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Jurisprudence, one word is enough

· ​The juridical intervention ·

Every one of the four cardinal virtues has incorporated in it values which, layering in time have enriched its semantic density, thanks to reflection and to humanity’s age-old experience of human beings. For Dante, the culmination of the cardinal virtues was achieved in Cato, set by divine Providence to guard the journey of expiation of the souls in Purgatory. On the shores of the second kingdom he presents himself to Dante and Virgil, adorned with the light of the “four stars / never seen before but by our first parents”, as a paradigm of the degree of “perfection” that could be reached with human forces alone.

In juridical relations the star of justice for which ideally every action of legal professionals strives certainly shines out. It is nevertheless significant that, in Italy, the course of studies proposed to anyone who is preparing for a legal profession is marked by the virtue of prudence and not by that of justice: Jurisprudence is the title by which in our tradition are designated the faculties of law which in other experiences are called School of Law, Faculté de Droit, Rechtswissenschaft or Juristische Fakultät, and Derecho.

All law is of course born from the need to regulate with justice human relations which would otherwise be chaotic, disorderly and potentially violent. It is this need that explodes in every woman and in every man, and also in every child, even of a very young age, in the face of prevarication or presumption or to put it more simply in the face of life’s contradictions. “It isn’t fair!”: how often does this expression recur in the daily drama of each and every one of us! And yet it is interesting to note that prudence instead is the virtue called to govern the legal universe, namely that galaxy of laws, rights, judges, lawyers, tribunals, courts, sanctions, punishments and prisons with which human beings, since time immemorial, have sought to respond to the insuppressible need for just relations.

Jurisprudence is the law as it is presented in its practical application by judges, in concrete cases and in touch with the reality of the lives of people and of society. Administering justice demands a “practical” virtue, not only an abstract rationality but also a tangible reasonableness: “from learning [through experience, mathein] comes prudence in action” (Oedipus at Colonus).

Justice and prudence. There is a connection between these two virtues and every legal professional is called to cultivate both of them.

I like to remember the virtue of prudence as it is portrayed in the Arch of Sant’Agostino in the Basilica di San Pietro in Ciel d’Oro in Pavia: a man with three faces, that of an old man who is looking back at the past; that of a man of a mature age who is looking ahead; and that of a young man who is looking even further, towards the future. The iconography of prudence is dominated by interwoven gazes, by intersecting beams of light, by perspectives that reveal different angles of the same reality.

Prudence (phronesis) for Aristotle consists of the correct discernment which guides action; it is a virtue to be ascribed to the sphere of knowledge which is an incentive to seeking and reflection in order to reach a good decision. Prudence is not, therefore, the virtue of those who flee from daring, of those who fear or doubt; it has nothing to do with the most cautious or most courageous attitude of the actor.

A judge is prudent who knows well that the search for justice is always open to a beyond, that it is a never-ending and elusive task for a single person. A justice is prudent which initiates trials and dialogues and always leaves a tiny crack open for possible further developments.

It is interesting to note the diversity which separates the iconography of “justice” from that of “prudence”, particularly in relation to the subject of the gaze: justice is usually depicted as a blindfold woman to symbolize its impartiality. Traditionally, included among the virtues of judging are precisely the judge’s impartiality and independence – as moreover the Italian Constitution rightly calls for – and his or her balance, as is recalled by the presence of scales in the hands of the blindfold goddess. The virtue of prudence is emphasized more seldom, as an essential quality of those who administer justice, as a capacity for observing, listening, understanding and looking in every direction.- Iustitia requires iuris prudentia.

For this reason, justice administered in the courts and at trials involves a plurality of actors: no one can know on his or her own, a plurality of viewpoints is necessary in order to blend the perspectives and bring to light the truth that everyone possesses.

If we consider the constitutional process – the most familiar one to the author of this article – the intervention of the parties takes place in the presence of the exceptionally large panels of judges: there are at least 15 judges of the Italian Constitutional Court.

For those called to carry out the highly sensitive task of judging, the words which Haemon addresses to his father Creon in Antigone remain unequalled:

Wear not, then, one mood only in yourself; / think not that your word, and yours alone, must be right. / For if any man thinks that he alone is wise… / such a soul, when laid open, is ever found empty. /No, though a man be wise, ’tis no shame for him to learn many things /… Nay, forego your wrath; permit yourself to change”.

Prudence is the virtue which does not make us too sure that we are right, which generates a new awareness of ourselves and of others and causes a modesty and composure to mature that make it possible to accept and transfigure the essence of our human condition which, as Guardini said, is a life on the boundaries, like “a hiatus open in both directions” between wretchedness and grandeur, sin and the hope of self-fulfilment”.

Marta Cartabia
Vice President of the Italian Constitutional Court

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