Legitimation of Jurisdiction in an Age of Disssent
These phenomena are clearly visible in the case of Italy, which, as is well known, has some unique characteristics in terms of the organisation, autonomy and power of the judiciary. In addition, the administration of justice in Italy is characterised by inefficiency and uncertainty (the excessive length of proceedings, the large number of judgments overturned on appeal) and is consequently viewed with a high level of distrust by citizens and companies. In Italy as in other countries, therefore, the urgent constitutional problem is to balance the autonomy of the judiciary with its social responsibility and need for legitimacy.
The paper will explore the paradoxes of this scenario, based firstly on the seminal study by Luhmann of legitimation through procedure and secondly on the recent theoretical and empirical developments arising from the emerging “functionalism of links” approach. In this way, it will evaluate the drivers of change occurring in both formal and the material constitutions, the effects of which, however, may also be dysfunctional with respect to the control and correction of injustice.