Government as a Guarantor of Justice:

From Magna Grecia to Mezzogiorno

 

I. Introduction

Permit me to say at the outset, this invitation holds a very special significance. The roots of my family are here; each of my grandparents were born in these historic regions, and they migrated from the Mezzorgiorno, fleeing from the “miseria,” to the United States at the turn of the century.

This IV International Symposium, sponsored by the Accademia della Magna Grecia, an entity of research and study respected in both Italy and the United States, well deserves our appreciation for focusing attention on another aspect of the “Problema del Mezzorgino,” the pro­found difference between the Italy of the South from that of the North in terms of economic development. This is a topic of great and continuing importance and concern well beyond the Italian frontier.

My appreciation for the Academy’s work is greatly enhanced, I might add, in seeing the name of a friend and fellow jurist of much dis­tinction, Chief Judge Edward Re, of New York, himself a child of the Mezzorgiorno, in the chair of honor of the Academy’s International Association. He is a scholar of wide renown and inspiration.

This Symposium, as much as those which have preceded it, brings together any number of distinguished personages who embrace a wide variety of disciplines—from the courts, from the universities, from the government, from the investment community—to give valid critique and insight into our subject matter. I am honored to join with them.

A comparative overview with American law, as it might expand upon the subject, “Government as a Guarantor of Justice: From Magna Grecia to Mezzogiorno,” now seems appropriate for discussion. “Justice,” of course, is one of those themes which can undoubtedly give rise to polemic controversies; yet, it effectively encompasses the entire range of values within a sphere of rational calculus aimed at coming to grips with the welfare of a populace.

It should be remembered by way of parallel that from l880, until a reaction to the nativism of the l920’s saw the enactment of immigration restrictions, some four million Italians departed from Italy’s south to remain in the United States. They, too, left these regions in search of a better life.

Today is not the forum to explore the mythological scourges visited upon Magna Grecia: the wrath of Zeus in punishing the rebellious Giant, Typhoeus, who yet furiously reacts to bearing the weight of Mt. Etna upon his head; or that of Cerces in laying waste to these lands because of the abduction of her daughter, Persephone. Nor do we have ample time to disentwine legend from the reality of historical aspects of Mezzogiorno’s socio-economic structure, and the agricultural condi­tions extant one hundred years ago that lay behind an even larger hem­orrhage of migratory dispersal, assuming frightening proportions, not the least of which was to South America. Suffice it to note that antag­onism toward these “huddled masses,” which eventually brought their flow to the United States to an end, made clear for those who did not return that their future lay in accommodation to a new society.

Let me allude to an important sociological and psychological aside. This circumstance of the new society gave rise to the institution of great Italian American fraternal entities, organizations established for the purpose of mutual aid, defense and affirmation. Collectively, they enrolled literally hundreds upon hundreds of thousands of migrants. Of these, the Italo American National Union, founded in Chicago, Ilinois, in l893, and the Order Sons of Italy in America, founded in New York City in l905, are yet active. The former, which is prominent in mid-America, is presently in the process of merging with the Order Italian Sons and Daughters of America, founded in Pittsburgh, Pennsylvania, as a schismatic movement away from the Sons of Italy, in l928, when this organization, the largest and most geographically based, may be said to have attained its membership zenith.

Regrettably, from the purely personal perspective of first hand observation, the Sons of Italy, pervaded by an ideological successor to the repressionism blamed by the schismatics generations ago, failed recently to grasp a momentous proffer for reunion.

Notwithstanding, nativist attempts at institutional exclusion from this new society—sometimes by way of violent confrontation, other times by way of ugly discrimination or vile bigotry—was for these new­comers, as it is today for their descendants, who together number short of 20 million, indeed, as it is for all Americans regardless of national origin, amenable to the supremacy of constitutional guarantees enshrined in American law. This supremacy has proven far more benefi­cial than Pyrrhus’ victory at Heraclea in 280 B.C., a date neither lost to Magna Grecia scholars nor a word, “pyrrhic victory,” not unknown in both our lexicographies. Perhaps, then, I am more specifically dis­cussing “Government as Guarantor of Justice: From Magna Grecia to the United States” or, as we shall see in a number of comparative respects, “Government as Guarantor of Justice in the Modern Administrative State.”

 

II. The Constitution as Inherent Justice

The eloquent statement setting forth the goals of American gover­nance, the Preamble to the “Constitution of the United States of America,” the document forming a Union of member states, seeks first to “establish justice.” Within the unique context of American federalism, that is, the notion of dual sovereignty between and among the national government and the governments of these member states, it is the inde­pendent judicial function that responds to both levels of government in rendering justice.

President Cossiga [of Italy], himself a distinguished professor of Constitutional Law, in his convocational address at St. John’s University, in New York, on May 7th last, elaborated that

 

[the] Constitution serves both to recognize and to protect the fun­damental rights of the individual, and to insure the stability and efficiency of a society’s institutions. A democratic constitutional order functions and grows when the observance of the Constitution is effectively guaranteed.

 

If the constitution is basic to individual rights, then, the question remains, who is the guarantor of its inherent justice? President Cossiga assigns the dynamics of this responsibility to the Head of State, the President of the Republic as the representative of national unity, who exercises a “moral stewardship.” This is a reflection upon his role as supreme guarantor of the balance of powers and of the observance of respective competences vis-a-vis the judiciary, as facilitated by his presiding over the constitutionally prescribed and pluralistically com­prised Consiglio Superiore della Magistratura, the Superior Council of the Magistracy. President Cossiga’s view, of course, is a respected per­spective of virtuous entrustment by the state, and it represents an ancient and common heritage of historical jurisprudence. To the courts he assigns the role of a static jurisdictional organ, primarily a guaran­tor of the law.

By way of a contrasting philosophy, it is enough for us to recall that the United States Constitution is the most splendid document still sur­viving from the Age of the Enlightenment. Since its adoption two cen­turies ago, none of its basic guarantees of individual rights have been radically revised. Thus, Americans have developed a sense of constitu­tionalism. Unlike any number of modern day constitutions, including that of Italy, the American document, with its purposely broad strokes and grand generalities, is a fundamental act of legislation by the people. It is the “supreme law of the land,” embodying not sim­ply the principles upon which government is founded, but an expression of the sovereign will, a sovereignty manifested in and by the people. The people have dictated rules of action to “ordain and establish” their government.

The republic of the United States has followed the model of the republic of Rome in the respect that its institutions of government have been intentionally constructed with the idea of dispersing authority. Through the doctrine of separating the powers of their government into three departments, Americans intended by a system of checks and bal­ances to protect themselves from governmental arbitrariness, abuse, or even worse, tyranny.

It is important to underscore this American perspective: the Constitution was ordained and established, as emphatically pro­claimed in its Preamble, by “the people of the United States.” It is leg­islation from the people. Thus, it is a legal text as well as a political document. This must be compared with a statutory enactment, which is legislation by the people’s representatives, as was accomplished in Italy with the l947 Constitution.

America, of course, has always been about fundamental rights. We were the first people to found a nation on the basis of rights, and indi­vidual rights are the foundation of the American identity. No society recognizes a greater range of individual rights entitled to fulfillment under its laws than the United States. Indeed, the “Declaration of Independence” offered the promise of a government based on rights. And the Constitution specifically contains a power of judicial review to guarantee these rights, which are embodied therein. Thus, the Constitution is, at once, a cradle of tri-parte government—executive, legislative and judicial branches—with an enviable independent judi­ciary as its natural guardian. The organization of the American judi­ciary unquestionably represents an absolutely original model of autonomous power.

 

III. Administration of the Benefactory State

Any discussion of the concept of justice must, of necessity, begin with our indebtedness to the celebrated Roman magistrate, Ulpian, for its definition: “constans et perpetua voluntas jus suum cuique tribuens”—”the constant and perpetual desire to render to every one his due.” For Americans, who are inheritors of the common law tradition, Ulpian occupies a unique place: it was he who dispensed justice in a Roman basilica on an island called Britain.

Commencing with such a precise formulation of this legal concept, why is it that we find ourselves yet struggling with its guarantee? Perhaps a ready answer lies in the fact that today, for the United States as well as for Italy, government does, indeed is expected to do, much more than ever before. Far removed are we from the minimalist role envisioned for government, which in the American experience of l787, when its Constitution was drafted, sought largely to “provide for the common defense” and “insure domestic tranquility.” In this connec­tion, witness the rise of the benefactory state, the protective state, that is, the welfare state which provides for a host of services once clearly regarded in the category of non-governmental functions, and more fit­tingly within the realm of individual self-sufficiency or private char­ity. Nor is it realistic to expect a substantial diminution in the role and functions of government in the foreseeable future. Can anyone seriously doubt that we will continue to have vast administration by countless public officials and public servants arrayed in and subjecting our respec­tive citizenry to government agency action. Practically speaking, it is principled decision making by these government agencies which is at the very heart of today’s subject matter. Clearly, “proper conduct and impartiality of administration” is specifically guaranteed by “The Constitution of the Republic of Italy.” In this light, and because socio-economic development is humanized justice, a discussion of some aspects of the administrative process vis-a-vis the judiciary, with its power of review, is in order.

I hasten to note that my second degree is in the field of governmental administration, that is, public administration, and has been enhanced by years of experience as an administrator and a director of both a state and federal agency. And presently, as a state judge, I fully appreciate the role of the judiciary in reviewing the action of administrative agencies; and the Supreme Court of New York, the oldest continuing court of original jurisdiction in the United States, which traces its his­tory to l69l, like its Federal counterpart instituted a century later, is a mechanism for the protection of fundamental rights of the individual.

The problem of public administration, or of agency management, is properly regarded by administrative experts as a continuing one com­prised of much intricacy. Numerous elements are involved in good pub­lic administration, not the least of which, I believe we can agree, is personnel, or what the average citizen refers to, often contemptuously, as the “bureaucracy.” Ideally, satisfactory administrative operations in this setting, much like that required for good business management, demands that responsibility be exercised from the bottom up. It follows, the benefits of the requisite integrity of the public servant commands the esteem and applause of a grateful citizenry.

Improper administrative action, on the other hand, results from many things: from criminality or venality, for instance; sometimes from arbitrariness or capriciousness, or more commonly, from incompetence, inefficiency, or indifference. In pursuing the law, in effectuating the broader intent of underlying legislative enactments, an official may transgress the statutory authority or the established lawful procedure. The maxim from the “Lex XII Tabularum,” the XII Tables, the earliest of the Roman codes of law, seems particularly appropriate: “Salus pop­uli, suprema est lex,”—”the welfare of the people is the supreme law.” Thus, Rome majestically formulated the ultimate goal and purpose of law, in 450 B.C., almost 2,500 years ago, with admirable and inspiring clarity.

As a consequence, in the United States, it is considered altogether appropriate to focus attention upon the means of fostering just govern­ment, that is, the legal controls, devices or remedies that may be used to reduce human imperfection in the sphere of governmental adminis­tration. Experience shows that we cannot rely simply on the good faith of officialdom, and that ethical government must be purposefully pur­sued. An advanced democracy will have to guard against its own excesses. The inevitable tendency where this spirit is lacking saps the foundations of public and private confidence, introducing in its stead universal distrust and distress.

The central idea, then, is to assure that public servants act lawfully, to “promote the general welfare,” and ensure that their discretionary power does not diminish the dignity of the human persona, does not deprive persons of rights and privileges guaranteed by the Constitution. It is inconceivable, is it not, that anyone should quarrel with the notion that a lawful society requires foremost that all offices of government act lawfully, within the bounds of the law and lawful discretion. The science of public administration requires that adminis­trators must act within the bounds of delegated authority, and comply with all limitations upon the power of government.

In America, these were reinforced by a “Bill of Rights,” which is now celebrating its 200th Anniversary, and when adopted in l79l, three years following the ratification of the Constitution itself, ended America’s period of constitution making. It is important for me to point out that the Bill of Rights does not purport to create rights; rather, it specifically prohibits the infringement of “certain unalienable rights,” those rights anterior and superior to the state, presumed to be pre-exist­ing, truths set forth as “self evident” in the Declaration of l776.

It is indisputable that under the Constitution powers to control the administration of governmental functions are possessed by all three branches of government. For example, the executive may appoint and remove officials, although this is often hampered by political consid­erations; and the legislative branch may repeal or amend statutes, a slow and cumbersome process at best. But in the United States it is the judiciary, as an independent, co-equal branch of government, not awed or compromised by the monarchial tradition of a Council of State, which in European political history is headed by an Executive, that maintains the equilibrium between citizen and state, that may declare an agency of government to have acted unlawfully, that may set aside illegal administrative action. To this extent, judicial review of admin­istrative action ultimately serves to guarantee justice to citizens aggrieved by agency injustice.

 

IV. Judicial Control of Administrative Action

Under American law, judicial review of administrative action is well established. It has become commonplace for courts in both the state and federal systems to exercise this power on behalf of the citi­zen. Here we mention the issuance of great writs, such as mandamus or prohibitio, those extraordinary judicial controls over administrative agencies that are a feature of the common law and a subject of separate discourse. On a daily basis, to be certain, more and more persons are affected by agency action; consequently, more resort to the courts for a vindication of particular rights they feel violated or impaired. America is often thought of as a litigeous society; if this be the case, it also demonstrates an underlying confidence in the remedial role of the courts as “guarantor” in settling the eternal conflict between entitle­ment and authority.

We may summarize the unique role of the American judiciary as threefold: to protect fundamental rights, to assure constitutional valid­ity, and to declare the meaning of law.

First, it is for the courts to rule if an aggrievement rises to a level of constitutional dimension, that is, deprivation of a fundamental right in contravention of a constitutional guarantee. The Fifth Amendment to the Constitution makes it abundantly clear that no officer or agency may deprive any person “of life, liberty or property without due process of law.” This guarantee is both substantive and procedural in nature. Hence, it is available to any person who alleges a deprivation of “due process” or of “equal protection of the law,” as furthered by the Fourteenth Amendment, which was adopted in l868 following the end of the agonizing American Civil War, the great War Between the States.

If a government agency were to refuse to grant some benefit to which there is an entitlement, for example, that person must have the oppor­tunity to be heard. This is both a carefully protected redress and a rea­sonable expectation. Thus, a public authority must treat persons simi­larly situated in a similar manner, impartially with equal hand and according to established precedents and principles. In essence, this is the function that assures a government decidedly of laws, and not of men, and that ensures the rule of law so highly prized in all democra­cies and basic to all democratic institutions. It would not be too forward of me to suggest that in these respects America is the ultimate democ­racy, and deserving of this high appellation.

Secondly, it is also the unique role of courts in the United States to ensure that a legislative enactment is in conformance with constitu­tional validity. Any law in contravention of the Constitution is null and void, or, as we say, unconstitutional. The idea that all legislation must comply with the constitutional mandate is perhaps best expressed by the most influential of the constitutional interpreters, Chief Justice Marshall, in the seminal l803 opinion in Marbury v. Madison: “It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it.” Justice Marshall, in proclaiming the momentous power of judicial disallowance of legislation, instructed us that “[i]t is, emphatically, the province and duty of the judicial department to say what the law is.”

Enabling acts which establish agencies almost universally empower them to promulgate subsidiary rules and regulations to carry out their legally delegated responsibility. These rules and regulations are often­times a complex skein more voluminous than the statutory enactment which endows them. It is the function of the courts to determine whether published rules and regulations properly fulfill and effectuate the legislative purpose, or if they go beyond the statute, and, there­fore, must be set aside as “ultra vires,” or beyond legal authority, and in excess of agency jurisdiction. The principal is clear that every act of a delegated authority, contrary to the tenor of the power under which it is exercised, is void.

Regulating the exercise of discretionary power in furtherance of pub­lished rules and regulations is similarly important for the central rea­son that fundamental rights are directly affected by the rendering of official agency decisions or orders. The judicial function ensures that administrative officers neither exceed the scope of their delegated authority nor abuse it in a manner in which a party may be said to have been deprived of basic fairness or procedural due process because of criminality, venality, arbitrariness, capriciousness, or what may be termed bureaucratic incompetence, inefficiency or indifference.

The judicial review function is not limited to protecting fundamental rights or passing upon the validity of the law, however. As a practical matter, thirdly, tribunals in America are also called upon regularly for statutory interpretation, to determine questions of law with respect to the law’s meaning and application in light of legislative enactments. This interpretative power is the peculiar province of the courts. In this respect, the notion that courts should generally defer to a government agency’s views of its own legal responsibilities is an old principle. And where “reasonable” agency interpretations are extant, permissable con­struction of a statute by the agency is afforded. Nevertheless, “reasonableness” of agency interpretations are not scientific descrip­tions, they are policy judgments and, therefore, judicial review cannot be completely precluded.

Statutes are seldom, if ever, written so clearly and comprehensively that there is no need to determine their meaning in particular cases. This is especially so when situations are presented which the legisla­ture did not anticipate, “casus omissus,” or unprovided for cases. These require, as in the instance of the Corte Costituzionale, your own special organ of a judicially separate Constitutional Court, the “sentenze addi­tive,” or additive, in order to remedy ambiguities or omissions in the law and effectuate the intent of the underlying legislation, which must always serve as the guiding principle.

As regards the constitutional review of legislation, of course, the considerable difference between our two systems is found in the concept of indirect review of general principles. The role of making and apply­ing law typical of legal culture, contrasts with direct review of particu­lar cases, which is not foreseen by Italian law. In each instance, how­ever, review surely raises difficult theoretical problems as well as political institutional problems, unless the Court is wisely self-restraining with respect to the “wisdom” of the law, which is properly a legislative, and not a judicial, concern.

It must be remembered that under the American system of checks and balances, the Constitution itself serves as a restraining instrument. Surely it vests substantive powers in each of the three branches of gov­ernment, but it also checks the exercise of those powers to defined lim­its. To the courts is assigned superintendence over the sense of the law and its administration.

 

V. Ethical Imperatives of Principled Decision Making

Another word about discretionary authority. While providing dis­cretionary authority to an administrative official empowers him, it also affords an agency the benefit of a certain expertise, and the agency is thereby able to particularize its action or decision to suit the needs of the specific situation.

Aristotle, in the Nicomachean Ethics, spoke of “epikeia,” that is, the notion of equity, from which our modern conception of equity is derived. The essence of this Aristotelian concept is the idea that justice should be done in the particular case. The legislature may set forth a universal rule, but this rule may not cover every pertinent situation, and may effect an unjust result if applied strictly in certain instances. “And this is the nature of the equitable,” Aristotle wrote, “a correction of law where it is defective owing to its universality.” Discretion in the administrator, like discretion in the chancellor, reflects a maturity in the law otherwise lacking in a code. Thus, sometimes, an exception to the letter of the law, or the “strictum et summum jus,” must be made to overcome its intrinsic limitation, and in order to achieve justice in the particular case. Although certainty in the law is necessary for a well ordered democracy, there can be no remedial quality of compassion in the law if discretion is absent, and too great a price will have to be paid if in a living democracy, where economics is united with the polit­ical process, we must sacrifice Aristotelian epikeia: equitable discre­tion, the demands of justice and right conscience in harmony with the natural law.

In the final analysis, then, it is review by an independent judi­ciary—free from the temptations of party politics, detached from the intrigues of partisan interests, fearing neither removal nor reassign­ment—that ensures principled decision making at the administrative level. This results in focusing on the modus in which agencies manage their delegated responsibilities, it reveals the internal fashion in which an agency perceives its own function, and serves to illuminate the precise manner in which agency personnel go about fulfilling their statutory duties.

One last parallel will now be treated. An essential element of fair­ness is the requirement that an agency articulate its reasons for any given action. Administrators must abjure vagueness where the destiny of a people is at stake. This peculiarly may be called for where, as is the case in the Mezzogiorno, recurrent legislation of an emergency or special nature—special laws, special decrees, special projects of public works, special credits for business ventures, special appropriations for modernization—constantly and continually seeks to alleviate the eco­nomic isolation and backwardness which pervades as a distinctive feature in the turbulent and eventful history of southern Italy, where dreams of justice are so often interwoven with sudden violence.

In a fluctuating environment, to be certain, an agency’s statement of the reasons for its action is especially meaningful in order to ensure that decisions are based on sound and articulable grounds. Those individuals directly affected by administrative decision-making thus have a clear explanation of the agency’s reasoning; by way of import, it enables them to see that their point of view was fairly considered that the per­ception of “historical injustice” not be enhanced, that dependence on the will of a well connected minister, or the intervention of a bishop, or the influence of a political party not be encouraged. And it enables the reviewing court to determine whether the agency acted “in accordance with law,” and whether all relevant factors were examined. Significantly, it provides guidance to those who at some future time may be affected by agency action, and permits them to structure or con­duct their affairs in conformity to the agency’s standards. Where called for because of reasons of inadequacy, American courts will not hesitate to remand a case to the agency for a statement that fulfills the requirement of specific reasoning.

 

VI. Conclusion

We end our discussion with the accurate observation that justice con­sists both in a method and in a certain kind of result. The method is one of fair dealing. The result is to recognize the interests of all individuals in a society, equally, no matter their station, and of all regions of a nation, as required, no matter its geography, and to promote the fruits of the commonweal in furtherance of the social compact between gov­ernment and its citizenry.

Without the beneficial scrutiny of judicial review, government offi­cials occasionally may forget that the ultimate standard of conduct is the public interest, that all public servants have an affirmative obli­gation to obey the law, and protect the rights of the persons whom they are duty bound to serve. Truly, it can be stated that all citizens of a democratic society should properly expect that public officials dis­charge their duties as a public trust for the good of the country, law­fully and within the bounds of law, and serve to secure, not deny or vio­late, the fundamental rights of those in whose exclusive service they are faithfully sworn, to the best of their ability, and according to law.

In conclusion, we may appropriately note that in giving effect to the constitutional guarantees possessed by the individual, the court fulfills the essence of its solemn judicial duty; namely, to secure a steady, upright and impartial administration of the law, above and beyond the reach of external pressure and control as and for the government of which it is a coordinate branch. It thereby preserves and promotes a lawful society in serving both as citadel and guarantor of its justice.

 

Dominic R. Massaro

Justice of the Supreme Court of New York

 

 

Editor’s note: Judge Massaro’s article was delivered at the IV International Symposium, Accademia della Magna Grecia, Reggio Calabria, Italy, November 23, 1991.