THE IURA NOVIT CURIA PRINCIPLE: ARE CIVIL LAW COUNTRIES (STILL) REALLY DIFFERENT FROM COMMON LAW COUNTRIES?

Amongst the fundamental principles of the Italian legal system, the non ultra petita (not beyond the request) principle referable, although with a broader and slightly different meaning, to the other Latin maxim iura novit curia, is definitely one worth mentioning. Looking at the whole set of laws at the basis of this principle, we find it appropriate to start analysing the Italian Constitution and, in particular, article 24 which – as known – sets out the right to jurisdictional protection, namely, the right, on the one hand, of bringing cases before law courts to protect legitimate rights and interests, and, on the other hand, the right of defence.

As to the right to bring a case before law courts, the principle set forth by the Italian Constitution is rather general and becomes more concrete in primary sources of law where the Italian Code of Civil Procedure specifically envisages the domanda giudiziale, i.e., the request, and the writ of summons, i.e., the “vehicle” through which the legal proceeding is initiated. The domanda giudiziale is a “declaration of intent aimed at producing judicial effects protected by the law[1]. Plaintiffs in fact usually file their requests (i.e., draft their writ of summons) in order to have the judge declare that the right they are claiming does exist. To this end, it is crucial for plaintiffs to meet the requirements provided for by article 163 of the Italian Code of Civil Procedure on the content of the writ of summons because the obligation for the judicial authority to make a decision arises only inasmuch the party interested in enforcing a right submits it to the attention of the court. The above mechanism stems from another key principle of the Italian legal system – the disposition principle according to which it is up to the party to spur the action to be taken by the judicial authority because it is always and necessarily the holder (actual or presumed) of a right the one entitled to dispose of its claims as it sees fit.

However, if the Italian Code of Civil Procedure is rather strict on the items forming the content of the writ of summons (where at least the name of the parties, the petitum and the causa petendi must be specified), the combined provisions of articles 112 and 113 of the same code allows a wider room for manoeuvre than expected to the judge. According to the Code in fact, if on the one hand the judge must make a decision considering the request as a whole without exceeding its scope, on the other hand, by ordering the judge to “decide according to law”, the same Code allows the judge to refer, in generic terms, to all provisions of the law rather than (or at least not only to) the provisions that the party has recalled. As a result, the judge can and must consider all legal provisions potentially applicable to the case at issue, being the judge free to choose which ones, in his/her opinion, are the most appropriate to effectively protect the disputed right or, in any case, guarantee the petitum to the plaintiff.

However, we must bear in mind that the judge can in no case exercise indiscriminately his/her right to independently refer to any law or provision of law: the judge must in fact at all times stay within the limits of the request as outlined by the relevant party in the writ of summons. In a word, the non ultra petita principle set forth by article 112, prevents the judge from granting something that the party has not requested, or, in any case, from rendering a decision that is inconsistent with the request. Therefore, the restriction imposed on the power of the judge to make a decision affects only the petitum, that must be determined in relation to what has been asked, both mainly and subordinately. On the contrary, the above principle does not prevent the judge from rendering the requested decision by relying on an independent reconstruction of the facts or by applying a law provision that has not been respectively advanced or invoked by the plaintiff, without prejudice at all times to the petitum (and the causa petendi). Namely, without prejudice to the possibility for the judge to differently qualify the alleged facts and relationships, without negatively affecting the objective elements of the lawsuit, or introducing a new matter worth of being investigated, or, again, granting a relief not requested or different from the one object of the writ of summons.  So bound in relation to the alleged facts but free in respect of the rules, the judge can accept or reject, in whole or in part, the request but may never decide more than it has been asked to.

The principle, as above analysed, is indisputably connected to the function of the judicial authorities as outlined by the Italian Constitution. The right to receive legal protection for legitimate rights and interests as set out by the Constitution would prove meaningless if plaintiffs were also the only ones entitled to specify the provisions of law on which to rely for making a decision on the disputed right: in case of an error, the judge would be prevented from modifying the proposed legal basis and, consequently, the judiciary system would be unable to protect, adequately and effectively, the right.

If we were to consider, still with respect to the decision-making powers of the judge, the legal systems of common law countries – especially the UK system –  we would clash first of all against those scholars who continue to adamantly believe that not only the UK legal system is radically different from the system of civil law countries, but also, and above all, that, in the United Kingdom, the iura novit curia principle is inapplicable. On closer inspection however, we find another well-established trend that is in disagreement with such “conservative” theories that for many years have influenced the English legal doctrine. Further to certain amendments made to domestic and international laws, and to some new shy trends in legal scholarship, also in the UK the role of the judge is, as a matter of fact, apparently changing.

Until not so long ago, the role played by the judge in a legal proceeding was that of a spectator so passive as to deem the courts “hostages of the arguments deployed by counsel”[2]. The judge’s inability to freely disregard the arguments brought forward by the parties, inevitably entailed his/her quasi-total impossibility to autonomously handle the quaestio iuris. The fact that such a strict rule is potentially dangerous is obviously something that cannot be ignored, especially if we consider the difficulties that a judge may encounter should the arguments brought forward by a party be intentionally insufficiently, not to say incorrectly, detailed.

In 1999, the English lawmaker, in order to remedy the aforesaid issues – the awareness of which is increasingly growing – issued the Civil Procedural Rules[3]. By implementing the prompts of the House of Lords on the welcomed possibility for a judge to “take a more active role” and “control the progress of a hearing”[4], the rules set out a system in which the judge is expected to take control of the proceedings. Furthermore – still at a domestic level – following the entry into force of the Human Rights Act 1998 according to which, in the light of article 6 of the European Convention on Human Rights, a judge is obliged to render a reasoned decisions, in the event that the legal arguments brought forward by the party prove to be incorrect or incomplete and the judge is prevented from tapping into the entire range of the laws available, the latter would find himself “with his/her hands tied”, hence, unable to set the matter in the right legal framework and, ultimately, incapable of discharging one of his main duties, i.e., making a reasoned decision.

A legal system in which a judge is deprived of the prerogative of ultimately giving a nomen iuris to the object of the dispute, contrasts also with the provision of the Unidroit[5] 22.2.3 principle according to which the Court, in settling a dispute, may rely upon a legal theory or an interpretation of the facts or of the evidence that has not been advanced by a party.

It is therefore undisputable that also the English legal system is gradually heading towards more moderate positions that combine a more active role of the judge, in general, and, in particular, a greater accuracy in performing the decision-making duty.

The keystone of the issue as to whether or not the iura novit curia principle is applicable to two different legal systems which are only seemingly antithetical, is therefore to be found in public-law related reason or in matters of principle. If a “room for manoeuvre” sufficiently wide is not provided to the judge as to enable him to accomplish his/her duty, the jurisdictional function, taken as a whole, would be invalidated and one of the fundamental principles that indisputably influence the legal system of such two only-seemingly-different countries would be undermined.  It is therefore only considering the civil jurisdiction in the light of its public-law function that it is possible to overcome the ancestral contraposition between civil law and common law, and affirm that the adoption of the iura novit curia principle helps to pursue the efficacy and effectiveness of the principle of jurisdictional protection that distinguishes a modern State from one which is not.

 

[1] F. Carpi – M. Taruffo, Commento all’articolo 112 published in Commentario breve al codice di procedura civile, CEDAM, Padua, page 860.

[2] Darlington BC v Wiltshier Northern Ltd [1995] 1 WLR 68, 78, CA per LJ Steyn

[3] SI 1998/3132

[4] Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446, HL

[5] UNIDROIT/American Law Institute’s joint 2002 draft of Principles of Trasnational Civil Procedure

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