Democratic Magistracy and the Alternative Exercise of the Judicial Function

Abstract

Founded in Bologna in 1964, Magistratura Democratica (MD) established itself as one of the most relevant currents within the Italian judiciary, with a progressive profile and an orientation to the left. In the following years, it developed a critical reflection on the judicial function, understood not only as an instrument for preserving the established order but also as a means of realizing constitutional principles and expanding the protection of freedoms. In the early 1970s, under Marxist influence, the association became particularly engaged in the debate on the so-called “alternative use of law.” A decisive moment in this discussion was the Congress of Catania (1972). Luigi Ferrajoli’s essay, translated here, stems from his intervention at that meeting, which consolidated this notion and argued for abandoning positivist formalism and judicial neutrality, conceiving the judiciary as a political actor in dialogue with social struggles and subaltern classes.