUTOMATIC, WITH JUDGES FUNCTIONING LIKE COMPUTERS PROGRAMMED WITH THE CONTENTS OF CRIMINAL AND PENAL CODES AND NORMS. MARXIST CONCEPTS OF LAW AND THE ROLE OF JUDGES ARE CONTEMPORARY EXAMPLES OF THE SAME PASSIVE-AUTOMATIC FUNCTION IMPOSED UPON JUDGES AS SERVANTS OF THE LAW, WHICH IS ITSELF THE CREATION OF RIGID COMMUNIST IDEOLOGY. ALTHOUGH THIS IS A DEGRADING AND NARROW PERCEPTION OF THE JUDGE'S ROLE, THE OTHER EXTREME BEGETS JUDGES CREATING THEIR OWN LAWS UNDER THE EXCESSIVE LATITUDE OF INTERPRETATION ALLOWED IN MODERN DEMOCRACIES. HOWEVER, THE SOCIAL CONTROL THEORY ALLOWS DEVIANT BEHAVIOR, POLITICAL INFLUENCES, AND THE POWER OF PUBLIC OPINION AND THE MASS COMMUNICATON MEDIA TO SHAPE THE JUDICIAL PROCESS. A BIBLIOGRAPHY IS APPENDED. --IN ITALIAN. (LGR)