Di Alberto Gambino, Vittorio Occorsio, Elena Maggio.
SELF-HELP IN CIVIL MATTERS AND STATE JUSTICE*
Università di Napoli “Federico II”
Self-help in civil matters and its alleged singularity.
Self-help is a broad concept used in different areas of legal practice, and, despite the efforts made by some authoritative scholars, its nature and boundaries have never been fully defined, even when they focused on individual aspects of the legal system.
So much depends on the general difficulties encountered when defining the notion of «protection», of which self-help is just an aspect, and on the strong interference and interrelations between self-help and private autonomy, which make it difficult to identify their reciprocal relationships. Moreover, another major aspect that has contributed to the consolidation of these uncertainties seems to be a combination of thrusts and counter-thrusts emerging when trying to identify the phenomenon in question: the need for fast and flexible protection, to ensure its effectiveness, corresponds to a clear concern that being too much open to self-help could pose a risk to the preservation of public order and social peace.
There is no doubt that, since the Italian legal system lacks an organic or even sectoral discipline that regulates the phenomenon in question, reconstructing it becomes particularly complex; however, going beyond the consolidated negative representation of self-help as non-judicial protection, and, therefore, as a power to resolve conflicts without resorting to jurisdiction, a notion capable of taking into account its positive essence shall be identified. The broad concept of “negative self-help”, as protection of rights without resorting to any judicial authority, could include all forms of agreed settlement of disputes, to which the «de-jurisdictionalization» techniques used for assisted negotiation and mediation aimed at civil and business conciliation should also be added, because with them a dispute is resolved not only without resorting to the state judicial system, but mainly without a decision by a third party (a judge or an arbitrator): the first through the negotiation work carried out by the lawyers, while the second through mediators who work to reach a conciliation agreement.
The issue related to the “positive aspect” of self-help arises from the protection of legal situations that involve the interests of several subjects when the independent and unilateral protection of the injured party is allowed. Therefore, self-help is commonly and approximately identified with the direct protection of personal and subjective legal situations put at risk or violated by a third-party illicit behaviour. Again, with reference to a possible definition of the phenomenon in question, it should be noted that self-help is basically a direct and unilateral reaction (for purely conservative-precautionary purposes or for the definition of a conflict) by the holder of the legally relevant interest being harmed or threatened. This notion, which seems to be shared – more than others – by the scholars, implies at least three elements as peculiar traits of personal self-help: the absence of judicial intervention, the unilateral exercise of power and the protection of an interest worthy of protection that is harmed or threatened by others.
*Il contributo è destinato al Liber amicorum in onore del Prof. Mads Andenas.