contribution to the study of non-written sources

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Antonio Leo Tarasco

THE PRACTICE IN ADMINISTRATIVE LAW.CONTRIBUTION TO THE STUDY OF NON-WRITTEN SOURCES*.

SOMMARIO: 1. the transformations of administrative law and custom. 2. With-not traditionally worked and equity:the "scandala" contemporary public law. 3. the concept of fascist System State. 4 Follows.: Republican system. 5. thecrisis of the nation State. 5.1. the factors. 5.2 Follows.: in particular, the crisis of law and pluralism of sources. 5.3Follows: the relationship between law and society. 5.4 Follows.: the hermeneutic. 6. the practice in public andadministrative law: the reasons for a search. 7. Practice and recognition of territorial autonomies: crisis of law and

autonomy legislation of society.

1. the transformations of administrative law and practice

"The era of statehood is now coming to the end: on this is no longer the case for spend words. It is notthe entire superstructure of concepts relating to the State() "1: with these words, Schmitt describes in thefirst decades of the 20th century the end of an era dominated by the Hegelian model of the State. His crisis inItaly, was identified by Roman Saints, since the beginning of the 20th century, in the conflictual relationshipwith society, and the tendency of the Stateto engulf the second2. Reaction,*This script is the excerpt of chapter I, section I, pp. 23-79, the volume of Antonio Leo Tarasco,The custom in administrative

law. Contribution to the studyofnon-written sources, Scientific Publishing, 2003. 485. We thank the author and the editor forpublication granted.1C. SCHMITT,Begriff des Politischen (1932), trad. en. edited by g. MBITand p. SCHIERA, the concept of political, in thecategories of ' political ', Bologna, 1972, 90.2Is the reference to the famous inaugural address delivered by SANTIROMANIat the University of Pisa,The modern State and itscrisis, inRev. ed. Hrsg., 1910, 87 et seq., but now Milan, 1969, 5 et seq. It should be specified that differently,, accordingto c.CHMITTS,Der Hter der Verfassung,, Buncker 1969 & Humblot, Berlin, trans. en. edited by a. c. ARACCIOLO, Theguardian of the Constitution, Milan, 1981, part 122. et seq., the "total State" incorporates in itself and expresses at the sametime, the multiplicity of social bodies. Society and the State coincide, since the latter becomes "self -organization of society".The thought of philosopher, therefore, diverges from reconstruction operated by Roman Saints, however, identifies a conflictbetween State and society.in the face of the trends of authoritative directoriespublic legal person, signally the tendency of social forcesto ask themselves as authorities3, claiming in a role often stifled opposition4. The State and sources his ofthe right, from the beginning of the twentieth century, began slowly to cede small portions of sovereignty.

Today, the limitations and shortcomings of the "perfect" scaffold State have multiplied and nobody

disputes the glaring evidence. The globalization of markets and the environmental emergency, for example,making needed a common policy with other countries that exceed the boundaries of the individual nationState, represent only some of the new factors in the crisis of State categories, on which there have been, over
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the years, punctual and acute studies, that this does not claimsynthesize renewing or5. The indisputable factis represented by the fact that "the State as holder of the most extraordinary of all monopolies, i.e. monopolyof political decision, this radiant creation of formalism and of Western rationalism, is about to beoverthrown"6. Next analysisto, I think now we should devise new categories to replace or at least integrateconcepts and institutions of children a conception of the State and its relationship with the citizens now

outdated. If this is read with a relative simplicity, more difficult are the forecasts for the future: If thecollapse of the State is clear, less certain is the system that you will replace this.Rethinkstatus is not as simple as finding the limits of its current configuration. It is testimony to the

progress of legal sciences following the post-war. Despite for more than half a century has beenannounced and analyzed the State of crisis and giuspositivismo7 starting from 1945, Italian Juristscontinued on the path of emphasizing legalism legal certainty and positive State8: this evidence that theancient beliefs, penetrated a structure cultural, incorporate this and resist even the most lucid analysis andproposals more authentic.3G. CAPOGRASSI,Reflections on the authority and its crisis(1921), now in Works, vol. I, Milano, 1959, 255-256. OnCapograssi, see the critical essayU.OMARICIP, the individual over the State. The philosophy ofright of GiuseppeCapograssi, Naples, 1996.4Here the rise of the phenomena of corporatism, which will constitute a further expression of impatience professional social

groups towards the State. On this point,seeANTI S ROMANI, the modern State and its crisis, 23.5Indicative in this respect the words of f. ROSSOLILLO, vocalsNation, n. BOBBION.MATTEUCCIG.PASQUINO(ed.),Dictionary of politics, Torino, 1993: "it is therefore expected that the history of nation States is coming to an end and is aboutto start a phase in which the world will be organized in large spaces federal politicians. But if federalism means the end ofNations in the sense defined now, it also means the rebirth, or revitalization, of the nationalities that spontaneous nationalstifles or reduces to ideological tools at the service of political power, and thus the return of those authentic community valueswhose national ideology is appropriate into gregarious feelings. "6C. SCHMITT ,the concept of political, op. cit., 90.

However, despite the foreseeable difficulties, is more than ever required the development of newschemes and institutions not related to the classical State: Unlike geometry behind the reflections on thedecline of the State are likely to lurk folds on the past and unwitting affections to the same modelcriticized. There is a particular need to rethink the complexity of legal institutions to 's primariet 's lightthe human person in sorting, rediscovering the personalistic inspiration of the current Constitution9.Explosion the the interests of man in the world of the law is evidenced by a series of indexes whichsymptomatic cannot keep account: among all the constitutionalisation of the subsidiarity principle, in itsvertical and horizontal joints (art. 118, Cost). Yet, despite the legal and cultural transformation, much of theconceptual and organizational structures are anchored to the Italian a 19th century idea (the "superstructureof concepts relating to the State" mentioned Schmitt).

In particular, the complex transformations that invests public law cannot induce to rethink the relevanceof the sources the authoritative directories in administrative law, legal segment traditionally characterized bytensionauthority-freedomin relations between AR and citizen and now deeply revolutionized in the sense ofdemocracy and dialogicit in relations between the two poles. So, if they change the principles that inspirethe administrative action towards the enhancement of national as core System's, we must also question therelevance of the sources of law built on the assumption of a superior citizen, both located on floors

hierarchically ordered10

. In essence, the renewed conception of relations betweenpublic and privatetend( )matching cannot affect both in the sense of a democratisation of the system of sources of law (laws,regulations etc.) which, inter alia, in the direction of greater participation of the company to the choices ofP.A.117See, for example, the volume collettaneoLa crisis del diritto, Padova, 1952; G.APOGRASSIC, the ambiguity of contemporarylaw, now in Works, op. cit., vol. V 385 et seq.; F.ARNELUTTIC,La crisis del diritto, inGiur. it., 1946, 66 et seq.8SeeP. GROSSI, Italian legal Science. A historical profile. 1860-1950, Milan, 2000, spec. 275 et seq.9On which, see, e.g., a. BARBERA,sub2 const. art., inCommentary on the Constitutiona cura di g.BRANCA, vol. I, Bologna,1975, 50 et seq.

In this context, the issue of customary and ruin is incorporated in administrative law as sce upon furthercompletion of the changes that the entire area of relations between citizens and the Administration,involgendo a dual level, distinct and connected together: the sources of law in the strict sense ( primarily the

law) and the sources of administrative action (the measure). It is clear that cannot develop the theme oftradition and ruin of administrative measures without first having broached the analogous problem in relationto the law, General standardisation tool and the abstract administrative activity is constrained by virtue of the


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principle of legality laid down in art. 97, Cost. 12This is why, in the course of this work, the study of theeffects of custom and law will ruin than that relating to the measures and administrative activity in General,with respect to which the latter are subordinated. The that logic priority should not, however, deceive,because "the General rules of customary law, although they are not created by the legislature, are performedby the organs of executive power, as well as from those of the judicial power" 13; and this demonstration of

character invasive and custom cross, whose operation cannot be limited to a strictly administrative orlegislative level in the same way it you will see does not tolerate being relegated in this or that sectorspecification. Customary rules are applied both by the Executive power, judicial ending, so, with theinfluence of "the contents of the individual rules, rulings and administrative acts which must be issued by thebodies applying the law"14.10In particular, for reflections on administrative justice in the evolution of relations between citizens and administration, see.theoriginal contribution by g. RHOMEO,The paradox of administrative justice, inDir. proc. amm., no. 4/2001, 1042 and ss.11With reference to the administrative practice, see now f. P IGA, vocalsAdministrative practice, inEnc. dir., vol. XXXIV, 1985,842, which looks like "the law expresses itself always more in new forms, not necessarily related to the time of the authoritiesor positions of supremacy or adoption of acts or typical procedures." For others, the Institute of administrative practicenecessarily leads to "a reconsideration of the overall theme of the sources and instruments", in close connection with othertopics, such as tasks, events, discretion, the constraints of the proceedings and (internal standardisationop. cit. ult, 844).12Topic, see.A. SAITTA, the principle of the good performance of public administration in constitutional jurisprudence, inDir

and company, 1998, 53 et seq.; F.EDDAL,from the principle of legality to the principle of the infallibility of theAdministration, inHole amm., 1997, 3307 et seq.; C.INELLIP, Comment to articles 97 and 98., inCommentary on theConstitutiona cura di g. BRANCAand a. PIZZORUSSO, Rome, 1994, 31 et seq.; , L.ARLASSARREC, vocals law (reserve), inEnc.giur., vol. XVIII, Rome, 1990; M.IGRON, vocalspublic administration (Organization), including, vol. II, Roma, 1988;C.ARZUOLIM, rule of law and private law activities of the public administration, Milan, 1982; A.NDREANIto, the principle ofthe good performance of public administration, 1979; F.ATTAS,principle of legality and public administration in the StateDemocratic, Padova, 1969; U.LLEGRETTIto, administrative fairness, Padova, 1965.

After the decline of the myth of the law and, in General, authoritative acts including the measuresunilaterally by P.A. formats the tendency of the modern public law is in the sense of exploitation ofsourcesautonomerepresented by contract and by custom, to the detriment of thoseeteronome, the expressionofAuthority.So, on the one hand, in domestic law increasingly vast areas and activities of the PA are

governed by contract (think of the public sector or different perspectives de jure dressing15

), on the otherdisputes relating to the relationships between national and international traders are resolved on the basis ofauthoritative but from national law more flexible practices formed by the beneficiaries of that right16.In thisrespect, candiscoverthe paradigmatic value of international law to take possible lines of development ofsources of domestic law. As in that sorting custom and contract have always played (and continue to do so) aprimary role in regulating relations between States, these sources seem to even those that seizing signs theadministrative reforms lend themselves to govern in the near future increasingly vast areas of relationsbetween citizens and P.17.13H. KELSEN, General theory of law and State, trans. italiana a cura di s. CEETand g. t.REVES, General theory of law and theState, 5th ed., Sonzogno (Milan), 1980, 262.14H. KELSEN, General theory of law and the State, 132.15 As the proposal made by the Parliamentary Committee for constitutional reforms (const. law, no. 1 January 24, 1997, for thereform of part II of the Constitution) according to which "public administrations, except in the cases provided by law forreasons of public interest, acting in accordance with the rules of private law. Held at the unfair damages, caused to thirdparties, in accordance with the rules of civil law "(article 106, paragraph 2).16The principles oflex mercatoriaprocessed byUnidroitare defined by r. Lot as "an example of a non-authoritative, thought thatEU sees itself as a legal test to the solution of conflicts" (r. SACCO, The unwritten law, g. LPA TOA. GUARNERIP.G.MONATERIG.PASCUZZIR.SACCO, Treaty of civil law directed by r. SACCO,The unwritten law and the interpretation, vol.II, Turin, 1999, 42). Similarly, according to the Bill introduced by the Government in the Senate (s. 1281), "except in cases ofadministrative powers expressly conferred by law or by regulations, the Government will act according rules law. In anycase the Government Act for purposes of public interest "(art. 2).

If the Administration tends to lose the character of autoritativit, and the participation of citizens inadministrative life becomes increasingly active, the main concern of the modern legislature, it follows that interms of sources of law the contract and the customary institutions that are better than everyone in the overalllegal system shall incorporate the concepts of equal relations between the Administration and society, and

primariet(of the human personid estof subsidiarity: see.const. art. 118). In this sense, it will try to provein the course of this study as well as the administrative system is sensitive to the value of custom, whether


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these are formed within the Administration (or across multiple administrations) that in relations betweencitizens and Government

2. Customary and equity: the "scandala" contemporary public law

The call to the law, the Act now in decline, said it still found a "serious argument" against morewidespread use and full of tradition, source wrongly held rank subordinate to law. The interest for the topicis unexpectedly stirred by the fact thatat least in the abstract general theory lineit transposes in terms ofsources of law, the primacy of Community citizens, who make up the rules through a process of trial anderror, experimenting with ways of living adherents to its cultural and social structure. Once crystallized overtime, they become mandatory, assuming the features of a ruleregardless of the questionable nature of thecontent of single rule represents the guarantee of a trendcorrespondence between legal system and socialsystem.17For a study of negotiation sources in administrative law, see v. CERULLIIRELLI,The shop as a means of administrative action,inGiust.it, no. 6/2002 (www.giust.it) and f. g. SCOCA,Authority and consent, inDir., amm.No. 3/2002, 431 et seq. Both postswere processed in the framework of the 47 Convegno di' administrative studiesauthority and consent in administrativeactivities ', Varenna, 20-22 September 2001.

Is likely a discourse on habit, now arouse the astonishment of the reader. Yet, the first feelings must giveway to a more careful consideration if you think that the return to "simplicity lost"18 is a consequencehistorically observed just when the complexity of the systems goes into crisis because of progressivedistancing itself from the natural reality which, instead, should strive for. In fact, in the first two decades ofthe twentieth century, the crisis of the State and of the sources of law that manifested itself in its clarity, wetried to remedy throughto return a provocativeequity, as an instrument capable of appreciating the needs ofsubstantive justice, overcoming a strictly formalistic and legalistic. Invoking the General principles of lawand, in particular, equity, has represented an alternative proposal by the doctrine than the decadence of thesources state. Equity, in fact, for its intimate structure, subrogation positive law, replaces it there where itarrives, acting to solve cases and controversies overgoing General and abstract rule19. It is traditionallydefined as thecase of Justice20, and the contract that contrasts with itin the opinion of a part of the doctrine

p-you also be declared invalid (for iniquity, )21. It is no coincidence that even today you attend aequitativecourts return22, through which the mild rule of equity comes in courtrooms, too often oriented towards therule of law and formal23.18The expression p. GROSSI,Italian legal Sciencecit., 119.19The German jurist and philosopher j. h.VONKIRCHMANN,The lack of value of jurisprudence as science(Die Wertlosigkeit derJurisprudenz als Wissenschaft), 1848, ed., j. h.VONKIRCHMANNAND.WOLF, The scientific value of law, trad. en. p.FSAFETY, Milano, 1964, 30, watch with great interest to a justice administered according to a few fundamental principlesestablished by the State, "leaving the application in their finest ramifications, to the healthy common sense of people awayfrom painful escogitazioni"; thus "perhaps less decisions correspond to the provisions of current artificial thin positive law, orto the learned results of scientific elaborations, but will be issued , however, the spirit of the law, which lives in people " "(italics mine).The wish of a jurisdiction on the basis oftruecultural system of the people is also formulated by h. k.ANTOROWICZ,Der Kampfum die Rechtswissenschaft, 1906, and published under the pseudonym GNAEUSFLAVIUS, tr. it.The struggle for the science oflaw, Milan-Palermo-Naples, 1908, 134: he finds how the arbitration courts, apart from State law, "is always more to goodfaith, to good morals, the concept of life, equity and other surrogates of the law".20C. MANDRIOLI, civil procedural law, Torino, 2000, 13TH ed., vol. I, 96.

Wrongly considers that equity is a concept that relates exclusively to the right of individuals, both interms of substantive law. On the contrary, it tends to permeate even the right of public authorities,contributing, inter alia, to determine the parameter as the administrative judge may excess syndicate powerof administrative act24. The parameter of equity contributes to avoid dealings with citizens, "discretionarypowers can trasmodare in arbitrary behaviors (though formally legal) and, more generally, that within thediscretion and right inverse of its extension of the latter, there is a real pockets, more or less hidden, ofarbitrariness"25.21Doctrinal opinion is reported by f. g.AZZONI,Manual of private law, 6th ed., Naples, 1996, 749.22G. z.AGREBELSKY, the right mite, Torino, 1992, 204.23For specific contributions in the topic, see e.SILIA,Equity in private law, Modena, 1923; F.ARNELUTTIC, vires, inRev. dir.Civ. proc., 1924, I, 33 et seq.; P.ALAMANDREIC, the meaning of the constitutional courts of equity, in studies on civil process,vol. II, Padova, 1930-1956, 1 et seq.; V.ENTITIESD, Contribution to the study of fairness in civil process , Pavia, 1944;


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Cm.and D MARINI, The judgment of fairness in civil process. Theoretical premises, Padova, 1959; R.ECCHIONEV,vocalsEquity (judgment), in Noviss. Dig. It., vol. THERE, Turin, 1960, 625 et seq.; G.UCARINIL, To a Court of equity, inRev. proc. dir., 1961, 275 et seq.; A.ASIno, vocalsEquity (dir. Proc. 2357), inEnc. dir., vol. XV, Milano, 1966, 107 et seq.;M.OTONDIR, equity and general principles of law (1924) , now in Studies of comparative law and general theory, Padova,1972; F.IPRIANIC, the trial fairness must, inHole it., V, 1985, 35; V.ARANOV,Note on the subject of the judgment of

fairness, inHole it., 1988, I, 977; E.RASSOG, vocalsEquity (judgment), in Dig. Disc. Priv.,sez. Civ., vol. VII, Torino, 1991,470 et seq.; E.ICCIR,Note on trial fairness, inRev. proc. dir., 1993, 387 et seq.; V.ROSETTESF,judgment of fairness andjustice of the peace, inRev. dir. civ., 1996, I, 143 et seq.In philosophy of law, see g. m. c.HIODI,Equity: the constitutive rule of law, Torino, 2000.For a practical application of the judgment of fairness,exarts. 113 and 114, c.p.c., see.C. Cass., sez. II March 9, 1999, n ,1991. Giust. Civ., 1999, I, 3005, according to which the judgment rendered by the magistrate's Court in a dispute of valuenot exceeding two million should be considered according to fairness not only when the judges expressly stated to haveapplied a rule of equity or a recognized law corresponding to the fairness, but also when applying a rule of law withoutmaking mention of equity, since in this case that he implicitly considered that the rule of law is a rule of equity; C. Cass., sez.a., October 30, 1998, n , 10904. Giust. Civ., 1999, I, 713, the Justice of the peace who decide according to equity pursuantto article 113, paragraph 2, must observe the c.p.c. regulatory principles of matter, in harmony with the system that providesfor these rulings the only ricorribilit in cassation, without exclusion of the profile of violation or misapplication of rules oflaw referred to in art. 3 No. 360 c.p.c.

The need to overcome the rigidity of the written law of the source State to refer to legal applicationsmore adherents to the municipality and/or prevailing feeling of Justice constitutes a tendency that isaffirming in European administrative law. In art. 41, paragraph 1, of the Charter of fundamental rights of theEuropean Union (adopted at the December 7, 2000) is enshrined the right a citizen'sfair administration26. Aswas clarified, the concept of equity expressed in the Charter must be interpreted strictly proportional, i.e. asentitled to an administration that put in place appropriate acts and behaviours with respect to therequirements of public interest, and with the leastprivate interest sacrifice27. In this sense, the right to anequitable administration seems to pose as another corollary of the principle action of proportionalityadministrative time in the community case-law28. Under other community equity profile could be interpretedas authorising officer for the choice of policy instrument, authoritative or consensual, that the Administrationshould use "29. This meaning that the exercise of authoritative powers would be allowed only where it is not

possible to use the consensual: equity should be understood as "rule that requires administrative action tocome down on the ground of equality, dialogue with the private, consensus and agreement with the SROs,whenever practicable, relegating the exercise of power in a residual area"30.24On work in art. 7 of Legislative Decree No. 231 October 9, 2002, their customs and to equity in relation to obligations of AR,v. specificallyinfra, cap. IV, sec. I, 5.25In this order of ideas, r. VIVENZIO,Equity and syndicated on ultra vires in the experience of Italian administrative court,inQuad. reg., 1994, 1247 et seq., 1254. On fairness in administrative law, see from the writings off.AMMEOC,fairness inadministrative law, in annual of the University of Bologna for the academic year 1923-1924 , Bologna, 1924; G.CAVONETTIS,equity in public administration, in studies in honor of Cameo, vol. II, Padova, 1933, 505 et seq.; A.IANFALONEC, the contractof public works, Milan, 1950;AND.MMALL, vocalspublic contract, inNoviss. dig it., vol. I, volume I, Torino, 1958, 701 etseq., part. 713 et seq.; M.TOLFIS, vocals Contract (contract), inEnc. dir., vol. II, Milan, 1958, 629 et seq., part. 670-672. Inparticular, on the thoughtof F.AMMEOC, see f. m.ERUSI,fairness in administrative law second Cameo: in search of the firstfoundations of the substantive legality, inNotebooks Florentines for the history of modern legal thinking, 1993, 413 and ss.26Equity as a parameter of theagereEuropean institutions ' administrations shall, Furthermore, in article 4 of the code of goodadministrative behaviour for the General Secretariat of the Council of the European Union and its staff, adopted June 25,2001: "staff members act with fairness and reasonableness".27A. ZITO, The ' right to good administration in the EU Charter of fundamental rights and in national law, inRev. Engl. ed. ed.community., 2002, 435.

Equity and customary, therefore, respectively under judicial administrative activities, and sources of law:they represent their own tendencies "of those transition periods in which the company, hovering between oldprinciples of a law that collapses and the new principles of a law that you create, look up his new stablebedding"31.

It is obvious that the need to adapt the legal system in General (and particularly administrative) so as tobe compliantfeelof society cannot sacrifice the needs oflegality(in broad sense) and peaceful coexistence.

However, the need for tracing precise boundaries illegality between andfreedom-autonomy legislation ofthe people cannot come until the overlap of legal schemes and architectures that deny the genuine socio-cultural reality of each community to which they are intended to affect. For this, I believe a new meditationon institutions wrongly placed in the "forgotten right", escaping the temptation of blocking any legal


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reflection taking refuge behind dogmatic arguments that exhibit clear signs ofsenescence: in particular, thecall to lawis a toposto label of illogicality every reflection that aspires to locate the premise dialectic legal-political system in theman rather than in the State.

If you provide suchcultural prejudice, a study onpractice and appears definitely ruinold fashioned 32 .However, careful thought can revealed that are beyondof this opposing legal arguments that rely on State

sovereignty and the primacy of the written law; this cogitandi modus contains, in fact, more disadvantagesthan advantages. The subordinate rank of tradition is apparent, for example, a single argument of positivelaw, articles. 1, 8 and 15 of the preliminary Provisions to the Civil Code of ' 42 , giving birth inenvironment a law, the fascist, that does not belong to the constitutional Republican. The hierarchicalconstruction of outdated sources indicated in art. 1 Preleggi ofcan be argued, first, historical-philosophicalconsiderations. They may be a useful starting data to verify the consistency ofa dogmatic built remains onpast legal.28SeeD. u. GTEMPTS,principle of proportionality and judicial review in administrative law, Milan, 1998; A.ANDULLIS, Theproportionality of the to-ing and administrative, Padova, 1998.

29A. ZITO,, op. cit. ult, 436.30A. ZITO,, op. cit. ult, 436.31P. CALAMANDREI, the meaning of the constitutional courts of equity, op. cit., 48.

3. the concept of fascist System State

In Italy, the collapse of the fascist regime contributes to exacerbate the crisis of the nation-state that runsthrough the twentieth century. This decline is the resizing of the rule of law, such legislative act State(governmental or parliamentary)33. Willing to put an conception by comparison fascist and RepublicanState, can be said to be in first approximation that, with the Constitution of 1948, the Hegelian idea of theState as the embodiment of "divine" was passed to the democratic idea of expression of popular will34.32The sterility of each injury in defend's attitude and logical schemas is stigmatized, consolidated with bitter irony, by j.h.VONKIRCHMANN,The lack of value of jurisprudence as science, cited in j. h.VONKIRCHMANNE. WOLF,The scientific valueof lawcit., 35: "The undaunted comedy of a similar attachment to their prejudices enough to revive the person above thisalarming state of affairs".33On the concept of Nation, v. v. CRISAFULLID.NOCILLA, vocalsNation, inEnc. dir., Milan, 1977, vol. XXVII; R.UBERTG,vocalsNation, f. d.and MARCHI.ANDLLENAB.CATTARINUSSI, new dictionary of Sociology, Milano, 1987, 1349 et seq.;GF f.FERRARI'S, vocals nation,inEnc. giur., Rome, 1990, vol. XX; A. D. SMITH, The ethical source of Nations, Bologna,1992; P.ARROZZAC, vocalsNation, in Dig. Disc. Ed., vol. X, 1995, 126 et seq.; on decline of category, a.ELUCCI MM.DIANI, stateless nations. Ethnic movements-national in the West, Milan (Feltrinelli), 1992; GR e.USCONI,If we cease to be anation: between etnodemocrazie regional and European citizenship, Bologna, 1993. On the problem of the crisis of thenation-State and the impact on this globalisation, M 'sand D VRIES, status attack. Comparison of ideas, inRev. Engl. ed.dir., community, 2000, 1221 et seq.; in a sociological perspective, on the relationship between the dissolution of the State andneeds of the war, see also c. R is, the paranoia of the West, Liberal, 2001, fasc. 9, 90 et seq., in part. 93. on the relationshipbetween State integration and nation- community, and on the necessity of a return to the Nations-Was in the process ofEuropean unification, see.L. SIEDENTOP, democracy in Europe, Torino, 2001.On globalisation, M. UCANI

L, The antisovrano and the crisis of the constitutions , inRev. dir. cost., 1996, 124 et seq.;

A.PADAROS, constitutional effects of so-called ' globalisation '. Story of a metamorphosis: from national sovereignty to thesovereignty of the public (and financial)international,pol. dir., 1998, 441 et seq.; C.INELLIP, Citizens, politicalresponsibility, global markets, inRev. dir. cost., 1997, 43 and ss.

As, known for the fascist conception, the State is thefounderindividuals, culture and human spirits. It isconsidered an entity vital that creates men, the people and the nation, multiplying the forces. According tothe mussoliniana doctrine, "everything is in the State, and no human or spiritual exists, much less have valueoutside of the State. In this sense, fascism is totalitarian, "interpreting, developing and strengthening"the"lives of the people35: the political, economic, spiritual and cultural36. The State "is an absolute, beforewhich individuals and groups are related. Individuals and groups are ' thought ' asare in the "37. It followsas logicissima resultthat the State, "How will universal ethics, is the creator of the right"38. In , a word theindividual and the State, in open opposition to liberal theories of the 19th century, "who is the giganteggia"39.34G. z.AGREBELSKY, the right mite, op. cit., note 84, rightly that the fall of the Hegelian idea of the State is a born also ofshocking behavior of its consequences, i.e. application of the generalissimi historical and political phenomena that invest thecontemporary era: "the State ' who knows ' regardless and also against what they know individual human beings, was to Stateto which they should be ascribed the responsibilities of the tragedies of world size were consumed in two world wars and


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interwar. In the eyes of the survivors, it was evident that much nationalist-bourgeois state that totalitarian did not know whatactually did ".35B.MUSSOLINI, vocals Fascism, inEnc .it. di scienze, lettere ed arti, Rome, 1932, vol. XIV, 847 and 848, ss. It should berecalled that the "voice" on the doctrine of fascism was written by Giovanni Gentile.36B.m.USSOLINI,, op. cit., ult850, worries, however, indicate that the individual fascist state is not canceled, but ratherincreased, as well as a soldier in a regiment is not diminished, but multiplied by the number of his comrades.37B.m.USSOLINI, op. loc. cit. ultIn particular, "is the State that educates citizens to civil virtues, makes them aware of theirmission () relates the conquests of thought in the sciences, arts, law. "38B.MUSSOLINI,, op. cit. ult, 848.

This design drew with both hands by the "theoretical" arsenal provided by Hegel, for which there areboth individuals to found the State, but the State founding individuals, "both from the historical point ofview-temporal (as the State is chronologically ' first ' of individuals, which already come under it) both interms of ideal and axiological (because the State is superior to individualsjust as the whole is greater than theparts that2) compose40. According to the Hegelian system (which has fueled the constructionin moderntotalitarian States41, including that of twenty years), popular sovereignty "belongs to the confused thoughts",since the origin of all authority is found in people but not in the State, entities ' divine ' which precedes thecommunity.

This conception was recast in full in the preliminary Provisions to the Civil Code reads: here the source

State par excellence, is located in the first place, in open opposition to the customary expression of popularwill, which instead has been placed in the lowest position (art. 1). The opposition between State-law on theone hand, and people-custom on the other hand is perfectly consistent with the requirements of value fromwhich came the fascist conception of the State. Alfredo Rocco, the jurist "author" of the criminal code,expresses the official position of the Government, claiming that if "we understand perfectly well that outsideof Italy, in a period of decadence of the State, to signalise extra forces, also in the field of training of law",rather "contradictory appears in this period of life, which is undoubtedly marked by the idea of the State,enhance the authority of the State and at the same time proclaim that it share with other organizations andwith other social forces essential attribute of his sovereignty, the exercise"legislative function42. 'S opinion(which ispendantthat of Bettiol, infra, in the text) from one side provides a (or) because of the contempt ofcustomary law in legislation codicistica born during Fascism43; on the other hand, however, offers light andinspiration for rimeditare the theme in "the decadence of the State", which is what I currently live. Basically,

if the configuration of custom as a source of law subject to the law is consistent with the policy of the past,inspiration is questionable, however, believe that system will remain valid even in the Republican,whereman the and its collective expression, the people, have assumed primary character and conditioningthe entire legal system, until the discovery of constitutional sovereignty in the people and not in ex , art. 1Cost.39B.m.USSOLINI, Fascism, 850.40N.BBAGNANOG.FORNERO,philosophers and philosophies in the history, Torino (Paravia), 1992, vol. III, 137.41In this sense, n. BOBBIO,Studi hegeliani. Right,State, civil society, Turin, 1981, 114.42A. ROCCO, the custom and the law of the State,Rev. ed. Hrsg., 345, 1930. The Minister for Justice and religious affairs offascism continues explaining that "the practice cannot have a modern State the importance of other times. The promptnesswith which the law intervenes to arrange with new rules to the new demands of social life, making it less easy to form newhabits, that growing, can become, by virtue of their prolonged observation, real rules of law ".

4. Follows: Republican system

To start our investigation, in the light of those considerations it is preferable to relativize the traditionalcatalog of sources detected in art. 1 the provisions on the law in General, contestualizzandone andinterpreting the content in close relation to the dominant political thought at the time of the promulgation ofthe Great Code of ' 42. Turning completely setting fascist, indeed, democratic State has identified the people,intended as electoral body, the matrix, the Supreme Constitutional Court, the prime mover of the institutionalsystem (art. const. 1).

The ideological change is not negligible. It should not be underestimated in terms of legal consequenceswhich are, in particular to the relationship between the law, the expression of statehood, and the usual

manifestation of people's creative will. So, while "coordinating State ( such as fascism n.d.A,.) can hardlyform and explain the effectiveness not legal norms arising from the will of the Prince ", in a" schemewhere central power is faintly hear (like the current democratic, which recognizes and promotes the


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principles of subsidiarity, the vertical and horizontal n.d.A),, legislation can also be largely customary andwritten law prevalence"44(italics mine). It is symptomatic the authoritative doctrinal opinion of Bettiol (butalso of Rocco, as seen) that circumscribes the disavowal of the custom as a source of law "at the currentstage of legal proceedings"45(Thirty years!), thus leaving open the quaestio juris in view of the institutionaland political upheavals of great relevance; that you are, then, duly verified by the replacement of centralizedand authoritarian fascist regime to decentralised and Democratic Republican system, founded not on theprimacy of the Stateon theman ofand, specifically, on the sovereignty of the people and the autonomy ofrepresentative bodies of local communities (cfr.arts. 5 and 114 et seq. Const.). In this sense, it can be better ,explaining how Preleggiin, the law is placed at the top of the sources are not as a general expression of thewill, but as a demonstration of State authority. Is such statolatrica conception who has made thecustomary, direct expression of the will of the people, the primacy of law46.43However, m. D'amelio, a few years later, was concerned to refute point by point the thesis of Rocco, demonstrating that evenduring the Fascist period, the practice could find wider operating margins. In particular, D'amelio observed that: 1) the peopleconstitutes an essential element not only of the State, in which it is organised, 2) but also of the fascist Regime, taking intoaccount that the Government mussoliniano calls itself "popular", and considering also that the plebiscitarie events are a strongpoint of the Regime (m.MELIOto, customs and the law of the State, Rev. ed. Hrsg. , 1935, the 520 et seq.). The same,on the topic of custom pure, v. ethnological jurisprudence and the revision of the theory of customary, inRev. ed.Hrsg., 1910, 37, and ss.

This idea, however, has not been accepted by the current democratic order. The Constituent toppledpower relationships, identifying the people and not in the authority of the monarch or State sovereignty.Dall'Unit of Italy to the establishment of the fascist regime, the force responsible for every movement camefrom above, by the authority of the State in mediation with that of the Sovereign; the constituent Assemblydecided, on the other hand, a model in which thebottom moves forces47. Beyond the criticabilit or not newmodel established demos on and not on a higher principle, which was often in the history of theosophicaland theocratic nature48, it is certain that the legislature has placed in the engine of the people in political lifeof the nation, giving significantly this principle in the first article that opens the post-war Constitution. Withthe new Republican order opened in 1948, is the people"the matrix"49, the Constitutional Court. Propellerengine State Republican structures are not, but it is the Nation50: is this function that Act the powers of theState. They find their rationale before legal legitimacy and their in people. This is what carries on its native

sovereignty "in the manner and within the limits of the Constitution". Political and administrative structuresare nothing more than the joints placed at the service of the people, by this, and legitimised through whichthe people themselves through a system of exercises of parliamentary representationsovereignty51. ,Retrieve the centrality of the Nation within the system of sources of law means that redcouvrir (enhancing)the subject first Republican State, the source of legitimacy of the political-administrative-constitutional(built, and not surprisingly, "in the name of the Italian people").44G. BETTIOL, the effectiveness of practice in criminal law, Milan (Societ editrice life and thought), 1931, 5.45G. BETTIOL, the effectiveness of custom, cited above., 7.46Expression of the same ideology of Disp. Qual. Cod. CIV. is, for example, the structure of the special part of the Penal Codeof30, definable as statocentrica in descending progression: it opens with crimes against the personality of the State,continues with the classification of crimes against the collective interests and closes only last, with crimes against the person

and against property. On , v.ampliusT. PADOVANIL.STORTONI, criminal law and criminal cases, Bologna, 1991, 44.47For the distinction between State sovereignty and the sovereignty of the people, see the philosophical essay of g.SCHIAVONE,Democracy and modernity. The contribution of utopia, Torino, 2001.48"The idea, which the State derives its origin from thedemosand in it the principle of its legitimacy and its consistency, it is aperversion of ideology and typical of the modern world, attesting to essentially a regression. With it you go back to what wasa naturalistic social forms, lacking a chrism spiritual " : j.FLIESand, revolt against the modern world, Rome (ed.Mediterranee), 1993, 43. On the subject, with substantial identity of views, see the essayR.UNONG, ' Autorit spirituelle etPouvoir temporel, Guy Trdaniel, Editions de la Maisnie, Paris, 1984, tr. it.Spiritual authority and temporal power, Milan(Luni editrice), 1995. The same, on the distinction between custom and tradition (sealed) , v.Initiation et Ralisation, Faerieswarmtrad. fr. NUTRIZIO,Initiation and spiritual self-realization, Milan (Luni editrice), 1997, 28 and ss.49So B P.ARYL,Public law Institutions, Padova, 1993, 150.50The prevailing doctrine considers that the constituent Legislature has used the termNationas a synonym forpeople: see.in thisregard a. GIANNINI,The people in the Republican regime, inAdministrative Journal, 650, 1952; C.AVAGNAL,for a study ofsubjective legal figures contained in the Italian Constitution , Padova, 1953, 54-55; G.MATOto,popular sovereignty in Italian,inRev. trim. dir. pubbl., 1962, 87; , L.ALADINP,Lectures in constitutional law, Padova, 1989, 106. Sopure r.OMBOLIR,


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vocals People, inEnc. giur., vol. XXIII, 1990, 1-2: "the use of the term nation, in place of people, would demonstrate thedetermination of constituents of understanding the people standing in its unity and its national character."51Is just the case to observe that principle constitutes a "truth" of our constitutional order, and as such has repercussions inevery area of legal, private or public that both; in administrative law, for example, starting with the constitutional preceptenhancement of article 1, (s. GIACCHETTI, The long March of adherence to the reasonableness, in Cons. State, 2002, II, 981et seq.) to interpret the rules on Administrative Justice adapted to the changed attitude of the Supreme powers and the

different purposes of administrative judgement today than the planting of late nineteenth century when those rules weredevised: "today is the holder of sovereignty the people (); and all powers derive from the people (). This premise isneeded to understand the law March 20, 1865 No. 2248, all. And, abolitiva of administrative "(s.IACCHETTIG,, op. cit. ult,983).On supervisory and control Authorities (cc.dd.authority) such as organs not service jobs State but citizens see below, subcap.I, sect. II , 2.6.

, Lost this vital relationship, the complex of Republicans becomes a sort oftotemprimitive, para-divinesource, which is then expropriated by holders of political power and managed without the necessarycolleganza with its main Foundation: the community52.

5. the crisis of contemporary nation-State

5.1. Follows: factors

Crisis of the Hegelian idea of the State. Although it cannot yet be fully conchiusa, next to the delisting ofthe law ( on v.infra), today the most important factors of contemporary State crisis can be so identified53:

1.pressure status: these pressures come from on high (opening of international public policy,internationalization of internal policies, globalization represents only one aspect) and bottom(affirmation of entities devices, new localism, processes of institutional decentralisation,subsidiarity) 54 . These forces will help to determine the progressive loss of State sovereignty, bothdomestically and internationally: think, for example, not only to the introduction of the principle ofvertical subsidiarity (article 118 c) but, before that, the phenomenon of the European Union55;

2. denationalization of State, i.e. loss of correspondence between State and Nation:contemporary States today are no longer an expression of a community linked by the sameanthropological-cultural characters, due to the phenomenon of insistence on the same territory of aplurality of cultures 56 . That given, inter alia, poses further into crisis the legislative source: sincenational boundaries tend to dissolve, the law of the State shows its inadequate phenomena toregulate socio-transnational legal. In the changed scenario of internationalising-tion of policies andof globalization, national law does not seem suitable to represent and defend the interests ofindividual communities, because they transcend the size of nation-States. Perhaps this is anotherreason the progressive establishment of global society lex mercatoria (on which infra, cap. II, sec.I, 2 and 2.1).

3.delisting of the welfare state: the progressive withdrawal of the State economy, consecrated bythe process (still ongoing) of liberalisation and privatisation, marked the demise of the mythofWelfare State57. And since, according to the dominant conception in the 20th century, the welfare

State was considered the highest expression of the State, to identify with it, "the contemporary Statecrisis escalates even due to the crisis of this role"58. The bankruptcy of welfare policies has helped tospread the belief about the inability of public bodies to promote social well-being, and consequently,about the futility of maintaining an overstaffed Government-funded structure59;

4.crisis of parliamentary representation: born to represent and realize collectively the interestsof different social components, today the Parliament (or at least one Italian) tends to be perceived bysociety as aforeign body. This is probably due to the fact that it tends to represent primarily theinterests of power groups that sit on its benches, finding in the community of citizens a mereelectoral legitimacy base rather than the actual point of reference in the exercise of legislative andpolitical action. Even such a degeneration of the institution contributes to undermineparliamentary the identity and function of the contemporary State60;

5.crisis of citizenship:historically, citizenship has always representedas in the Roman period,for example the basic requirement for the purchase and protection of the rights by the State.Membership subject to the State, marked by the report ofcitizenship, constituted the sine qua nonfor State intervention in favour of citizen: its legal position was considered worthy of protection


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insofar as he belonged to the State. Today, the equation between citizenship and protection of therights is not provable. The rightsrecognized the fundamentalmanand not to citizen61(art. 2 const.);they are eligible regardless of membership of the national community and, therefore, regardless ofcitizenship62. The consciousness of modernrights knowsman: they are fundamental, inviolable,transnationaland -State actors.

6.

Is precisely in the name of fundamental rights, which is placed in another crisis:dogmaabsolute immunity of internal state. The inviolable rights and allows States to justify theinterference in at-tivitiesonce inviolableother Statesrulers, legitimizingcovered(: attempting tolegitimize) also "just wars" conducted in the name of inalienable rights;

7.the environmental theme: the crisis of the State is realized entirely in front of the affirmationof a subjectnaturaliterultrastatuale: Ambien-te. Objectby of rights, it has become the subject, whichcalls for autonomy, equal and superior to that of the State. The environmental superiority comparedto the State is shown by the fact that the existence of the first depends the survival of the second63.The State is dominatedcouldn't control it64. Add to this is that an effective environmental policycannot be conducted by individual Nations, since it involves choices and sacrifices(planetarylevelsee.the Kyoto international agreement). The dimension embraces environment a-temporaland a-space: conditions past and future ofman, the totality of its spaces. In this sense, it can establishthat the globalization of the third millennium is not only economic mediaand, but also theenvironment. The environment influence the existence ofStates and at the same time it exceeds thesize singular, requiring an intervention synchronicand global.

52Preferred the Republican road to monarchy or theocracy, it only remains to explore it all and consistently. If the principle ', 'Nordic and divine Theosophical, who once ruled the Nations and(laws inspiredcfr.J. andFLIES, revolt against the modernworld, paragraphs 43 et seq. and r. g.UNON, spiritual authority and temporal power, op. cit., passim) the Constituent haspreferred to one in which the source of legitimacy comes from the bottom of people gathered in the people, not only drawfrom this choice, the necessary conclusions. When such a link to popular legitimation breaks, powers and institutionsborn demo-craticamente are usurped, and they specifically disclaims the basis and purpose. 53On the subject, for the appropriate glossary see s.cASSESE,The crisis State, Bari (Laterza), 2002.54G. VILELLA, where is the Statecontemporary, inRev. Engl. ed. dir., community, 2000, 48. The complexity of emergingproblems in the technological society requires sometimes planetary breath interventions,that transcendnarrow the nationaldimension: on the subject, see also s. CASSESE, the erosion of State: an irreversible?, s. c.ASSESEG.GUARINO, monoclasseState to globalisation, in Quaderni della Parliamentary Review, Milan, 2000, 25 et seq. For M.ARUFFOT, The civil trial of"civil law" and "common law": fundamental aspects, inHole it., 2001, V, 357, "overcoming national boundaries (ornationalism) is an unavoidable phenomenon, as well as appropriate, and is closely related to the dissemination and circulatio nof general issues such as constitutional guarantees, human rights, due process, the effectiveness of the protection, and so on(). If the legal culture () does not want to permanently lose touch with reality that intends to deal with, and if you don't

want to stay wrapped in spirals of solipsism self-referential, must find a way to participate in unlimited circulation ofideasthat is now in re ipsa in the globalised world "size.In general, on the legal consequence of globalisation, see.M. r. FER-RARESE, the institutions of globalisation. Law and rightsinsocietytransnational nale, Bologna, 2000; J.ABERMASH, The postnational constellation. Global market,Nations anddemocracy, Milan, 1999. For the processualistici reflections ofphenomenon of globalization, cfr.M. TARUFFO, cross-cultural Dimensions of civil justice, inRev. trim. dir. and CIV. proc., 2000, 1047 et seq., in 1058 and ss part.., and by the same

author,The civil trial of "civil law" and "common law", cit.,345 et seq. Anyway, can't sottacersi that, paradoxically, to aneconomy and an increasingly globalized world is a more provincial policy.55The loss of State sovereignty causes a change in the conception of the Constitution: no more "Centre from which all derivedfor irradiation, through which State sovereignty rested, but as a center toward which everything must converge, i.e. as a Centerto gain rather than as a Centre from which" (g. ZAGREBELSKY, the right mite, 10).56G. VILELLA, where is the State, paragraphs 49-50.57SeeM. a. GARCIA HERRERAg. m. BUELGA,, Regions and social protection crisis of the welfare state, inpol. dir., 2001, 55et seq.58G. VILELLA, where is the State, 52.59"The public authorities or, better, public administrations are widely their inability to cope, for both the small size of thenecessary financial resources for the structural inability of the Overmanaged organization": g. CLEMENTE ofSAN LUCA,Voluntary and non-profit sector in the framework of the institutional legal system with specific regard to Italian cultural

sector,in "Ars et labor". Materials for teaching ofrightdei beni culturali, Naples, 1997, 113 et seq., 117. THE A. Note also

that "while there is a progressive and meticulous demolition of the welfare State, taking account of the aspiration to models ofneo-liberalism must deal on a daily basis scontrandovisi often dramaticallywith the growing demand for satisfaction ofnew social needs and interests."


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60On the point, already nearly a century ago SANTIROMANI(in the modern State and its crisis, 23) identified the State crisisfactors in the lack of correspondence between the willingness expressed by the legal institutions and that actually felt by thecommunity.Deficits the of representative democratic structures, together with emerging trends were considered antistatuali,corporatist the two most important mine under the building State: "the crisis is therefore the current state you can feel that it ischaracterized by the convergence of these two phenomena, one of which aggravates necessarily: the progressive organizebased on particular interests of society which is increasingly losing its atomistic nature, and the inadequacy of institutional and

legal means, that the company itself has to reflect and assert its structure in the sense that the State ". On this last aspect, inparticular, Santi Romano acknowledged that "the so-called popular will find little chance to find his faithful parliaments whenOracle is elected, for the time that intercedes between an election and the other, independent of his constituents"(, op. cit. ult,22). For this reason, "spread a certain mistrust () against the possibility of finding institutions created by the State andframed in its order, the heroic remedy that you try"(, op. cit. ult, 23).61Might also say, citizenWorldand not of singleState.62To witness the gradual weight loss of citizenship in the framework of fundamental rights, can take the example ofentrenchment of civil jurisdiction regardless of the nationality of the respondent's possession. In fact, if the defendant is aforeigner, to the determination of the jurisdiction of Italian art. 3, comma 1 della legge n. 218 May 31, 1995, replaced thecriterion of citizenship with domicile or residence of the defendant, which alone determine jurisdiction. This legislativechange has transformed our sortingat least in the casefrom "closed" to "open": on , p.BIAVATI,, Civil Jurisdiction andterritory ordering open, Milano, 1997; constitutional aspects of the new discipline, and f. r.ICCI, the new internationalprocedural law of the Constitution, inRev. proc. dir., 1997, 308 et seq. In general, the relationship between foreign legal

systems and jurisdiction, before the entry into force of Act No. 218/95, g. CAMPEIS.Dand PAULI, international civilprocedure, Padova, 1991. On the new judicial discipline introduced by law No 218/95, a. TTARDIto, The new discipline ofItalian jurisdiction and recognition of foreign judgments, inRev. dir. civ., 1995, 727 et seq.; G.ALENAB, the new limits ofItalian jurisdiction, inHole it., 1996, V, 209 et seq.; S.to L CHINA,Awe and foreignness to Italian jurisdiction, inRev. proc.dir., 1997, 27 and ss.63The environment is able to affect and limit other rights with which it interacts, as is theright where others can't resist, whereinconsistent: "the will cannot be protected as right without inherent limitations since it is now more unlimited physical field 'natural ' in which it is exercised" (g. ZAGREBELSKY, the right mite, op. cit., 140).64"the Earth has a sort order that is independent from man's choices, and considers the latter as aggression to which respondwith sentences ranging from slight injuries to his death. And there is no appeal. From that point forward, the world, from inertstage of human, transformed into a real subject, absolutely insensitive to definitions that it give lawyers ": V m.OMANIR,, ing. CLEMENTE ofSAN LUCA(ed.),the protection of legitimate interest in light of the new discipline of administrative process.

Proceedings of the study meeting held in St.Maria C.V. on June 19, 2001, Torino, 2002, 89.5.2. Follows:in particular, the crisis of law and pluralism of sources

The contemporary State crisis develops and exacerbates affecting its legal sources. With the State, goesinto crisis even absolutist conception of law identificatasi in the Majestylaw's infallibility and65, maximumexpression of political and Legal Affairs of the State 66. A hand that State sovereignty loses meaning, "thiscrisis is reflected on the very idea of law conceived with its traditional characters preventivit, generality andabstractness"67.

In particular, the crisis of law, sources of law State par excellence, is at the same timecaseandeffectof thedelisting of the Hegelian model of the State. It to once it becauseis, as "mine" the uniformity ofstandardisation and, thus, Unitarity and (the) State sovereignty; on the other hand, is a effect of State crises,

since pluralism of sources that you go saying represents the "loophole" through which the decomposition oftraditional categories State manifests and highlights. "What once was called a somewhat rhetorically theMajesty of the law, as most regulatory instrument for the regulation of the behaviors in a community, is nowin crisis"68: they entered for the first time in the catalog of normative sources the rigid Constitution (where theStatuto albertino was flexible); the regulations issued by the constitutional bodies (such as the Chamber, theSenate or the Constitutional Court) governing their internal activities and sometimes even outside theauthority of law; regions, the statutes of municipalities and provinces (now has constitutional substrate: art.114, para. 2, Cost); the power of trade unions to conclude of effective collective agreements erga omneslike a law69; in place of laws with the typical features of the generality and abstractness, special laws prevailand provvedimentali and, typically, special legislation on the General and codicistica 70. The latest trend is,then, one of the major factors in the crisis of parliamentary democracy. The Parliament no longer form theprinciple laws that reflect the opinions of the majority of the country, but only special laws, "cut", withadministrative, which often , repaysfavors in what is acquired votes71: "the Liberal character of the law ()today no longer exist. () the law has lost the sense of orientation of recruitment, becoming the fearsome tothe unpredictabilityhis direction "72. On the international stage, then, you post the entry in the internal legal


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order of international regulations (enacted in via automatic by virtue of article 10, paragraph 1, const. inresponse to special measures) and of the European Union73, as the Community regulations which have directeffect in our sorting even if inconsistent with domestic law.65Very indicative is formed in the early literature of the century on the crisis of the State and law: see the writings of r.DANDRUGGIERO,The dogmas of private law and their revision, inArch. giur., 1927, 133 et seq.; G.ORINM,La loi et lecontrat. Thedcadence de leursouverainet, Paris, 1927; F.ARNELUTTIC, the crisis of law, inRev. ed. Hrsg., 1930, 424 etseq.; G.APOGRASSIC, reflections on the authority and its crisis , op. cit., passim; To.EMOLOJ, our time and the right, (1932),now in sparse Pages and historiography, law Milan, 1957; G.EL D VECCHIO, the crisis of the science of right, inArch. giur.,1934, 5 et seq.; W.ESARINI C SSTRENGTH, the crisis of, inArch. giur., 1936, 18 et seq.; M'sIANNINIG, the interpretation ofadministrative act and the General legal theory of interpretation , Milan, 1939, 29 et seq., now in Written, vol. I, Milan, 2000,3 et seq.66For a complete discussion of the topic of the crisis of the law, see g. ZAGRE-BELSKY, the right mite, op. cit.,passim.67L. CIMELLARO, Deregulation and deregulation. Lines ofshadow on a myth, inDir and company, 1999, 99.68On delisting of law as an instrument of discipline reports, v. g. C IAURRO,The crisis of law, inRass. Parl., 1989, 153 et seq.and d. n.OCILLA,Crisis of law and legislative technique, inDir and trib prat., 1992, I, 327 et seq.; F.ORM-DUGNO D.NOCILLA, crisis of law and the system of sources, inDir and company, 1989, 411 and ss.69 On this point, note that collective bargaining has in some cases (art. 2, par. 2, d.Lgs. February 3, 1993, no. 29) a force ofabrogation of law atypical for an inconsistent with it.70G. CIAURRO, the crisis of law, op. cit., 153: in this sense we speak today of a growing "' administrationalization '" of the law.In the same way, g.AGREBELSKYZ, the right mite, 43-44, which speaks of "Powdering" legislative law "through tomultiplication of sectoral laws and temporary", and "professionalisation" immediately according-the content of the law. 71Second F. A.VONHAYEK,The political system of a free people,inLaw, legislation and liberty, ed. italiana a cura di a.PETRONIand s. MONTIBRAGADIN, en. trans. p. g. MONATERI, Milan, 2000, 475, until the Parliament will be provided withunlimited powers will not be possible for this to pass general laws or decide on matters of interest really General. Accordingto the liberal philosopher, Parliament is forced to use its unlimited powers "to acquire the votes of particular interests,including those of some small groups or individuals. One such organism () will be in constant need to reward the support ofdifferent groups, giving special advantages to them. "72G.ZAGREBELSKY, the right mite, 43.

In the light of these constitutional and historical changes, cannot continuarsi to consider binding thecatalog of sources as well as handed down by the provisions on the law in General, since these were

produced, as seen in aenvironmentand legalclimatepolitical-cultural deeply different from the current one. Inconclusion, the statehood of normative sources is a concept more abstract and less demonstrable, both in thelight of the legal production of international level (directives and regulations of the European Community,the UN resolutions) and internally, where several parties operate Statewhich territorial entitiesex ( art. 5const.) and partnerships not recognized as the trade unions (ex art. 39 Cost.) 74 . Conversely, regains morespaces, contractual instrument governing, for example, the privatizedpublic report75. In turn, the legislativeexpresses the delisting oflegal positivism decline76, tending to identify the right with the law and, therefore,with the .73A. PIZZORUSSO, comparative legal systems, Milan, 1998, 136-139. To F.WELCOMEB,In re: State of the welfare StateWelfare v., inDir and company, 1984, 11 ff., paradoxically the decadence of the nation State has not made by pendant thedevelopment of forms of social cooperation. In fact, the legislation (especially that of the years 70-80, where it refers) wascharacterized by the strengthening of public competences and powers at the expense of legitimate popular protagonism. For

imitation, this tendency towards institutionalisation is manifested also in the party structures and unions, who tend to lay downstrict procedures and hierarchies.74"The renewed conception of sovereignty inaugurated by the Constitution of 1948conception whereby a portion ofsovereignty melts, so to speak, in the elaboration of the" social State of Autonomies "you should declare definitely in crisisthe traditional system of the sources, whose failure to represent the reality could be said now blatantly acclarabile": g.CLEMENTE ofSAN LUCA, Freedom of art and administrative power. Constitutional interpretation, Naples, 1990, 154,who adds that "we cannot validate that there are significant areas of general decision powers entrusted to, regulatory andadministrative subjects, disconnected from direct democratic and then subtracted the investiture for every possible type ofcheck from collectivity" (, op. cit., ult155, sub footnote 247).75The crisis of law is accentuated by the legislative hypertrophy, which produces legal uncertainty.76For G. ZAGREBELSKY,The right mild, 50, "survival ' ideological ' of legal positivism is an example of the force of inertia oflarge legal conceptions which often continue to operate as residue even when they have lost their raison d ' tre because ofchanging conditions that hadoriginally justified. " Legal positivism presents itself today as "a mere historical wreck."

This is the problem of redefining the sources of law not only in civil relations but also those betweencitizens and the Administration: "The right of statehood, which was a precondition of legal positivism of thelast century, is thus questioned and the law often retracts to leave fields to standardisation of different origin,coming from local public entities (...) now from autonomy of collect ive social subjects (). These new


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sources of law, unknown in parliamentary monism of the last century, express autonomie unsuitable drive aunique and centralized regulatory process. The competition, which replaced the legal monopoly of the lastcentury, is thus another reason to fix for the life oflaw as "sort77. The complex of these forces led to aprogressive reduction of spaces that first separated State and society, which are now to be filled by adequateparticipatorypolicy, and not just (not) representative78. Once again, we must the need to reaffirm rethink

status, redefining its traditional categories, administrative regulations and, in a sign of reaffirmation ofvalue-manwithin the legal system.The crisis of parliamentary law expresses, moreover, the Italian State transformation from State

legislative law to the constitutional State. With it, not only introduces a rigid Constitution containing theprinciples which must inspire the legislation, but profoundly changes the role attributed to the law. It is nolonger mistress of the law. This is the product of society more than the State: "the legislature must resignthemselves to see its laws treated as ' the parties ' law, not as ' all right ' (). The right is not subject toownership of a ma must be the subject of treatment of many() "79. Contrario, the legislation arises notas implementation of a closed system of the principles contained in the Charter, but as a function (normative)implementation of the social and historical dynamics, not an alleged voluntas legisabstract and defined apriori. The constitutional rank of certain principles and values, thus, harmonizes with the pluralism ofdifferent socio-cultural options that history has continuously, and that ordinary legislation requires you to

implement: "think otherwise not only represents a manifestation of power delirium of Jurists but alsoconstitutes a risk of suffocation ' holistic ' policy for legal saturation. The Constitution would be put againstdemocracy "80. If the law is no longer , mistress a fortiori is not the Constitution, which indicates a(limited) series of principles and values which must inform the complexity of the sort. To actualize theseprinciples, the legislation is neither "servant" of the Constitution or "Mistress" of the right: it one representsTools, which require a constant listening to the complexity of the socio-historical necessity81.77G. z.AGREBELSKY, the right mite, op. cit., 47. On the plurality of legal systemsrefer mainlyANTI S ROMANI, the legalsystem. Studies on the concept, sources andright characters, Pisa (Spoerri), 1918, p. BISCARETTI ofRUFFIA(ed.), The legaldoctrines of today and the teaching of the Holy Roman , Milan, 1977.78SeeL. CIMELLARO,Deregulation and deregulation, cited above., 99.79G. z.AGREBELSKY, the right mite, 212-213. For others, this passage of hands by the legislature to the judges was "outside the

intent and even predictions of the authors of today's Constitutions"(, op. cit. ult, 208): that the process has customary nature?In this context, the practice appears the appropriate source of law alongside and integrate the law in his

moment of transition related to the loss of State sovereignty. It also, for expressing the will of thecommunity, to be objectionable and despite the difficulties in its assessment in concreto, it seems the sourcethat best adapts to transpose the constant socio-cultural developments, since opera without institutionaldiaphragms, deceiving, sometimes the true will of the community.

5.3. Follows:the relationship between law and society

The crisis of the State and its traditional sources should lead torethinkthe role of the judiciary (as thebody) and law (as assets). They are strictly legalistic criteria transformation on the basis of which the judgestraditionally operate. The law seeks a new balance, that combines respect rule oflegislative truth and justice

aspiration of single case: "the relationship of tension between case and inevitably introduces an element ruleof equity in the life of the law (...) After the legal positivism had purported to remove all traces in the nameof the absolute value of any of coated provided will legislative form "82. So, if fairness resurfaces inpronunciations of the judges, there don't seem to recognize the contraindications substantial in practice amajor new function in the system of sources, in order to constantly adapt the regulatory system to the needsand values of society.80G. z.AGREBELSKY,, op. cit. ult, 210-211.81For G. ZAGREBELSKY,op. cit. ult, 213, next tolawappear todayrights(regardless of their legislative recognition) andthejustice.Of harmonious coexistence of the three factors make guarantors judges.

What causes it to reflect on the themede quais the lack of correspondence between the new values thatyou are asserting and the resistance of the legal and organisational structures anchored to a nineteenthcentury conception of the relations between State and citizen: "the double character of judicial activity,

including cases and rules, should lead to wonderIf you do not appear in General incoherence state

management of a lawthat is no longer just the will of the State and if you don't have to put in deeptransformations resulting organizational shipyard " 83 (italics mine). In , connecting -communityjudicialactivity, and therefore the necessity that the judge is "civil society organ rather than the organ of the State


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manifested today all his Valence: the manifest when civil society becomes global society, of which the judgeshows the propensity to be organ"84. Also various civic movements who fight inthe name of a "justice right"express the requirement that the judicial task is not (only) to the mechanical application of a rule, but rather,spokesman face values and feelings of Justice in the national community. So understood, an expressionwhich the banal sprawl"justice right" could express the contradiction of our time, in which judicial activity

has diverged to such an extent by the feeling of Justice, by expressing values associated solely abstractsubjects such as the status or the legal system rather than a concrete and sovereign community. On the otherhand, in administrative law, regulatory reforms and jurisprudential arrests from the 1990s onwards areemblematic of the trend of rapprochement ofprinciples administrative discipline of private law (think ofthe public sector or whether legitimate interests recognised), subtracting some administrative areas to speciallaw rules.82G. z.AGREBELSKY,, op. cit. ult, 204.83G. z.AGREBELSKY,, op. cit. ult, 206. For others, these transformations "are necessary to reduce the distance that separates theextraordinary depth and creativity of today's judicial function and the organization responsible for it, originally intended for apublic body employees whose most popular character was social apathy and the habit to hide their decisions behind abureaucratic ' eng ' lex ' .84The reference to the role of the Court according to the Hegelian thought is made by f. g. ALGANO, vocalsLex mercatoria,inEnc. dir., Update, vol. 5th, Milano, 2001, 721 et seq., 727.

Statement of legal principles variously affected by prevailing social values in a specific historicalcontext-environmental and, therefore, in interpreting "open" data to the law, according to the valuesextrapolated from society, is a principle already accepted in positive law: general clauses are present not onlyin administrative law (think of the concept of cultural or vires) and civilian ( diligence)but also in otherbranches of law, as a constant for the entire legal system. In particular, In criminal law, according to art. 62,no. 1, no. pen., in the concrete assessment of the sentence, the judge is called masterfully where the offenderacted for particular reasons moral or social value. Attenuating the de qua is granted only where the Courtrecognizes present those reasons social or moral in the prevailing social conscience 85. In criminal law, animplicit reference to customs and dominant values in society is apparent in the reference open classesmorality,public decency, obscene etc. They are concepts from mobile limits precisely because they changeover time, with the change of individuals and of generations, but also of ideas, feelings and culture of the

people86

. This is one of many cases where sorting refers implicitly to the conscience of the community todefine certain legal effects; It shows, in to in orderof, recognizing the Community citizens the originalfunction of determination of choices that affect social life87.85Ex pluribus, v. Cass. pen., sez. I, March 11, 1995, n (2386.Edcin, RV. 200467). In particular, according to Cass. pen., sez.I, February 22, 1990, n (2501. Ced, RV. 183422), moral or social values must correspond to objectives, criteria, principlesthat unconditional approval of the company produced that acts who holds the criminal conduct. Significantly, on the basis ofthese premises, c. Cass. No. 2501/1990 said on the subject of euthanasia debates that still exist on his shareability aresymptomatic of the lack of an overall positive appreciation, indeed a large part in contemporary Italian society; This excludesrecurring general positive evaluation from an ethical-moral conditioning the qualifying reason as ' particular moral or socialvalue ' "(principle stated in relation to the murder committed to alleviate the suffering of the sick).86For all, see these terms c. Cass., April 30, 1980Caps, inArch. pen., 1983, 102 et seq., with note by d. SPIRITO,Evolution andinvolution of the jurisprudence on the subject of public decency; Pret. November 3, 1993 Rome, Calzoletti and other,in Giur. it., 1994, II, 850 and ss.

Sometimes, influence the evolution of social conscience exercises judicial activity is explicit, andirrespective of appeal contained in the clauses. In one case law concerning the crime of ill-treatment in thefamily (art. 570, criminal code), the Supreme Court has expressly place among the foundations of theirmotivation "a significant and relevant developments in the social consciousness and therefore theinstitution legal family"88. Just musing on the evolution of social consciousness and the change of theoverall law on family, the Supreme Court concluded that the legal asset protected by art. 570 c.p. is notconstituted by the family itself but by individual family relationships that develop within the differentfamilies gradually developed over the years (family founded on marriage, family, in fact, etc.). Regardless ofthe specific content and shareability of the decision, the ruling is significant link between values and trends(predominantly) present in society and law judicial application89.87The call toreputationas integrative element of knowledge of the judge, often operated by jurisprudence, represents anadditional mode of "inform-ing" between theenvironmentandenvironmentjudicial. It is a way through which knowledge ofintegrating collectivity. Alsonatural bondrepresents, in certain respects, a way through which recognizes legal relevancesorting to social facts. It is a report (by definition) non-legal, which sorting, however, recognizes limited protectionsolutes retentio; the uniqueness of the performance (art. 2034 c.c.) represents a legal effect granted by law in relation to the


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excellence of the cause of the bond itself, apparent in the reason moral or .In general, the value of reputation, especially withregard to profiles of the proceedings,seeessay by c. AEONL, Contribution to the study of the experience and well-known facts ,Bari, 1951.88C. Cass., sez. VI, October 29, 2002, no published 36070. ex pluribus, inDir and giust., November 16, 2002, no. 40, 27-28, with observations of m. s.COCA,Obligations of care, the family protection law, not the family itself.89The decision conforms to progressiveatomizationof the family and the only model of pulverization institution implicitly

approved by the legislature family of 1930. In this sense, the judgment of c. Cass. No. 36070/02 is faithful expression ofcontemporary society; It is clear, however, that this does not mean pandering on individual conclusions which it reaches, as itcan (and should) always be discussed about the opportunity to approve or criticize similar ethical guidelines objectivelypresent so majority in society. Indeed, that that means support is the need every legal model born is mainly in the socialand cultural, to later discussions and dialectical confrontations, only to be institutionalised in statutory law.

"The evolution of social conscience", to use the expression of the Supreme Court, constitutes a givenlimit the interpretation of the rules, that far from being immutable,Livetogether with the company that mustadjust. That is why, not being an abstract retraceable voluntas legis, the contents of a rule implementingshould be researched through the reference and the constant link with the national community. Thesecomments introduce the widespread problem of whether judicial decisions may or less regardless of real andprevalent of feel consciousness collective90.

As said until now, you can tell that the question should be answered in the negative in the sense that they

can put aside: mind the fact that all justice, ordinary and administrative, is administeredin the name of theItalian people(article 101, paragraph 1, Cost), and notrightor, still less, theState. The law, rather thanrepresent the altar before which sacrifice the story of each (judiciary), to because of rationalityincomprehensible distant from the interests of citizens, should constitute a mere tool to administer a Justicealways refer to the Italian people to his will, and its real values as you determine historically91. And thisapplies to ordinary justice and the Administration, safeguarding, for this, the peculiarities of theadministrative system, substantive and procedural92. It explains the of opinion authoritative (Mortati) caselaw interpretations also admits "in contrast with the constitutional text (always within the limits imposed bythe form of State), in order to" adapt to the changed rules socio-political reality ", even in the presence ofcustomspraeterand contra constitutionem.In this case, the Court should declare not only the validity of lawsconform to them, but also the invalidity of those at odds with the same "93.90The question is justified considering the influence the community exerts on substantive customary norm through the open

clauses laidsupra. It is clear that the issue does not can only be touchedonly in this study.91In contrast, in the administration of Justice, the law isfoldto hear of people, doing their values depend on the decision of thecase, in whole or in part, for example, when adopted in various branches of the "open" clauses: think in administrative law, theconcept of "value of testimony concerning" civilization, with reference to the cultural heritage,exLegislative Decree No.490/99; in criminal law, the cited concepts pregiuridici of "morality", "moral", "honour"; in civil law, the "tolerance", "goodfaith" or, finally, the "good father". The Supreme Court claimed jurisdiction to review the content of such elasticstandards, whose repetition makes sense for the nomofilachia function carried out by this Court, the setting of an interpretiveprinciple. In this way is enlarged the jurisdiction of the Court's syndicate to every aspect of the "living law", i.e. any ru le oflaw binding on the judge and susceptible of application not limited to the case: v. c. Cass. January 18, 1999, no. 434 and Cass.

October 22, 1998, n. , both in 10514 Hole it., 1999, I, 1891, with notes by e. FABIANIand m. d.ANDCRISTOFARO; C. Cass.April 13, 1999, n , 3645.Hole it., 1999, 3558, with note by e. FABIANI. On , v.ampliusM. Bwhere, The review by the Courtof Cassation, Milano, 1993, 102 et seq. and 117 et seq. In particular, on the concept of prudent and his family progressive"no use", i.e. the risk that this category fall into ruin, cfr.P. f.ORCHIELLI,Defend the good father, inRev. trim. dir. Civ. proc.,1989, 531 and ss.92Without configure the magistrate as apriestof humours of the community, it is assumed that the legal activities, typically andparticularly judicial are as natural and impassable limit theman, with its needs and aspirations of Justice, which will determineand they get into the environment in which the judicial power. Otherwise, the pattern of AWE to abstract right, we risklegitimate legal constructions aberrant. Paradoxically, the narrow application of the law written "would seem to diminishrather than increase legal certainty. It seems to me that in most cases in which decisions of the judges have surprised thepublic, and have gone against the general expectations, this happened because the judge felt that relate exclusively to thewritten law, and dared not deviate from the result of a syllogism in which only the explicit legal premises "( , f.a.VONHAYEK,Rules and order, inLaw, legislation and liberty, 147).As you can't renounce to apply formulas to the right, these must have as an end and the limitman, which must be kept in mindat every moment of reflection. Only thus could be avoided to produce standardsperfectrationally, but concretelyunjust: " we lawyers, and therefore also the judges that are first of all technical experts, legal abuse of logic: even in thefield of justice we have inherited () the tendency of systematic architectures: manufacture castles of concepts to give youdecent accommodation to justice, , and we do not notice that gradually turn into prisons barred from which it was nolonger able to break free "(p. CALAMANDREI, the function of law in present time, legal Works, op. cit., vol. I, 605) (emphasis


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mine). In other words, the strict observance of the written law to follow letterthe rather than the spirit, and to confuse theuniverse ofright(written and customary, State and popular) with the small antechamber of law (normally exclusively anti-Marxist). On the contrary, the Court should rely on principles "still rigid verbally [...] even when those rules contained in thecode come to a solution is not ambiguous, but this solution is contrary to the general sentiment of Justice ". In this case, the

Court shall be free to change their opinion if it finds some unwritten rule that warranted "( , f. a.VONHAYEK,Rules and order,147-148). This is because "the judge not only can but must seek the answer, rather than in law, in his conscience. The

judgment comes out directly from the law: vien outside the conscience of the judge, stimulated by various psychologicalreasons, among them the law constitutes the most important reason, but not the only " (p.ALAMANDREIC,, op. cit. ult, 606).Identity of views are expressed alsoby g.AGREBELSKYZ,, op. cit. ult, 181: "The law, then, must be placed at the service oftwo masters: law and r

contribution to the study of non-written sources

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