Complexity, Discretion, public interest

Abstract

The paper draws on the questions posed by the call-for-paper, reorganized around essential thematic cores.

These are three essential cores, i.e., (i) the complex nature of the legal system and the reasons for it; (ii) the complexity of the decision in relation to the formation process; and (iii) the complexity of the decision in relation to what is to be decided.

Once the essential thematic cores have been identified, the paper addresses the problem of the relationship between them and, thus, (i) complexity as a function of the evolution of society (to which the discipline of the legal system is addressed); (ii) the role of the decision maker and its legal and institutional legitimacy (a central theme of the decision-making process); and (c) to the evolution of the very concept of the power to decide with the authority of a public law measure.

Thus identified the issues and their relationships, the analysis concerns the complexity of (i) the decision, (ii) the decision-making process, and (iii) the identification of what is complex and what is not.

First, with respect to the concept of decision, in addition to the characteristics peculiar to the decisions of the legislature, the courts, and the executive branch, we discuss the various theories of decision prevalent in the legal literature. In this perspective and in relation to the problem of complexity, the problem of the legitimacy of the decision-maker, i.e., the one whose decision eliminates complexity, arises. With respect to the legitimacy of the decision maker, theories that are based on mythical explanations are criticized, as are those that are based on theories of the legal system (which, ultimately, base the decision on itself). Overcoming inadequate explanations means highlighting the problems that generate the complexity of the decision and, with respect to measures exercising public power, relate to the emergence of the complexity of interests, the complexity of facts or their scientific explanations, the complexity of the interpretations of positive law given the presence in the law of vague or polyenes utterances.

With reference to the procedure of decision making, once--again--the various theories of procedure, process and decision making have been pointed out, the problem arises that procedures in general have the function of learning the factors of complexity (interests, facts, norms) and reducing complexity through procedural operations. Which means that these operations (i) are either also neutral, (ii) or they are decisions.

The construction of a theoretical scheme for solving complexity, then, is proposed through a solution to the problems of (i) the complexity of legal rules in relation to what is to be regulated (facts and interests), (ii) in relation to decision-making, and (iii) in relation to the decision itself.

The solution to the problems posed, then, with respect to the three problem cores and the three corresponding paths of analysis, is proposed through a theory- respectively to each of (i) discretion, (ii) public power, and (iii) public interest.