Theory and practice of the public interest, between law and politics

Abstract

The study builds on previous work centered on the thesis that the current constitutional framework claims a more specific legal regulation of politics (broadly understood), depending on the effects that the vicissitudes of the latter inevitably produce on public administration, giving rise to contexts and dynamics that are not conducive to an adequate functionality within the framework of the fundamental principles established by the Charter and the mission it assigns to the administration itself. At present, it is not easy to unambiguously and peacefully define, with regard to the exercise of the powers and investment of resources assigned to the p.a., the concrete attitude of public interests and their interrelationships, which administrative law looks at in particular through organizational and procedural devices. However, these devices, albeit somewhat refined, give rise to a wide-ranging framework, of which politics finds ample space to vent, outside of a disciplinary body capable of orienting it; a body that is therefore desirable to give life in reality to arrangements that are more in line with the constitutional design (without prejudice to any evaluation regarding possible modifications or updates of this). The aforementioned strand of research seems to have found sap in recent studies, particularly by constitutionalists, originated by the proposed change in the form of government (toward the so-called premierate), to which some authors have reacted by pointing out as preferable precisely a reform of parties and politics, rather than the engineering of constitutional powers.

The present work therefore continues along the path of research already begun and thus outlined, and in particular aims to validate it in the light of the findings of a concrete case that has emerged in the most recent judicial and institutional chronicle, from which it is clear that there is a considerable factual distance between the mental schemes and motives of the holders of public organs of political investiture, on the one hand, and the legal canons that govern the exercise of public powers and the related jurisdictional review, on the other hand.

This confirms the fruitfulness of an effort, still largely to be made, regarding the identification of aspects and profiles of politics deserving of a more precise legal regulation (political parties, financing of politics, selection of candidates for elections, political communication, etc.) and the possible cornerstones of this, with a view to a greater overall adherence of the activity of public powers to the Constitution, which is its foundation. It is not a matter of institutionalizing what in the constitutional design has been left to the realm of freedoms, albeit considerably “oriented,” but rather of ensuring a greater connection between the exercise of these freedoms and the resulting institutional and administrative fallout.