Brief reflections on the state of legislation and the activities of judges starting with some intuitions of Uberto Scarpelli

Abstract

Uberto Scarpelli, in an essay published posthumously, analysed the crisis of the judge, or rather of the codified model of the judge, attributing this crisis to contractualism which assimilates the law to a large collective contract between the parties. The philosopher, in a certain sense, prophesied the entry into the scene of new and different actors that hold equal or even greater power than the legislator, stimulating new and different complexities to the legal system. In this context, the legislator has tried to balance the interests of all parties involved, resulting in laws that take the concepts of generality and abstractness to extremes, resulting in 'mere formula legislation'. Starting from such premises, the essay will dwell, on the one hand, after describing the Enlightenment and codictic models of the judge, on the crisis of the codictic model, on the hyperlegification and the judge's 'supplative' activity, also probing the risk of a technocracy on the part of the judiciary and, on the other hand, various solutions that Scarpelli adopts to restore the centrality of the legislator in the legislative process will be considered, thus guaranteeing a care for language and greater democratic nature of the rules.