FUNDAMENTAL rights and public power: FOR A LEGAL THEORY OF PUBLIC INTEREST

Abstract

The study starts by highlighting the importance of practices (and, in particular, of judicial practices) as a tool for analyzing public power in concrete terms. It is clear from the observation of practices, that the administrative judge very frequently decides disputes concerning fundamental rights.

Consequently, one must ask oneself whether these practices conflict with positive law, or whether they highlight problems that allow for a different interpretation of positive law itself.

From a methodological perspective, therefore, it is necessary to compare practices with dogmatics.

This reflection, therefore, after some further methodological premises, starts with the problem of defining fundamental rights. Limiting the general discussion about fundamental rights as much as possible, the study questions their reconstruction in traditional doctrine. In particular, the aim is to show that freedoms and social rights have the same structure and thus make up the unitary category of fundamental rights. To do this, the traditional notions of both constitutional freedom and social rights are criticized. Their unitary reconstruction places freedom and social rights in relation to public power. This analysis shows that fundamental rights always stand in relation to executive power. The consequence of this is that the administrative judge ordinarily decides disputes concerning fundamental rights and that this practice is entirely consistent with the dogmatic system.

The second area of analysis concerns the structure of executive power according to the Italian constitution. The study starts from the methodological premise of highlighting how the theories of executive power traditionally proposed and still upheld today have a mythical or ideological foundation. Even as regards executive power, it is necessary to proceed to its reconstruction in terms of its relationship with fundamental rights. This procedure highlights the reasons why both administrative organization and executive power are entirely a function of the enjoyment of fundamental rights. This conclusion derives from setting the problem of public power in its relationship with sovereignty. Positive law sheds light on the reasons why the most significant feature of popular sovereignty lies in the fact that sovereignty is permanently retained in fundamental rights as legal entities recognized by the Constitution, i.e. existing as rights independently of being posited by positive constitutional law. Since public organization and the exercise of public powers are functional to the objectives and purposes of the sovereign, and since in positive law the sovereign is to be identified in the human person as the holder of fundamental rights, it necessarily follows that administrative action and executive power are functional to the enjoyment of fundamental rights by people.

The consequence on administrative jurisdiction is that it always deals with fundamental rights because it is the judge of power and power only fulfils the function of maximizing the enjoyment of fundamental rights.

These conclusions necessarily pose the problem of developing a legal theory of the public interest. Having highlighted the inadequacy of both traditional and more recent theories of public interest, the study proposes an articulate legal theory of the public interest. In particular, it denies that there is a public interest belonging to the executive power. Rather, the public interest consists solely and exclusively in the settlement and maximization of the enjoyment of claims concerning people's fundamental rights. In this perspective, the paper concludes with a definition of the techniques of settlement and balancing of fundamental rights.