To a great jurist like Gustavo Zagrebelsky, who makes us appreciate with his writings the unattainable beauty of law – the complexity of life not just the aridity of the law – we can blame only one error. That of having published Justice as a profession (Einaudi) too late. If this text, which explores more the defects than the virtues of magistrates, lawyers, academics, had come out before the miserable chronicles of recent months, perhaps it would have forced many to an examination of conscience. Better, to a bath of humility. To see one’s own image reflected, as an infinitesimal dot, in the mirror of history and philosophy rather than in the deformed one of one’s vanity, personal interest, corporate bulimia. But it is to be hoped that the book will be read and discussed, at least in its conclusions, at the very moment when the country is preparing to launch a reform of the justice that can no longer be postponed.
Zagrebelsky quotes the Gospel of Matthew, in a passage usually ignored (sublime criticism of the interpretation of sacred texts). Christ says to a hypothetical disciple who is in a quarrel with someone: make a friendly agreement with your opponent quickly while you are on the street with him: that he does not happen to put you in the hands of the judge. Because, according to the author, going to the judge is a symptom of failure. Not only. Go there immediately, without having tried other paths, a symptom of narrow-mindedness. Transform the human person into a legal person. And then begins the perversion of the function of law. And if the law intrudes in all the folds of life, life thus fades. The author is convinced that reconciliation justice is a step on the ethical ladder higher than the punitive one. He fears the self-referentiality of the subjects, the aggressive and vengeful use of the judicial instrument.
That’s enough. The preamble of the reform already written. Authoritatively. However, aspiring legislators and all participants in the endless debate on the matter should have the patience – and humility – to read the rest as well. Immediately be wary of legal practitioners, who know about worship, not cultivation. All the more reason for those who think, at Ulpiano, that they are even a priest of law. Sacrality can easily degrade in disguise. And a hundred good jurists do not make a good opinion as much as a single bad jurist makes a bad one.
Legal professionals are sensitive to seductions and the traps of worldliness. And it is bitter for the writer to note that Zagrebelsky, citing Balzac, points to journalists, along with jurists, as the most exposed to a corrosive condition of their credibility. Many are for convenient clichs, a little to be dismantled: bad Christians, so legal that they dismiss conscience (Carl Schmitt put German legal science at Hitler’s service) dogmatic, venal, rapacious and courtiers. Symbols have their own theatrical and historical importance to remember, in the iconography of power, that justice has its divine or royal origin. Female justice. The balance is not a steelyard that evaluates an absolute weight: it shows the balance of the parts. And not only the need to settle reasons and wrongs, but also to reconcile rigor and leniency. Another symbol of justice is the sword. Not a dagger that is more a sign of betrayal and conspiracy. The sword raised and brandished. He warns. It represents the decision, the sovereignty. Justice then blindfolded to prevent it from falling prey to improper influences. Insensitive to slander, to common opinion. At the noise of the crowd. And, adds Zagrebelsky, we should imagine her without ears and without a nose. But at this point he would be a monster rather than a graceful female figure.
The lawyer for the author above all an intermediary, a mediator. He works in the public interest, as a collaborator of justice, but also in the interest of his client. A duplicity that can turn into a lacerating contradiction. He can use tricks but not deceit. Equality in a trial, between accusation and defense, is an absolute principle. But what equality can there be if the use of weapons by one side is more powerful, effective, persuasive, suggestive than the use of the other side. The modern trial, in Zagrebelsky’s view, expresses a secular conception of justice. The truth is not established, but we try to see things from different points of view. Matters of conscience are often evaded with various arguments. But the trial cannot turn into an ordeal. Even the worst criminals must be defended. The lawyers of the great trials of the twentieth century – the author writes – did not say that they were on the side of Goering or Eichmann. But the Mafia lawyer, he wonders, still a freelancer?
Zagrebelsky defends the independence of judges with persuasive arguments from which revolution or reaction should not be expected, not even who knows what reforms. There juristocracy – he adds – which is talked about so much to fuel the controversy against the independence of judges and to make them harmless, an invention. The toga should make one perceive not only authority, but unity. Justice cannot appear divided; often it does, but it doesn’t have to be that way. The most delicate and painful chapter is dedicated to the conscience of the judge – who cannot escape the exercise of his function, cannot be an objector like a doctor -. Subjection to the law is not the only measure of professional integrity. In the passage from liberal law to fascist law, to democratic-constitutional law, if there were cases of conscience, the annals did not register them. Obviously, not even fellow law professors are saved. Sometimes too much engag. The opinions for the truth I’m just biased. And there who has given two: one opposite to the other. In exams, the grade can be simply absurd. It must be ascertained whether the spark struck: I dare not. And in the era of distance learning, Zagrebelsky has no doubts. It is necessary to know each other, it is not enough to see each other. And he quotes Pavel Florensky: A lesson not a tram that takes you from one place to another, but a walk with friends. the walk is important, not the destination. Exemplary. Although for the many, lucky students of Professor Zagrebelsky, attending his courses must not have been a walk in the park.
Gustavo Zagrebelsky’s essay is out in bookstores on Thursday 17 June Justice as a profession (Einaudi, pages 197, € 17.50), in which the author questions the function of law and the role of the various operators in the sector. Friday 18 June Zagrebelsky addresses the themes of his book at the Taobuk festival in Taormina in dialogue with Giovanni Moschella of the University of Messina. The meeting, on the theme The metamorphosis of law in those who practice it, live it, exercise it, is held at 8 pm at the Mazzullo Foundation / Palazzo dei Duchi di Santo Stefano
June 16, 2021 (change June 16, 2021 | 21:58)
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