Legitimation of Jurisdiction in an Age of Disssent

The contemporary legal landscape is marked by a heterarchical and poly-contextual law that has lost its unity and centrality with respect to other social spheres. In this context, the foundational principles of justice are increasingly fragile. Courts seem no longer able to ensure either formal or substantial justice. Moreover, jurisdiction is no longer immune from criticism, controversy and dissent. Indeed, it appears that injustice, whether presented as miscarriages of justice, judicial errors (due to subjectivism, politicisation, incompetence) or unfair trials (for example, trial by media before a case is heard in court), is now no longer the exception but the norm.

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.