JURISDICCIÓN, PROCESO, JUEZ EN EL SISTEMA DE LAS LIBERTADES CIVILES

Abstract

Th e argument advanced in this paper begins with the assertion of the judge’s “fairness”, since “anyone” can declare the law and restore the order and certainty undermined by controversy, with the exception only of the parties. The judge, to do their job, has an absolute obligation to know the facts as best as possible, because in them lies the regulation to be observed and declared; yet he/she actually knows nothing of those facts. Only the parties, who know the facts, are able to deliver them. Leaving aside the question of the aim of the procedure - the restoration of subjective law or of objective law, or even if there is some diff erent purpose of a political or social nature etc. - when we say that the gap between the general, abstract rule and the specifi c case is closed by the judge through the so-called interpretation of the fi rst and through the procedural reconstruction of the second, we are actually giving the judge unlimited power, which in some eras it was believed could be prohibited and which has a subjective element that is irreducible to any predetermined criteria and evasive of any control Attributing to the judge powers of evidentiary initiative regarding past events - so as to allow him or her to overlap with the parties and lift the burden of proof that lies with them - leads to arbitrariness. It allows the judge to alter the procedural representation of the facts, knowledge of which is an unavoidable premise to passing judgement. Th e facts belong to the parties and it is their responsibility to prove them. Th e judge is not a party and shouldn’t play such a role.