Issue N.1 of 2017 January / March

Articles

  • Alessandro Pajno Benvenuti and the future Abstract

    Abstract

    The article aims to analyse the significance of Feliciano Benvenuti’s thinking and teaching to the present times. The author believes that Benve- nuti’s thinking has driven several recent changes to administrative law. This is clear if one considers the evolution of the relationship between administrative law and the State, and between such law and the Constitution; the role of regional and local authorities; and the relationship between the administration and society at large. The core of Benvenuti’s thinking is the relationship with the Constitution, on one hand, and with society, on the other. Benvenuti imparted important teachings on how to study the “science of law”. For these reasons, it can be said that Benvenuti related not only to his present times but also to his future, a future that he – with his scholarship – has contributed to build.

  • Daria de Pretis Benvenuti and the Constitution Abstract

    Abstract

    In the work of Feliciano Benvenuti, the Constitution is not only the object of specific study, but the very warp of the fabric of his vision of administrative law. The Constitution is also the paradigm of his idea of the law, which is not formalistic but rather experiential. The law is a product of social organization; it has factual and programmatic contents; it is implemented not only by command but by means of a dialogue between the institutions

    and citizens; and it is open to all interpretations possible. This is the context within which the concepts of freedom, autonomy and «subsidiarity» took root. Freedom is not only guaranteed, but also «active». Autonomy is the program of self-government that unifies people, institutions and society. Finally, the duty of solidarity is a limitation upon individual freedom that consists in more than the mere interest represented by the public authority.

  • Giacinto della Cananea Benvenuti and the Europe Abstract

    Abstract

    The article deals with Feliciano Benvenuti’s visionary contribution to the interpretation of European integration. The paper traces Benvenuti’s intellectual journey to overcome the traditional mindset relating, on one hand, to the conception of the State and, on the other, to the emergence of a supranational form of administration. The enquiry leads to two separate conclusions. Generally, in the second half of the twentieth century, there was a non-unidirectional development of the science of administrative law, in which several different evolutionary paths cohabited. At a more specific level, European legal integration was based both on the development of a Community law having its own peculiar characteristics, on the one hand, and the identification of a common substrate to the Member States’ legal systems on the other.

  • Gregorio Arena Administration and Society. The «New Citizen» Abstract

    Abstract

    Horizontal subsidiarity is potentially a very rich principle, as recognized by Article 118 of the Italian Constitution. However, such wealth would be wasted if there were no tools to «translate» its potential into practical effects on the daily workings of our administrative bodies, particularly at the local level. However, fortunately, such tools do exist. The first is «shared administration», an organizational model that was first theorized twenty years ago. The second is a model of local regulation that has been adopted by several Italian municipalities to govern the relationship between active citizens and local administrative bodies through so-called «collaboration deals».

  • Enzo Balboni For the Democracy of Administration: a Body of Thought Running Throughout an Entire Life Abstract

    Abstract

    A common thread runs throughout the various but tight-knitted fabric of Benvenuti’s legal scholarship: the citizen, with his/her rights, and the admini- stration, as an authority, must «fight» on equal terms. The Italian Constitution provides local authorities with value and powers, particularly at the regional level; however, today, the reality of the Regions is somewhat unsatisfactory. Finally: a citizen who is also a democratic Catholic must have and display a deep sense of sound laity.

  • Umberto Allegretti Benvenuti and the Potentiality of Utopian Realism Abstract

    Abstract

    This brief essay examines Feliciano Benvenuti as a man, a researcher and a teacher endowed with multiple human and cultural qualities, and concludes by defining his personality in terms of «utopian realism».

  • Fulvio Cortese Public Organization and the Scope of Local Government in Benvenuti’s View of Administrative Law Abstract

    Abstract

    The article aims to provide a comprehensive overview of Benvenuti’s scholarship, focusing on the central role of the organizational perspective and on the theoretical background of regional and local government design. In particular, the author aims to demonstrate that the organizational aspect is crucial in Benvenuti’s view of administrative law, due to its connections with the identity of any legal order. On this basis, Benvenuti was able to build a complex «republican» conception of Italian administrative law.

  • Luca R. Perfetti The Administrative Action between Freedom and Function Abstract

    Abstract

    On the centenary of Feliciano Benvenuti’s birth, this article analyses his legal scholarship on administrative activity. The article is divided into three parts. The first examines the paradigms of Benvenuti’s thinking, represented principally by personal freedom, a central concept that reverses the traditional idea of the connection between freedom and authority; the republican Con- stitution, which defines the purpose of administrative activity and changes the position of the administration, as well as the interconnections between per- sons, society and authority; and the legal system and normativism. The second part analyses the essential elements of the jurist’s theory on administrative activity: the theory of function, the administration based on the principles of equality, objectivity and participation, and the theory of administrative acts. In this analysis, the author takes into account both the general theoretical background and the historical-social context, identifying the main characteristics of each element. Finally, the third part describes the innovative features of Benvenuti’s theory on administrative activity, analysing the elements that remain to this day and those that, instead, have displayed transience.

  • Giorgio Pastori The Teaching of a Master Abstract

    Abstract

    The author outlines the main features of the scholarship of Feliciano Benvenuti that have particularly contributed to the development of Italian administrative law, in accordance with the constitutional principles of the new democratic system.

  • Aldo Sandulli Benvenuti and the New Dams in Law Abstract

    Abstract

    Feliciano Benvenuti made a significant contribution towards the new role of jurists in the second half of the twentieth century. His scholarly path was guided by the idea of democratic reform, which was necessary to implement the republican Constitution (i.e. to look to the past to build new limits safeguarding individual and collective freedoms). Having posited that individual freedom is the value to be safeguarded, the key concepts of his scholarly contribution were those of function, legal order, community, autonomy and participation. The article aims to identify the three main directions of Ben- venuti’s thought: the first regards the general theory of law and legal metho- dology, and, in particular, the notion of law and the role of the jurist; the second, that would once have been defined as the theory of the State (staatslehre), analyses the studies on the deconstruction of the State and the emergence of European law, on the one hand, and regional autonomy, on the other; the third, concerning administrative law more properly, sets the notion of «function» at the core of the system and is based on the equal and participatory role played by citizens in the administrative procedure and process.

Reviews

  • Ferdinando Venturini The Judges Elected to the Italian Parliament, 1861-2013: Data and Methodology Abstract

    Abstract

    The purpose of this article is to present the names of and summary statistics relating to the judges elected to Parliament from 1861 until the elections of 2013. The ordinary judges in office, former judges and the administrative judiciary were taken into consideration. Together with the data, methodological issues that a research of this kind brings to the fore are discussed with reference, in particular, to parliamentary sources.

  • Francesca Leotta The Remediation of Polluted Sites and the Disputed Status of Public Service Abstract

    Abstract

    The remediation of contaminated sites is one of the most complex activities in environmental protection, from both a technical and a regulatory point of view. After episodic legislative intervention in the 1980s and 1990s, the provisions of the «Ronchi» decree (Legislative Decree no. 22/1997) and of the «Environmental Code» (Legislative Decree no. 152/2006) were issued, which outlined highly detailed administrative procedures to organically regulate remediation activities carried out in «ordinary sites» and in «national interest sites» (siti di interesse nazionale, or SIN). Among the problems that have arisen during the implementation of those rules, including in courts, the issue of the legal nature of the clearance operations is particularly worthy of attention. Indeed, in some judgments of the administrative courts, such operations have been qualified as public services «in an objective sense».

Bibliographic review

FULVIO CORTESE: Luigi Lacchè on History & Constitution. Developments in European Constitutionalism: the Comparative Experience of Italy, France, Switzerland and Belgium (19th – 20th centuries)

FILIPPO MARIA LONGHI: Nicola Lupo and Cristina Fasone on Interparliamentary Cooperation in the Composite European Constitution

ELENA BUOSO: Luca De Lucia and Ferdinand Wollenschläger on State and Democracy

GIUSEPPE SCIASCIA: Concetta Brescia Morra on Banking Law

ALDO SANDULLI: Angelo Lalli on Public Goods

RITA PEREZ: Graziana Urbano on Budget Balance and Health Governance

Brief reviews by Sabino Cassese, Fabrizio Di Mascio, Elisabetta Morlino, Rita Perez, Gianluca Sgueo, Giulio Vesperini

News

A Conference in Honour of Luciano Vandelli (Claudia Tubertini)

A Italian-Chinese Conference on Environmental Law (M. A.)

The Reduction of Trade Barriers between Israel and Palestine: the Peres Center for Peace Report (Giorgio Mocavini)

National Systems and European Law: an Italian-Spanish Seminar at The University of Rome «Roma Tre» (Francesca Di Lascio)

A Conference on Integrated Water Services (Federico Caporale)
A Conference on Institutions, Territory and Rules of Smart Cities (Elisabetta

Tatì)
The San Martino Group Annual Seminar (Hilde Caroli Casavola) The 62nd Conference of Administrative Studies (G. P. C.)