Geopolitics on the rocks

Why the judicial power is Italy’s “constant”

Europe

For the past 25 years the judiciary has been the only power to fill the vacuums created by legislative uncertainty and politicians’ inadequacy. And if politics doesn't step in, the future relevance of the courts rulings will only increase. Why robots won't replace judges.

Italy’s constant

Since the end of the cold war, Italy’s only real power has been the judiciary. As the Constitution strongly constraints the executive and Parliament plays little role in the law-making process (mainly handled by the administrative bureaucracy), in a Montesquieu’s sense Italy has no real separation of power to speak of.

Judicial power is Italy’s “constant”. We take this term from the TV series “Lost”. In its messy narrative of flashbacks, flash-forwards and time travel, a “constant” is kind of a compass a time traveler can spot in every timeline. Without a constant to rely on, order in our conscience is lost. Chaos rules.

In the early 1990s, mostly from 1992 to 1994, the so-called Mani Pulite (“clean hands”) investigation exposed widespread corruption and set off a crisis of the political system, dubbed Tangentopoli (“Bribesville”). At the beginning of 2017, while senior figures at both central and local levels are being investigated on charges of corruption, there are now talks of a Bribesville 2.0.[1] In 2017, the judiciary is still the constant. Power abhors a vacuum. In geopolitics, vacuums are filled by institutions, not personalities. As other powers and leaderships in Western societies continue to weaken, the judiciary will maintain or increase its relevance, in Italy and elsewhere.[2]

Today’s judicial influence

In 2013 Pietro Grasso, a former anti-Mafia judge, became president of the Italian Senate and in 2015 briefly served as acting President of the Republic, before former judge of Italy’s Constitutional Court Sergio Mattarella was chosen by Parliament as the current Head of State. Raffaele Cantone has been heading the Italian Anti-Corruption Authority since 2014. As a magistrate, he was in charge of numerous investigations on many Camorra groups. In 2015 he made the shortlist of ten candidates for President of the Republic voted by members of the Five Star Movement, topped by the other judge Ferdinando Imposimato. Luigi de Magistris, another former magistrate, in 2016 won a second term as mayor of Naples. Judge Michele Emiliano, whom served as mayor of Bari from 2004 to 2014, has been president of the Apulia region since 2015 and could be a challenger for Renzi’s leadership within the Democratic Party.

It is crucial to emphasize that judicial influence in Italy doesn’t have to do only with judges and law experts legitimately serving the institutions or being charged with solving thorny political issues. The judiciary, as all powers, is moved by a horror vacui. With legislative uncertainty and political unskillfulness digging up holes and leaving them in open air, judges and judicial rulings usually fill them up. Administrative justice is case in point. Administrative courts, including regional courts (“TAR”) and the supreme administrative body (the Consiglio di Stato) are sometimes considered a deterrent to investment, as excessive litigation causes uncertainty. In 2013, former prime minister Romano Prodi went as far as proposing to abolish those bodies. However, in Italy’s current environment, where political parties are weak and political leaderships are volatile, magistrates are often hired as senior staffers in the offices and departments of ministers and mayors, effectively assuming executive powers. Politicians usually lash out against such a habit, but it is them (including the Five Star Movement) who choose judges as staffers.

Judicial rulings are increasingly part of the Italian political calendar. Let’s consider the ruling by Italy’s Constitutional Court on the legitimacy of the electoral law in December 2013 and the hearing on the so-called “Italicum” electoral law scheduled for 24 January 2017. Those rulings marked the rise and might mark the fall (or rise again?) of Matteo Renzi, who cleverly exploited the 2013 ruling and who suffered a huge defeat at the referendum held last December also because of the “Italicum” electoral law. In 2013, Renzi embodied the uneasiness of all politicians for a destiny snatched away from their hands by magistrates. He openly complained: “Lazio’s Regional Court rules on Stamina, the Constitutional Court rules on the electoral law and the Court of Cassation rules on Berlusconi”.[3] Renzi suggested the answer to the crucial question informing life in every modern society (“Who rules?”) was “the judiciary”, and this needed to be changed. In 2017 he could get back to employing such a rhetoric, but it will most likely prove ineffective; for two reasons. First, as we stated above, political leaderships are volatile, while the judiciary tends to stick around for long. Leaders hail the overrated value of “innovation”, while the judiciary is formally about maintenance which, even more so in a liberal democracy, matters more than innovation. Secondly, numerous reforms approved by Renzi while in office were or will be altered by judicial rulings, including the public administration reform, the labour market reform and the school reform. In an environment of litigation, adherence to rules and competence are key. Otherwise, strength swiftly turns into weakness.

The history of judicial influence

At the end of the cold war, Italy ceased to be a geopolitical rentier State. From 1993 to 2004, it was Silvio Berlusconi who epitomized the explosive relationship between political power and the judiciary. The neologism “justicialism” became a household term, even though was mostly used by those who stood against the judiciary, to signal the demand for swift and inflexible rulings, weakening the presumption of innocence recognized to any defendant. But Berlusconi’s personal story didn't account for much in the end as most structural issues were unscathed by his demise. Those include the enduring plague of corruption and how media cover investigations..

Following Berlusconi’s fall from power other issues got more relevant than ever. Among those, the divisions within the judiciary. Penal justice strongly matters for the industrial policy pursued by many companies, particularly for State-controlled companies such as Eni and Finmeccanica. Also, Italian courts have sought to prosecute rating agencies. At the same time civil justice represents a key area for Italy’s competitiveness. In 2009, Italy’s civil justice was semi-paralyzed by the highest number of pending cases in Europe, while also acting as a significant deterrent to investment. Thanks to reforms implemented by the last few governments, the backlog has fallen from 6 million to less than 4 million cases. But it hasn't been enough to solve the key structural challenge.

Future developments: globalizing lawfare

Italy’s Minister of Justice, Andrea Orlando, recently remarked that in Italy “justicialism has become a surrogate for social justice”. When political actors and political parties fail to satisfy the demand for social justice and social cohesion, that very demand never crosses the border, and never accepts “it’s complicated” as an answer. It rather keeps tapping the State for an answer, and usually the only viable answer comes from the judiciary. This is why judicial power is Italy’s constant, and why a new bargain for Italy’s stability won't force the judiciary out of the equation. Rather, stability needs politics to step in, in the form of political parties rather than political leaders. If the great illusion of a democracy without parties persists, leaders will continue to be fragile and volatile, and the judiciary (or, worse, other “deep” actors, or foreign powers) will fill the void. Otherwise, there will be chaos.

This story is not only about Italy’s future. “Lawfare”, the use of law as weapon in large or small conflicts, is and will be a key feature of global geopolitics. Law has to do with establishing, lifting and avoiding sanctions, and with determining whom controls a nation’s resources (consider the case of Libya, among others). A number of recent geopolitical events in Europe involve judicial rulings: Presidential elections in Austria; the European Court of Justice’s ruling on the EU-Singapore trade deal; and of course Brexit. In Italy, it’d be unconstitutional to hold a referendum on the euro, thus calls for a referendum on the matter by parties such as the Northern League and the Five Star Movement will be subjected to judicial ruling. Such a clash could undermine the Five Star Movement’s strategy of relying on judicial power to fight corruption in other parties.

The judiciary’s influence will be a constant of tomorrow, given that it is less likely to be disrupted by technology than other sectors. In this respect, a judge’s future looks more certain than a lawyer’s one. In the coming years, after fintech (finance + technology) we will experience the rise of regtech (regulation + technology), which the Institute of International Finance defines as “the use of new technologies to solve regulatory and compliance requirements more effectively and efficiently”. In the new world of regtech, artificial intelligence will become both an enabling and a disrupting factor for law firms and regulators. Lawyers will have to adapt to this process and top law firms will invest in regtech in this decade, just as Wall Street has been investing in fintech since 2015. However, this disruption will only marginally affect the business of courts. The power of the judicial ruling will never be surrendered to algorithms and machines, as long as men dominate this planet. It will be judges, not robots, to decide on the liability of self-driving cars.

In this environment, judges will actually be empowered, given that other actors change and weaken. If politics continues to lose relevance, if political parties are not regenerated, the burden of social justice will rest on judges’ shoulders. Courts will rule, but they might “rule the void”. Both in Italy and elsewhere, judges will increasingly experience the burden of being a constant.

NOTES

[1] Interestingly, TV series will play a role in reinforcing this mood: in 2017, SKY is scheduled to air “1993”, a retelling of social and political events in that crucial year for Italy’s political crisis.

[2] The historian Charles Maier once wrote that Italy was “a bellwether for so many social trends in the West in the 1970s, whether terrorism or the defense of abortion and divorce rights” (C. Maier, “Into an Emerging Order”, in The Shock of the Global. The 1970s in Perspective, The Belknap Press of Harvard University Press, 2010, p. 37). Italy could be a Western bellwether also in this respect, particularly in a world where other powers are constrained and disrupted by technology.

[3] Stamina is a controversial alternative “treatment”, which has no scientific merit and no scientific validity.