Accesso alla giustizia e "degiurisdizionalizzazione": il tramonto del diritto al giudice e al giudizio?

Abstract

The article illustrates the complex relationship between access to justice and "dejudicialization" which may be roughly translated as trend toward out of court resolution of civil disputes. The recent insistence of the Italian legislator to impose various forms of mediation, conciliation and extrajudicial negotiations as mandatory preliminary steps in many civil cases is critically evaluated and so is the trend to use the cost factor to discourage litigants to use their right to judicial protection. Concerns are raised also in relation to more sophisticated forms of "dejudicialization" like "better enforcement of less law" in consumer disputes and the shift of the enforcement architecture from state courts to "independent authorities" with its arguable implications on the remedial dimension of a lawsuit and the social function of the judiciary.