Democracy Is the Answer

The issue of good government is not as simple as it seems at first sight, and is of the utmost importance. It has fascinated Western and non-Western thought for two millennia. Good government, it has been said, is a myth, a great narrative that, since the days of Lycurgus down to contemporary governance, has never ceased to constitute the fundamental problem of collective living in all its facets. Achieving good governance in a company today sends us back to the ancient dilemma about government by laws or government by men.
Let's go back by 2,000 years and re-read Plato and Aristotle and their still huge, burning relevance for today.
Poor and infertile is a country without memory. Dry and short-sighted is the scholar unaware of the history and the tradition of thought where he/she comes from.I think that at the basis of so many reflections on governance, of the expectations, delusions, mystifications and rhetoric, a jurist would find the fundamental dilemma: government by laws vs government by men.

But what is the role of the jurist? Is it possible to find a common denominator between the jurist as researcher, as professional, as judge, as adviser to the Prince, as maker of institutions (some doubt it, but I believe a jurist can belong to the world of science without changing skin)?
I think the answer is yes. Two tasks await the jurist. The first is to remind society that norms are to be considered ex ante in conduct, choices and plans, and are not just something one must conform to ex post. The second is to interpret the law, adapt it to the actual case, see what the application or the violation of the norm touches within the delicate balance of a legal system. And in this work, the cost of violation - sanction - will be of fundamental importance.
By following the thread of good government, we could say that the task of jurists is to promote the priorities of government by laws against the greatly dilated space that government by men all too often arrogates to itself.
A fundamental misunderstanding must be here disposed of. The misunderstanding that the law is the antithesis of freedom, that law is to the detriment of endeavor. There is no need to invoke classic thinkers from John Stuart Mill to Isaiah Berlin to state that it is laws that guarantee liberty. They guarantee concord and common living. Ambrogio Lorenzetti in his famous fresco in Palazzo di Siena puts justice, the application of laws, at the summit of his allegory of good government. Keeping with the allegory, I would say that the ill-founded prejudice about the evil of too many and vain laws is the bitter fruit of bad government, the excessive burden of bad government by men who in politics are unable to combine, as Max Weber would have, passion and far-sightedness with responsibility.
If I were to attempt a discussion of relationship between the polity and the firm, I would argue that the firm over these last years has given too much room to government by men, to the company leader, to the rhetoric of managerial efficiency, with a corresponding eclipse of government by laws, norms, rules. And this has gone hand in hand, to put it crudely, with a market that all too often has broken the balance between freedom and rules of the game.

The issues of disproportionate importance given to incentives for managers takes on an emblematic importance in the imbalance, represented by an exaggerated conception of government by men, and a corresponding undermining of the functioning and the role of the market system. Here government by law, understood as ex ante subjection of individual conduct to general, verifiable, knowable rules, could do much to repair this situation and is now seeking to gain ground.
Certainly, the problem of government by laws is that laws must work; it's the issue of their effectiveness. It is a huge issue, in part internal and in part external to rules themselves. It's first and foremost a problem of incentives and disincentives. Here we are still inside the norm. Enforcement is part of the norm itself, it does not come after. There is then the problem of its application in the case that its incentive/disincetive preemptive barrier has not worked. Are we positive about the fact that seventy years on we shall not go back to a justice system of the company, geared toward companies?
I evoke another crucial issue. Government by laws, I said, more government by laws within the firm. It is then natural to ask the question: but what are the right laws, who is the Plato's wise philosopher of laws? I say right away that it is not the jurist. And I also say it is neither the economist, nor the philosopher, nor the political scientist, not matter how refined and persuasive their models are. The legislator that guarantees good government, the good government by laws that tempers government by men, is, following Norberto Bobbio, the democratic system, it is politics based in turn on that delicate balance of rules which we summarize (in spite of the great variety of forms it can take) with the term democracy. Democracy is both a strong and frail balance that needs continuous care and commitment.
In the democratic game that gives life to the government of laws there are no magic formulas or irrefutable truths, not even to design the perfect model of governance for the firm. We have rules. We need to interpret and apply them. Some of them are obvious, such as guaranteeing an effective dialectics between boards and executives, or avoiding conflicts of interest. Or we can take the principle of "correct administration" which the Italian code sets for administrators. And in our constitutional framework this parameter could well give additional room to social responsibility, to the wider audience of stakeholders. I would say that there exists a banality of good government that must be rediscovered, to be implemented by strengthening the ethical and cultural levels of our managerial class.
This undoubtedly includes the promotion of merit, which for me means eradicating the prevalence of demerit. But rewarding merit does not mean partitioning the world in those saved and those damned. Merit means rewarding by a correct proportion all those that give all they can give even if they do not end up first at the the finishing line. Furthermore, merit cannot bury equality of starting points, of rights, and dignity. If I were French, I would never propose to abolish the Article 2 of their Constitution, which states that the Republic's motto is "Liberté, Egalité, Fraternité". But what we jurists and professors must pursue first of all is what I would call a positive and constructive skepticism. Let us contribute to government by laws, but without arrogance and vainglory, not incidentally portrayed by Ambrogio Lorenzetti as symbols of bad government.
"We only have one uniform: we do not know, but seek truth, we are never certain to own it and we shall go back in search for it every day, always unsatisfied and always curious," thus wrote Luigi Einaudi. And I would like to add and conclude by quoting Voltaire that the honor of judges, and jurists too, lies in correcting their mistakes.