Legal Regulation Beyond the Framework of Independent Regulatory Authorities

Abstract

This essay analyzes the concept of legal regulation beyond the traditional reference to Independent Regulatory Authorities, highlighting the crosscutting and widespread nature of regulatory phenomenon in both public and private law. It challenges the dominance of formal structures in administrative and civil law through a historical and critical comparison with German legal theory and the transformations of Italian legal methodology. Particular attention is given to the relationship between conceptualism, juridical technicality and new regulatory trends, such as the alternative use of law and regulatory private law. Regulation, however, is primarily a phenomenon of administrative law, where principles play a central role both in the internal dynamics of administrative procedures and in the construction od the administrative decision. The legal relevance of the regulatory phenomenon ultimately impacts many foundational concepts of “classical” administrative law – such as discretion – and their ongoing crisis. This leads to the need to rethink their meaning through a concrete semantics of the public interest, in order to redefine the role of regulation in the relationship between freedom and public authority.