There is a part of the institutional system that works on rights: it is the one entrusted to the courts. In recent years, when asked by citizens who asked for the recognition of a right, the judges replied. The ordinary judiciary responded, as did the cassation court and the constitutional court. Constitutional protection of the claimed right has often been affirmed, even when that particular right was not yet regulated by law. Sometimes the judges have replaced the legislator, when they have been able to broaden the application of certain norms through interpretation. But it has not always been possible, as usually a magistrate can only decide on the basis of a law. And in the field of rights, laws are often still lacking. Hence the request for provision that the constitutional court has addressed several times to parliament. In the meantime, the public debate has become increasingly heated, especially on the end of life and on the rights of LGBT + people.
Despite all this, the parliament has often not been able to respond to the many expectations of citizens and the invitations of the constitutional court. On the other hand, politics in the last thirty years, those of the so-called second republic, has stopped producing and elaborating ideas, devoting itself above all to representing interests, and for this reason it has been less and less able to find answers to the questions that from time to time once they emerged from society, limiting themselves to the simple management of power.
Regarding rights in particular, the country has therefore fallen into a condition of backwardness such that to many it has also seemed an achievement the law that since 2016 “establishes a civil union between persons of the same sex”, as stated in the first paragraph of its article 1. Yet that same law, in recognizing a sort of diminished right to some citizens identified on the basis of their sexual orientation, in fact discriminates them, excluding them from rights recognized to others for the mere fact of being citizens.
This laxity of rights policy has forced the judiciary into a substitution which has contributed to altering the balance between the powers of the state, and in particular the relationship between the legislative and the judiciary. On the other hand, a judge, if questioned, must respond. The same principle does not apply to politics. It is therefore difficult to accuse the judiciary of wanting to replace the legislator. Rather, it should be politics to recover the word, transforming it into laws. Also because the judicial path to rights mostly gives solutions to individual cases, and therefore does not affirm and guarantee a valid right for all citizens, as a law would do. Nor can a judge go beyond the limit assigned by the norms or determined by the absence of norms, for example when it is not possible to fill a legislative void even by way of interpretation. But above all, the judgments’ sentences cannot remedy the enormous discredit thrown on parliament by the long-held inability of politics to give answers to citizens.