RICERCA ITALIANA     

Administrative law science in Italy in the second half of the twentieth century

Università degli Studi Roma Tre

Abstract

Legal science rarely thinks through itself. Administrative law has been seldom reconstructed in an organic way, never in the last thirty years. The aim of the research is to analyse, from different points of view, administrative law in Italy in the second half of the twentieth century, to verify its health, together with the heath of its juridical science, and to assess how administrative law is changing as concern the methods. In particular, the analysis is developed in four main directions. The first one is aimed to analyse scholars and schools of administrative law. The second one deals with the methods and forms by which the italian administrative law science made comparisons with foreign systems and found inspiration from them. The third one concerns the methods and forms by which administrative law science looked at the other branches of law (civil law, constitutional law, international law, european law). Finally, the fourth one regards the evolution of techniques and methods of study of administrative law. <<<

Principal Investigator

Luisa TORCHIA Università degli Studi ROMA TRE

Research Objectives

This research might be useful due to the lack of complete studies about administrative law science, in particular about the contributions of administrative law science in the last fifty years.
The main purpose of the research is to fill this lack by analizing under various points of view the italian administrative law science in the second half of the twentieth century.

The analysis is developed in four main directions. The first one is aimed to analyse scholars and schools of administrative law. The second one deals with the methods and forms by which the italian administrative law science made comparisons with foreign systems and found inspiration from them. The third one concerns the forms by which the administrative law science looked at the other branches of law. Finally, the fourth one regards the evolution of the techniques and methods of study of administrative law.

1) Concerning the administrative law scholars, the research aims at:
A) Firstly, to reconstruct a kind of genealogical tree of administrative law science, starting from the origin, but focusing on the last period. This will be helpful to reach two more objects: on one hand, to verify which role did administrative law scholars play in the social contest (scholars, lawyers, politicians, etc) and how did it develop in comparison with the past; on the other hand, to register the connections within the schools and/or the cultural inheritances between masters and pupils, so that it will be possible to evaluate if we can assert the existence of real schools of administrative law in the past decades.
B) Secondly, to examin personality and important contributions of the most significant administrative law authors of that period. Only in the last five years the role of important authors – they are all part of the generation grown during the second world war – has been studied: Massimo Severo Giannini, Feliciano Benvenuti, Giovanni Miele, Mario Nigro, Aldo M. Sandulli. It has not been evidenced yet the contributions of authors grown in the Sixties and Seventies, such as Sabino Cassese, Fabio Merusi, Umberto Pototschnig; and analyses about authors grown from the late Seventies until nowadays are almost absent.

2) Concerning the use of legal comparison by the science of administrative law, the research examines, also in a diachronic analysis, how did scholars of administrative law look farther national boundaries and which were the most important inspirations for their publications (handbook, monographies, articles). These perspectives have been influenced by Anglo-Saxon systems and European Law.
In particular, in the second half of the twentieth century there has been an increasing interest in the american and british model, whereas before the attention was concentrated on the french and german model. This development produced relevant consequences, in terms of circulation of ideas and interpretation categories, principles and institutes.
It could be useful to analyse the contribution of legal science to the evolution of administrative law through legal comparison, and how did legal science influence the transformation of administrative law through the spreading of new ideas and interpretation categories as well as the transposition in our system of principles and categories from foreign systems.

3) As far as it concerns the connections between administrative law science and other branches of law, the analysis will focus on four issues:
A) The evolution of scholars' perspective on the relationship between administrative law and private law, through i- the analysis of the main interpretation of scholars about the evolution of the relationship between public and private; ii- the consequential influence of these interpretations on the traditional paradigma "authority-freedom".
B) The evolution of scholars' perspective on the relationship between administrative law and constitutional law, focusing on the following development process: from a clear distinction between those two branches of public law in the fifties and sixties of the past Century, to the interconnections of nowadays.
C) The evolution of scholars' perspective on the relationship between administrative law and international law. we will discuss the reasons of the delay of legal science in recognizing the existence itself of an international administration, of an international administrative law and of the capacity of the latter to operate as a global discipline of domestic administrative law. The possible perspectives of development of legal science in relation to the evolutions of administrative law beyond the State will be discussed.
D) The fourth part will be dedicated to the developments of administrative law science on the issue of the relationship between administrative law and European law, here considered as a specific and autonomous evolution of international public law, having a strictly "supranational" character. In particular, the attempt will be made to verify in which historical moment and for which reasons administrative law science has become interested in the events of the European legal order and has started to assess their specifically administrative implications.

4) Finally, as regards the instruments, techniques and methods of studying administrative law, it is about to examine how the study of administrative law have been modifying and transforming in respect with the previous period.
A) On the one hand, it is important to verify a) in which way the method of writing handbooks, monographs, articles has been changing; b) how were reviews and case law analysis used; c) how the role of law reviews has been transformed. The reasoning on the instruments has consequences even on the method, because it helps the researcher in order to find out if an abstract study (i.e. a study of general theory) is privileged or, on the contrary, if the analysis of the practical administrative phenomenon prevails
B) The analysis concerning different techniques and methods of studying administrative law is divided in two directions.
First, the aim proposed is to value in which way social, historical, economic and political sciences are considered in administrative works and what sort of influence do they have in order to make this branch of law evolve.
Second, the research tends to highlight the changes occurred in administrative law and in its science in the last decades.
The articulated ramification of the research calls for powerful effort both to the collection of documents, data and materials and, especially, under the legal and historical reflection profile.
The complexity of the project justifies the request of such considerable economic resources and the development of inter-academic approach. <<<

Timescale

12 months

National and international background

The scientific basis for the study of the reflection carried out in the second half of the 20th century by the Italian science of administrative law is provided by three orders of general contributions.
There are, first of all, a number of historical studies of public administration and administrative law, written by historians or specialists of history of law. This is the case, besides the works by G. Cianferotti on the construction of the public law scientific paradigm (see, in particular, Il pensiero di V.E. Orlando e la giuspubblicistica italiana, Milano, Giuffrè, 1980, and Storia della letteratura amministrativistica italiana. I. Dall'Unità alla fine dell'Ottocento. Autonomie locali. Amministrazione e costituzione, Milano, Giuffrè, 1998), of G. Melis' Storia dell'amministrazione italiana, Bologna, Il Mulino, 1996 (see also La storia del diritto amministrativo, in S. Cassese (ed.), Trattato di diritto amministrativo, Milano, Giuffrè, II ed., 2003, Diritto amministrativo generale, vol. I, 95 ss.) as well as of the study by L. Mannori and B. Sordi, Storia del diritto amministrativo, Bari-Roma, Laterza, 2001. Such works, though in different perspectives, are based on the premise of the strong influence exercised by legal science on the elaboration of Italian administrative law. Moreover, they provide useful insights and historical assessments of the development not only of administrative law, but also of its legal science, although the focus is more on the founding phase than on recent past.
Secondly, remarkable indications are provided by more general studies, aimed at situating the reflection of administrative law science within the broader context of the Italian legal culture. Among these studies, the following volumes should be mentioned: Stato e cultura giuridica in Italia dall'unità alla repubblica, a cura di A. Schiavone, Bari, Laterza, 1990 (see, in particular, the essays by M. Fioravanti, Costituzione, amministrazione e trasformazioni dello Stato, 3 ss., and P. Costa, La giuspubblicistica dell'Italia unita: il paradigma disciplinare, 89 ss.); L. Ferrajoli, La cultura giuridica nell'Italia del Novecento, Bari, Laterza, 1999; and the overall synthesis by P. Grossi, Scienza giuridica italiana. Un profilo storico. 1860-1950, Milano, Giuffrè, 2000. These are important researches, which allow to appreciate at different levels not only the relationships linking the various disciplines of legal thought, but also the relationships among legal science as a whole and other sectors of the Italian culture. Yet, even in this case, we can register a prevalence of works dedicated to less recent events of the legal order (from unification to the birth and consolidation of the Republic).
A third group of studies is composed by the contributions elaborated by administrative law science itself. Scholars of administrative law often engage themselves in historical assessments on specific issues or institutes. But this is mainly functional to the critique of traditional reconstructions and to the their revision in the light of legal developments. The attention is therefore oriented to the combination of positive law and scientific interpretation, while critical reflection on the specific contribution provided by legal science and on its evolution are left in shadow. As for overall studies on administrative law science, they are quite a few. As a matter of fact, the science of administrative law has accurately reflected on itself only in the first decades of the period we take into consideration (the second half of 20th century). This is the case, in particular, of the study of F. Benvenuti, Gli studi di diritto amministrativo, in Arch. Isap, I, Milano, Giuffrè, 1962, 1239 ss.; of S. Cassese's Cultura e politica del diritto amministrativo, Bologna, Il Mulino, 1971, which represents under many respects a true watershed in the historical inquiry on administrative law; and of M.S. Giannini's balance in Diritto amministrativo, in Cinquanta anni di esperienza giuridica in Italia, Milano, 1982, 364 ss. The discussion has been re-opened only in recent times, on initiative of Sabino Cassese, who has edited the issue n. 4/2001 of the Rivista trimestrale di diritto pubblico, devoted to evaluating the developments of Italian public law in the second half of the 20th century (also published as S. Cassese (ed.), Il diritto pubblico nella seconda metà del XX secolo, Milano, Giuffrè, 2002). Among the essays which are published in the mentioned issue of the Rivista trimestrale di diritto pubblico, the following are of particular importance for the proposed research: L. Torchia, La scienza del diritto amministrativo, 1105 ss., M. Giannetto, Gli studiosi di diritto amministrativo (1951-1975), 1155 ss., G. Tosatti, Gli studiosi di diritto amministrativo (1976-2000), 1187 ss., M. D'Alberti, Gli studi di diritto amministrativo: continuità e cesure fra primo e secondo novecento, 1293 ss.). Although with different degrees of analysis and taking inevitably differing perspectives, all these essays are aimed at reconstructing the operations on which the science of administrative law has engaged in the last 50 years and at identifying the elements of continuity and innovation in the process of its evolution. <<<