The Foundations of a Civil Judgment
There is a reassuring account of civil proceedings, familiar from textbooks: the judge advances through logical steps, almost like a mathematician. Facts are alleged, evidence supports them, legal rules classify them, and the decision emerges as a necessary conclusion. A linear path leaving nothing to chance.
In this account, Article 115 of the Italian Code of Civil Procedure is a firm foundation, requiring decisions to rest on proven and uncontested facts. Its simplicity has an almost symbolic function: a judgment is not arbitrary, but built on objective, verifiable foundations. Adjudication is an exercise in knowledge, not will.
All this is true. But it is not the whole truth.
Anyone who has observed proceedings from within—and especially anyone responsible for deciding—knows the reality is more complex and, in some respects, less orderly. Not because rigour is absent, but because rigour is not always linear.
A decision rarely emerges as the endpoint of perfectly sequential reasoning. More often, it begins as an impression, an intuition arising from reading the file as a whole. It is neither irrational nor arbitrary, but not yet an argument: an immediate synthesis, a perception of the case developing as the judge encounters the parties’ accounts, evidence, omissions and inconsistencies.
Decision-makers recognise this moment, though rarely acknowledge it. At some point, the case takes a direction—not in detail, which comes later, but overall. A provisional conviction forms, not yet legally justified, but already directing attention towards what truly matters.
From then on, the process reverses. The judge returns to facts, evidence, documents and uncontested points, rereading them in light of that intuition, looking for confirmation but, when working properly, also possible contradiction. Reasons develop through this backward movement: not only construction from the foundations up, but verification from the top down.
Here Article 115’s function becomes clear. It does not describe how a decision originates; it sets the conditions for its legitimacy. It requires judges to move beyond intuition and confront material they cannot manipulate at will: evidence and uncontested facts.
Civil procedure therefore does not eliminate the human element in judging; it disciplines it. It does not demand a machine-like judge, but requires an account of the reasoning.
This reveals a tension running through procedural law: between the aspiration to be a science and the more or less explicit recognition that it is a human practice.
On one side, the system continually formalises, constructs rules and reduces discretion. It seeks assessment criteria, emphasises uncontested facts and develops models intended to make decisions predictable and replicable. This is inevitable: without some formalisation, law would lose its protective function.
On the other, proceedings deal with material never entirely reducible to a formula. Facts are reconstructions, not neutral data; evidence is always mediated; and judges inevitably bring experience, sensibility and their own way of reading situations.
That is why civil procedure ultimately remains a rigorous but humanistic discipline.
This dual nature is both a limitation and a resource.
A limitation because it introduces variation. Judges never see things identically, and reasons may become retrospective rationalisation—an attempt to justify a decision already made. When that happens, the system weakens: the constraints of evidence and uncontested facts become empty formalities.
But it is also a resource, preventing law from becoming a blind mechanism. Properly used, intuition captures what mechanical rule application misses: parties’ credibility, context and the overall coherence of an account. It brings decisions closer to concrete reality.
The point is therefore not to eliminate intuition but to subject it to scrutiny. A good judgment does not pretend to spring from a flawless syllogism. Its initial intuition withstands examination against the case materials. Its reasons are a test, not a coating.
If the argument is sound, the intuition was grounded. Otherwise, it was merely an impression.
The reasons for judgment are not a formality but the system’s heart. They expose the decision to scrutiny, criticism and, where necessary, reversal. Here civil proceedings fulfil their deepest function: turning an individual conviction into a legal act others can assess and accept.
Here, too, the greatest risk is measured.
When rationality is merely apparent, when observance of form conceals an untested decision, law can produce formally correct but substantively unjust results. Lawyers have always known this paradox, captured perfectly by an overused yet inescapable expression:
Summum ius, summa iniuria.
A civil judgment’s foundation lies not solely in evidence, uncontested facts or a judge’s coherent reasoning. More deeply, it lies in the balance between intuition and scrutiny, perception and demonstration, what the judge sees and what can be justified. An unstable but necessary balance.
Within that instability, civil proceedings continue, for better and worse, to find their reason for existing.
Paolo Fortina · Originally published on LinkedIn on 12 May 2026. Read the original
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