The functionary as a human person and the organ: An unresolved problem

Abstract

This paper argues that one of the main, eldest and most resistant dogmas that legal scholars have traditionally associated with the organic theory, namely the legal fiction of the so-called immedesimazione organica (identification doctrine), is indefensible within the framework of the constitutional principles on public administration. The identification doctrine, consisting in an artificial de-humanisation that dissolves subjectivity and denies the otherness of the functionary as a human person with respect to the juristic person, appears to be incompatible with the primacy of the human person both outside and inside the administrative organisation. In the conclusions, a working hypothesis is proposed for rethinking the organic theory and cleansing it of the dogma of identification doctrine