The French and the Italian High Councils for the Judiciary Observations Drawn from the Analysis of Their Staff and Activity (1947-2011)

Abstract

This paper sums up the conclusions of a research analyzing the French and the Italian “high councils of justice”. Based on a comparative perspective (both diachronic and synchronic), it correlates the composition and the activity of these two bodies – which are generally considered opposite models – in order to explain some common trends. While part of the Italian legal and constitutional scholarship interprets the progressive enlargement of functions of the Consiglio superiore della magistratura as the result of its undue politicization, this paper shows that politicization is an outcome of a long-term process from oligarchic to constitutional and pluralist democracies and of the democratization of the judiciary. At the same time, it highlights how in its long-term evolution, the French Conseil superieur de la magistrature shows some typical elements of the Italian Consiglio superiore della magistratura, in relation to both its activity and the characteristics of its members. These elements are somehow related to the evolution of the notion of independence of the judiciary from a corporate one – strictly limited to the judicial staff career administration – to a broader one regarding the manifold influences affecting judges (and prosecutors) in pluralist and complex democracies. This paper provides both a theoretical and an empirical investigation, including the analysis of the professional path of the members of the French Conseil and the Italian Consiglio from 1947 to 2011.