A theoretical and dogmatic reflection on the Public Contracts Code

Abstract

Reflection on the discipline of public contracts is often focused on specific hermeneutic questions, in many cases caused by conflicts in jurisprudence.
The novelty of a code of public contracts that opens with a large sequence of "principles" offers the opportunity to try to set up the study of the discipline of public contracts in a systematic manner and on solid theoretical bases.
First of all, the code suggests to delve deeper into what the principles are, what their functions are in a contemporary legal system and what "benefits" or "prejudices" can be expected from their use. This is a general theoretical topic, much discussed and nevertheless lacking widely shared conclusions. Hence the need to involve philosophers and legal theorists in the debate.
Secondly, Title I of the new public contracts code raises the question of the relationship between those principles and the classic themes of general administrative law and the sector: the discretion of the public administration, the relationship with case law, the relationship (or the boundary) between public law and private law, contractual autonomy. In other words, that catalogue of principles exacerbates the need for systematization.
Thirdly, the legal constructions of the public contracts sector often spill over into general administrative law, probably because it is the sector most frequently applied by case law1.
The Journal intends to contribute to this task, not out of deference to an anxiety of order or a pleasure in symmetry, but because the construction of a system is a dam against an undulating case law and an imprecise legislator. In other words, in the belief that serious dogmatics is a great instrument of certainty for legal operators and, consequently, for the market.