The contrast between the judged

Abstract

The essay analyses the theme of the contrast between the administrative judgement both internally and in its relationship with other jurisdictions (supranational, civil and criminal).

The analysis carried out shows how the reflection is problematic due to the dilation of the boundaries of the judgement in light of the methods of motivation of the sentence, which pass - by express provision of the Italian code of the administrative process - from very synthetic motivations to decisions that fully investigate all the questions, with obiter dicta often excessive.

The idea that in the relationship between jurisdictions the principle of autonomy between judgments operates instead of that of the uniqueness of jurisdiction complicates an already complex picture, because this approach implies that the search for the limits between judgments must no longer be thought in unidirectional terms (whereby one judgment prevails over the others) but in terms of reciprocal conditioning.

The subject is then analyzed in the light of the historical peculiarities of the administrative process, still substantially modelled on the typical judgement of legitimacy, wherein the control on facts is only eventual, so that it can be said that in the administrative process a true ascertainment of facts does not always take place.

In this perspective, the essay points out that the search for an external effectiveness of the administrative judgement should follow – case by case - the verification of the actual ascertainment of the facts, which shall not taken for granted but is nevertheless possible in the light of the circumstance that, unlike in the past, in the administrative process the means of proof are no longer limited.

The essay analyses not only the issue of the ascertainment of facts but also that of the external efficacy of the decision of law, in order to highlight that if the administrative judgement is not limited to the deducted and is conceived as exposed to a continuous becoming, it becomes difficult to affirm that it can anyhow limit the ascertainments in law made by other jurisdictional orders.