From the Judge’s Duty of Assistance Toward the Parties to the Judge’s Duty of Assistance Toward the Process: A 360° Turn

Abstract

The paper critically analyzes the duty of procedural cooperation, particularly the shift from the judge’s duty to assist the parties to the idea of cooperation with the process. The author argues that this conception may allow the judge to assume functions that belong to the parties, thereby compromising impartiality and the functional division of procedural tasks. It also questions the thesis of «cooperation with the process» considering it a rhetorical reformulation that fails to resolve the limits of judicial assistance. The paper concludes that a general duty of assistance, especially when established through open clauses, expands judicial discretion and is incompatible with the guarantees of adversarial proceedings and the process as an instrument of liberty.